Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 14–15

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)................................................................................. 26–27

American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111
(1st Cir. 1998).............................................................. 31

Boaz v. FedEx Customer Information Services, Inc., 725 F.3d
603 (6th Cir. 2013)............................................... 26–27

Burlington Northern & Santa Fe Railway Co. v. White,
548 U.S. 53 (2006)....................................................... 30

Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 522
(6th Cir. 1975)............................................................. 23

EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981)............................................................... 16–17, 21

EEOC v. Astra U.S.A., Inc., 94 F.3d 738 (1st Cir. 1996).............................................................................. 33

EEOC v. Board of Governors of State Colleges & Universities,
957 F.2d 424 (7th Cir. 1992)..................................... 32

EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988)............................................................ 8–9, 34

EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir. 1987)................................................................................. 32–33

EEOC v. Dolgencorp, LLC, ___ F.3d ___, No 17-6278,
2018 WL 3734283 (6th Cir. Aug. 7, 2018).............. 10

EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448
(6th Cir. 1999)............................................................. 28

EEOC v. Shell Oil Co., 466 U.S. 54 (1984)........... 15, 30

EEOC v. Sundance Rehabilitation Corp., 466 F.3d 490
(6th Cir. 2006)............................................................. 31

EEOC v. Techalloy Maryland, Inc., 894 F.2d 676 (4th Cir. 1990)...................................................................... 13

EEOC v. W.H. Braum, Inc., 347 F.3d 1192 (10th Cir. 2003).............................................................................. 23

Franks v. Bowman Transportation Co., 424 U.S. 747 (1976)............................................................................ 15

Fritz v. FinancialEdge Community Credit Union,
835 F. Supp. 2d 377 (E.D. Mich. 2011)............. 20, 24

General Telephone Co. of the Northwest, Inc., v. EEOC,
446 U.S. 318 (1980).............................................. 29–30

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)............................................................................ 27

Griffin v. City of Dallas, 26 F.3d 610 (5th Cir. 1994)................................................................................. 12–13

Heimeshoff v. Hartford Life & Accident Insurance Co.,
571 U.S. 99 (2013)....................................................... 22

Johnson v. DaimlerChrysler Corp.,
No. 02-cv-69, 2003 WL 1089394 (D. Del. Mar. 6, 2003).............................................................................. 24

Johnson v. DaimlerChrysler Corp., No. 02-cv-69,
2003 WL 1089394 (D. Del. Mar. 6, 2003)............... 24

Mazurkiewicz v. Clayton Homes, Inc., 971 F. Supp. 2d 682
(S.D. Tex. 2013).................................................... 20, 24

Mohasco Corp. v. Silver, 447 U.S. 807 (1980)............. 11

Myers v. Western-Southern Life Insurance Co., 849 F.2d 259
(6th Cir. 1988)............................................................. 26

Nichols v. Muskingum College, 318 F.3d 674 (6th Cir. 2003)....................................................................... 34–35

Njang v. Whitestone Group, 187 F. Supp. 3d 172 (D.D.C. 2016)......................................................... 19, 24

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977)................................................................................ passim

Royal Insurance Co. of America v. Orient Overseas Container Line Ltd., 525 F.3d 409 (6th Cir. 2008) 28

Schoneboom v. Michigan, 28 F. App’x 504 (6th Cir. 2002)......................................................................... 9–10

Taylor v. Western & Southern Life Insurance Co.,
966 F.2d 1188 (7th Cir. 1992)................................... 24

Tewksbury v. Ottaway Newspapers, 192 F.3d 322 (2d Cir. 1999)............................................................... 12–13

Thurman v. DaimlerChrysler, Inc., 397 F.3d 352 (6th Cir. 2004)............................................................... 25–26

Walker v. United Parcel Service, Inc., 240 F.3d 1268
(10th Cir. 2001)........................................................... 18

Statutes

Title VII of the Civil Rights Act of 1964

42 U.S.C. §§ 2000e et seq............................................. 1

42 U.S.C. § 2000e-5(b)......................................... 15–17

42 U.S.C. § 2000e-5(c)................................................ 12

42 U.S.C. § 2000e-5(e)..................................... 8–10, 12

42 U.S.C. § 2000e-5(f)...................................... 6, 16, 19

42 U.S.C. § 2000e-8(a)................................................ 15

42 U.S.C. § 1981........................................................ 24–25

Michigan Compiled Laws § 37.2202............................... 9

Michigan Compiled Laws § 37.2701............................... 9

Regulations and Rules

29 C.F.R. § 1601.13............................................................ 9

29 C.F.R. § 1601.13(a)(4)(iii)(A)..................................... 11

29 C.F.R. § 1601.28(a)(2)................................................ 19

29 C.F.R. § 1601.80............................................................ 9

Fed. R. App. P. 29(a)(2)..................................................... 2

Other

EEOC, “Enforcement Guidance on Non-Waivable Employee Rights Under Equal Employment Opportunity Commission (EEOC) Enforced Statutes” (Apr. 11, 1997)........................................... 32

Lilly Ledbetter Fair Pay Act of 2007, H.R. Rep. No. 110-237 (2007)............................................................. 34

Subcomm. on Labor, Senate Commmittee on Labor & Public Welfare, 92d Congress, Legislative History of the Equal Employment Opportunity Act of 1972 (Comm. Print 1972)............................................ passim

Worksharing Agreement Between the Michigan Department of Civil Rights and the U.S. Equal Employment Opportunity Commission for Fiscal Year 2013............................................................... 11–12

Statement of Interest

Congress directed the Equal Employment Opportunity Commission to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended, and the other federal laws prohibiting employment discrimination. This case raises important questions affecting the timeliness of the charges that employees and applicants file with the EEOC and the timeliness of the lawsuits they file in court.

