IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

KATHY KARMID, )

)

Plaintiff, )

)

vs. ) Case No: CIV-17-929-M

)

MIDWEST REGIONAL MEDICAL )

CENTER, LLC, d/b/a )

ALLIANCE HEALTH MIDWEST, )

)

Defendant. )

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF KARMID’S MOTION TO RECONSIDER AND

VACATE COURT’S ORDER [DOC. 9]

STATEMENT OF INTEREST

The U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) is charged by Congress with the enforcement of federal laws prohibiting discrimination in employment, including the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.. The EEOC is also charged with issuing regulations implementing its statutory mandates under the ADEA and Title VII. 29 U.S.C. § 628 (authorizing the EEOC to issue regulations necessary or appropriate to carry out the ADEA); 42 U.S.C. § 2000e-12(a) (authorizing the EEOC to issue suitable procedural regulations to carry out Title VII).

On November 17, 2017, this Court issued its Order on the defendant’s motion to dismiss or stay the case. Docket No. (“R.”) 9. In that Order, the Court applied its interpretation of ADEA and Title VII administrative charge-processing requirements to conclude that the EEOC had failed to complete its administrative processing of the plaintiff’s ADEA-based charge of discrimination. R.9 at 3, 4. The Court stayed the litigation and directed the plaintiff to resubmit her charge of discrimination to the EEOC to fulfill what this Court interpreted as the agency’s outstanding statutory obligations.

This Court’s November 17, 2017, Order implicates important issues regarding both the scope of administrative processing of discrimination charges under the ADEA and Title VII, and the necessary administrative prerequisites that a private individual must satisfy before he or she may bring suit under either statute. Given its role in the ADEA’s and Title VII’s enforcement schemes, the EEOC has a strong interest in this Court’s proper resolution of these issues. Accordingly, the Commission respectfully offers its views to this Court.

STATEMENT OF FACTS

On March 10, 2017, plaintiff Kathy Karmid filed a charge of discrimination alleging that her former employer, defendant Midwest Regional Medical Center (“MRMC”), violated the ADEA when it paid her less than her younger coworkers. R.7-1 at 1. That same day, and at Karmid’s request, the Commission issued Karmid a notice of right to sue, informing her that it was closing her ADEA case and that she could bring a lawsuit sixty days after the filing of the charge, but no later than ninety days after the date of issuance of the right-to-sue notice. R.7-2. On May 25, 2017, seventy-seven days later, Karmid filed suit, alleging age discrimination by MRMC. R.1-1; R.1-2.

MRMC filed a motion to dismiss or to stay the case. It argued that Karmid had failed to exhaust her administrative remedies because the EEOC had issued a right-to-sue notice on the same day it received Karmid’s charge, without notifying MRMC of the charge or attempting to resolve it through informal means such as conciliation. R.5 at 5-6. MRMC alleged that the only notice it received of Karmid’s charge came from when she filed suit, and that MRMC still had still not received a copy of the charge at the time it filed its motion. Id. MRMC further argued that the ADEA’s charge-processing requirements were to be interpreted as identical to Title VII’s, and that precedent governing Title VII requirements applied with equal force to ADEA cases. Id. at 8-9. Thus, MRMC argued, the Title VII conciliation requirement announced by the Supreme Court in Mach Mining, LLC v. Equal Employment Opportunity Commission, 135 S. Ct. 1645 (2015), “applies with full force” to Karmid’s private ADEA suit. Id. at 9. Because the Commission failed to satisfy the Mach Mining requirements as to Karmid’s charge, according to MRMC, the case should be either dismissed or stayed pending conciliation. Id.

