TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES.......................................................................... ii

RULE 35(b) STATEMENT........................................................................... vi

STATEMENT OF INTEREST..................................................................... 1

FACTUAL STATEMENT AND DECISIONS AT ISSUE........................... 2

ARGUMENT

Rehearing En Banc is Warranted Because the Majority’s Decision

Conflicts with Long-Standing Eighth Circuit Precedent,

Consistent with Other Circuits, that a Plaintiff Like Richter

Need Not File a New or Amended Charge to Preserve a Claim

That Her Employer Retaliated Against Her for Filing a Charge,

And Overruling this Precedent is not Required by Morgan................... 5

CONCLUSION............................................................................................ 15

CERTIFICATE OF COMPLIANCE............................................................ 16

ADDENDUM

Panel Decision

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES Page(s)

Anderson v. Block,

807 F.2d 145 (8th Cir. 1986)................................................................... 6

Babrocky v. Jewel Food Co.,

773 F.2d 857 (7th Cir. 1985).............................................................. 14-15

Baker v. Buckeye Cellulose Corp.,

856 F.2d 167 (11th Cir. 1988) ................................................................ iii

Burlington Industries v. Ellerth,

524 U.S. 742 (1998)............................................................................... 8-9

Burlington Northern & Santa Fe Railway Co. v. White,

548 U.S. 53 (2006)............................................................................. 11-12

Clockedile v. New Hampshire Department of Corrections,

245 F.3d 1 (1st Cir. 2001)....................................................... ii, 6, 7, 8, 14

Delaware State College v. Ricks,

449 U.S. 250 (1980)............................................................................... 10

Delisle v. Brimfield Township Police Department,

94 F. App’x 247 (6th Cir. 2004) (unpublished)................................. iii, 11

Duncan v. Delta Consolidated Industries,

371 F.3d 1020 (8th Cir. 2004)........................................................ 3-4, 6, 7

Eberle v. Gonzales,

240 F. App’x 622 (5th Cir. 2007) (unpublished).................................... 11

Edelman v. Lynchburg College,

535 U.S. 106 (2002) ............................................................................ 9-10

Federal Express Corp. v. Holowecki,

552 U.S. 389 (2008)............................................................................... 12

Franceschi v. Department of Veteran Affairs,

514 F.3d 81 (1st Cir. 2008)................................................................. ii, 11

Gupta v. East Texas State University,

654 F.2d 411 (5th Cir. 1981).............................................................. iii, 12

Jones v. Calvert Group,

551 F.3d 297 (4th Cir. 2009)..................................................... ii, 7, 11, 12

Malarkey v. Texaco,

983 F.2d 1204 (2d Cir. 1993)..................................................... 7, 8, 12-13

Malhotra v. Cotter & Co.,

885 F.2d 1305 (7th Cir. 1989)................................................................. iii

Martinez v. Potter,

347 F.3d 1208 (10th Cir. 2003).......................................................... iii, 11

National Railroad Passenger Corp. v. Morgan,

536 U.S. 101 (2002)......................................................................... passim

Nealon v. Stone,

958 F.2d 584 (4th Cir. 1990)................................................................... ii

Owens v. NYC Housing Authority,

934 F.2d 405 (2d Cir. 1991)................................................................... ii

Parisi v. Boeing Co.,

400 F.3d 583 (8th Cir. 2005)................................................................... 6

Powers v. Grinnell Corp.,

915 F.2d 34 (1st Cir. 1990).................................................................... 14

Richardson v. Commission on Human Rights & Opportunities,

532 F.3d 114 (2d Cir. 2008)................................................................... 12

Rivera v. Puerto Rico Aqueduct & Sewers Authority,

331 F.3d 183 (1st Cir. 2003).................................................................. 11

Roark v. City of Hazen,

189 F.3d 758 (8th Cir. 1999)................................................................... 6

Spengler v. Worthington Cylinders,

615 F3d 481 (6th Cir. 2010).................................................................... iii