The EEOC’s effective enforcement of Title VII depends, in significant part, on ensuring aggrieved individuals are able to file administrative charges of discrimination. The agency’s receipt and investigation of charges is the Commission’s primary means of accomplishing Congress’s mandate to enforce Title VII. See 42 U.S.C. § 2000e-5. Private enforcement actions are another key avenue for enforcing Title VII and the other federal anti-discrimination statutes. Viewed against this backdrop, the district court made two critical errors in this case: in ruling the plaintiff’s charge untimely and in enforcing the limitations period in the plaintiff’s employment contract. The Commission therefore offers its views to the Court. Fed. R. App. P. 29(a)(2).

Statement of the Issues[1]

1. Where the plaintiff filed a charge with the EEOC in Michigan 216 days after her resignation, did the district court err in ruling her charge untimely?

2. Did the district court err in holding that a six-month limitations period included in the plaintiff’s employment application should displace the integrated enforcement scheme established by Congress in Title VII?

Statement of the Case

Statement of the Facts

Barbrie Logan applied to work for the MGM Grand Denver Casino (“MGM”) on February 20, 2007. R-40-4 (Logan job application) at 641.[2] As part of the electronic application process, MGM required her to sign a “disclosure, release and authorization” that included a waiver of statutory limitations periods. R-40-5 (Greenwalt Aff.) at 648–49. It was impossible to complete the application without first electronically agreeing to the waiver, which stated:

I agree that any claim or lawsuit arising out of my employment with … MGM Grand … must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. While I understand that the statute of limitations for claims arising out of an employment action may be longer than six (6) months, I agree to be bound by the six (6) month period of limitations set forth herein, and I WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY.

R-40-4 at 641. MGM hired Logan for a culinary utility position on August 1, 2007. R-40-10 (Logan employment/disciplinary history) at 713.

On November 26, 2014, after various incidents she viewed as discriminatory, Logan told MGM she was resigning effective December 4th. R-40-8 (Logan resignation notice) at 706; R-40-2 (Logan Dep.) at 589–99. She filed a charge alleging sex discrimination and retaliation at the EEOC’s Detroit Field Office on July 8, 2015, 216 days after the effective date of her resignation. R-40-17 (Logan charge) at 779. In signing her charge, she asked the EEOC to file it also with the Michigan Department of Civil Rights (“MDCR”). Id. Logan received a right-to-sue letter from the EEOC in November 2015. R-51 (Magistrate Judge’s Report & Recommendation) at 1077. In February 2016, acting pro se, she sued the casino. R-1 (Logan complaint) at 1.

District Court Decisions

MGM moved for summary judgment, contending that Logan’s suit was barred by the six-month contractual limitations period. R-51 at 1070. The magistrate judge recommended that the district court grant summary judgment on the grounds that Title VII allowed Logan only 180 days to file her charge. R-51 at 1076–77. According to the magistrate judge, even though Michigan is a deferral state,[3] Logan could not benefit from Title VII’s 300-day filing rule because she had not first filed a complaint with the MDCR. R-51 at 1076–77 n.3.

The magistrate judge stated that if Logan had filed her charge within Title VII’s 180-day charge-filing period, the EEOC’s 180-day period of “exclusive jurisdiction” from Title VII would have equitably tolled the six-month contractual limitations period. R-51 at 1078–85. Under this tolling scheme, the contractual limitation period would resume running when the Commission’s exclusive jurisdiction ended, and a charging party would have to file her lawsuit within whatever portion of that six-month period remained, even if that was only two or three days. R-51 at 1080, 1081, 1084. But since Logan failed to file her charge within 180 days, the magistrate judge concluded that summary judgment was warranted on the ground that Logan had failed to exhaust her administrative remedies. R-51 at 1081, 1085–86.

Logan objected to the magistrate judge’s recommendation on various grounds, but did not mention the 300-day charge-filing period for individuals in Michigan or argue that it should have applied to her. R‑55 (Logan motion for reconsideration) at 1114–19. The district court understood the magistrate judge to have recommended summary judgment on the grounds that Logan’s claims were “barred by the six-month statute of limitations set forth in [the] pre-employment ‘Disclosure, Release, and Authorization’ Plaintiff completed as part of her online job application.” R-53 (order granting summary judgment) at 1106. After addressing and rejecting each of Logan’s relevant objections, the district court “conclude[d] that Magistrate Judge Patti correctly analyzed the legal issue of whether the six-month limitations period bars Plaintiff’s claims.” Id. at 1111. It therefore adopted the magistrate judge’s recommendations and granted summary judgment. Id.

Logan moved for reconsideration, arguing that since Michigan is a deferral state, she had 300 days in which to file her charge. R-55 (Logan motion for reconsideration), at 1117–18. The district court denied her motion on the grounds that she was entitled to 300 days only if she had first filed a complaint with the MDCR, and there was no evidence that she had done so. R-60 (order denying reconsideration), at 1139–41.

