No. 20-1628

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

 

 

 

DANE AYERS,

          Plaintiff – Appellant,

 

v.

 

ENVIRO-CLEAN SERVICES, INC., et al.,

          Defendants – Appellees.

 

 

 

On Appeal from the United States District Court

for the Eastern District of Michigan

No. 2:19-cv-10314-SJM-MKM

Hon. Stephen J. Murphy, III, U.S.D.J.

 

 

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE IN SUPPORT OF

PLAINTIFF – APPELLANT AND IN FAVOR OF REVERSAL

 

 

SHARON FAST GUSTAFSON

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

ELIZABETH E. THERAN

Assistant General Counsel

 

SUSAN R. OXFORD

Attorney

 

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

TABLE OF CONTENTS

Table of Authorities................................................................................... iii

 

Statement of Interest................................................................................... 1

 

Statement of the Issues............................................................................... 2

 

Statement of the Case................................................................................. 2

 

A.   Statement of the Facts...................................................................... 2

 

B.   District Court’s Decision.................................................................. 7

 

Summary of Argument............................................................................... 8

 

Argument................................................................................................... 9

 

I... Ayers Adequately Pled Satisfaction of the Conditions Precedent for an ADA Lawsuit........................................................................................ 9

 

A.   Ayers’s complaint satisfied Rule 9(c) by alleging that he filed a timely EEOC charge......................................................................... 9

 

B.   Because Michigan’s FEPA has a worksharing agreement with the EEOC, all ADA plaintiffs in Michigan have 300 days to file a charge of discrimination, regardless of whether they first submit their charge to the FEPA or to the EEOC........................................................... 14

 

II.. In a Deferral Jurisdiction Like Michigan, the 300-Day Limitations Period Applies Regardless of Whether an Aggrieved Individual Files a Charge Himself or Someone Does So On His Behalf.......................... 22

 

Conclusion............................................................................................... 26

 

Certificate of Compliance......................................................................... 28

 

ADDENDUM

Designation of Relevant District Court DocumentsA1

 

Relevant Statutes and RegulationsA2

 

42 U.S.C. § 2000e-5(b).................................................................. A2

 

42 U.S.C. § 2000e-5(c).................................................................. A2

 

42 U.S.C. § 2000e-5(d).................................................................. A3

 

42 U.S.C. § 2000e-5(e)(1)............................................................. A3

 

42 U.S.C. § 2000e-5(f)(1).............................................................. A3

 

29 C.F.R. § 1601.7(a).................................................................... A4

 

29 C.F.R. § 1601.13(a)(1) – (4)..................................................... A4

Certificate of Service

 

Table of Authorities

 

Cases                                                                                                               Page

 

EEOC v. Commercial Office Prods. Co.,

    486 U.S. 107 (1988)................................................ 15, 16, 17, 18, 20, 24

 

EEOC v. Klingler Elec. Corp., 636 F.2d 104 (5th Cir. 1981).................... 12

 

EEOC v. Wah Chang Albany Corp., 499 F.2d 187 (9th Cir. 1974)........... 13

 

Everson v. Mich. Dep’t of Corrs., 391 F.3d 737 (6th Cir. 2004)............... 12

 

Farmer v. ARA Servs., Inc., 660 F.2d 1096 (6th Cir. 1981)...................... 23

 

Fort Bend County v. Davis, 139 S. Ct. 1843 (2019).................................. 10

 

Gilardi v. Schroeder, 833 F.2d 1226 (7th Cir. 1987)................................ 12

 

Hildebrand v. Allegheny Cty., 757 F.3d 99 (3d Cir. 2014)........................ 12

 

Jones v. Federal Express Corp.,

    952 F.3d 815 (6th Cir. 2020)........................................... 1, 16, 17, 18, 19

 

Logan v. MGM Grand Detroit Casino,

    939 F.3d 824 (6th Cir. 2019).................................. 1, 5, 7, 11, 14, passim

 

Love v. Pullman Co., 404 U.S. 522 (1972).................................... 16, 17, 23

 

Mohasco Corp. v. Silver, 447 U.S. 807 (1980).................................... 17, 20

 

Nichols v. Muskingum Coll., 318 F.3d 674 (6th Cir. 2003)....................... 20

 

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979).................................. 12

 

Rasimas v. Mich. Dep’t of Mental Health, 714 F.2d 614 (6th Cir. 1983).. 10

 

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)........................................ 24

 

Stearns v. Consol. Mgmt., Inc., 747 F.2d 1105 (7th Cir. 1984)........... 13, 17

 

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)......................... 10

 

 

Statutes

 

29 U.S.C. § 626(c)-(e).............................................................................. 12

 

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq......... 5

 

42 U.S.C. § 2000e-4(g)(1).......................................................................... 1

 

42 U.S.C. § 2000e-5(b)-(e)(1).................................................................. 26

 

42 U.S.C. § 2000e-5(b)-(f).................................................................... 1, 12

 

42 U.S.C. § 2000e-5(b)............................................................. 9, 11, 22, 24

 

42 U.S.C. § 2000e-5(c)..................................................... 16, 17, 24, 25, 26

 

42 U.S.C. § 2000e-5(d)............................................................................. 25

 

42 U.S.C. § 2000e-5(e)(1)................................................. 15, 19, 23, 24, 26

 

42 U.S.C. § 2000e-5(f)(1)......................................................................... 11

 

42 U.S.C. § 2000e-8(b)............................................................................... 1

 

42 U.S.C. §§ 12101 et seq.................................................................... 1, 10

 

42 U.S.C. § 12117(a)............................................................................ 1, 10

 

M.C.L.A. §§ 37.1101 et seq...................................................................... 20

 

M.C.L.A. § 37.1605................................................................................. 23

 

M.C.L.A. § 37.2602(c)............................................................................. 23

 

Regulations

 

29 C.F.R. § 1601.7(a)......................................................................... 22, 24

 