Terry v. Ashcroft,

336 F.3d 128 (2d Cir. 2003)................................................................ ii, 11

Thomas v. Miami Dade Public Health Trust,

369 F. App’x 19 (11th Cir. 2010) (unpublished).................................... 11

Wallin v. Minnesota Department of Corrections,

153 F.3d 681 (8th Cir 1998).................................................................. 6, 7

Wedow v. City of Kansas City,

442 F.3d 661 (8th Cir. 2005)............................................................ passim

Wentz v. Maryland Casualty Co.,

869 F.2d 1153 (8th Cir. 1989)............................................................... ii, 7

Williams v. Little Rock Municipal Water Works,

21 F.3d 218 (8th Cir. 1994)................................................................... 5, 6

Zipes v. TWA,

455 U.S. 385 (1982)................................................................................ 9

STATUTES and RULES

The Age Discrimination in Employment Act,

29 U.S.C. §§ 621 et seq............................................................................ ii

Title VII of the Civil Rights Act of 1964,

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

42 U.S.C. § 2000e-5(e)(1)..................................................................... 9-10

42 U.S.C. § 2000e-5(b).................................................................. 5, 13, 14

42 U.S.C. § 2000e-5(f)(1).................................................................... 5, 14

Title I of the Americans with Disabilities Act,

42 U.S.C. §§ 12101 et seq........................................................................ ii

Title II of the Genetic Information Nondiscrimination Act of 2008,

42 U.S.C. §§ 2000ff et seq....................................................................... ii

Federal Rule of Appellate Procedure 32(a)(5)-(6)........................................ 16

Federal Rule of Appellate Procedure 35(b)................................................... ii

OTHER AUTHORITY

EEOC Compliance Manual, Vol.II (Threshold Issues)

§ 2-IV(C)(1)(a) & n.185 (May 2000, revised July 2005),

available at www.eeoc.gov/policy/docs/threshold.html................... 1, 10-11

EEOC Compliance Manual, Vol.II (Retaliation) § 8-I(A),

available at www.eeoc.gov/policy/docs/retal/html.................................... 8

EEOC Enforcement & Litigation Statistics, All Statutes FY97-FY11,

available at www.eeoc.gov/eeoc/statistics/enforcement/all.cfm........... 13-14

RULE 35(b) STATEMENT

Rehearing en banc in this case is appropriate because this case presents an issue of exceptional importance: Does National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), require this Court to overrule its long-standing precedent that a claim that the employer retaliated against the plaintiff because she filed a Title VII charge is “like or reasonably related to” the underlying charge so as to excuse the filing of a separate retaliation charge?[1]

Rehearing en banc is also appropriate because the panel majority’s decision conflicts with decisions from this Court, including Wentz v. Maryland Casualty Co., 869 F.2d 1153 (8th Cir. 1989); is not compelled by any Supreme Court authority; and would undermine enforcement of Title VII. The majority’s decision also conflicts with decisions from most other circuit courts. See, e.g., Franceschi v. Dep’t of Vet. Affairs, 514 F.3d 81, 86-87 (1st Cir. 2008) (discussing Clockedile v. N.H. Dep’t of Corrs., 245 F.3d 1, 3 (1st Cir. 2001)); Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003); Owens v. NYC Housing Auth., 934 F.2d 405, 410-11 (2d Cir. 1991); Jones v. Calvert Grp., 551 F.3d 297, 301-04 (4th Cir. 2009) (discussing Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1990)); Eberle v. Gonzales, 240 F. App’x 622, 628 (5th Cir. 2007) (discussing Gupta v. E. Tex. St. Univ., 654 F.2d 411, 414 (5th Cir. 1981)) (unpublished); Spengler v. Worthington Cylinders, 615 F.3d 481, 489 n.3 (6th Cir. 2010); Delisle v. Brimfield Twp. Police Dep’t, 94 F. App’x 247, 252-54 (6th Cir. 2004) (unpublished); Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989); Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 168-69 (11th Cir. 1988) (discussing Gupta). But see Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003) (under Morgan, retaliation claims arising after or shortly before suit were filed requires new charge). These courts conclude that a plaintiff need not file a separate retaliation charge to allege that her employer retaliated against her for filing a charge of employment discrimination with the EEOC since such claims grow out of and/or are “like or reasonably related” to the underlying charge.

