Cindy O’Hara

SBN 114555 (CA)

Senior Trial Attorney

U.S. Equal Employment Opportunity Commission

San Francisco District Office

P.O. Box 36025

450 Golden Gate Ave., 5^th Floor West

San Francisco, CA 94102

(415) 522-3035

cindy.ohara@eeoc.gov

 

Susan R. Oxford

SBN 021181981 (NJ)

Senior Appellate Attorney

U.S. Equal Employment Opportunity Commission

Office of General Counsel, Appellate Services

131 M Street, N.E., Washington, D.C.  20507

(202) 663-4791

susan.oxford@eeoc.gov

 

IN THE UNITED STATES DISTRICT COURT

                                         EASTERN DISTRICT OF CALIFORNIA

 

TAMMY SALING,                                       )

)

Plaintiff Pro Se,                      )

)

vs.                                                                    )           Case No: 2:13-cv-1039 TLN EFB PS

)

KEITH ROYAL, Sheriff, Nevada                 )

            County, California, et al.,                   )

                                                                        )

Defendants.                            )

 

Brief of Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff Tammy Saling and in Opposition to Defendants’ Motion to Dismiss Saling’s Title VII Claims on the Ground that Saling’s EEOC Charge Was Untimely

 

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the federal agency established by Congress to interpret, administer, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.  The EEOC’s effective enforcement of the statute depends, in significant part, on ensuring aggrieved individuals are able to file administrative charges of discrimination pursuant to Title VII’s statutory scheme, because the EEOC’s receipt and investigation of charges is the Commission’s primary means of accomplishing its statutory mandates.  See 42 U.S.C. § 2000e-5. 

Congress authorized the EEOC to issue regulations implementing its statutory mandates, and pursuant to this authority, the EEOC has promulgated regulations governing the charge-filing process.  See 42 U.S.C. § 2000e-12(a); 29 C.F.R. §§ 1601.6-1601.14.  Congress also expressly encouraged the EEOC to coordinate its enforcement efforts with State and local agencies that enforce comparable State and local anti-discrimination laws.  See  42 U.S.C. §§ 2000e-4(g)(1), 2000e-8(b).  The EEOC has implemented this Congressional mandate by promulgating regulations that govern this coordination, e.g., 29 C.F.R. §§ 1601.13, 1601.70-1601.80, and by entering into worksharing agreements with these State and local fair employment practices (“FEP”) agencies. 

The defendants moved to dismiss Tammy Saling’s Title VII claims on the ground that her EEOC charge was untimely because it was not filed within 180 days of her discharge.  Title VII, however, extends the charge-filing time limit to 300 days when a charging party “initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice.”  See 42 U.S.C. § 2000e-5(e)(1).  The EEOC has established a process, through its regulations and worksharing agreements, whereby proceedings are “initially instituted” with the

relevant FEP agency as a matter of course whenever an individual presents a charge to the EEOC.  Having undertaken these steps to create an efficient charge-filing process, the EEOC has a strong interest in ensuring that individuals whose charges qualify for the extended 300-day charge-filing time period are not improperly dismissed based on an erroneous belief that the 180-day time limit applied.  Because of the importance of this issue to the EEOC, the Commission offers its views to this Court.

STATEMENT OF FACTS

Tammy Saling alleges in her pro se complaint that in March 2011, while employed by the Sheriff of Nevada County, California, she was directed to speak with a County Human Resources (“HR”) representative as part of an ongoing investigation concerning another employee.  Magistrate Judge’s Findings and Recommendations (“F&R”), District Court Docket Number (“R.”) 50, at 2.  Saling alleges the HR representative “interrogated [her] about an off-duty personal relationship” and then notified her, the next month, “that she was now the subject of an internal investigation and was placed on administrative leave pending the outcome” of the investigation.  Id.  HR later notified her that she was facing disciplinary action.  Id.  After attempting (unsuccessfully) to reschedule her disciplinary hearing to allow her counsel to attend, Saling received notice on June 28, 2011, that the defendants were terminating her employment effective July 6, 2011.  Id.  Defendants ultimately met with Saling and her attorney on July 6; that meeting did not alter the decision to end Saling’s employment effective July 6, 2011.  Id.