29 C.F.R. § 1601.13(a)(3)(i)..................................................................... 16

 

29 C.F.R. § 1601.13(a)(4)(i)(B), (C)......................................................... 19

 

29 C.F.R. §§ 1601.70(a)........................................................................... 20

 

29 C.F.R. §§ 1601.70(a)(1), (2)................................................................ 14

 

29 C.F.R. § 1601.70(d)............................................................................. 16

 

29 C.F.R. § 1601.74(a)....................................................................... 14, 20

 

 

Rules

 

Fed. R. Civ. P. 9(c)....................................................................... 10, 11, 13

 

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

 

 

Miscellaneous

 

EEOC Detroit Field Office Information on Charge-Filing Timeliness, https://www.eeoc.gov/field-office/detroit/timeliness ............................... 21

 

EEOC, Fair Employment Practices Agencies (FEPAs) and Dual Filing, https://www.eeoc.gov/employees/fepa.cfm ............................................. 20

 

FY 2012 EEOC/FEPA Model Worksharing Agreement, Worksharing Agreement Between the Michigan Department of Civil Rights and the U.S. Equal Employment Opportunity Commission Indianapolis District Office for Fiscal Year 2012,

https://www.eeoc.gov/fy-2012-eeocfepa-model-worksharing-agreement-worksharing-agreement-between-michigan-department .......................... 18

 

Wright & Miller, 5A Fed. Prac. & Proc. Civ. § 1302 (4th ed.).................. 11

STATEMENT OF INTEREST

Congress charged the Equal Employment Opportunity Commission (“EEOC” or “Commission”) with administering, interpreting, and enforcing federal laws prohibiting employment discrimination, including Title I of the Americans with Disabilities Act, as amended, 42 U.S.C. §§ 12101 et seq. (“ADA”).  The EEOC’s receipt and investigation of charges is a key element in the ADA’s enforcement scheme, both with respect to the EEOC’s own enforcement process and in its coordination with state and local fair employment practices agencies (“FEPAs”) to enforce state or local laws prohibiting disability discrimination.  See generally 42 U.S.C. §§ 2000e-4(g)(1), 2000e-5(b)-(f), 2000e-8(b); see also 42 U.S.C. § 12117(a) (incorporating into the ADA the powers, remedies, and procedures set forth in these statutory provisions).

This appeal raises an important question regarding how long individuals have to file a charge of discrimination with the EEOC when they live in a state or locality that has its own FEPA.  Although this Court has addressed this very issue at least twice in the last year, in Logan v. MGM Grand Detroit Casino, 939 F.3d 824 (6th Cir. 2019), and Jones v. Federal Express Corp., 952 F.3d 815 (6th Cir. 2020), confusion apparently persists among the district courts.  This appeal also raises another significant question: what private ADA plaintiffs must allege in a complaint regarding satisfaction of conditions precedent to suit.  Because of the importance of these issues, the EEOC offers its views to the Court.  Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1.  Where the plaintiff, who filed an EEOC charge 291 days after the alleged discrimination, alleged in his complaint that he filed a timely charge with the EEOC, did he adequately plead satisfaction of the conditions precedent to an ADA lawsuit without needing to allege that he filed a charge with a state or local agency before filing it with the EEOC?

2.  Where, as here, the alleged discrimination occurred in a jurisdiction with a state agency authorized to address claims of disability-based workplace discrimination, does the 300-day limitations period apply regardless of whether the plaintiff, himself, filed his charges or someone else filed them on his behalf?

STATEMENT OF THE CASE

A.         Statement of the Facts

Pro se plaintiff Dane Ayers is appealing the dismissal of his ADA complaint against defendant Enviro-Clean Services, Inc., “for failure to exhaust administrative remedies.”  Notice of Appeal/R.42/PageID.609; Omnibus Order (“Order”)/R.40/PageID.605.  Ayers sued Enviro-Clean in February 2019 alleging the company violated the ADA when, at the behest of an official of defendant Walled Lake Consolidated School District, Enviro-Clean cancelled a scheduled job interview and failed to hire him for a janitorial position at the school.  Complaint/R.1/PageID.1-13.[2]    

Ayers’s pro se complaint, in relevant part, describes him as a twenty-four-year-old former student of Walled Lake Central High School who “has been diagnosed with autism spectrum disorder (ASD),” a “neurodevelopmental disorder … characterized by persistent deficits in social communication and social interaction across multiple contexts.”  Complaint/R.1/PageID.4-5.  The complaint further alleges that ASD substantially impairs Ayers in the major life activities of “cognition, learning, thinking, speaking, social interaction and communicating,” among other major life activities.  Id./PageID.5.

Ayers alleges that on June 13, 2017, he saw a sign outside his former high school advertising “a hiring process for open jobs,” went inside, and spoke with someone who directed him “to apply for a janitorial position through the Enviro-Clean website,” which he did.  Id./PageID.5.  The next day, Enviro-Clean notified Ayers it had scheduled him for a June 20 job interview.  Id./PageID.6.  However, the complaint states, Enviro-Clean cancelled the job interview on June 16 after Assistant Principal Eric Henderson told the company “that Ayers would not be a good fit for the school.”  Id./PageID.7-8.  The complaint further asserts that Enviro-Clean’s actions, including cancelling his interview and denying him any employment opportunities with the company, “were a direct result of Ayers’s disability … and/or Defendants’ refusal to accommodate or engage in an interactive process to determine reasonable accommodations for Ayers’s disability.”  Id./PageID.8-9.

Ayers sued both Enviro-Clean and the school district.  Id./PageID.1-18.  He alleged that Enviro-Clean violated the ADA by canceling his job interview and failing to hire him.  Id./PageID.9-13.  He also alleged that the actions of both defendants violated Michigan’s Persons with Disabilities Civil Rights Act (“MPDCRA”).  Id./PageID.13-16.  With respect to the ADA’s statutory prerequisites to suit, Ayers’s complaint alleges that, before filing this action, he “exhausted his administrative remedies by filing a timely charge of discrimination against Enviro-Clean Services, Inc. with the [EEOC] … on April 4, 2018” (id./PageID.3-4), which was 291 days after the last alleged act of discrimination.

