00-1137
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_________________________
No. 00-1137
_________________________
RUBY G. SMITH,
Plaintiff-Appellee,
v.
CENTER FORD, INC.; HALL AUTO WORLD, INC.,
Defendants-Appellants.
______________________________________________________
On Appeal from the United States District Court
for the Eastern District of Virginia
______________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE IN SUPPORT OF THE APPELLEE
______________________________________________________
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
JULIE L. GANTZ
Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4718
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
STATEMENT OF INTEREST 1
STATEMENT OF THE ISSUE 2
STATEMENT OF FACTS 2
SUMMARY OF ARGUMENT 6
ARGUMENT 7
CONCLUSION 21
REQUEST FOR ORAL ARGUMENT 21
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM
Dew v. Nabisco, Inc., No.3:99cv353 (E.D. Va. Oct. 4, 1999) A
EEOC v. Waste Management of Virginia, Inc., No. 99-1461-A
(E.D. Va. Nov. 9, 1999) B
LaFranca v. Wal-Mart Stores, Inc., No. 98-0372-R (W.D. Va. Aug. 31,1999)
C
TABLE OF AUTHORITIES
CASES
Barrett v. Applied Radiant Energy Corp., 70 F. Supp. 2d 644 (W.D.
Va. 1999), appeal docketed, No. 99-2634 (4th Cir. Dec. 13, 1999) 17
Bolinsky v. Carter Mach. Co., 69 F. Supp. 2d 842 (W.D. Va. 1999) 17, 18
Capps v. City of Lynchburg & Lynchburg Sch. Bd., 67 F. Supp. 2d 589
(W.D. Va. 1999) 17
Carter v. Arlington Pub. Sch. Sys., 82 F. Supp. 2d 561 (E.D. Va. 2000)
17, 18, 19
Dodge v. Philip Morris, Inc., 175 F.3d 1014, 1999 WL 162955 (4th
Cir. March 25, 1999)(unpublished) 15-16
Davis v. North Carolina Dep't of Corrections, 48 F.3d 134 (4th Cir. 1995)
13-14
Dew v. Nabisco, Inc., No.3:99cv353 (E.D. Va. Oct. 4, 1999)
9, 13, 17, 18
EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988) 8
EEOC v. Techalloy Maryland, Inc., 894 F.2d 676 (4th Cir. 1990)
9, 18
EEOC v. Waste Management of Virginia, Inc., No. 99-1461-A
(E.D. Va. Nov. 9, 1999) 17, 18
Flippo v. American Home Products Corp., 59 F. Supp. 2d 572 (E.D. Va. 1999)
9, 16, 17, 20
Grimes v. Canadian American Transp. C.A.T. (U.S.), Inc., 72 F. Supp. 2d
629 (W.D. Va. 1999) 11, 17
Harris v. TJX Cos., Inc., 60 F. Supp. 2d 562 (W.D. Va. 1999) . 17
LaFranca v. Wal-Mart Stores, Inc., No. 98-0372-R (W.D. Va. Aug. 31,
1999) 17
McIntyre-Handy v. West Telemarketing Corp., 2000 WL 679978 (E.D. Va. May
19, 2000) 18
Morris v. Waste Management of Virginia, Inc., 71 F. Supp. 2d
537(E.D. Va. 1999) 17
Mueller v. Angelone, 181 F.3d 557 (4th Cir. 1999) 16
Nash v. D.S. Nash Constr. Co., 70 F. Supp. 2d 639 (W.D. Va. 1999)
17
Puryear v. County of Roanoke, 71 F. Supp. 2d 551 (W.D. Va.1999), appeal
docketed, No. 99-2359 (4th Cir. Oct. 14, 1999) 17
Walker v. Electrolux Corp., 55 F. Supp. 2d 501, 504(W.D. Va. 1999) 17
STATUTES
Title VII of the Civil Rights Act of 1964
42 U.S.C. § 2000e et seq. 1
§ 706(c), 42 U.S.C. § 2000e-5(c) 7
§ 705(g), 42 U.S.C. § 2000e-4(g)(1) 7
§ 709(b), 42 U.S.C. § 2000e-8(b) 7
42 U.S.C. § 1292(b) 5
The Virginia Human Rights Act
Va. Code Ann. 2.1-720(5) 7
Va. Code Ann. § 2.1-716 11
N.C. Gen. Stat. § 7A-759(b1) 14
REGULATIONS
29 C.F.R. § 1601.12(b) .10
22 Va. Admin. Code § 25-10-50 10
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_________________________
No. 00-1137
_________________________
RUBY G. SMITH,
Plaintiff-Appellee,
v.