Summary of Argument

Both the magistrate judge and the district court had an incomplete understanding of the Title VII administrative process, which led them to make several errors in their analysis of this case. The district court erred in ruling that Logan’s administrative charge of discrimination was untimely because she failed to file it within 180 days. Logan filed her charge with the EEOC in Michigan, a deferral state with a 300-day charge-filing period under Title VII. According to the district court, the 300-day filing deadline did not govern Logan’s charge because she did not first file it with the MDCR prior to doing so with the EEOC. However, pursuant to Title VII’s implementing regulations and the governing worksharing agreement between the EEOC and the MDCR, Logan’s EEOC charge was automatically dual-filed with the MDCR when she filed it with the EEOC. Both the Supreme Court and this Court have recognized repeatedly over the years that this is how the charge-filing process operates in deferral states like Michigan, and this case is no exception.

The district court also erred in enforcing the six-month contractual limitation period that MGM required Logan to accept when she applied to work for the company. Congress provided in Title VII that employees and applicants have 300 days to file administrative charges in deferral states; when the EEOC has concluded processing the charge, they have ninety days after receiving the EEOC’s right-to-sue notice to file suit in court. Allowing employers to displace Congress’s judgment in Title VII by enforcing six-month contractual limitation periods—as to either charge-filing or suit-filing— would seriously impede the EEOC’s enforcement efforts. It would also significantly curtail the rights that Congress gave employees and applicants to seek the EEOC’s assistance and to sue in court to enforce the statute.

Argument

I. Logan filed her charge within 300 days in a deferral state, and her charge was therefore timely.

Before pursuing a Title VII claim in court, a plaintiff must file a timely charge with the EEOC. 42 U.S.C. § 2000e-5(f)(1), reproduced in the addendum at A-3–4. “As a general rule, a complainant must file a discrimination charge with the EEOC within 180 days of the occurrence of the alleged unlawful employment practice.” EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 110 (1988) (citing 42 U.S.C. § 2000e-5(e)). Subsection 706(e) of Title VII extends the charge-filing period from 180 to 300 days if three conditions are present: (1) the jurisdiction has “a State or local law prohibiting the unlawful employment practice alleged” in the charge; (2) the jurisdiction has “a State or local agency with authority to grant or seek relief from such practice”; and (3) the charging party has “initially instituted proceedings with [that] State or local agency.” 42 U.S.C. § 2000e-5(e)(1), at p. A-4; Commercial Office Prods., 486 U.S. at 110.

Jurisdictions that meet the criteria in (1) and (2) are referred to as “deferral jurisdictions” or “deferral states,” as appropriate. See generally 29 C.F.R. § 1601.13, at pp. A-6–9. As the magistrate judge in this case acknowledged, Michigan is a deferral state, as it was during fiscal year 2015, when Logan filed her charge. See 29 C.F.R. § 1601.80, at pp. A-9–14 (revised July 1, 2017) (listing the MDCR as a certified designated fair employment practices agency (“FEPA”)); id. (revised July 1, 2014) (same); id. (revised July 1, 2015) (same); see also Schoneboom v. Michigan, 28 F. App’x 504, 505 (6th Cir. 2002) (unpublished) (recognizing Michigan as a deferral state).[4]

Accordingly, Logan had 300 days to file her charge with the EEOC in Michigan, so long as condition (3) was also met—i.e., proceedings were “initially instituted” with the MDCR or an equivalent FEPA. 42 U.S.C. § 2000e-5(e)(1); see also EEOC v. Dolgencorp, LLC, ___ F.3d ___, No 17-6278, 2018 WL 3734283, at *2 (6th Cir. Aug. 7, 2018) (observing in Tennessee, a deferral jurisdiction, that “[f]iling a claim with the state or local agency extends the time for filing a claim with the Commission to 300 days”) (citing § 2000e-5(e)(1)); Schoneboom, 28 F. App’x at 505 (“In a deferral state such as Michigan, a charge of discriminatory conduct must be filed with the Equal Employment Opportunity Commission (EEOC) within 300 days after the alleged unlawful act occurs.”).

Here, the magistrate judge and the district court ruled that Logan presented no evidence that she had instituted an MDCR proceeding before she filed her charge at an EEOC office. R-51 at 1076–77 n.3; R-60 at 1141. Where both judges erred was in assuming that Logan was required to physically tender her charge to the MDCR first to have “initially instituted” proceedings there within the meaning of Title VII. By operation of Title VII’s implementing regulations and the worksharing agreement between the EEOC and the MDCR, Logan’s EEOC charge was automatically dual-filed with the MDCR when she filed it with the EEOC, and the 300-day filing period therefore governs her charge.