Enviro-Clean moved to dismiss the complaint, contending, in relevant part, that Ayers’s lawsuit was untimely as a matter of law because he failed to file it within the contractual 180-day time limit in the job application he signed.  Motion to Dismiss/R.23/PageID.289-90, 298-99.[3]  Two weeks later, this Court ruled such contractual time limits invalid for claims brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.  Logan v. MGM Grand Detroit Casino, 939 F.3d 824, 825-26 (6th Cir. 2019). 

In supplemental briefing, Enviro-Clean urged dismissal of Ayers’s lawsuit on the ground that Ayers’s EEOC charge was untimely.  Enviro-Clean argued that, to benefit from the 300-day charge-filing timeframe applicable under Title VII (and the ADA), a plaintiff first must institute proceedings with a state or local agency.  Supplemental Brief (“Supp.Brf.”)/R.27/PageID.470-71.  Enviro-Clean contended that there was no “evidence in the record,” and no allegation in Ayers’s complaint, that he had “ever filed a charge with the Michigan Department of Civil Rights [“MDCR”] asserting the claims at issue in this lawsuit.”  Id./PageID.471, 479 (no evidence in the record), PageID.477 (no allegation in Ayers’s complaint). As support, Enviro-Clean provided the court with copies of correspondence from the MDCR verifying that Ayers’s mother had filed a charge with the MDCR on his behalf. [4]  Supp.Brf./Exhibits 3-5/R.27-4 to R.27-6/PageID.512-19.

In its reply brief, Enviro-Clean acknowledged Ayers’s position that the charges his mother filed on his behalf satisfied the statutory charge-filing requirement.  Enviro-Clean Reply Brief (“Rply.Brf.”)/R.38/PageID.586 (“Plaintiff contends that he was not required to file a charge [himself] because ‘his mother filed it for him.’”); see also Ayers’s Response to Enviro-Clean’s Motion to Dismiss/R.36 at 7 n.2/PageID.571.  But, Enviro-Clean argued, these charges did not fulfill Title VII’s prerequisite for the 300-day time limit because Title VII requires the aggrieved individual to institute proceedings with the state or local agency, and Ayers had not filed any such charge himself.  Rply.Brf./R.38/PageID.586.

The company also maintained that Ayers’s complaint should be dismissed because he did not file his own EEOC charge.  Supp.Brf./R.27/PageID.480-81.  Enviro-Clean asserted, without explanation or argument, that Ayers had been “deemed competent in September of 2017,” referring to a trial transcript from a different judicial proceeding that the school district appended to its separate motion to dismiss.  Id./PageID.480 (citing Walled Lake’s Exhibit 11/Trial Transcript/R.22-12/PageID.191); see also id./PageID.478 (citing Exhibit 11/R.22-12/PageID.191).  Quoting this Court’s decision in Logan, Enviro-Clean asserted that “[t]he EEOC process begins with a ‘charge’ filed by the victim of discrimination.”  Id./Page.ID.481 (emphasis in original).  Enviro-Clean argued that since Ayers, himself, never filed an EEOC charge, he “failed to exhaust his administrative remedies, rendering his ADA claim subject to dismissal under Logan, even if it were otherwise timely.”  Id.

B.         District Court’s Decision

On May 21, 2020, the district court granted Enviro-Clean’s motion to dismiss, ruling that Ayers’s EEOC charge was not timely filed.  Omnibus Order (“Order”)/R.40/PageID.605-06.  The court noted that an aggrieved individual has 300 days to file an EEOC charge only “if [he] also files with the relevant state or local agency”; otherwise he “must file an EEOC charge within 180 days after the allegedly discriminatory conduct.”  Id./PageID.605 (quoting Logan, 939 F.3d at 827).  The court observed that here, Ayers filed his charge 291 days after the events in question, and his complaint “did not allege that he filed a charge with any state or local agency to benefit from the 300-day deadline.”  Id.  The court therefore “dismiss[ed] [Ayers’s] ADA claim for failure to timely exhaust his administrative remedies.”  Id./PageID.606; see also id./PageID.605 (“The court need not address the background of Plaintiff’s claims because it must dismiss his ADA claim for failure to exhaust administrative remedies.”). 

Declining to extend supplemental jurisdiction over Ayers’s state law claims, the court then dismissed his complaint entirely.  Id./PageID.606.  The court did not address any other arguments raised by either defendant.  This appeal followed.  Notice of Appeal/R.42/PageID.609.

summary of argument

The district court erred in dismissing Ayers’s complaint on the grounds that his EEOC charge was untimely.  The alleged discrimination occurred in Michigan, a deferral jurisdiction, and Ayers filed his charge within the statutory 300-day charge-filing deadline that applies in deferral states.  Insofar as the district court faulted Ayers for not specifically pleading that he had filed a discrimination charge with the appropriate state agency before filing one with the EEOC, the court erred.  The Federal Rules of Civil Procedure do not require plaintiffs to plead satisfaction of conditions precedent to suit with that level of specificity. 

Furthermore, Title VII mandates that in deferral jurisdictions such as Michigan, administrative proceedings must be instituted with the appropriate state or local fair employment practices agency (“FEPA”) before the EEOC may file the charge and begin its administrative process.  Pursuant to this statutory mandate, EEOC regulations and worksharing agreements with FEPAs in these jurisdictions operate to ensure that administrative proceedings are automatically instituted with the FEPA before the EEOC files the charge, thereby extending the charge-filing deadline to 300 days.  In any event, the 300-day deadline applied here because—as the record below shows—Ayers’s mother filed a charge on his behalf with the MDCR before filing it with the EEOC.