Saling filed a discrimination charge with the EEOC on April 26, 2012—297 days after she and her attorney met with defendants and she learned that her employment was, in fact, ending.  See R.50 (F&R) at 12.  At the time, the EEOC had a worksharing agreement with the California Department of Fair Employment and Housing (DFEH).  Under this Agreement, each

agency designated the other as its agent for purposes of receiving charges on its behalf, and for charges—like Saling’s—that the EEOC originally received, the DFEH waived its exclusive right under Title VII to process those charges for sixty days before they are filed with the EEOC.  Worksharing Agreement for Fiscal Years 2010-2012, §§ IIA. & III.A.1.[1]    

On July 6, 2012, Saling filed a separate charge with the DFEH.  Thereafter, at Saling’s request, the EEOC issued Saling a right to sue notice, and Saling filed this pro se lawsuit alleging, inter alia, two counts under Title VII.  R.1.  Defendants moved to dismiss on the ground that Saling’s Title VII claims were based on an untimely charge.  R.40.  Defendants argued that Saling failed to initiate proceedings with the DFEH before filing with the EEOC and, therefore, was required to file her EEOC charge within 180 days.  R.41 at 13; R.46 at 6-7.  Alternatively, the defendants argued that Saling’s Title VII claims should be dismissed for failure to state a claim of Title VII retaliation.  R.41 at 13-14; R.46 at 7.

MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS

The magistrate judge agreed with the Defendants’ “administrative exhaustion” argument and recommended this Court dismiss Saling’s two Title VII causes of action on the ground that Saling failed to file her EEOC charge within 180 days of her discharge.  R.50 (F&R) at 11-13, 15.  The magistrate judge recognized that Title VII extends the charge-filing time limit to 300 days “if the plaintiff first institutes proceedings with a ‘State or local agency with authority to grant or seek relief’” from the unlawful employment practice alleged in the charge.  Id. at 12 (citing MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1082 (9th Cir. 2006)).  And the

magistrate judge acknowledged that Saling submitted her charge to the EEOC for filing within 300 days of her July 6, 2011, termination.  Id.  The magistrate judge concluded, however, that Saling was not entitled to the 300-day time limit because she “did not file her claim with the DFEH until after she filed her charge with the EEOC.”  Id. at 12-13 (“[Saling’s] charge was not timely filed and therefore her Title VII claims are barred”).  The magistrate judge made no findings or recommendations on the merits of Saling’s Title VII claims.  See id. at 11-13.  On March 31, 2015, this Court issued an Order (R.55) vacating the magistrate judge’s Findings and Recommendations and indicating intent to schedule further proceedings on the Defendants’ motion to dismiss once the EEOC clarified whether it was seeking the Court’s leave to file a brief as amicus curiae.  

ARGUMENT[2]

 

For Title VII Claims Covered Under California State Law,

the EEOC Charge-Filing Time Limit in California is 300 Days

 

Saling had 300 days to file her EEOC charge.  When Saling presented her charge to the EEOC, the EEOC initially “instituted” proceedings with California’s enforcement agency, the DFEH, by accepting Saling’s charge on the DFEH’s behalf.  As explained below, Saling was not required to take any separate steps to file her charge with the DFEH.  Rather, initial filing with the DFEH occurred automatically—prior to the filing of the charge with the EEOC—by virtue of the interplay between (1) Title VII’s statutory requirement that the EEOC “defer” to a State or local agency with overlapping jurisdiction before the EEOC can file a charge, (2) the EEOC’s regulations implementing this statutory requirement, and (3) the EEOC’s Worksharing Agreement with the DFEH under which the EEOC first accepted Saling’s charge on the DFEH’s

behalf.  The fact that Saling filed a separate charge with the DFEH several months later did not undo the EEOC process whereby proceedings had already been instituted with the DFEH. 

Before pursuing a Title VII claim in court, a plaintiff must file a timely charge and receive a right-to-sue notice from the EEOC.  42 U.S.C. §§ 2000e-5(e)(1) & (f)(1).  Title VII specifies two different time limits for filing a charge.  “As a general rule, a complainant must file a discrimination charge with the EEOC within 180 days of the occurrence of the alleged unlawful employment practice.”  EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 110 (1988) (citing 42 U.S.C. § 2000e-5(e)); see 29 C.F.R. § 1601.13(a), (b).  But if a complainant initially institutes proceedings with a State or local agency that has authority to grant or seek relief for the alleged violation, the complainant has 300 days to file the charge with the EEOC.  42 U.S.C. § 2000e-5(e)(1); Commercial Office Prods., 486 U.S. at 110; Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1174 (9th Cir. 1999). 