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is the agency charged with enforcing, interpreting, and administering Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and other federal anti-discrimination laws. This appeal raises the question of whether a plaintiff can litigate a Title VII claim that her employer retaliated against her for filing an initial Title VII charge with the EEOC without first filing a new or amended charge alleging retaliation. The Commission, like most courts of appeals, takes the position that such a retaliation claim grows out of the original charge and, so, falls within the exception to the charge-filing requirement for claims that are “like or reasonably related to” that charge. See EEOC Compl. Man., Vol.II (Threshold Issues), § 2-IV(C)(1)(a) & n.185 (May 2000, revised July 2005), available at www.eeoc.gov/policy/docs/threshold.html.

Here, however, the panel majority held that even though the plaintiff had allegedly suffered retaliation for filing her original charge, she is barred from challenging that retaliation in court because she failed to file another charge mentioning the retaliation, thereby risking further retaliation. Because this ruling could seriously undermine enforcement of federal employment discrimination law and is not compelled by any Supreme Court authority, the Commission offers its views in support of the plaintiff’s petition for rehearing en banc.

FACTUAL STATEMENT AND DECISIONS AT ISSUE

Mischelle Richter worked as a store manager for Advance Auto Parts. On August 14, 2009, Richter’s supervisor, T.C. Hulett, removed her from her management position, purportedly for failing to making timely bank deposits. Hulett also told her that she had one week in which to apply for a job in the parts warehouse, where she would make substantially less money. See Slip op. at 2.

On August 18, 2009, Richter, acting without counsel, filed a discrimination charge with the Commission and her state fair employment practices agency. Id. On August 23, she told a company executive that she had filed the charge. Two days later, she was fired. Id. at 3.

After her discharge, Richter wrote to EEOC’s investigator about the investigation. She ended the letter by saying:

I also have new info on possible retaliation[:] the last day I worked was 08/14/09. ... I spoke with [an executive] on Monday 08-23/09 and told him of the discrimination charges I had put on TC, he was extremely mad!!!!! Laurie Brownrigg “Human Resources” called me Wednesday 08/25/09 and told me I was officially terminated.

I’m hoping that EEOC will move forward with my Discrimination/Wrongful Termination case. If not let me know so I can seek out a private attorney....

District Court docket entry (“R.”) 10-2(p.3). The following August, Richter wrote another letter to the Commission which, among other things, reminded the investigator that she had been fired only after telling the company about her charge. R.10-3(p.2). Nevertheless, the letter Richter received from the EEOC in late August, closing her case, does not mention retaliation. R.10-4.

Richter then brought suit alleging in large part that she was fired in retaliation for filing a Title VII discrimination charge. R.1. The district court dismissed the claim, and a divided panel of this Court affirmed. Neither the majority nor the dissent discussed Richter’s post-charge contacts with the Commission. Rather, the Court focused broadly on whether a plaintiff may pursue a retaliation claim even though she did not allege retaliation in a charge.

The majority rejected Richter’s contention that “retaliation claims arising from a charge filed with the EEOC are excepted from the statutory exhaustion requirement.” Slip op. at 5. The majority held that Richter’s discrimination and retaliation claims allege separate discrete acts, and, in light of Morgan, 536 U.S. at 110-11, each such act required its own charge. Slip op. at 4-9. In the majority’s view, its ruling accords with Wedow v. City of Kansas City, which broadly asserted that “retaliation claims are not reasonably related to underlying discrimination claims.” Id. at 6-7 (citing 442 F.3d 661, 673 (8th Cir. 2005) (citing Duncan v. Delta Consol. Indus., 371 F.3d 1020, 1025 (8th Cir. 2004))). The majority also reasoned that “[e]xempting retaliation claims from the administrative framework established by Congress could frustrate the conciliation process, which [the Court had] called ‘central to Title VII’s statutory scheme.’” Id. at 8-9 (describing “countervailing policy considerations”) (citation omitted).