CENTER FORD, INC.; HALL AUTO WORLD, INC.,
Defendants-Appellants.
______________________________________________________
On Appeal from the United States District Court
for the Eastern District of Virginia
______________________________________________________
BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
AS AMICUS CURIAE IN SUPPORT OF THE APPELLEE
______________________________________________________
STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the agency charged
by Congress with the enforcement of the federal laws prohibiting
discrimination in employment, including Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case involves the
interpretation of the provision in § 706(c) that a complainant must
institute proceedings under state law before a charge may be filed
with the EEOC. Defendant argues that, notwithstanding the fact that
plaintiff's charge was filed with the Virginia Council on Human Rights
("VCHR") through the operation of the worksharing agreement between EEOC
and the VCHR, the plaintiff failed to comply with this provision merely
because she did not mention state law in the charge she submitted to
the EEOC and did not check a box affirmatively indicating her desire to
have her charge filed with the appropriate state agency. If defendant's
interpretation of the statute were accepted, it would needlessly
complicate Title VII's administrative scheme and could render invalid a
large number of charges filed with the EEOC. The Commission therefore
offers its views to the Court.
STATEMENT OF THE ISSUE
Whether the district court correctly held that, in light of the
worksharing agreement between the EEOC and the Virginia Council on
Human Rights ("VCHR"), the plaintiff satisfied Title VII's requirement
that she institute proceedings under state law by submitting a charge
to the EEOC that alleged facts that state a violation of Virginia law.
STATEMENT OF FACTS
Ruby Smith was fired from her job as a car sales consultant for
Center Ford, Inc., on September 19, 1995. Joint Appendix ("JA") 9, 30.
On September 27, 1995, Smith submitted a charge to the Norfolk, Virginia,
office of the EEOC, stating:
During my employment, I was sexually harassed and subjected to a hostile
work environment. . . .I believe that I was sexually harassed because
of my sex, female[,] and discharged as an act of retaliation because I
complained of sexual harassment, all in violation of Title VII of the Civl
[sic] Right [sic] Act of 1964, as amended.
JA 30. The citation to federal law was placed in the charge by the EEOC
employee who took Smith's charge. JA 444-45 (Patterson Dep. at 59-60).
Plaintiff's charge form contains a block of text that states: "I want
this charge filed with both the EEOC and the State or local Agency, if
any." JA 30. The box next to that text was not checked on plaintiff's
charge. However, Smith's signature appears directly below this text.
JA 30. Attached to Smith's charge form is an affidavit that includes
the following factual allegations:
I was sexually harassed by Alex Pauley, a male, through verbal harassment
by constantly asking me out and through physical acts of touching.
On or about May 25, 1995, I was asked by Pauley to go to dinner. I am
uncomfortable going out with people I have just met, so I made an excuse.
Pauley continued to ask me out on dates, and each time I would politely
decline. . . . In early June, 1995, Pauley put his hands around my waist
without my consent. . . . On June 24, 1995, I was standing at the front
counter when Pauley approached me. I thought he was reaching over my
left shoulder to pick up something on the counter, but instead he put
his hand on my left shoulder and slid his hand down over my left breast.
JA 30(a)-30(b). The affidavit also recounts detailed allegations of
retaliation after defendant learned of the harassment. JA 30(c)-30(e).
On September 28, 1995, the EEOC transmitted a copy of the charge to
the VCHR. JA 31. The charge transmittal form indicates that the charge
would be initially investigated by the EEOC pursuant to the worksharing
agreement with the VCHR. JA 31. On October 18, 1995, the VCHR director
signed the bottom of the transmittal form indicating receipt of Smith's
charge and the VCHR's intention not to initially investigate the charge.
JA 31. The EEOC issued Smith a right-to-sue letter on June 23, 1998.
JA 32.
The EEOC and the VCHR have entered into a worksharing agreement designed,
by its terms, "to provide individuals with an efficient procedure
for obtaining redress for their grievances under appropriate State or
Federal laws." JA 34 at I.B. Under the agreement, each agency acts as
an agent for the other "for the purpose of receiving . . . charges."<1>
JA 34 at II.A. The VCHR also expressly waives its 60-day period of
exclusive jurisdiction for charges filed with the EEOC to allow the
EEOC to begin processing a claim immediately. JA 41 (amending III.A.1).