Significantly, where there is such a State or local agency with authority to grant or seek relief for the violation the charging party alleges, instituting proceedings with the State or local agency before filing with the EEOC is not optional.  Rather, section 2000e-5(c) states that “no charge may be filed” with the EEOC “before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.”  42 U.S.C. § 2000e-5(c).  The EEOC designates agencies that satisfy the criteria of section 2000e-5(c) as “fair employment practices” or “FEP” agencies.  29 C.F.R. §§ 1601.3(a), 1601.70(a).  The EEOC’s list of such agencies in the Commission’s regulations includes the DFEH.  See 29 C.F.R. §1601.74.  Thus, whenever a charging party presents a charge to the EEOC that alleges a violation in a jurisdiction that has an FEP agency with authority to address such a violation, Title VII requires the EEOC to allow the FEP agency the option of addressing

the allegation for up to sixty days before the EEOC can file the charge.  During this “deferral” period, the charge is considered to be held by the EEOC in “suspended animation.”  See Love v. Pullman Co., 404 U.S. 522, 526 (1972); Green v. Los Angeles Cnty. Supt. of Schs., 883 F.2d 1472, 1476-77 (9th Cir. 1989). 

In further recognition of this overlapping or concurrent enforcement jurisdiction, Congress authorized the EEOC to cooperate with State and local agencies that enforce State or local laws with provisions comparable to Title VII.  See 42 U.S.C. §§ 2000e-4(g)(1), 2000e-8(b); see Green, 883 F.2d at 1477.  Pursuant to these provisions and the mandate of section 2000e-5(c), the Commission has adopted procedural regulations under which the EEOC ensures that proceedings are instituted first with an FEP agency where required under section 2000e-5(c).  See 29 C.F.R. § 1601.13.  In addition, the regulations permit FEP agencies to waive their sixty-day period for exclusive processing of such charges.  29 C.F.R. § 1601.13(a)(3)(i), (ii), & (iii).  The regulations provide that where the FEP agency has agreed in advance to such a waiver, “the charge is deemed to be filed with the Commission upon receipt of the document.”  29 C.F.R. § 1601.13(a)(4)(ii).

The waivers authorized under 29 C.F.R. § 1601.13(a)(3) are generally embodied in written Worksharing Agreements between the EEOC and individual FEP agencies.  See 29 C.F.R. § 1601.13(c) (authorizing EEOC to enter into “cooperative arrangements” with FEP agencies “to establish effective and integrated” procedures for processing and resolution of charges alleging a violation of both federal and State/local law).  Under such worksharing agreements, FEP agencies typically designate the EEOC to accept charges on their behalf and, in addition, waive their right to the sixty-day period of exclusive processing.  See Laquaglia,

 

186 F.3d at 1175-76.  Such charges are, consequently, deemed filed with the EEOC upon the EEOC’s receipt.[3]

The EEOC’s regulations that implement the statutorily-required FEP deferral are entitled to judicial deference, in particular because they address the EEOC’s own internal agency procedures.  See Commercial Office Prods., 486 U.S. at 115 (“EEOC’s interpretation of ambiguous language need only be reasonable to be entitled to deference”); id. at 125 (O’Connor, J., concurring) (“deference [to EEOC] is particularly appropriate on this type of technical issue of agency procedure”); Green, 883 F.2d at 1479 (EEOC’s reasonable interpretation of Title VII entitled to deference).  The EEOC’s interpretation of its worksharing agreements with FEP agencies is, likewise, entitled to judicial deference.  Green, 883 F.2d at 1479; Isaac v. Harvard Univ., 769 F.2d 817, 827 (1st Cir. 1985) (in context of adopting EEOC’s interpretation that waiver provision in the worksharing agreement “terminated” state agency’s proceedings, stating “EEOC’s interpretation of § 706(c) . . . is ‘entitled to great deference’”) (internal quotation marks and citations omitted).

