TABLE OF CONTENTS

Page

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

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

STATEMENT OF THE ISSUE....................................................................... 2

STATEMENT OF FACTS............................................................................... 2

A. Factual Background............................................................................ 2

B. District Court Decision....................................................................... 4

ARGUMENT.................................................................................................... 5

A submission to the EEOC constitutes a charge of discrimination under Title VII when it satisfies the standard of Federal Express Corp. v. Holowecki, which does not consider whether the EEOC treated the submission as a charge. 6

A. Holowecki governs the determination of what is

a charge......................................................................................... 7

B. The plaintiffs’ submissions constitute charges under

Holowecki................................................................................... 10

CONCLUSION............................................................................................... 12

CERTIFICATE OF COMPLIANCE............................................................. end

CERTIFICATE OF SERVICE...................................................................... end

TABLE OF AUTHORITIES

CASES

Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34 (1st Cir. 2013).. 9

Caruso v. Alltel Corp., 113 F. App’x 90 (6th Cir. 2004).............................. 9

EEOC . Commercial Office Prods. Co., 486 U.S. 107 (1979)....................... 8

Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008).............. passim

Pijnenburg v. W. Ga. Health Sys., Inc., 255 F.3d 1304 (11th Cir. 2001)... 4

Semsroth v. City Wichita, 304 F. App’x 707 (10th Cir. 2008).............. 5, 9

Tucker v. Howard Univ. Hosp., 764 F. Supp. 2d 1 (D.D.C. 2011).............. 5

Wilkerson v. Grinnell Corp., 270 F.3d 1314 (11thCir. 2001)...................... 5

Williams v. CSX Transp. Co., Inc., 643 F.3d 502 (6th Cir. 2011)......... 9, 10

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)........................... 9

STATUTES

29 U.S.C. § 626(d).......................................................................................... 8

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

42 U.S.C. § 2000e-5(b).............................................................................. 6, 8

42 U.S.C. § 2000e-5(e)(1).............................................................................. 8

TABLE OF AUTHORITIES (cont’d)

REGULATIONS

29 C.F.R. § 1601.3(a)............................................................................... 10, 11

29 C.F.R. § 1601.12(a)................................................................................ 8, 11

29 C.F.R. § 1601.12(b)..................................................................... 5, 8, 10, 11

29 C.F.R. § 1601.3(a)............................................................................... 10, 11

29 C.F.R. § 1626.6........................................................................................... 7

29 C.F.R. § 1626.8........................................................................................... 8

RULES

Fed. R. App. P. 29(a)....................................................................................... 1

STATEMENT OF INTEREST

Congress established the Equal Employment Opportunity Commission (EEOC) to interpret, administer, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and other federal anti-discrimination statutes. The district court held below, inter alia, that the plaintiffs exhausted their administrative remedies in this Title VII case because their timely-filed EEOC intake questionnaires and verified letters constituted charges of discrimination. Although the district court reached the correct result, the court used the wrong analysis. The court reasoned that how the EEOC treats a submission—i.e., whether the agency treats it as a charge by notifying the defendant—informs the determination of whether the submission is a charge. This analysis contravenes the Supreme Court’s holding in Federal Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). Because the proper application of Holowecki impacts the ability of the EEOC and private litigants to enforce Title VII and other anti-discrimination statutes, the Commission respectfully offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE[1]

The Supreme Court held in Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), that a submission to the EEOC constitutes a charge where it satisfies the statutory and regulatory definitions of a charge and objectively manifests an intent for the EEOC to take remedial action. Did the district court err by failing to apply Holowecki and by instead holding that whether a submission constitutes a charge turns, in part, on whether the EEOC treated the submission as a charge and notified the employer?

STATEMENT OF FACTS

A. Factual Background

Plaintiffs Gary Woods, who is African-American, and Nicolas Lorenzo, who is Caucasian, worked as account managers for FacilitySource LLC. PageID#1437 (opinion, R.82). Woods alleged that he suffered race discrimination (in the form of lower wages) and a race-based hostile work environment while working at FacilitySource. Id. Lorenzo alleged that FacilitySource subjected him to discrimination (also in the form of lower wages) and a hostile work environment based upon his association with Woods. Id.