This Court granted MRMC’s motion and stayed the litigation. R.9. In its order, this Court first stated that under Title VII, a plaintiff must obtain a right-to-sue notice from the Commission as a prerequisite to suit. Id. at 3. This Court then extended that rule to the ADEA, stating that the Supreme Court “has held courts must construe the charge filing requirements of the ADEA and Title VII consistently.” Id. at 3 n.1. (citing Oscar Meyer & Co. v. Evans, 441 U.S. 750, 756 (1979)). “Therefore,” this Court concluded, “Title VII cases apply to ADEA cases, and vice versa.” Id. (citing Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1308 (10th Cir. 2005)).

Based on this premise, this Court acknowledged that Karmid had exhausted her administrative remedies, as she had timely filed her charge and had filed suit within ninety days of the Commission’s issuance of her right-to-sue notice. R.9 at 3. But this Court found that the EEOC had not met its own administrative obligations regarding the processing of Karmid’s charge. Id. Pointing to Mach Mining’s recognition that “Title VII . . . imposes a duty on the EEOC to attempt conciliation of a discrimination charge prior to filing a lawsuit,” it expanded the coverage of this language beyond the Commission’s own litigation to include suits brought by private parties. Id. at 4. According to this Court, while in Mach Mining “the EEOC was the plaintiff rather than an individual, the court was describing EEOC’s statutory duties of conciliation pursuant to Title VII.” Id. at 4 & n.2 (quoting in part 135 S. Ct. at 1651). This Court determined that the Commission had “failed to satisfy Title VII’s requirement to attempt conciliation prior to Plaintiff filing her lawsuit.” Id. at 4.

On the question of notice, this Court credited the statement of MRMC’s Human Resources Director that she never received a copy of either Karmid’s charge or her right-to-sue notice, and that the Commission never contacted MRMC to attempt to resolve the charge. R.9 at 4-5. For these reasons, the Court ordered the matter stayed until Karmid “resubmits her Charge of Discrimination to the EEOC so it can fulfill its statutory obligation of conciliation.” Id. at 5.

ARGUMENT

As this Court recognized in its November 17, 2017, Order, Karmid satisfied all the necessary administrative prerequisites to filing suit under the ADEA. R.9 at 3. The EEOC also satisfied all its own administrative charge-processing obligations under the ADEA as to Karmid’s charge. This Court’s decision to stay the case pending further processing was based on the premise that a private party may not file an ADEA suit unless the Commission has first attempted to resolve the dispute through informal methods such as conciliation. R.9 at 3-5. But neither the ADEA nor Title VII makes conciliation by the EEOC a prerequisite for suit by a private party; as a matter of law, the presuit conciliation requirement applies only to the EEOC’s own litigation efforts.

Accordingly, there is no basis for directing Karmid to resubmit her charge to the EEOC for continued administrative processing, as all required processing was concluded once Karmid requested and received her notice of right to sue. Moreover, even if the EEOC had failed to give MRMC proper notice of Karmid’s charge and notice of right to sue, as MRMC alleges, the EEOC’s failure would not weigh in favor of limiting Karmid’s ability to proceed with her timely-filed ADEA suit.^{^[1]}

I. There Is No Basis for Staying Karmid’s Lawsuit Before This Court Because the EEOC Satisfied All Its Charge-Processing Obligations as to Karmid’s ADEA Charge, and Conciliation Is Not a Prerequisite to Suit By a Private Party.

A. Neither the ADEA nor Title VII makes conciliation by the EEOC a prerequisite for a lawsuit brought by a private individual.

Both the ADEA and Title VII contain statutory prerequisites with which a private party must comply before suing in court. While the prerequisites differ significantly between the two statutes, as addressed more fully below, they do have at least one thing in common: neither statute requires that the EEOC engage in conciliation in order for a private party to bring suit. (Both, however, require conciliation as a prerequisite for the EEOC itself to bring suit.)