Judge Bye dissented. In his view, the plaintiff’s claim should not be barred because retaliation in response to a charge is “necessarily reasonably related to the underlying allegations in the charge.” Dissent at 22. The dissent reasoned that not requiring a new charge for such claims accords with rulings from numerous other circuits and would further public policy. See id. at 17-18 (citing cases). Moreover, the dissent explained, Morgan focused on limitations issues and did “not purport to address the extent to which an EEOC charge satisfies exhaustion requirements for claims of related, post-charge events.” Id. (citation omitted).

Finally, the dissent concluded that Wedow did not “foreclose Richter’s argument that the like-or-reasonably-related-to exception to the exhaustion doctrine applies to subsequent retaliatory acts arising from the filing of the EEOC charge.” Id. at 20-21 (citation omitted). The dissent described Wedow’s retaliation statement, quoted above, as “unnecessarily overinclusive.” Id. at 21. Duncan is “inapposite,” the dissent explained, because, in contrast to this case or Wedow, the lawsuit in Duncan alleged discrimination as well as retaliation whereas the charge alleged only retaliation. Id. at 21-22 (citations omitted).

ARGUMENT

Rehearing En Banc is Warranted Because the Majority’s Decision Conflicts with Long-Standing Eighth Circuit Precedent, Consistent with Other Circuits, that a Plaintiff Like Richter Need Not File a New or Amended Charge to Preserve a Claim that Her Employer Retaliated Against Her for Filing a Charge, and Overruling this Precedent is not Required by Morgan.

Rehearing en banc is warranted because the panel majority erred in holding that a plaintiff like Richter, who allegedly was subjected to retaliation for filing a Title VII charge, is barred from challenging that retaliation in court unless she first filed a new or amended charge mentioning the retaliation. This ruling overturns long-standing circuit precedent and conflicts with case law from most other circuits. The ruling is also not compelled by the Supreme Court’s decision in Morgan and would undermine enforcement of federal anti-discrimination law.

Section 706(f)(1) of Title VII requires an aggrieved individual to file a charge with the EEOC before filing suit. 42 U.S.C. § 2000e-5(f)(1). This requirement provides the EEOC with an opportunity to investigate and achieve a voluntary resolution of the complaint. See, e.g., Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994). In addition, because the EEOC has a corollary duty to notify the employer of the charge, 42 U.S.C. § 2000e-5(b), the charge-filing requirement also gives the employer notice of the alleged violation.

As this and other Courts have recognized, however, “subsequently-filed lawsuits [need not] mirror the administrative charges.” Duncan, 371 F.3d at 1025; see also, e.g., Clockedile, 245 F.3d at 4. Rather, a judicial complaint may include claims that are “like or reasonably related to” the allegations in the original charge. See, e.g., Anderson v. Block, 807 F.2d 145, 148 (8th Cir. 1986). Stated differently, since the charge is mainly intended to trigger the EEOC’s investigatory and conciliatory process, the “sweep of any subsequent judicial complaint may be [only] as broad as the scope of the EEOC investigation which could reasonably be expected to grow out of the charge.” Duncan, 371 F.3d at 1025 (citations omitted, alteration in Duncan).

This Court has tweaked the contours of this exception over time. Wedow, 442 F.3d at 672-73. For example, the exception does not normally apply where the charge alleges only retaliation but the plaintiff’s complaint includes a claim for substantive (e.g., race or sex) discrimination. See, e.g., Duncan, 371 F.3d at 1025-26; Williams, 21 F.3d at 222. Nor does it normally apply to discrimination or retaliation claims that arose before the charge was filed but were omitted from the charge. See, e.g., Parisi v. Boeing Co., 400 F.3d 583, 585-86 (8th Cir. 2005); Roark v. City of Hazen, 189 F.3d 758, 760-61 (8th Cir. 1999); Wallin v. Minn. Dep’t of Corrs., 153 F.3d 681, 688-89 (8th Cir 1998). Nevertheless, this Court, like most other circuits, has long recognized that an allegation that the defendant retaliated against the plaintiff for filing an EEOC charge may be included in a Title VII lawsuit even if the plaintiff did not first file a new or amended charge with the Commission complaining of retaliation. See, e.g., Wentz, 869 F.2d at 1154 (although plaintiff’s charge alleged only age discrimination, judicial complaint could include retaliation growing out of the charge because claim was “like or reasonably related to” that charge); see also, e.g., Jones, 551 F.3d at 302-03; Clockedile, 245 F.3d at 4-6 (explaining rule); Malarkey v. Texaco, 983 F.2d 1204, 1208-09 (2d Cir. 1993). Because such retaliatory acts occur after and flow directly from the filing of the original charge, they are, as the dissent here noted, “necessarily reasonably related to the underlying allegations in the charge.” Dissent at 22.[2]