To the extent the district court credited Enviro-Clean’s argument that Ayers was not entitled to the 300-day deadline because he did not do his own charge-filing, this too was error.  Title VII explicitly permits charges to be filed “on behalf of” an aggrieved individual.  42 U.S.C. § 2000e-5(b).  Nothing in Title VII provides, or even suggests, that charges filed with a FEPA on an aggrieved individual’s behalf are not equally eligible for the 300-day charge-filing timeframe.  Enviro-Clean cited no precedent in support of its contrary argument, and we know of none.  Thus, Ayers satisfied Title VII’s prerequisites for the 300-day charge-filing period, and his complaint adequately pled satisfaction of all conditions precedent to suit.

ARGUMENT

I.           Ayers Adequately Pled Satisfaction of the Conditions Precedent for an ADA Lawsuit.

A.  Ayers’s complaint satisfied Rule 9(c) by alleging that he filed a timely EEOC charge.

The district court erred in dismissing Ayers’s lawsuit as untimely on the grounds that his complaint did not specifically allege he had filed a charge with the MDCR before filing with the EEOC.  As explained further below, filing a timely EEOC charge is a condition precedent to filing a lawsuit under Title I of the ADA, and Federal Rule of Civil Procedure 9(c) allows plaintiffs to plead generally that they have satisfied all conditions precedent to suit.  Ayers was not required to do more.

As relevant here, Ayers sued Enviro-Clean for discriminating against him on the basis of his disability in violation of the ADA.  See Complaint/R.1/PageID.9-13; see generally 42 U.S.C. §§ 12101 et seq.  The ADA incorporates “[t]he powers, remedies, and procedures set forth in section[] … 2000e-5” of Title VII.  42 U.S.C. § 12117(a).  Decades ago, both the Supreme Court and this Court recognized that under Title VII, the timely filing of a charge of employment discrimination is a precondition to suit, not a jurisdictional requirement.  See Rasimas v. Mich. Dep’t of Mental Health, 714 F.2d 614, 620 (6th Cir. 1983) (“The timely filing of a complaint with the EEOC is a procedural prerequisite to the enforcement of a Title VII action in federal court. This requirement, however, is not jurisdictional, rather it is in the nature of a statute of limitations.”) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)). 

For similar reasons, the Supreme Court reached the same conclusion last year in Fort Bend County v. Davis, with regard to EEOC charge-filing in general.  139 S. Ct. 1843, 1846 (2019) (holding that EEOC charge is not a jurisdictional requirement but “a precondition to the commencement of a Title VII action in court”).  This is so because the filing of a charge of discrimination with the EEOC is what triggers the EEOC’s administrative process.  42 U.S.C. § 2000e-5(b) (reproduced in the addendum at A2; see Logan, 939 F.3d at 827 (“The EEOC process begins with a ‘charge’ filed by the victim of discrimination.”).  The completion of that administrative process, as signified by the EEOC’s issuance of a right-to-sue notice to the charging party, is what entitles an aggrieved individual to bring a civil action “against the respondent named in the charge.”  42 U.S.C. § 2000e-5(f)(1), at A3-A4. 

Because filing an EEOC charge is a condition precedent to bringing an ADA claim in court, Rule 9(c) governs what a plaintiff must plead in the complaint concerning its satisfaction.  Rule 9(c) provides: “[i]n pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed.  But when denying that a condition precedent has occurred or been performed, a party must do so with particularity.”  See also Wright & Miller, 5A Fed. Prac. & Proc. Civ. § 1302 (4th ed.) (“Rule 9(c) is designed to eliminate the detailed and largely unnecessary allegations that resulted under the common law procedure, and to prevent nonmeritorious dismissals for a failure to plead the fulfillment of conditions precedent that are not at issue in the suit or simply are overlooked accidentally by the pleader.”) (footnote omitted). 

The allegations in Ayers’s complaint more than satisfied Rule 9(c)’s general pleading requirement.  In relevant part, Ayers alleged that “[p]rior to filing this action, Plaintiff exhausted his administrative remedies by filing a timely charge of discrimination against Enviro-Clean Services, Inc. with the [EEOC] … on April 4, 2018.”  Complaint ¶¶ 11-12, PageID.3-4.  These allegations exceed the requirements of Rule 9(c), which would have been satisfied even if Ayers had only pled generally that all conditions precedent for filing a lawsuit under the ADA “have occurred or been performed.”  See, e.g., Hildebrand v. Allegheny Cty., 757 F.3d 99, 111-12 (3d Cir. 2014) (applying Rule 9(c) and holding that plaintiff sufficiently pled conditions precedent for his lawsuit under the Age Discrimination in Employment Act (“ADEA”) by alleging that “[a]ll conditions precedent to jurisdiction … have occurred or been complied with”)[5]; EEOC v. Klingler Elec. Corp., 636 F.2d 104, 106 (5th Cir. 1981) (holding, in Title VII action, that “[a] general averment that ‘all conditions precedent to the institution of this lawsuit have been fulfilled’ is quite adequate for pleading purposes.”) (citing Fed. R. Civ. P. 9(c); other citation omitted). 

This same principle applies when the condition precedent at issue is deferral to the appropriate state or local agency.  As one court of appeals explained, EEOC’s partnership with state agencies in the enforcement of Title VII is “[a] fundamental policy” of the Act, and “[t]he deferral requirement of Section 706(c)” is “an important feature of the statute.”  EEOC v. Wah Chang Albany Corp., 499 F.2d 187, 189 (9th Cir. 1974).  But while “[d]eferral to a state or local agency” is “not to be overlooked,” it is “most reasonably considered [a] condition[] precedent [to suit], the performance or occurrence of which may be pleaded generally as permitted by Rule 9(c).”  Id. at 190.  On that basis, the court reversed dismissal, ruling there was no need for the EEOC’s complaint to allege that the charge had been deferred to the appropriate state or local agency.  Id.  The court concluded its discussion by noting that any concerns about compliance with statutory deferral requirements were “defensive in character” and could be resolved by summary judgment.  Id.  See also Stearns v. Consol. Mgmt., Inc., 747 F.2d 1105, 1111-12 (7th Cir. 1984) (although a general averment suffices to plead satisfaction of conditions precedent, a defendant may still “raise the issue of nonperformance … prior to trial” by moving for summary judgment).