On March 19, 2013, Woods and Lorenzo submitted completed intake questionnaires to the EEOC. PageID#1070-73, 1076-79 (questionnaires, R.68-27). Each plaintiff checked “Box 2” on the intake questionnaire, which states, inter alia, “I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination.” PageID#1073, 1079 (questionnaires, R.68-27).Woods and Lorenzo also submitted two-page letters detailing their allegations and “asking that this charge of discrimination be filed with both the Ohio Civil Rights Commission and the EEOC.” PageID#1074-75, 1080-81 (letters, R.68-27). Each letter was signed under penalty of perjury after again asking the charge be filed with the Ohio Civil Rights Commission and the EEOC. PageID#1075, 1081 (letters, R.68-27).

On May 6, 2013, the EEOC sent Woods a letter stating that because “the document that you submitted to us constitutes a charge, we have . . . notified the employer.” PageID#1082 (EEOC letter, R.68-28). On May 14, 2013, the EEOC sent Lorenzo an identical letter. PageID#1086 (EEOC letter, R.68-28). Both EEOC letters stated that the plaintiffs needed to sign and return the enclosed charge, which summarized their claims, before the EEOC would investigate. PageID#1082, 1086 (EEOC letters, R.68-28). The letters also stated that, for filing deadline purposes, the date of the original signed document constituted the filing date. Id. The plaintiffs evidently never returned the charges. Instead, on May 19, 2013, they requested right-to-sue notices. PageID#1089, 1092 (5/19/13 letters, R.68-29). The EEOC sent the notices about a week later. PageID#1090 (Woods 5/29/13 notice, R.68-29); PageID#1093 (Lorenzo 5/23/13 notice, R.68-29). The plaintiffs subsequently filed suit under Title VII.

FacilitySource filed a motion for summary judgment asserting, inter alia, that the plaintiffs failed to exhaust their administrative remedies because they never filed charges. PageID#734-35 (SJ brief, R.60). The plaintiffs responded that their intake questionnaires constituted charges and were timely filed. PageID#909 (response, R.68). In reply, FacilitySource acknowledged that the plaintiffs had submitted intake questionnaires but asserted that they did not constitute charges. PageID#1381-82 (reply, R.74). Neither FacilitySource nor the plaintiffs cited any case law to support their arguments.

B. District Court Decision

The district court rejected FacilitySource’s argument that the plaintiffs failed to exhaust their administrative remedies. PageID#1441-42 (opinion, R.82). Citing Pijnenburg v. West Georgia Health System, Inc., 255 F.3d 1304 (11th Cir. 2001), and two other outdated cases from other circuits, the court stated that a questionnaire constitutes a charge if it satisfies Title VII’s oath or affirmation requirement, 42 U.S.C. § 2000e-5(b), and if the employer receives notice of the claim. PageID#1442 (opinion, R.82). Here, the court said, the plaintiffs provided sworn signatures in the letters they submitted with their intake questionnaires and “the EEOC gave FacilitySource notice of the charges.” Id. The information provided also satisfied the requirements of 29 C.F.R. § 1606.12(b) for a charge, the court added, and “the EEOC treated the plaintiffs’ submissions as charges.” Id. Accordingly, the court held, the plaintiffs’ submissions constituted charges. Id. (citing Wilkerson v. Grinnell Corp., 270 F.3d 1314 (11thCir. 2001), Semsroth v. City Wichita, 304 F. App’x 707 (10th Cir. 2008), and Tucker v. Howard Univ. Hosp., 764 F. Supp. 2d 1 (D.D.C. 2011)). The court cited the Supreme Court’s decision in Holowecki, 552 U.S. 389, but only as a “see also” without a parenthetical or any explicit consideration of its holding. Id.

The court granted summary judgment on the merits, however, to FacilitySource, and the plaintiffs appealed.