EEOC regulations state that when an aggrieved individual in a deferral state like Michigan files a charge with the EEOC, “the charge is deemed to be filed with the Commission upon receipt of the document. Such filing is timely if the charge is received within 300 days from the date of the alleged violation.” 29 C.F.R. § 1601.13(a)(4)(ii)(A), p. A-8. The charge is deemed filed “upon receipt” by the EEOC based on the worksharing agreement between the EEOC and the MDCR, which designates the EEOC as the MDCR’s agent to receive a charge and initiate proceedings on its behalf. “Worksharing Agreement Between the Michigan Department of Civil Rights and the U.S. Equal Employment Opportunity Commission for Fiscal Year 2013” (“2013 WSA”), ¶ II.A, attached in addendum, p. A-15; Extension for FY 2015, p. A-21. See also Mohasco Corp. v. Silver, 447 U.S. 807, 816 (1980) (“[I]n Love v. Pullman Co., 404 U.S. 522, 525 [(1972)], we held that ‘[n]othing in [Title VII] suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself ….’”); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 327–28 (2d Cir. 1999) (when charge is presented only to the EEOC after 180 days, it is deemed immediately and “initially” filed with the FEPA); Griffin v. City of Dallas, 26 F.3d 610, 612–13 (5th Cir. 1994) (same).

Title VII also provides that, in deferral states, no charge may be “filed” with the EEOC “before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.” 42 U.S.C. § 2000e-5(c), p. A-3. However, in Michigan, as in most deferral states, the worksharing agreement contains a separate provision waiving the MDCR’s sixty-day exclusive processing period for charges originally received by the EEOC, so that Logan’s charge was filed with the EEOC on day 216, rather than day 276. 2013 WSA, ¶ III.A.1, p. 16.

Thus, the charge Logan filed with the EEOC’s Detroit office met all three statutory criteria in 42 U.S.C. § 2000e-5(e)(1) for application of the 300-day filing period. Michigan has state laws prohibiting sex discrimination and retaliation, and the MDCR has the authority to grant or seek relief from these practices. See supra at p. 9, n.4. And Logan “initially instituted proceedings” with the MDCR on July 8, 2015, when the EEOC, acting as the MDCR’s agent pursuant to the worksharing agreement, received Logan’s charge as an MDCR complaint and instituted an MDCR proceeding. In accordance with the MDCR’s waiver of its exclusive-processing period in the worksharing agreement, Logan’s state proceeding was terminated that same day, and the EEOC immediately accepted her charge as an EEOC charge and opened an EEOC administrative proceeding. See Tewksbury, 192 F.3d at 327–28 (where the plaintiff presented his charge to the EEOC more than 180 days after the challenged employment action, without having first filed with the state agency, his charge was timely because of these transactions); Griffin, 26 F.3d at 612–14 (same); EEOC v. Techalloy Md., Inc., 894 F.2d 676, 678–79 (4th Cir. 1990) (same).

II. This Court should not enforce MGM’s six-month contractual limitation period because it conflicts with Title VII’s detailed enforcement scheme.

This Court should not affirm the district court on the alternate ground that MGM’s contractual six-month limitation period overrides Title VII’s 300-day charge-filing period and/or the 90-day suit-filing period. Title VII’s “integrated, multistep enforcement procedure” relies critically on the EEOC’s ability to receive discrimination charges and on the statutory rights of employees and applicants to file them. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977). Giving effect to contractually shortened waiver provisions would not only undermine that enforcement procedure, but also effectively deprive most signatories of any ability to vindicate their Title VII rights in court. Accordingly, we urge this Court to reject MGM’s request that it allow the company’s employment application to override Congress’s intent in enacting and amending Title VII.

As the Supreme Court has observed, Title VII’s overall purposes are to eliminate employment discrimination and to provide make-whole relief to victims. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417–18 (1975). The goal of ending employment discrimination in particular has the “highest priority.” See Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976). To achieve these goals, Congress gave the EEOC the authority to enforce Title VII and established an “integrated, multistep enforcement procedure” that the Commission, employees, and applicants must follow. Occidental Life, 432 U.S. at 359.

Congress empowered the EEOC to investigate alleged violations of Title VII based on charges of discrimination. 42 U.S.C. § 2000e-8(a); EEOC v. Shell Oil Co., 466 U.S. 54, 64 (1984). As explained above, employees and applicants have 180 days to file a charge in non-deferral states and 300 days in deferral states. 42 U.S.C. § 2000e-5(e)(1), p. A-4; Occidental Life, 432 U.S. at 359 & n.8. When the Commission receives a charge, it investigates and decides whether it has found reasonable cause to believe that the respondent violated the law. 42 U.S.C. § 2000e-5(b), pp. A-2–3; Occidental Life, 432 U.S. at 359. “If [the Commission] does find reasonable cause, it must try to eliminate the alleged discriminatory practice ‘by informal methods of conference, conciliation, and persuasion.’” EEOC v. Assoc. Dry Goods Corp., 449 U.S. 590, 595 (1981) (quoting 42 U.S.C. § 2000e-5(b)).

The charging party cannot sue the respondent until she receives a right-to-sue notice from the EEOC, which the agency issues in four situations: when it dismisses the charge, is unable to find reasonable cause, finds reasonable cause but fails to resolve the charge in conciliation, or receives a request from the charging party. 29 C.F.R. § 1601.28. The charging party has ninety days from her receipt of the right-to-sue notice to file suit. 42 U.S.C. § 2000e-5(f)(1), pp. A-4–5.

A. The six-month contractual limitation period should not override Title VII’s provisions about when a charging party may file suit.

The contractual provision at issue here requires signatories to file “any claim or lawsuit” within six months of the challenged employment action. Applying this shortened limitations period to charging parties’ lawsuits contravenes Title VII’s integrated enforcement scheme and will often completely preclude employees and applicants from suing to enforce their rights.