For the same reasons, Ayers’s allegation in his complaint that he filed a timely EEOC charge, a condition precedent to his ADA suit, was more than adequate to meet the requirements of Rule 9(c).

B.    Because Michigan’s FEPA has a worksharing agreement with the EEOC, all ADA plaintiffs in Michigan have 300 days to file a charge of discrimination, regardless of whether they first submit their charge to the FEPA or to the EEOC.

There is a separate reason, apart from Rule 9(c), why Ayers’s complaint did not need to allege that he initially filed a charge with the MDCR:  Michigan is a “deferral” jurisdiction, and the MDCR has a worksharing agreement with the EEOC.  See Logan, 939 F.3d at 827 (explaining “deferral jurisdictions”; identifying Michigan as a deferral state and the MDCR as a FEPA with a worksharing agreement); 29 C.F.R. §§ 1601.70(a)(1), (2) (identifying the statutory qualifications to be designated a FEPA by the EEOC); § 1601.74(a) (listing designated FEPAs, including the MDCR).  In deferral jurisdictions, aggrieved individuals who submit a charge to the EEOC do not have to do anything further to cause proceedings to be initiated with the appropriate FEPA.  If the FEPA has a worksharing agreement with the EEOC—as is true for the vast majority of FEPAs—the conditions that trigger the 300-day timeframe happen automatically by operation of the worksharing agreement’s terms.

Here, the applicability of the 300-day charge-filing period is crystal clear. The MDCR has a worksharing agreement with the EEOC, and Ayers’s mother actually filed a charge on his behalf with the MDCR before filing it with the EEOC, which the MDCR then forwarded to the EEOC.  But even if she had submitted the charge only to the EEOC, the prerequisites for the 300-day charge-filing timeframe would nevertheless have been satisfied.  In deferral jurisdictions like Michigan, there is no need for a plaintiff to allege explicitly in his complaint that he filed a charge with a state or local agency before filing with the EEOC, because the terms of the worksharing agreement cause that step to happen as a matter of course.

As this Court noted in Logan, “Title VII enforcement relies on a combination of public and private action.”  939 F.3d at 827.  Thus, “[a]s a general rule,” for an EEOC charge to be timely, “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)).  Title VII extends that charge-filing period to 300 days, however, if “the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice.”  42 U.S.C. § 2000e-5(e)(1), at A3.

Read in isolation, the wording of § 2000e-5(e)(1) appears to suggest that the aggrieved individual chooses whether to tender his charge to the EEOC or to the FEPA first, and this choice then determines whether he is entitled to the 300-day charge-filing period.  In the broader context of Title VII, however, § 2000e-5(c) requires that proceedings be instituted initially with a state or local agency where one exists, and the EEOC’s regulations ensure that it happens. 

42 U.S.C. § 2000e-5(c) provides that “no [EEOC] charge may be filed by the person aggrieved … before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.”  See A2.  The purpose of this requirement, the Supreme Court has observed, is “to give state agencies a prior opportunity to consider discrimination complaints,” Love v. Pullman Co., 404 U.S. 522, 526 (1972)—thereby allowing them, if they choose, “to combat discrimination free from premature federal intervention.”  Commercial Office Prods., 486 U.S. at 110; Jones v. Fed. Express Corp., 952 F.3d 815, 818 (6th Cir. 2020); see also 29 C.F.R. § 1601.13(a)(3)(i) (EEOC regulations seek “to give full weight to the policy of section 706(c) of title VII, which affords State and local [FEPAs] … an opportunity to remedy alleged discrimination concurrently regulated by … the ADA … and State or local law”), at A4.[6]

Thus, if the alleged discrimination occurred in a jurisdiction with a state or local agency authorized to address the violation, Title VII prohibits the EEOC from accepting the charge for EEOC filing until proceedings have been instituted with the proper state or local agency.  Stearns, 747 F.2d at 1110 (under Title VII “a charge may not be filed with the EEOC until after the state has been given an opportunity to resolve the dispute,” citing § 2000e-5(c)).  Where the aggrieved individual has not already instituted such proceedings when it submits a charge to the EEOC, the Supreme Court has held that the EEOC may do so on the individual’s behalf.  See Mohasco Corp. v. Silver, 447 U.S. 807, 816 (1980); Love, 404 U.S. at 525.  

Once proceedings have been commenced under state law, Title VII requires the EEOC to allow the FEPA a sixty-day period of exclusive processing “unless such proceedings have been earlier terminated.”  42 U.S.C. § 2000e-5(c).  A FEPA, however, can waive its right to this sixty-day exclusive charge-processing period; when it does, it has “terminated” FEPA proceedings within the meaning of the statute.  Commercial Office Prods., 486 U.S. at 114-22, 125; Jones, 952 F.3d at 818.  “At that point,” this Court recently noted, “the EEOC may deem any charge it has received to be filed and may begin to process it immediately.”  Jones, 952 F.3d at 818 (citing Love, 404 U.S. at 526) (EEOC may hold a charge “in ‘suspended animation,’ automatically filing it upon termination of the state proceedings”); see also Commercial Office Prods., 486 U.S. at 112.