ARGUMENT

A submission to the EEOC constitutes a charge of discrimination under Title VII when it satisfies

the standard of Federal Express Corp. v. Holowecki,

which does not consider whether the EEOC treated the submission as a charge.

As the district court recognized, plaintiffs suing under Title VII must exhaust their administrative remedies by timely filing a charge of discrimination. See 42 U.S.C. § 2000e-5(b). Title VII requires a charge to “be in writing under oath or affirmation” and to contain such information as the EEOC requires. Id. The EEOC’s regulations at 29 C.F.R. § 1601.12 set out the required contents of a charge.

In this case, the district court correctly held that the plaintiffs’ intake questionnaires and attached verified letters constituted charges of discrimination, but the court applied an improper standard in reaching this conclusion. Contrary to the district court’s analysis below, whether the EEOC treats a submission as a charge and notifies the employer of it is irrelevant to the determination of whether the submission was indeed a charge. Rather, Supreme Court and Sixth Circuit precedent make clear that whether a submission to the EEOC constitutes a charge depends on whether the submission satisfies the statutory and regulatory requirements for a charge and can reasonably be construed as a request for the agency to take remedial action. Therefore, even if FacilitySource argues that the judgment below should be affirmed on the alternative ground of failure to exhaust administrative remedies, this Court should reject that argument.

A. Holowecki governs the determination of what is a charge.

The district court’s holding that the EEOC’s treatment of a submission is determinative of whether the document constitutes a charge was expressly considered and rejected by the Supreme Court in Holowecki, 552 U.S. 389. In Holowecki, the Supreme Court agreed with the EEOC that an intake questionnaire, or other document, constitutes a charge under the Age Discrimination in Employment Act (ADEA) when it satisfies 29 C.F.R. § 1626.6, which sets forth the requirements of an age charge, and when it can “be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights” or settle a dispute with the employer. 552 U.S. at 402. Although Federal Express had argued that the definition of a charge should be conditioned “upon the EEOC’s fulfilling its mandatory duty to notify the charged party and initiate a conciliation process,” the Supreme Court explicitly rejected this argument. Id. at 403. The Court stated that this argument lacked any textual support. Id. at 404. Moreover, the Court explained, “[i]t would be illogical and impractical to make the definition of a charge dependent upon a condition subsequent over which the parties have no control.” Id.

Although Holowecki concerned the ADEA, its holding applies with equal force to Title VII actions. To be sure, the Supreme Court warned in Holowecki against applying its holding to other statutes, such as Title VII, “without careful and critical examination.” 552 U.S. at 393. Critical examination of Title VII’s statutory and regulatory scheme, however, compels the conclusion that Holowecki’s holding applies to Title VII. The ADEA and Title VII have similar, albeit not identical, statutory schemes concerning exhaustion of administrative remedies. Compare 29 U.S.C. § 626(d)(1)-(2) (requiring that a charge be filed prior to suit, either 180 or 300 days after the unlawful practice at issue, and requiring the EEOC to notify the respondent and, if cause is found, to attempt conciliation), with 42 U.S.C. § 2000e-5(b),(e)(1) (requiring a charge to be “in writing” and to be filed within either 180 or 300 days of an unlawful employment practice and that the EEOC send notice to the respondent and, if cause is found, to attempt conciliation). The charge-filing regulations under the ADEA are also essentially identical to those interpreting Title VII. Compare 29 C.F.R. § 1626.8(a)-(b) (setting forth the required contents of an ADEA charge), with 29 C.F.R. § 1601.12(a)-(b) (setting out the required contents of a Title VII charge).[2] Additionally, as the Supreme Court noted in Holowecki, the ADEA and Title VII both “set[] up a ‘remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.’” Holowecki, 552 U.S. at 402 (quoting EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 124 (1979)).