In adopting the procedures it did under Title VII, Congress intended to promote multiple, concurrent avenues of civil rights enforcement. On the one hand, Congress was unequivocal that it wanted statutory compliance to be achieved as often as possible through voluntary cooperation and informal methods of resolution like conciliation. 42 U.S.C. § 2000e-5(b), p. A–2; O ccidental Life, 432 U.S. at 367–68. On the other, as the Supreme Court has observed, “Title VII … makes private lawsuits by aggrieved employees an important part of its means of enforcement.” Associated Dry Goods, 449 U.S. at 595.

Both Title VII itself and its legislative history reflect Congress’s ongoing efforts to balance the inevitable tension between allowing the EEOC the time it needs to carry out its responsibilities—to investigate charges and attempt to resolve them informally—and preserving the rights of aggrieved individuals. Although Congress expressed the hope that, “so far as practicable,” the EEOC would complete its investigations within 120 days, 42 U.S.C. § 2000e-5(b), at pp. A-2–3, it imposed no investigative time limit. And the Supreme Court and several courts of appeals have recognized that the Commission sometimes takes significantly longer to complete the process— in part because the agency receives so many charges. See, e.g., Occidental Life, 432 U.S. at 362–66 (in reviewing legislative history of 1972 amendments to Title VII, noting discussion that the EEOC’s “burgeoning workload” had caused “increasing backlogs” in investigating and resolving charges, with the result that investigating and conciliating a charge sometimes takes two to three years); Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1276 (10th Cir. 2001) (noting the EEOC’s continuing backlog of charges).

Accordingly, as the conference report from the Equal Employment Opportunity Act of 1972 explained, the right to obtain a right-to-sue notice after 180 days and then to file a private suit within 90 days “is designed to make sure that the person aggrieved does not have to endure lengthy delays if the Commission … does not act with due diligence and speed .… [A]s the individual’s rights to redress are paramount under the provisions of Title VII[,] it is necessary that all avenues be left open for quick and effective relief.” Subcomm. on Labor, S. Comm. on Labor & Pub. Welfare, 92d Congress, Legislative History of the Equal Employment Opportunity Act of 1972 (Comm. Print 1972) [hereinafter Legislative History, EEO Act of 1972], at 1847.

Even with these safeguards in place, once an employee or applicant files a charge, she has almost no control over the pace of the administrative process. Charge-processing times are almost invariably longer than 180 days, and the charging party cannot obtain a right-to-sue letter as a matter of right until 180 days have passed. 42 U.S.C. § 2000e-5(f)(1), at pp. A-4–5; cf. 29 C.F.R. § 1601.28(a)(2) (individual may request right-to-sue notice prior to the expiration of 180 days, but the EEOC retains discretion to reject the request). Accordingly, employees who have to comply with a six-month suit-filing limitations period would hardly ever be able to vindicate their rights in court, with very few exceptions.[5] See, e.g., N jang v. Whitestone Grp., 187 F. Supp. 3d 172, 180 (D.D.C. 2016) (“[M]erely by complying with the administrative exhaustion requirements of Title VII, plaintiffs are typically precluded from bringing their claims in court within six months of the challenged conduct, which means that a six-month limitations period has the practical effect of waiving employees’ substantive rights under Title VII.”); Mazurkiewicz v. Clayton Homes, Inc., 971 F. Supp. 2d 682, 686–89 (S.D. Tex. 2013) (“a six-month limitations period is unenforceable against claims that require an EEOC right-to-sue letter” because it “effectively bars [an ADA plaintiff] from bringing suit”); Fritz v. FinancialEdge Cmty. Credit Union, 835 F. Supp. 2d 377, 382–83 (E.D. Mich. 2011) (since the EEOC has at least 180 days to investigate a charge, enforcing a six-month contractual limitation period “would have the effect of abrogating Plaintiff’s ability to bring a Title VII suit” (internal citation omitted)).

Nor should this Court adopt the equitable tolling scheme proposed by the magistrate judge in this case, which would have held the six-month contractual limitations period in abeyance while Logan’s charge was pending with the EEOC. See supra at pp. 4–5. Although that tolling scheme would have preserved Logan’s right to sue in certain circumstances, it would have significant negative consequences both for the EEOC’s enforcement program and for other charging parties. By effectively paring back the ninety-day period that Title VII gives charging parties to decide whether to file suit, shortened suit-filing periods contravene one of Congress’s express purposes in amending Title VII in 1972: protecting individuals’ “paramount” right to redress under the statute. Legislative History, EEO Act of 1972, at 1847; see also Associated Dry Goods, 449 U.S. at 595.

The ninety-day period also plays a critical role in Title VII’s integrated scheme because it gives charging parties, who often file pro se, time to assess their remaining options after the Commission’s disposition of their charges, as well as to conduct a preliminary investigation, accumulate the filing fee, and find and retain counsel. Yet under the magistrate judge’s tolling scheme, a charging party who filed her charge 179 days after the challenged employment action would have only three days to decide whether to sue, to retain counsel, and to file her complaint. R-51 at 1081.[6] This would not effectively protect the paramount right that charging parties have to enforce their Title VII rights in court.