To streamline the operation of § 2000e-5(c)’s requirements, “[t]he EEOC has entered into ‘worksharing agreements’ with most FEPAs.”  Jones, 952 F.3d at 818.  As this Court has already recognized, these worksharing agreements—including Michigan’s specifically—include provisions that ensure Title VII’s statutory conditions for the 300-day charge-filing timeframe are satisfied as a matter of course whenever an individual files a charge with the EEOC.  See Logan, 939 F.3d at 828 (ruling that the EEOC’s worksharing agreement with the MDCR operates to allow individuals 300 days to file EEOC charges); Jones, 952 F.3d at 817 (addressing materially identical worksharing agreement with Tennessee state agency); FY 2012 EEOC/FEPA Model Worksharing Agreement, Worksharing Agreement Between the Michigan Department of Civil Rights and the U.S. Equal Employment Opportunity Commission Indianapolis District Office for Fiscal Year 2012, §§ II.A., III.A.1.[7] 

This Court explained the operation of worksharing agreements earlier this year in Jones.  Jones had submitted a charge to the EEOC more than 180 days after the alleged discrimination occurred, without first submitting it to the Tennessee Human Rights Commission (“THRC”).  Jones, 952 F.3d at 819.  As this Court described, the worksharing agreement between the EEOC and the THRC caused three things to happen “automatically and simultaneously”:  “(1) the EEOC, acting as THRC’s agent, instituted a THRC proceeding; (2) the THRC terminated that proceeding pursuant to its waiver; and (3) the EEOC instituted its own proceeding.”  Id.  Because this satisfied the statutory prerequisites for the 300-day time limit, this Court held that “[t]he terms of [the worksharing agreement] operated to make the 300-day, rather than the 180-day, period of 42 U.S.C. § 2000e-5(e)(1) the applicable filing window.”  Id. at 820.  The Court accordingly reversed the district court’s ruling that Jones’s EEOC charge was untimely.

Dual-filing thus occurs as a matter of course if the alleged discrimination occurred in a deferral jurisdiction that has a worksharing agreement with the EEOC.  This is why, as this Court explained in Logan, “the employee will have preserved [his] claim if within 300 days of the allegedly discriminatory acts [he] either (a) institutes proceedings with the state agency and also then files the charge with the EEOC, or (b) files only with the EEOC, which under the work-sharing agreement, refers the charge to the applicable state agency.”  Logan, 939 F.3d at 828 (emphasis added).[8]  See also 29 C.F.R. § 1601.13(a)(4)(i)(B), (C) (describing process by which EEOC refers charges to a FEPA if such a deferral agency exists), at A5; EEOC, Fair Employment Practices Agencies (FEPAs) and Dual Filing (“If the charge is initially filed with EEOC and the charge is also covered by state or local law, EEOC dual files the charge with the state or local FEPA ….”).[9]

As in Jones and Logan, the statutory prerequisites for the 300-day charge-filing period are also satisfied here.  Michigan state law prohibits disability-based discrimination in the MPDCRA (M.C.L.A. §§ 37.1101 et seq.), and the MDCR has authority to address such violations.  And, as this Court observed in Logan, “the EEOC has entered into a worksharing agreement with the MDCR.”  Logan, 939 F.3d at 828; see also 29 C.F.R. §§ 1601.70(a), 1601.74(a) (listing the MDCR as among the designated FEPAs).  Had Ayers’s mother not first submitted a charge to the MDCR, the EEOC—pursuant to the worksharing agreement—would have accepted Ayers’s charge on the MDCR’s behalf, thereby initiating proceedings with the MDCR.  Those MDCR “proceedings” would then have been terminated immediately pursuant to the waiver provision in the worksharing agreement, thereby invoking the 300-day charge-filing timeframe.  

Thus, although it is true, as this Court stated in Logan, 939 F.3d at 827, that  an aggrieved individual “must actually ‘institute[] proceedings’ with the appropriate state agency” to benefit from the 300-day filing period, there is no need for such individuals to do anything to make this happen.  That is why the website for the EEOC’s Detroit Field Office, which has jurisdiction over charges arising in Michigan and Ohio, instructs individuals seeking information about charge-filing deadlines that:

An individual has 300 days from the date of alleged harm to file a charge with this office against an employer with 15 or more employees for discrimination based on race, color, national origin, sex, religion, and/or disability in the States of Michigan and Ohio.[10]

The Commission can make that representation because its worksharing agreements with the MDCR and the Ohio FEPA ensure that the statutory prerequisites for the 300-day timeframe are automatically satisfied. 

Consequently, just as Jones and Logan had no need to initiate proceedings with the respective FEPAs in their cases before filing their charges with the EEOC—and, perforce, no need to allege having done so in their complaints—Ayers also had no need to allege in his complaint the factual details entitling him to the 300-day charge-filing period.  In a deferral jurisdiction like Michigan, Ayers would have been entitled to the 300-day filing period even if his mother had not first filed a charge on his behalf with the MDCR.  The district court had no basis under the federal rules, the ADA, or this Court’s precedent to dismiss Ayers’s lawsuit for failing to allege in his complaint that a charge had been filed with the MDCR before one was filed with the EEOC.

II.        In a Deferral Jurisdiction Like Michigan, the 300-Day Limitations Period Applies Regardless of Whether an Aggrieved Individual Files a Charge Himself or Someone Does So On His Behalf.

Enviro-Clean also argued that Ayers’s ADA claim was time-barred and subject to dismissal because he never filed any charge at all, given that his mother filed both his MDCR and EEOC charges on his behalf.  Enviro-Clean argued that Ayers had to file the MDCR charge himself for the 300-day limitation period to apply, and that he had to file the EEOC charge himself in order to satisfy the ADA’s presuit requirements. The district court did not explicitly address either of these arguments in its Omnibus Order, but, in any case, they are both incorrect.