When Saling filed her EEOC charge in April 2012, the applicable Worksharing Agreement between the EEOC and the DFEH authorized the EEOC to accept charges on the DFEH’s behalf, stating that submission of a charge to the EEOC will automatically initiate the proceedings of the DFEH.  R.52 (FY2010-FY2012 Worksharing Agreement, §II.A).  Under this provision, the EEOC accepted Saling’s charge on April 26, 2012, first on the DFEH’s behalf, thereby automatically initiating the DFEH’s administrative procedures as required by 42 U.S.C. § 2000e-5(c) and entitling Saling to Title VII’s 300-day charge-filing period under § 2000e-5(e)(1).  The same worksharing agreement expressly provided that for charges (like Saling’s) first received by the EEOC, the DFEH waived its statutory “right of exclusive jurisdiction to initially process such charges for a period of 60 days,” R.52 (FY2010-FY2012 Worksharing Agreement, §III.A.1, thereby “terminating” the DFEH’s proceedings and “allowing the EEOC to proceed immediately with the processing of” Saling’s charge, id.  See Commercial Office Prods., 486 U.S. at 112-22, 125; cf. Green, 883 F.2d at 1476-80.      

To our knowledge, the Ninth Circuit has not addressed this precise question in a precedential decision.[4]  However, in addressing comparable situations, the Ninth Circuit has repeatedly recognized the “automatic dual-filing” and “self-executing waiver” principles of the EEOC’s and DFEH’s charge-filing procedures.  In Green v. Los Angeles County, for example, the Ninth Circuit ruled that the EEOC was deemed to have received and filed Green’s charge the same day she submitted it to the DFEH, based on the worksharing agreement between the two entities.  883 F.2d at 1476.  The Ninth Circuit explained that the DFEH accepted the charge on the EEOC’s behalf, at which point it was held in “suspended animation” until the DFEH terminated its proceedings.  Id. at 1476.  The Ninth Circuit further ruled that the DFEH’s waiver, in the worksharing agreement, of its exclusive jurisdiction over a category of claims that included Green’s charge (charges filed between 241 and 300 days of the occurrence of the alleged discrimination) was “self-executing,” causing the state’s proceedings to be terminated immediately and automatically and causing the charge, thus, to “be deemed filed with the EEOC when it was filed with the DFEH.”  Id. at 1477-80.  See also Paige v. State of Cal., 102 F.3d 1035, 1041 (9th Cir. 1996) (under EEOC/DFEH Worksharing Agreement, “the filing of a charge with one agency is ‘deemed’ to be a filing with both”).  The legal principles on which these decisions are based mandate that Saling’s EEOC charge be found timely.  

A number of other circuits—addressing situations, like here, where the plaintiff first submitted the charge to the EEOC—have recognized that EEOC worksharing agreements operate automatically to institute proceedings initially with the FEP agency.  See, e.g., Velazquez-Perez v. Developers Diversified Realty Corp., 753 F.3d 265, 277 & n.13 (1st Cir. 2014) (joining other circuits that have accepted this principle, and collecting cases).  These courts have held, as did the Ninth Circuit in Green, that the provisions of a worksharing agreement authorizing each agency to accept charges on the other’s behalf are self-executing and do not require any additional steps to effectuate dual-filing.  See Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir. 1994) (pursuant to worksharing agreement between EEOC and Texas FEP agency, EEOC’s acceptance of charge satisfied Title VII requirement that plaintiff initially institute proceedings with state agency and entitled plaintiff to 300-day charge-filing period);  Griffin v. Air Prods. & Chems, Inc., 883 F.2d 940, 943-45 (11th Cir. 1989) (finding plaintiff entitled to 300-day charge-filing period based EEOC regulations, worksharing agreement’s waiver provision, and public policy); see also Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325-28 (2d Cir. 1999) (applying Title VII’s charge-filing provisions to plaintiff’s ADA claim and concluding that, under worksharing agreement between EEOC and state agency, plaintiff’s ADA charge “deemed to have been filed ‘initially’ with” deferral-state agency when plaintiff submitted it to EEOC).

The Commission’s standard form used for drafting charges (“EEOC Form 5, Charge of Discrimination,” copy attached) indicates that a charge submitted to the EEOC is dual-filed with the appropriate FEP agency as a matter of course.  The heading on the charge form identifies both the EEOC and the relevant FEP agency, and the form states (above the charging party’s signature line) that the charging party requests to have the charge dual-filed with both agencies.  See, e.g., Griffin v. City of Dallas, 26 F.3d at 612 (noting that Griffin apparently addressed his charge to the state agency as well as to the EEOC).  Title VII, however, imposes no requirement that a charging party affirmatively request dual-filing; as explained above, EEOC deferral to the appropriate State or local agency is mandated by 42 U.S.C. § 2000e-5(c) and happens as a matter of course under 29 C.F.R. § 1601.13.  See Tewskbury, 192 F.3d at 327 (holding that, pursuant to worksharing agreement, plaintiff’s charge was initially filed with State FEP agency when EEOC received it, even though plaintiff never asked EEOC to dual-file his charge with State agency).