Under the ADEA, “[a]ny person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter.” 29 U.S.C. § 626(c)(1). The statute provides three limitations on a private individual’s right to sue in court once a charge has been filed. First, if the Commission itself brings suit on the charge, such action terminates the individual’s right to bring suit. 29 U.S.C. § 626(c)(1). Second, “[n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC].” 29 U.S.C. § 626(d)(1). Third, although the ADEA does not require aggrieved individuals to obtain right-to-sue notices in order to file suit, in cases where the EEOC has issued a right-to-sue notice, no private lawsuit may be commenced more than ninety days after the individual receives it. 29 U.S.C. § 626(c)-(e).

Under Title VII, on the other hand, the charging party must wait to initiate a private lawsuit until the Commission has provided her with notice of her right to sue. Within the first 180 days after the charge is filed, the Commission is vested with discretion to issue such notice; after 180 days it must issue the notice upon the charging party’s request. See 42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28 (regulation governing EEOC issuance of right-to-sue notices).

The ADEA and Title VII each require the EEOC to attempt “to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.” See 29 U.S.C. § 626(d)(2) (ADEA); 42 U.S.C. § 2000e-5(b) (Title VII). But neither statute conditions the individual charging party’s ability to file suit on the agency’s conciliation efforts. Instead, both require the EEOC, upon a finding of reasonable cause, to attempt to eliminate the alleged discriminatory practices by “informal methods of conciliation, conference, and persuasion” before itself bringing suit. 29 U.S.C. § 626(b) (ADEA)^{^[2]}; 42 U.S.C. § 2000e-5(f)(1) (Title VII); see also Mach Mining, 135 S. Ct. at 1649-50.

The EEOC’s implementing regulations for both statutes similarly recognize that the statutory provisions governing conciliation do not affect the litigation rights of private parties. See 29 C.F.R. §§ 1626.18(b) (under the ADEA “[a]n aggrieved person whose claims are the subject of a timely pending charge may file a civil action at any time after 60 days have elapsed from the filing of the charge with the Commission . . . without waiting for a Notice of Dismissal or Termination to be issued.”); 1626.18(c) (under the ADEA, “[t]he right of an aggrieved person to file suit expires 90 days after receipt of the Notice of Dismissal or Termination or by the commencement of an action by the Commission to enforce the right of such person.”); 1601.28(a)(1)-(3) (under Title VII, setting out procedures for issuance of notice of right to sue either before or after 180 days have elapsed since charge filing, none of which are contingent on conciliation); 1601.28(b)(3) (under Title VII, setting out procedures for issuance of notice of right to sue when the Commission has dismissed a charge under § 1601.18—i.e., because the charge is untimely or fails to state a claim under the statute).[3]

Thus, respectfully, this Court’s interpretation of the ADEA to require conciliation as a prerequisite to a private suit—whether based on the ADEA itself or on some aspect of Title VII—is inconsistent with the plain language of both statutes and their regulations. There simply is no requirement under the ADEA (or any of the statutes the EEOC enforces) that the EEOC must attempt to resolve a charge by resort to informal methods before an aggrieved individual may pursue her claim in court. Rather, under the ADEA, the individual need only file a charge alleging a violation and wait at least sixty days from the charge-filing date, but not more than ninety days if the Commission has dismissed or otherwise terminated its processing of the charge. At that point, so long as the Commission has not itself initiated suit based on the charge, the individual is free to file a lawsuit regardless of whatever administrative action the Commission has or has not taken on the charge. 29 U.S.C. § 626(c)-(e). We are unaware of any Supreme Court or circuit court decision even suggesting a contrary interpretation of the statute and regulations—including the Supreme Court’s decision in Mach Mining.

In describing its interpretation of Title VII’s administrative processes, this Court characterized Mach Mining as holding that conciliation by the EEOC is a prerequisite to suit regardless of whether the plaintiff is the Commission or a private individual. R.9 at 4. But Mach Mining addressed the statutory conciliation requirement only in the context of the Commission as a potential litigant. Mach Mining, 135 S. Ct. at 1649 (identifying the issue before the Court as: “[b]efore suing an employer for discrimination, the [EEOC] must try to remedy unlawful workplace practices through informal methods of conciliation. This case requires us to decide whether and how courts may review those efforts.”); see also Gad v. Kan. State Univ., 787 F.3d 1032, 1041 (10th Cir. 2015) (observing that in Mach Mining the Supreme Court was “discussing conciliation, which is a condition precedent to suit by the EEOC”) (emphasis added).