Title VII expressly permits a charge to be filed on an aggrieved individual’s behalf.  42 U.S.C. § 2000e-5(b); see also 29 C.F.R. § 1601.7(a) (noting that discrimination charges may be made “by or on behalf of any person claiming to be aggrieved” and specifying that “[a] charge on behalf of a person claiming to be aggrieved may be made by any person, agency, or organization.”), at A4.  The EEOC knows of no authority suggesting a different rule in Michigan.  To the contrary, the relevant Michigan statute provides that the MDCR shall “receive” and “investigate” “complaints alleging a violation of this act,” without any indication or suggestion that the aggrieved individual himself must file such charges.  See M.C.L.A. § 37.2602(c); see also M.C.L.A. § 37.1605 (specifying that the complaint procedures for the MPDCRA are the same as those for Michigan’s general prohibition against unfair employment practices).  Indeed, as explained supra at 17, it is well-established that the EEOC may institute state agency proceedings on an aggrieved individual’s behalf.  See Farmer v. ARA Servs., Inc., 660 F.2d 1096, 1105 (6th Cir. 1981) (citing Love, 404 U.S. at 525-26).  Nothing in Title VII, Michigan law, or judicial precedent limits this legal principle to the EEOC.  Thus, in a deferral jurisdiction like Michigan, charges are subject to the 300-day deadline regardless of who initially instituted the FEPA proceeding. 

In arguing below that the charges Ayers’s mother filed on his behalf with the MDCR and the EEOC were ineffective to trigger the 300-day time limit or even to satisfy the EEOC charge-filing requirement, Enviro-Clean focused on the phrase in § 2000e-5(e)(1) specifying that the charge-filing time limit expands from 180 to 300 days when proceedings with a state or local agency have been instituted by “the person aggrieved.”[11]  See Rply.Brf./R.38/PageID.586.  This Court should reject that reading of § 2000e-5(e)(1) because, as a matter of statutory interpretation, it makes no sense in light of “[t]he broader context provided by other sections of the statute.”  Robinson v. Shell Oil Co., 519 U.S. 337, 345 (1997).  Indeed, such a reading would yield absurd results in conflict with the underlying congressional purposes of § 2000e-5(c).  See id. at 346; see also, e.g., Commercial Office Prods., 486 U.S. at 120-21 (Court “need not and should not countenance” an “interpretation of the language of § 706(c)” that would “lead[] to ‘absurd or futile results … “plainly at variance with the policy of the legislation as a whole.”””) (citations omitted).

Reading subsection (e)(1) in the context of § 2000e-5 as a whole demonstrates the fallacy in Enviro-Clean’s construction of the statute.  The same phrase on which Enviro-Clean relied below—“the person aggrieved”—also appears in § 2000e-5(c), which provides that where the alleged discrimination occurred in a jurisdiction “which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice … , no charge may be filed under subsection [(b)] of this section by the person aggrieved unless [certain administrative conditions have been met].”  But since § 2000e-5(b) expressly allows charges to be filed “by or on behalf of a person claiming to be aggrieved,” the interpretation Enviro-Clean urges would mean that any charge filed on behalf of an aggrieved individual would be entitled to bypass § 2000e-5(c)’s requirement that state and local authorities have the first opportunity to address the alleged discrimination.  Given the pains Congress took to confer this priority on state and local enforcement agencies, see supra at 13, 15-16, it would make no sense to exempt “on behalf of” charges from this general rule.

The language of § 2000e-5(d), addressing Commissioner’s charges, further underscores the tension between Enviro-Clean’s interpretation and the broader context of the statute.  Commissioner’s charges, by definition, are filed on behalf of an aggrieved individual or individuals, and subsection (d) requires that for any such charge, the Commission must notify the appropriate state or local officials and, if they request, allow them up to sixty days to address the alleged discrimination under state or local law.  There is no conceivable reason why Congress would have required charges filed by aggrieved individuals or Commissioners—but not charges otherwise filed “on behalf of” aggrieved individuals—to be referred to the appropriate state or local agency before the EEOC may undertake its administrative process. 

Nor is there any reasonable explanation for the inevitable result of such a scheme, whereby Commissioners and aggrieved individuals who file charges themselves have 300 days to file, but those same aggrieved individuals would have only 180 days if someone else were to file on their behalf.  Moreover, § 2000e-5(e)(1) goes on to provide that where “the person aggrieved has initially instituted proceedings with a State or local agency,” the 300-day filing period will apply to charges “filed by or on behalf of the person aggrieved.”  Accordingly, reading sections 2000e-5(b) through 2000e-5(e)(1) as a whole, the only interpretation that gives meaning to all the words in the statute and comports with the congressional purpose of subsection (c) is that Congress meant the phrase “the person aggrieved” in subsections (c) and (e)(1) to include charges filed both by such an individual and on behalf of such an individual. 

Thus, the fact that Ayers’s mother filed both his MDCR charge and his EEOC charge on his behalf in no way affects the viability of either charge or the applicability of the 300-day charge-filing time limit in § 2000e-5(e)(1). Ayers properly had 300 days to file his ADA suit, and the district court erred in holding otherwise.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be vacated and the case remanded for further proceedings.

Respectfully submitted,

 

SHARON FAST GUSTAFSON

General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

ELIZABETH E. THERAN

Assistant General Counsel

 

/s/ Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

 

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements in Fed. R. App. P. 29(a)(5) and 32(a)(7)(B) and Sixth Circuit Local Rule 32(a) and (b)(1) because it contains 6,112 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f), as determined by Microsoft Word for Office 365.  This brief also complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word for Office 365 in Times New Roman 14 point.

 

/s/ Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov

 

 

Dated:  October 2, 2020

 

 

 

Addendum

 

 

Designation of Relevant District Court Documents

 

 

Relevant Statutes & Regulations

 

42 U.S.C. § 2000e-5. Enforcement provisions

* * *

(b)  Charges by persons aggrieved or member of Commission of unlawful employment practices by employers, etc.; … investigation by Commission …. 

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer … has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer … within ten days, and shall make an investigation thereof. … If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action.  In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d) of this section.