This rule excusing the filing of a second charge for such retaliation claims does not undermine the purposes of the charge-filing requirement. The Commission’s firm policy is to “ensur[e] that individuals who assert their rights under the laws enforced by the Commission are protected against retaliation.” EEOC Compl. Man., Vol.II (Retaliation) § 8-I(A), available at www.eeoc.gov/policy/docs/retal/html. Because of the inextricable link between the charge and the resulting retaliation in this context, the Commission ordinarily can be expected to uncover the retaliation in a reasonable investigation of the charge. This should be particularly true where, as here, the charging party alerted the Commission by letter during its investigation that her employer was retaliating against her for filing the charge.

Similarly, the employer will have had notice of the original charge, and because the retaliation claim allegedly resulted directly from that charge, the employer will also have sufficient notice of that alleged violation. See Malarkey, 983 F.2d at 1209. Indeed, in cases such as this one where the alleged retaliation involved an “official,” or “company,” act, “there is no need to worry about notice: the employer should already know.” Clockedile, 245 F.3d at 5-6; cf. Burlington Indus. v. Ellerth, 524 U.S. 742, 762-63 (1998) (holding employer liable for harassment culminating in tangible employment action — “company act” — even if victim did not complain internally since such acts are typically reviewed by upper management and HR and documented in employer’s records).

The panel majority concluded that this rule has, in effect, been superseded by Morgan. See Slip op. at 6-9 (citing 536 U.S. at 110-11, 114). On the contrary, as Judge Bye recognized in his dissent, Morgan does not address, either directly or indirectly, the question presented here. Rather, the issue in Morgan was timeliness — whether the continuing-violation doctrine is applicable to discrete acts of alleged unlawful discrimination which, although related to the acts alleged in a timely EEOC charge, are otherwise time-barred. The Morgan Court held that the doctrine is not applicable; charges must be brought within 180 (or 300) days of the alleged discriminatory act. 536 U.S. at 110-14.

However, Morgan does not suggest that the Court was upending settled law on the exhaustion of post-charge retaliation claims as to which the continuing violation doctrine has no relevance. The focus of the provision that Morgan interpreted, 42 U.S.C. § 2000e-5(e)(1), is the 180/300-day limitation period. While its legislative history is “sparse,” § 2000e-5(e)(1) apparently was designed to prevent “the pressing of ‘stale’ claims.” Zipes v. TWA, 455 U.S. 385, 394 (1982) (adding that “Congress intended the filing period to operate as a statute of limitations”); see also Edelman v. Lynchburg Coll., 535 U.S. 106, 112-13 (2002) (“The point of the time limitation is to encourage a potential charging party to raise a discrimination claim before it gets stale, for the sake of a reliable result and a speedy end to any illegal practice that proves out.”). By requiring that charges be filed with the EEOC relatively promptly after the alleged discriminatory act, Congress intended to “protect employers from the burden of defending claims arising from employment decisions that are long past.” Del. State Coll. v. Ricks, 449 U.S. 250, 256-57 (1980).

Excusing plaintiffs from filing a separate charge for acts occurring after (and because) a charge was filed does not implicate these staleness concerns. Because such claims normally arise during the pendency of an EEOC investigation or shortly after the notice of right to sue issues, the challenged conduct is not “long past” but in fact even more recent than the conduct alleged in the underlying charge. Employers do not need special protection from such claims. Morgan’s discussion of § 2000e-5(e)(1) thus does not require that courts overrule their case law recognizing and applying the like-or-reasonably-related-to exception to the charge-filing requirement.