For these reasons, Title VII’s statutory enforcement scheme should govern all questions of timeliness as to the filing of lawsuits arising under the statute. We realize that the Supreme Court has held that a contractual limitation period should be enforced unless the governing statute bars it or the contractual period is unreasonable. Heimeshoff v. Hartford Life & Accident Ins. Co., 571 U.S. 99, 106–09 (2013). But Heimeshoff was an ERISA case, the contractual limitations period was in the written benefit plan, and the Court relied heavily on the centrality of the plan in ERISA cases. Id. at 108–09. In any event, Heimeshoff reaffirmed that the rule that it adopted there does not apply to Title VII claims if following the rule would bar most charging parties from enforcing the statute in court, as enforcing MGM’s six-month limitations period would do. Id. at 109–10.

Moreover, the six-month contractual limitations period at issue here is half as long as the one-year state-law limitations period addressed by the Supreme Court in Occidental Life, and the risk of depriving charging parties of their suit rights is correspondingly greater. Cf. Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 522 (6th Cir. 1975) (“Title VII establishes its own statute of limitations, and state law is irrelevant in determining whether a private individual has lost his right of action under Title VII through the passage of time.”). As the Tenth Circuit explained:

It would be wholly inconsistent with the statutory limitations already in [Title VII] to import a state statute of limitations for individual plaintiffs[’ lawsuits].… [I]t would frustrate the federal scheme to apply an additional time limitation to aggrieved individuals. As the court expressed in Occidental regarding the EEOC, in certain instances, the application of a state statute of limitations would “directly conflict with the timetable for administrative action expressly established in the 1972 Act.”

EEOC v. W.H. Braum, Inc., 347 F.3d 1192, 1198 (10th Cir. 2003) (quoting Occidental Life, 432 U.S. at 370).

We have found no court of appeals decision directly addressing attempts by employers to shorten the suit-filing period. Most district courts confronting the issue, however, have rejected attempts by employers to circumvent Title VII’s statutory scheme via contract. See, e.g., Njang, 187 F. Supp. 3d at 180 (holding that six-month limitations period in the employment contract the plaintiffs were required to sign did not override Title VII’s suit-filing provisions); Mazurkiewicz, 971 F. Supp. 2d at 686–89 (same); Fritz, 835 F. Supp. 2d at 382–83 (same). But see Johnson v. DaimlerChrysler Corp., No. 02-cv-69, 2003 WL 1089394, *4–5 (D. Del. Mar. 6, 2003) (enforcing six-month contractual limitation period as to the Title VII claim in plaintiff’s lawsuit, but basing that ruling on a misinterpretation of Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188, 1206 (7th Cir. 1992)).[7]

This Court has issued two decisions that may appear superficially relevant but ultimately have no bearing on the question of whether contractual limitations periods may supersede those in Title VII. In Thurman v. DaimlerChrysler, Inc., 397 F.3d 352 (6th Cir. 2004), this Court applied a six-month contractual limitation period to the plaintiff’s employment discrimination claims arising under Michigan state law and 42 U.S.C. § 1981.[8] Id. at 353. This Court held that the contractual provision applied because it was not superseded by the collective bargaining agreement at issue in that case and because, under Michigan law, six-month limitations clauses are not inherently unreasonable. Id. at 356–57. Also, according to the Thurman Court, the fact that the plaintiff had enough time to investigate her case and actually filed her charge within the abbreviated limitations period rendered the contractual period “reasonable.” Id. at 358. However, Thurman is not a Title VII case and makes no reference to the concerns about the EEOC’s enforcement role and the deprivation of private parties’ suit rights emphasized by the Supreme Court in Occidental Life.[9] The question of whether contractual rights may supersede a collective bargaining agreement under Michigan law is a totally different one from whether they may trump the mandates of a federal civil rights statute.

Second, in Boaz v. FedEx Customer Information Services, Inc., 725 F.3d 603 (6th Cir. 2013), this Court appeared to suggest that shortened limitations periods might be enforceable in Title VII cases because employees “can waive their claims under Title VII,” whereas they cannot do so under the FLSA. Id. at 606 (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974)). However, this discussion in Boaz is dictum: the court was addressing an FLSA claim, not a Title VII claim. Moreover, the Boaz court misread Gardner-Denver, which expressly stated, “We think it clear that there can be no prospective waiver of an employee’s rights under Title VII.” 415 U.S. at 51. In the context of an employment application or agreement with a shortened limitations period, the waiver at issue would necessarily be prospective because the discrimination claim would not yet have accrued at the time the person signed the document. And the waiver would frequently preclude vindicating the person’s rights at all, thus amounting to a prospective waiver of substantive rights. See cases cited supra at pp. 19–20; cf. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991) (distinguishing agreements to arbitrate from agreements to “forgo the substantive rights afforded by the statute”). Thus, Gardner-Denver does not support the proposition that prospective claims are waivable under Title VII, and neither it nor Boaz offers any support for the rationale that contractually shortened limitations periods should be applicable to Title VII lawsuits.

B. The six-month contractual limitation period should not override Title VII’s provisions about when an employee or applicant may file a charge.