* * *

(c)  State or local enforcement proceedings; notification of State or local authority; time for filing charges with Commission; commencement of proceedings

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.

 

(d)  State or local enforcement proceedings; notification of State or local authority; time for action on charges by Commission

In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State or political subdivision of a State which has a State or local law prohibiting the practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days …, unless a shorter period is requested, to act under such State or local law to remedy the practice alleged.

 

(e)  Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or local agency; seniority system

(1)  A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.

* * *

(f)  Civil action by Commission, Attorney General, or person aggrieved; preconditions; procedure; ….

(1)  If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d), the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. … If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, … or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission … shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved ….

 

29 C.F.R. § 1601.7 – Charges by or on behalf of persons claiming to be aggrieved.

(a) A charge that any person has engaged in or is engaging in an unlawful employment practice within the meaning of title VII, [or] the ADA … may be made by or on behalf of any person claiming to be aggrieved.  A charge on behalf of a person claiming to be aggrieved may be made by any person, agency, or organization. ….

* * *

29 C.F.R. § 1601.13 – Filing; deferrals to State and local agencies.

(a)  Initial presentation of a charge to the Commission.

(1)  Charges arising in jurisdictions having no FEP agency are filed with the Commission upon receipt. Such charges are timely filed if received by the Commission within 180 days from the date of the alleged violation.

(2)  A jurisdiction having a FEP agency without subject matter jurisdiction over a charge (e.g., an agency which does not cover sex discrimination or does not cover nonprofit organizations) is equivalent to a jurisdiction having no FEP agency. Charges over which a FEP agency has no subject matter jurisdiction are filed with the Commission upon receipt and are timely filed if received by the Commission within 180 days from the date of the alleged violation.

(3)  Charges arising in jurisdictions having a FEP agency with subject matter jurisdiction over the charges are to be processed in accordance with the Commission's deferral policy set forth below and the procedures in paragraph (a)(4) of this section.

(i)  In order to give full weight to the policy of section 706(c) of title VII, which affords State and local fair employment practice agencies that come within the provisions of that section an opportunity to remedy alleged discrimination concurrently regulated by title VII, the ADA, or GINA and State or local law, the Commission adopts the following procedures with respect to allegations of discrimination filed with the Commission. It is the intent of the Commission to thereby encourage the maximum degree of effectiveness in the State and local agencies. The Commission shall endeavor to maintain close communication with the State and local agencies with respect to all matters forwarded to such agencies and shall provide such assistance to State and local agencies as is permitted by law and as is practicable.

(ii)  Section 706(c) of title VII grants States and their political subdivisions the exclusive right to process allegations of discrimination filed by a person other than a Commissioner for a period of 60 days (or 120 days during the first year after the effective date of the qualifying State or local law). This right exists where, as set forth in § 1601.70, a State or local law prohibits the employment practice alleged to be unlawful and a State or local agency has been authorized to grant or seek relief. After the expiration of the exclusive processing period, the Commission may commence processing the allegation of discrimination.

(iii)  A FEP agency may waive its right to the period of exclusive processing of charges provided under section 706(c) of title VII with respect to any charge or category of charges. Copies of all such charges will be forwarded to the appropriate FEP agency.

(4)  The following procedures shall be followed with respect to charges which arise in jurisdictions having a FEP agency with subject matter jurisdiction over the charges:

(i)  Where any document, whether or not verified, is received by the Commission as provided in § 1601.8 which may constitute a charge cognizable under title VII, the ADA, or GINA, and where the FEP agency has not waived its right to the period of exclusive processing with respect to that document, that document shall be deferred to the appropriate FEP agency as provided in the procedures set forth below:

(A)  All such documents shall be dated and time stamped upon receipt.

(B)  A copy of the original document, shall be transmitted by registered mail, return receipt requested, to the appropriate FEP agency, or, where the FEP agency has consented thereto, by certified mail, by regular mail or by hand delivery. State or local proceedings are deemed to have commenced on the date such document is mailed or hand delivered.

(C)  The person claiming to be aggrieved and any person filing a charge on behalf of such person shall be notified, in writing, that the document which he or she sent to the Commission has been forwarded to the FEP agency pursuant to the provisions of section 706(c) of title VII.

 

(ii)  Such charges are deemed to be filed with the Commission as follows:

(A)  Where the document on its face constitutes a charge within a category of charges over which the FEP agency has waived its rights to the period of exclusive processing referred to in paragraph (a)(3)(iii) of this section, 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.

(B)  Where the document on its face constitutes a charge which is not within a category of charges over which the FEP agency has waived its right to the period of exclusive processing referred to in paragraph (a)(3)(iii) of this section, the Commission shall process the document in accordance with paragraph (a)(4)(i) of this section. The charge shall be deemed to be filing with the Commission upon expiration of 60 (or where appropriate, 120) days after deferral, or upon the termination of FEP agency proceedings, or upon waiver of the FEP agency’s right to exclusively process the charge, whichever is earliest. Where the FEP agency earlier terminates its proceedings or waives its right to exclusive processing of a charge, the charge shall be deemed to be filed with the Commission on the date the FEP agency terminated its proceedings or the FEP agency waived its right to exclusive processing of the charge. Such filing is timely if effected within 300 days from the date of the alleged violation.

* * *

 

CERTIFICATE OF SERVICE

I, Susan R. Oxford, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system on this 2nd day of October, 2020.  I also certify that counsel of record for both defendants have consented to electronic service and will be served the foregoing brief via the appellate CM/ECF system.  I am mailing two hard copies of the EEOC’s amicus brief to the pro se plaintiff/appellant via the U.S. Postal Service by first class mail, postage pre-paid, to the following address:

Dane Ayers, Pro Se

936 Amenia Street

Wolverine Lake, MI   48390

(248) 896-2438

 

 

/s/ Susan R. Oxford

SUSAN R. OXFORD

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4791

susan.oxford@eeoc.gov