Moreover, the Supreme Court’s view of conciliation in Mach Mining as a prerequisite only for EEOC suits is consistent with its earlier pronouncements on the subject. In EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981), the Court observed, consistently with Title VII and its implementing regulations, that the EEOC is required to engage in post-investigation conciliation only when it finds reasonable cause to believe a charge is true; if the Commission does not find cause, it must dismiss the charge. 449 U.S. at 595. The Court continued,

Title VII also makes private lawsuits by aggrieved employees an important part of its means of enforcement. If the Commission dismisses the charge, the employee may immediately file a private action. And regardless of whether the Commission finds reasonable cause, the employee may bring an action 180 days after filing the charge if by that time the Commission has not filed its own lawsuit.

Id. (citing 42 U.S.C. § 2000e-5(f)(1)) (emphasis added). Accordingly, a rule precluding a private party from proceeding with a private suit under Title VII unless the Commission has attempted to conciliate her case cannot be reconciled with either Mach Mining or Associated Dry Goods. Nor is the EEOC aware of any contrary authority, and the parties have identified none.

Mach Mining and Associated Dry Goods also recognize an important, related point: the Commission is not required to attempt conciliation of every charge it receives. In Mach Mining, the Court observed that after a charge is filed, “the EEOC notifies the employer of the complaint and undertakes an investigation. If the Commission finds no ‘reasonable cause’ to think that the allegation has merit, it dismisses the charge and notifies the parties. The complainant may then pursue her own lawsuit if she chooses.” 135 S. Ct. at 1649 (citing 42 U.S.C. § 2000e-5(f)(1)). Similarly, in Associated Dry Goods, the Court observed that when the Commission receives a charge, it must “begin an investigation to determine whether there is reasonable cause to believe the charge is true,” and “[i]f [the Commission] finds no such reasonable cause, the Commission must dismiss the charge. If it does find reasonable cause, it must try to eliminate the alleged discriminatory practice ‘by informal methods of conference, conciliation, and persuasion.’” 449 U.S. at 595 (quoting 42 U.S.C. § 2000e-5(b)) (emphasis added).

Neither Mach Mining nor Associated Dry Goods—nor any other precedent of which we are aware—makes any mention of a conciliation requirement applicable where, as here, the Commission made no reasonable cause finding. This is understandable, for such an interpretation would yield the peculiar result of requiring the Commission to attempt to resolve a conflict though conciliation when it does not even have reasonable cause to believe the statute has been violated.

Even aside from the legal and logical incongruity of requiring the EEOC to conciliate matters as to which it does not believe discrimination has occurred, practically speaking, such a requirement would present the EEOC with an insurmountable administrative burden. For example, in fiscal year 2017, the EEOC resolved 99,109 charges of discrimination, but found reasonable cause and attempted to conciliate in a small fraction of those total charge resolutions—only 2,909 charges. See EEOC, Enforcement Statistics, All Statutes (Charges filed with EEOC) FY 1997 - FY 2017, available at https://www.eeoc.gov/eeoc/statistics/enforcement/all.cfm (last viewed July 25, 2018) (providing annual charge receipt and processing statistics). Requiring the Commission to conciliate all the charges it receives would result in an increase in the agency’s annual conciliation workload by over 3,000%, significantly impeding its ability to properly process charges. That result was not intended by Congress or otherwise contemplated by the ADEA.