In accordance with the similarities between the statutory and regulatory schemes of the ADEA and Title VII, this Court and others have held uniformly that Holowecki applies to Title VII cases. See Williams v. CSX Transp. Co., Inc., 643 F.3d 502, 508 n.2 (6th Cir. 2011) (stating that “numerous courts have applied Holow ecki in the Title VII context because of the similarities between the statutory schemes of the ADEA and Title VII concerning exhaustion of administrative remedies” and applying Holowecki) (internal quotation marks omitted);see also Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34, 42 n.1 (1st Cir. 2013) (stating that “the filing provisions of the ADEA and Title VII are virtually in haec verba” and applying Holowecki in Title VII case) (internal quotation marks and citation omitted); Semsroth v. City of Wichita, 304 F. App’x 707, 712 n.5 (10th Cir. 2008) (same).

Accordingly, the district court erred by relying on how the EEOC treated the plaintiffs’ intake questionnaires to determine whether they were charges, as Holowecki explicitly rejected this approach. Simply put, how the EEOC treats a submission is irrelevant to the determination of whether the submission constitutes a charge (although in this case the agency clearly did treat the submissions as charges). Rather, under Holowecki the proper inquiry is whether the submission to the EEOC satisfied the statutory and regulatory definition of a charge and objectively manifested an intent to activate Title VII’s machinery.

B. The plaintiffs’ submissions constitute charges under Holowecki.

Application of Holowecki to this case compels the conclusion that the plaintiffs’ intake questionnaires and verified letters constituted charges of discrimination under Title VII. “In order for an EEOC filing to constitute a ‘charge’” under Title VII sufficient to exhaust an employee’s administrative remedies “the filing (1) must be ‘verified’—that is, submitted under oath or penalty of perjury, 29 C.F.R. §1601.3(a); (2) must contain information that is ‘sufficiently precise to identify the parties, and to describe generally the action or practices complained of,’ id. § 1601.12(b); and (3) must comply with Holowecki—that is, an ‘objective observer’ must believe that the filing ‘taken as a whole’ suggests that the employee ‘requests the agency to activate its machinery and remedial processes.’” Williams, 643 F.3d at 509 (quoting Holowecki, 552 U.S. at 398). The plaintiffs’ submissions satisfied all three prongs of this inquiry.

As to the first prong, verification, it is true—as FacilitySource pointed out below—that the intake questionnaires were unverified, since the EEOC’s intake questionnaire does not prompt complainants to sign under penalty of perjury. However, as the district court noted, the plaintiffs submitted along with their intake questionnaires letters describing the discrimination. Both Woods and Lorenzo signed the letters under “penalty of perjury,” which satisfies the verification requirement. 29 C.F.R. § 1601.3(a) (defining “verified” as an “unsworn declaration in writing under penalty of perjury”). As for the second prong, the intake questionnaires and letters undoubtedly contain sufficient information to satisfy the requirements of § 1601.12(b), as well as the more detailed requirements of § 1601.12(a). See 29 C.F.R. § 1601.12(b) (stating that a charge is sufficient when it is “sufficiently precise to identify the parties, and to describe generally the action or practices complained of”); 29 C.F.R. § 1601.12(a) (setting out more specific requirements for what a charge “should” contain). Finally, as to the third prong—which the district court failed to consider—the plaintiffs’ submissions can “be reasonably construed as a request for the agency to take remedial action” or settle a dispute between the plaintiffs and FacilitySource. Holowecki, 552 U.S. at 402. The plaintiffs made crystal clear their intent to file charges of discrimination by checking “Box 2” on the intake questionnaire and by twice asking in their letters “that this charge of discrimination” be filed with the EEOC and the Ohio Civil Rights Commission.

CONCLUSION

For the reasons set out above, the Commissions respectfully submits that it would be inappropriate to affirm summary judgment on the alternative ground of failure to exhaust administrative remedies.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

s/ Anne Noel Occhialino

ANNE NOEL OCCHIALINO

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, N.E.

Washington, D.C. 20507

(202) 663-4724

April 6, 2015

[1] The Commission takes no position on any other issue raised in this appeal.

[2] Under both statutes, “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (Title VII case); see Caruso v. Alltel Corp., 113 F. App’x 90, 91 (6th Cir. 2004) (applying Zipes in ADEA suit).