Accordingly, even after Morgan, the Commission and most other circuits that have addressed the issue continue to adhere to the rule that plaintiffs need not file a new or amended charge to challenge retaliation arising from the filing of an earlier charge. See EEOC Compl. Man. § 2-IV(C)(1)(a) & n.185 (“Morgan does not affect existing case law that permits subsequent related acts to be addressed in an ongoing proceeding”); see also Jones, 551 F.3d at 303 (rejecting Morgan-based argument); Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 188-89 (1st Cir. 2003) (stating that Morgan “does not address whether a previously filed EEOC complaint must be amended to encompass subsequent discrete acts in order to render such act susceptible to judicial review”); Delisle, 94 F. App’x. at 252-55 (discussing Morgan); see also Franceschi, 514 F.3d at 86-87 (noting exception but not discussing Morgan); Terry, 336 F.3d at 150-51 (same); Thomas v. Miami Dade Pub. Health Trust, 369 F. App’x 19, 23 (11th Cir. 2010) (same) (unpublished); Eberle, 240 F. App’x at 628-29 (same) (unpublished). While the majority here cited to Martinez, 347 F.3d at 1210-12 (relying on Morgan to require new or amended charge for post-charge retaliation claims), that is clearly the minority view. This Court should not exacerbate a shallow circuit split by siding with the minority.

Further, as the dissent recognized, there are sound public policy reasons for the like-or-reasonably-related-to exception. The anti-retaliation provision is designed to prevent an employer “from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of [Title VII’s] basic guarantees” by, for example, filing a charge. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). Indeed, the Act “depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.” Id. However, “a plaintiff that has already been retaliated against one time for filing an EEOC charge will naturally be reluctant to file a separate charge, possibly bringing about further retaliation.” Jones, 551 F.3d at 302. Rather than do so, she might well choose not to pursue her claim, thereby undermining enforcement of the statute. See Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114, 121 n.6 (2d Cir. 2008) (noting that “[t]he more effective an employer was at using retaliatory means to scare an employee into not filing future EEOC complaints, the less likely the employee would be able to hold the employer liable for that retaliation because the less likely the employee would risk filing an EEO complaint as to the retaliation”) (citation omitted).

At the same time, requiring prior resort to the Commission before proceeding with a retaliation claim would mean a “double filing that would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII.” Gupta, 654 F.2d at 414. And, because the administrative process is designed for laypeople like Richter proceeding without counsel, Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 402-03 (2008), courts should be “reluctant to erect a needless procedural barrier to the private claimant.” Gupta, 654 F.2d at 414; see also Malarkey, 983 F.2d at 208-09 (requiring plaintiffs to “return to the EEOC to complain about each [post-charge] retaliatory act” regardless of the relationship between the retaliation and the original charge or lawsuit “would create a procedural barrier for plaintiffs contrary to the remedial purposes” of anti-discrimination law). This is particularly important where, as here, the lay charging party subsequently brought the retaliation to the EEOC’s attention, albeit apparently to no avail.

The majority cited “countervailing” policy considerations. It reasoned that “[e]xempting retaliation claims from the administrative framework established by Congress could frustrate the conciliation process, which [the Court had] called ‘central to Title VII’s statutory scheme.’” Slip op. at 8-9 (citation omitted). In the Commission’s view, however, this concern is overstated.

The rule does not “exempt” all retaliation claims “from the administrative process”; it exempts retaliation claims arising out of the filing of a charge. In addition, where, as here, the alleged retaliation occurs while the original charge is still pending before the Commission, any conciliation of the charge would normally include the alleged retaliation.

Furthermore, while conciliation is an important feature of EEOC enforcement, only a small fraction of charges actually are conciliated. It does not appear, for example, that the Commission attempted to conciliate Richter’s discrimination claims. Title VII requires the Commission to conciliate only when it determines, after an investigation, “that there is reasonable cause to believe that the charge is true.” 42 U.S.C. § 2000e-5(b). In FY2011, the EEOC found cause in fewer than 5% of charges. See EEOC Enforcement & Litig. Stats., All Statutes FY97-FY11 (3.8% overall; 4.1% of retaliation charges), available at www.eeoc.gov/eeoc/statistics/enforcement/all.cfm.