B. Title VII’s pre-suit requirements for private parties do not apply to ADEA suits.

In this case, MRMC advanced the argument that Title VII’s pre-suit requirements apply with equal force to claims brought under the ADEA. R.5 at 4-5. Karmid did not disagree, see generally R.7 at 1-6, and this Court adopted that uncontested premise, R.9 at 3-5. As explained above, neither statute makes conciliation by the EEOC a prerequisite for a lawsuit by a private individual, and so MRMC’s argument does not justify a stay. We note, however, that MRMC is incorrect: the ADEA and Title VII provide distinct administrative prerequisites for private parties to bring suit.

The Supreme Court has recognized as much, observing that “the EEOC enforcement mechanisms and statutory waiting periods for ADEA claims differ in some respects from those pertaining to other statutes the EEOC enforces, such as Title VII.” Federal Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008). The Holowecki Court thus offered the “cautionary preface” that, “[w]hile there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Id. A “careful and critical examination” reveals significant distinctions between the ADEA and Title VII. See, e.g. 29 U.S.C. § 626(c)-(e) (private party may file an ADEA suit so long as (1) she filed a charge at least sixty days prior, (2) more than ninety days have not elapsed since the EEOC terminated processing of the charge; and (3) the EEOC did not already bring its own suit based on that charge); see also supra at 7.

In accepting MRMC’s contrary proposition, this Court concluded that private-party pre-suit requirements under Title VII and the ADEA are interchangeable, based on the decisions in Oscar Meyer and Shikles. But neither decision supports importing Title VII’s administrative requirements wholesale into the ADEA.

In Oscar Meyer, the Supreme Court addressed the interrelation of the ADEA’s private suit rights and state administrative proceedings. 441 U.S. at 753. The court concluded that “[s]ince the ADEA and Title VII share a common purpose, the elimination of discrimination in the workplace, since the language of § 14(b) [ADEA provision addressing state enforcement proceedings] is almost in haec verba with § 706(c) [of Title VII], and since the legislative history of § 14(b) indicates that its source was § 706(c), we may properly conclude that Congress intended that the construction of § 14(b) should follow that of § 706(c).” Oscar Meyer, 441 U.S. at 756. While this Court relied on this passage from Oscar Meyer as support for the proposition that “courts must construe the charge filing requirements of the ADEA and Title VII consistently,” R.9 at 3, this is not the holding—or even the subject matter—of Oscar Meyer.

Oscar Meyer requires that the ADEA and Title VII be interpreted in tandem only where the statutes share a common purpose and near-identical language, and when legislative history supports interpreting each statute’s relevant provisions identically. As described above, the charge-processing requirements that serve as preconditions to a private party’s suit under the ADEA and Title VII are substantially different, with distinct statutory language. Therefore, Oscar Meyer does not support treating the requirements under each statute as identical.

Similarly, Shikles does not require identical interpretation and application of all Title VII and ADEA charge-filing requirements. This Court cited Shikles as support for the proposition that “Title VII cases apply to ADEA cases and vice versa.” R.9 at 3 n.1. However, in Shikles, the Tenth Circuit, citing Oscar Meyer, only stated that “[t]o the extent that the charge filing requirements of the ADEA and Title VII are similar, courts must construe them consistently.” Shikles, 426 F.3d at 1309 (emphasis added). As the ADEA’s administrative prerequisites for a private suit are substantially different from those under Title VII as they pertain to the Commission’s charge processing, Shikles does not counsel in favor of treating these statutes’ requirements as interchangeable. Nor does Shikles support the imposition of Title VII’s more restrictive requirements upon an ADEA claimant. See Holowecki, 552 U.S. at 393, discussed supra at 14-15.

II. Karmid Should Not Be Penalized If MRMC Did Not Receive an Administrative Notice of Her Charge.

This Court weighed MRMC’s claimed lack of notice from the EEOC of Karmid’s charge and notice of right to sue in favor of staying Karmid’s suit. R.9 at 5. The parties dispute whether this Court’s decision to stay the litigation effectively penalized Karmid. Regardless, even if the EEOC had failed to provide notice to MRMC of Karmid’s charge and notice of right to sue, this Court should not have suspended Karmid’s suit on this basis.