The contractual provision at issue here requires signatories to file “any claim or lawsuit” within six months. The first question is whether “claim” here includes administrative charges of discrimination. The magistrate judge and the district court both interpreted “claim” to include administrative charges of discrimination. R-51 at 1078–80; R-53 at 1111. But an administrative charge is not a claim seeking relief; it merely informs the EEOC of possible discrimination. EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 455 (6th Cir. 1999) (“By filing a charge, an individual does not file a complaint seeking relief, but merely informs the EEOC of possible discrimination.” (citing Shell Oil, 466 U.S. at 68)). This Court should therefore rule that the word “claim” in the contractual limitations clause does not apply to administrative charges. And even if the term “claim” were ambiguous on this point, “ambigui-ties in contracts should be construed against the drafter”: here, MGM. Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd., 525 F.3d 409, 423 (6th Cir. 2008).

If this Court decides that “claim” here includes administrative charges, MGM should not be permitted to shorten Title VII’s charge-filing periods. Because of the critical role that charge-filing plays in the EEOC’s statutory enforcement scheme, contractual provisions shortening charge-filing periods are void as against public policy, just like provisions that prohibit charge-filing entirely. While a shortened charge-filing period may only partially, rather than completely, preclude individuals from filing charges, the aggregate result is the same: fewer charges in the hands of enforcement agencies, as well as impaired statutory rights for charging parties.

The EEOC enforces Title VII and other federal antidiscrimination laws both administratively, by investigating and resolving charges, and judicially, via litigation in court. Both Title VII itself and its legislative history—particularly the legislative history of the 1972 amendments—reflect that Congress deliberately chose this dual function for the EEOC to secure effective civil rights enforcement. As the Supreme Court stated in General Telephone,

The purpose of the [1972] amendments, plainly enough, was to secure more effective enforcement of Title VII …. Congress became convinced … that the “failure to grant the EEOC meaningful enforcement powers has proven to be a major flaw in the operation of Title VII.” S. Rep. No. 92-415, p. 4 (1971). The 1972 amendments … accordingly expanded the EEOC’s enforcement powers by authorizing the EEOC to bring a civil action in federal district court against private employers reasonably suspected of violating Title VII.

Gen. Tel. Co. of the Nw., Inc., v. EEOC, 446 U.S. 318, 325 (1980) (footnote omitted); see also Occidental Life, 432 U.S. at 361–66 (summarizing congressional debate in 1971 and 1972 that resulted in giving the EEOC direct litigation authority).

The EEOC depends vitally on the receipt of charges for both functions, as in the vast majority of circumstances, it can neither investigate nor conduct enforcement litigation without a predicate charge. See Shell Oil, 466 U.S. at 68 (“The function of a Title VII charge … is to place the EEOC on notice that someone (either a party claiming to be aggrieved or a Commissioner) believes that an employer has violated the title. The EEOC then undertakes an investigation into the complainant’s allegations of discrimination.”); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (“Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.”). Another part of the 1972 amendments to Title VII thus extended the charge-filing periods for aggrieved individuals from 90 to 180 days in non-deferral jurisdictions and from 210 to 300 days in deferral jurisdictions. Legislative History, EEO Act of 1972, at 1971. As the conference report on this provision explained:

It is intended by expanding the time period for filing charges in this subsection that aggrieved individuals, who frequently are untrained laymen and who are not always aware of the discrimination which is practiced against them, should be given a greater opportunity to prepare their charges and file their complaints …. [W]ide latitude should be given individuals in such cases to avoid any prejudice to their rights as a result of government inadvertence, delay or error.

Id. at 1846.

Because charge-filing plays such a central role in the enforcement of Title VII, this Court and other courts of appeals have routinely held that waivers of the right to file a charge are void as against public policy. See, e.g., EEOC v. Sundance Rehab. Corp., 466 F.3d 490, 499 (6th Cir. 2006) (“This Circuit has noted approvingly the Fifth Circuit’s rule that a waiver of the right to file a charge with the EEOC is void as against public policy.” (citing Frank’s Nursery, 177 F.3d at 456)); Am. Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 118 n.7 (1st Cir. 1998) (contractual provisions barring employees from filing ADEA charges or participating in EEOC ADEA proceedings violate 29 U.S.C. § 626(f)(4)); EEOC v. Bd. of Governors of State Colls. & Univs., 957 F.2d 424, 431 (7th Cir. 1992); EEOC v. Cosmair, Inc., 821 F.2d 1085 (5th Cir. 1987); see generally EEOC, “Enforcement Guidance on Non-Waivable Employee Rights Under Equal Employment Opportunity Commission (EEOC) Enforced Statutes” (Apr. 11, 1997), part III.A (noting “strong public policy interest” that “prohibits interference with the right to file a charge with EEOC” and observing that courts “have consistently recognized that individuals possess a non-waivable right to file charges with the EEOC”).[10]

From the Commission’s perspective, contractual provisions that shorten the charge-filing period, as the district court allowed MGM’s provision to do here, and provisions barring charge-filing altogether lead to the similar result of suppressing charge-filing, albeit to different degrees. This Court therefore should rule that both are void as against public policy. “The relevant principle is well-established: a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement.” Cosmair, 821 F.2d at 1090 (quoting Town of Newton v. Rumery, 480 U.S. 386, 392 (1987)). While employers like MGM have an interest in using contracts to limit the number of employment-discrimination lawsuits filed against them, that interest “is outweighed by the public interest in EEOC enforcement” of Title VII. Cosmair, 821 F.2d at 1090; see also EEOC v. Astra U.S.A., Inc., 94 F.3d 738, 743–45 (1st Cir. 1996) (since the EEOC’s enforcement activities depend on receiving charges and information from employees, “any agreement that materially interferes with communication between an employee and the Commission sows the seeds of harm to the public interest”).