That Saling later filed a separate charge directly with the DFEH several months after she filed her EEOC charge, see F&R at 12-13, does not alter the effect of these governing rules.  Pursuant to EEOC regulations and the provisions of the EEOC/DFEH Worksharing Agreement noted above, the EEOC accepted Saling’s Title VII charge first on the DFEH’s behalf, a step required by Title VII, in any event, before the EEOC could file Saling’s charge.  See 42 U.S.C. § 2000e-5(c) .  And the DFEH’s waiver in the same Worksharing Agreement had the effect of immediately terminating DFEH’s proceedings, thereby enabling the EEOC to file Saling’s charge within the 300-day charge-filing time limit.  To the extent that Saling’s July 2012 DFEH charge differs from her EEOC charge, it may allow her to pursue additional allegations under California state law that are not covered under Title VII.  That she filed a second charge with the DFEH cannot, however, undo the filing of her EEOC charge three months earlier. 

The outcome the EEOC urges here is consistent not only with the Ninth Circuit’s rulings in comparable situations and case law in other circuits, but also with the public policy considerations that underlie Title VII’s charge-filing provisions.  As the Ninth Circuit observed in addressing a related question—whether submitting a charge to the Nevada FEP agency served to “file” it with the EEOC under the Nevada-EEOC worksharing agreement—Congress intended Title VII’s procedural requirements to be liberally construed to remedy workplace discrimination and “to preserve a claimant’s federal remedies in discrimination suits.”  Laquaglia, 186 F.3d at 1177 (citing Commercial Office Prods., 486 U.S. at 124).  As the Ninth Circuit further noted:  “Prohibiting any remedy to claimants who file discrimination complaints with an appropriate state or federal agency within the 300-day deadline is entirely at odds with the purpose of the worksharing agreement and with Title VII.”  Id. (citing Green, 883 F.2d at 1479).

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CONCLUSION

For the foregoing reasons, the EEOC respectfully urges this Court to deny the Defendants’ motion to dismiss Saling’s Title VII claims on the ground of an untimely EEOC charge and to rule instead that Saling was entitled to the 300-day charge-filing time limit for her Title VII claims.

 

Respectfully submitted,

 

P. DAVID LOPEZ

General Counsel

 

CAROLYN L. WHEELER

Acting Associate General Counsel

 

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

 

/s/   Cindy O’Hara

___________________________

                                                                        Cindy O’Hara

                                                                                    SBN 114555 (CA)

                                                                                    Senior Trial Attorney

                                                                        EEOC San Francisco District Office

                                                                        P.O. Box 36025

                                                                        450 Golden Gate Ave., 5^th Floor West

                                                                        San Francisco, CA 94102

                                                                        (415) 522-3035

                                                                        cindy.ohara@eeoc.gov

 

 

                                                                   

/s/   Susan R. Oxford

___________________________

SUSAN R. OXFORD

SBN 021181981

Attorney

U.S. 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 SERVICE

 

            I, Cindy O’Hara, hereby certify that I electronically filed the foregoing amicus curiae brief with this Court via the CM/ECF system this             day of                       , 2015.  I also certify that I caused a paper copy of this brief to be served on Pro Se Plaintiff Tammy Saling by regular mail to the following address:   14488 Rattlesnake Road, Grass Valley, CA, 95945.  I further certify that counsel for the Defendants in this matter, Alison Alberta Barratt-Green, Esq., is a registered CM/ECF user and will be served via this Court’s CM/ECF system.

 

                                                                                /s/   Cindy O’Hara

___________________________

                                                                        Cindy O’Hara

                                                                                    SBN 114555 (CA)

                                                                                    Senior Trial Attorney

                                                                        EEOC San Francisco District Office

                                                                        P.O. Box 36025

                                                                        450 Golden Gate Ave., 5^th Floor West

                                                                        San Francisco, CA 94102

                                                                        (415) 522-3035

                                                                        cindy.ohara@eeoc.gov