The Tenth Circuit has recognized that a private plaintiff may not be penalized for the EEOC’s administrative errors, particularly where, as this Court found here, the charging party has taken every step required of her to exhaust her administrative remedies. See Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1273 (10th Cir. 2001) (“Walker’s right to sue is conditioned only on her taking all steps necessary for administrative exhaustion, not on EEOC’s performance of its administrative duties. . . . She should not be denied her day in court because of EEOC’s negligence. Nor should she . . . be commandeered to act as EEOC’s superintendent, obligated to oversee its processing of the charge to ensure that it is following its own regulations.”). Walker further provides that it would be “‘unfair to deny an individual plaintiff the opportunity to litigate a claim of discrimination because of the EEOC’s administrative foibles, particularly in the absence of an express congressional mandate requiring that result.’” Id. (quoting Springer v. Partners in Care, 17 F. Supp. 2d 133, 141 (E.D.N.Y. 1998)); see also Hiller v. Okla. ex rel. Used Motor Vehicle & Parts Comm’n, 327 F.3d 1247, 1252 (10th Cir. 2003) (holding, in the context of an agency’s refusal to issue the plaintiff a right-to-sue letter in a Title VII case, that equitable principles counsel against dismissal as “it would work an injustice on Ms. Hiller to deprive her of a remedy for failure to meet a nonjurisdictional requirement that is beyond her control”).

While Walker was a Title VII case, the general principle the Tenth Circuit announced was not limited, by statutory language or otherwise, to cases involving Title VII charges. See id. Indeed, it applies at least as strongly, if not more so, to cases brought under the ADEA, where charging parties have the right to file suit sixty days after filing their charges regardless of whether the Commission has acted on the charge. See 29 U.S.C. § 626(d)(1). Under the plain terms of the ADEA, once sixty days had passed since she filed her charge, Karmid had every right to pursue her claim in court regardless of the state of the EEOC’s administrative processing of her charge. Accordingly, this Court should not have limited Karmid’s ability to proceed with her suit because of the Commission’s alleged failure to provide proper notice of the charge and right-to-sue notice to MRMC. These are duties required of the EEOC, but the agency’s performance or nonperformance of them has no bearing on a private party’s ability to prosecute an ADEA case in court.

CONCLUSION

For the foregoing reasons, the Commission respectfully urges this Court to grant Karmid’s motion to reconsider and vacate this Court’s November 17, 2017, Order.

Respectfully submitted,

[1] The EEOC takes no position on any other issue in this case.

[2] The text of the ADEA, unlike Title VII, does not expressly tie the Commission’s conciliation obligation to a finding of reasonable cause. Compare 29 U.S.C. § 626(d)(2) with 42 U.S.C. § 2000e-5(b). The ADEA’s implementing regulations, however, provide that the Commission “may commence conciliation under section 7(b) of the [Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq. (FLSA)]” “[w]henever [it] has a reasonable basis to conclude that a violation of the Act has occurred or will occur.” 29 C.F.R. § 1626.15(b). This interpretation of the obligation to conciliate as arising upon a reasonable cause finding is consistent with 29 U.S.C. § 211, the FLSA provision that gives the agency investigation authority “to determine whether any person has violated any provision of this chapter.”

[3] The EEOC’s ADEA and Title VII procedural regulations carry the full force of law, and the agency’s interpretation of those regulations is entitled to heightened deference. See United States v. Mead Corp., 533 U.S. 218, 227 (2001) (“When Congress has explicitly left a gap for an agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation, and any ensuing regulation is binding in the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.”) (internal citation and quotation marks omitted); Chase Bank, U.S.A., N.A. v. McCoy, 562 U.S. 195, 208 (2011) (“When an agency interprets its own regulation, the Court, as a general rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation.”) (internal citation and quotation marks omitted).