Enforcing shortened charge-filing periods also contravenes congressional intent by impairing the rights of charging parties. As noted supra at pp. 18 and 31, in amending Title VII in 1972 Congress observed that the “individual’s rights to redress are paramount under the provisions of Title VII,” and it purposefully extended the charge-filing period accordingly. Legislative History, EEO Act of 1972, at 1847, 1971. Employees’ and applicants’ delays in filing their charges are frequently due not to lack of diligence, but to valid causes such as lack of information about comparators or concerns about remaining on the job after complaining about one’s superiors. See, e.g., Legislative History, EEO Act of 1972, at 1846, supra at pp. 31–5; Lilly Ledbetter Fair Pay Act of 2007, H.R. Rep. No. 110-237, at 7 (2007) (Statement and Committee Views) (“Employees often have no access to the kinds of information necessary to raise a suspicion of pay discrimination, including company-wide salary data. In fact, workplace norms often discourage conversations among employees about salaries.”).

This Court should not allow employers to exploit their superior bargaining position by contractually pruning back the time Congress has allotted for aggrieved individuals to decide whether to file charges of discrimination. It is well settled that state legislatures lack the authority to shorten Title VII’s charge-filing periods. See Commercial Office Prods., 486 U.S. at 122–25 (charging party’s FEPA charge need not be timely under state law); Nichols v. Muskingum Coll., 318 F.3d 674, 679–80 (6th Cir. 2003) (“state statutes of limitations” are “irrelevant … in determining entitlement to the 300-day filing period”). If state legislatures lack the authority to shorten Title VII’s charge-filing period, a fortiori, private employers lack that authority as well.

Conclusion

This Court should reverse the district court’s summary judgment order and remand for further proceedings.

Respectfully submitted,

Docket #	Document Description	Pg ID #
1	Complaint	1–9
10	Answer	23–26
40	Defendant’s motion for summary judgment	541–73
40-4	Exh. C: Plaintiff’s job application	640–46
40-5	Exh. D: Kara Greenwalt affidavit	647–49
40-8	Exh. G: Plaintiff’s notice of resignation	705–06
40-10	Exh. I: Plaintiff’s employment/disciplinary history	712–27
40-17	Exh. P: Plaintiff’s EEOC charge	778–79
42	Plaintiff’s opposition to summary judgment	799–824
51	Magistrate judge’s report and recommendation	1065–87
52	Plaintiff’s objections to R-51	1088–1105
53	Order granting summary judgment	1106–11
55	Plaintiff’s motion for reconsideration	1114–20
56	Plaintiff’s notice of appeal	1121–23
59	Defendant’s opposition to reconsideration	1126–37
60	Order denying reconsideration	1138–41

[1] The Commission takes no position on any other issues this appeal may raise.

[2] Page numbers refer to the “Pg ID” numbers.

[3] As explained further below, the term “deferral state” derives from the EEOC’s implementing regulations setting out the adminstrative process for Title VII. See infra at p. 9.

[4] Michigan law prohibits sex discrimination and retaliation in employment, which Logan alleged in her charge. See Mich. Comp. Laws Ann. §§ 37.2202 (discrimination), 37.2701 (retaliation).

[5] Cases in which the EEOC issues an early right-to-sue notice on request or dismisses the charge and issues a right-to-sue notice significantly before 180 days have passed present two such exceptions.

[6] The magistrate judge noted that six months usually contain 182.5 days. R-51 at 1080–81. An employee who filed her charge on day 179 would accordingly have three days remaining in her six-month (182.5-day) contractual period. Id.

[7] The Johnson court quoted the Seventh Circuit in Taylor as finding that “‘Title VII provides no public policy contrary to the six-month limitation of actions clause.’” 2003 WL 1089394, at *5 (quoting Taylor, 966 F.2d at 1206). But this portion of the Taylor decision addressed Taylor’s claims under 42 U.S.C. § 1981, not his Title VII claim. See Taylor, 966 F.2d at 1206 (“Title VII’s administrative filing requirements did not impede Mr. Taylor’s ability to file suit against Western–Southern on his other claims, and thus Title VII provides no public policy contrary to the six-month limitation of actions clause.”) (emphasis added). Thus, Taylor held that contractual limitation periods may govern § 1981 claims—not Title VII claims—without violating Title VII. Section 1981 claims do not require resort to an administrative agency before filing suit.

[8] Although the Thurman opinion at one point lists Title VII among the statutory causes of action in the case, 397 F.3d at 355, a review of the complaint and docket reveals that the Thurmans actually brought no claims under Title VII.

[9] The same is true of Myers v. Western-Southern Life Insurance Co., 849 F.2d 259 (6th Cir. 1988). See id. at 261 (holding that since, under Michigan law, an individual’s pursuit of relief through an administrative proceeding does not toll the statute of limitations for filing a civil rights action, it likewise does not provide a basis for voiding a privately negotiated limitations period).

[10] Available at https://www.eeoc.gov/policy/docs/waiver.html.