The statute also allows charging parties to opt out of the administrative process by requesting a notice of right to sue after 180 days, even if the investigation is not complete. 42 U.S.C. § 2000e-5(f)(1); see Clockedile, 245 F.3d at 5 (suggesting that, due to early right to sue notice, EEOC did not investigate that plaintiff’s charge). Those charges, too, are not conciliated. Accordingly, simply exempting post-charge claims of retaliation from the administrative process is unlikely to frustrate the Commission’s conciliation efforts in a material way.

In any event, notice of the employer and conciliation are duties of the Commission, not the charging party. See 42 U.S.C. § 2000e-5(b). Particularly where, as here, the charging party in fact attempted to call the EEOC’s attention to the alleged retaliation, she should not be penalized if the EEOC failed to follow up and thus missed the opportunity to conciliate the claim. The scope of the complaint that may be filed is determined not “by the scope of the actual investigation pursued” but “what EEOC investigation could reasonably be expected to grow from the original complaint.” Powers v. Grinnell Corp., 915 F.2d 34, 39 n.4 (1st Cir. 1990) (citations omitted); see also Babrocky v. Jewel Food Co., 773 F.2d 857, 864 n.2 (7th Cir. 1985) (where “the EEOC investigation was overly narrow, the proper inquiry would be into what EEOC investigation could reasonably be expected to grow from the original complaint”). “Conditioning a plaintiff’s right to recover on the omissions of other parties would unduly undermine the remedial purposes of Title VII.” Babrocky, 773 F.2d at 864 n.2.

In short, this Court’s like-or-reasonably-related-to rule has long provided appropriate and important protection to charging parties who experience retaliation as a result of their efforts to enforce their rights, without prejudicing employers. In contrast, the panel majority’s decision could seriously undermine enforcement of the statute with no countervailing benefits.

CONCLUSION

The Commission thus respectfully urges this Court to rehear this case en banc and hold, consistent with the dissenting opinion, that Richter’s failure to file a separate retaliation charge does not preclude her from pursuing her retaliation claim in court.

Respectfully submitted,

P. DAVID LOPEZ /s/ Barbara L. Sloan_____

General Counsel BARBARA L. SLOAN

Attorney

CAROLYN L. WHEELER EQUAL EMPLOYMENT

Acting Associate General Counsel OPPORTUNITY COMMISSION

131 M Street N.E., 5th Floor

DANIEL T. VAIL Washington, DC 20507

Acting Assistant General Counsel (202) 663-4721

barbara.sloan@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2007 with Times New Roman 14-point font.

/s/ Barbara L. Sloan

Attorney for Equal Employment

Opportunity Commission

Dated September 5, 2012

[1] Since the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. §§ 2000ff et seq., and Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. have comparable charge-filing provisions, the decision on the issue presented here would also impact enforcement of those statutes.

[2] Accordingly, the Commission urges the Court to clarify the statement from Wedow, quoted by the majority and described by the dissent here as “unnecessarily overinclusive,” that “‘retaliation claims are not reasonably related to underlying discrimination claims.’” Slip op. at 7 (citations omitted); Dissent at 21. While Wedow attributed this statement to Duncan (442 F.3d at 673), it actually comes from Wallin, 153 F.3d at 688, which held, unremarkably, that the rule does not apply to retaliation claims arising before the charge was filed but omitted from the charge. However, none of these cases, including Wedow, involved the opposite factual scenario at issue here and in Wentz, where the plaintiff allegedly suffered retaliation because she filed a charge alleging substantive discrimination. Wedow did not explain why the like-or-reasonably-related-to rule now excludes post-charge retaliation claims, nor does such an exclusion make sense. Moreover, neither the majority decision nor Wedow cites any Eighth Circuit authority holding that a plaintiff may not challenge retaliation based on the filing of her original charge without first filing a new or amended charge.