EEOC staff commonly type up charge forms and affidavits detailing
specific allegations for complainants after interviewing them about their
charge during an intake process. JA 392-93(Patterson Dep. at 7-8); JA
440 (Patterson Dep. at 55). EEOC staff do not mention the existence of
the Virginia Human Rights Act, the existence of the VCHR, or point out
the box on the charge form that requests referral to the state agency
to complainants. JA 448, 453, 454, 460-61 (Patterson Dep. at 63, 68,
69, 75-76). Charges are processed by the EEOC and transmitted to the
VCHR without regard to whether the box requesting referral to the state
agency is checked. JA 122, 135-37 (Norman Dep. at 14, 27-29); JA 446
(Patterson Dep. at 61); JA 464 (Patterson Dep. at 79).
Smith filed this action on September 24, 1998, alleging sexual harassment
and retaliation in violation of Title VII. JA 6-12. Defendant filed
a motion to dismiss on the ground that plaintiff failed to exhaust
her administrative remedies under state law as required by § 706(c)
of Title VII, 42 U.S.C. § 2000e-5(c). R. 9.<2> In denying the
motion to dismiss, the district court held that plaintiff satisfied
the requirements of § 706(c) by filing her charge with the EEOC, even
though the charge refers only to federal law and she failed to check
the box affirmatively indicating her desire that the charge be filed
with the VCHR. JA 28. The district court certified the issue for
interlocutory appeal, and the court of appeals granted defendant's
petition to appeal under 42 U.S.C. § 1292(b). R. 23.
SUMMARY OF ARGUMENT
The district court correctly held that the plaintiff satisfied Title
VII's requirement that she commence proceedings under state law when she
submitted her charge to the EEOC. As the district court recognized,
the EEOC received the charge not only on its own behalf, but also as
the agent of the VCHR, pursuant to the worksharing agreement between
the EEOC and the VCHR. Because the allegations in the charge were
sufficient to state a violation of the state law enforced by the VCHR,
this served to commence proceedings under state law.
The court properly rejected the defendant's contention that the charge
was inadequate to commence state law proceedings because it did not
explicitly cite to state law and because the box requesting that the
charge be filed with the VCHR was not checked. There is nothing in
the Virginia statute or in the VCHR's regulations to suggest that a
complaint must cite to the law allegedly violated, and the VCHR has
indicated that it determines whether a charge alleges a violation of
state law based on the factual allegations in the charge. In this case,
the plaintiff's charge manifestly alleged facts which would constitute a
violation of Virginia law. By operation of the worksharing agreement,
the EEOC transmits charges to the VCHR regardless of whether or not
the charging party affirmatively requests that the charge be filed
with the VCHR by checking the box on the charge form. The worksharing
agreement does not require that complainants check the box to effect
dual filing. Accordingly, the district court correctly held that the
plaintiff commenced proceedings under state law when she submitted her
charge to the EEOC acting as the agent of the VCHR.
ARGUMENT
THE PLAINTIFF COMPLIED WITH TITLE VII'S REQUIREMENT THAT SHE COMMENCE
PROCEEDINGS UNDER STATE LAW WHEN SHE SUBMITTED A CHARGE TO THE EEOC
ALLEGING FACTS THAT STATE A CLAIM UNDER VIRGINIA LAW.
The district court correctly held that Ruby Smith satisfied the
requirement of § 706(c) of Title VII that she commence proceedings under
state law before filing a charge with the EEOC. Section 706(c) provides
that, in a state which has a law prohibiting the practice alleged in
a charge of discrimination and an agency authorized to seek relief for
violations of the law, a charge may not be filed with the EEOC until 60
days after "proceedings have been commenced under the State . . . law,
unless such proceedings have been earlier terminated." 42 U.S.C. §
2000e-5(c). The district court correctly held that Smith's actions
prior to filing suit satisfied this requirement.
Smith submitted a charge to the EEOC alleging that her employer, Center
Ford, Inc., had discriminated against her on the basis of her sex and
in retaliation for her complaints about sexual harassment. The EEOC
has entered into a worksharing agreement with the VCHR which provides
that each agency acts as the agent of the other "for the purpose of
receiving . . . charges."<3> JA 34 at II.A. Thus when Smith filed
her charge with the EEOC, the EEOC received the charge on its own
behalf and in its capacity as an agent for the VCHR. The effect of
the worksharing agreement was to commence proceedings with the VCHR
under state law upon the EEOC's receipt of Smith's charge. See JA 409
(Patterson Dep. at 24). Consequently, when Smith submitted her charge
to the EEOC, she satisfied the requirement of § 706(c) that she commence
proceedings under state law.
The worksharing agreement also provides that, for charges submitted to
the EEOC, the VCHR waives the 60-day period of exclusive jurisdiction
provided by § 706(c). JA 41 at III.A.1. A state agency's waiver
of the 60-day deferral period constitutes a "termination" of its
proceedings so as to permit the charge to be filed with the EEOC.
Commercial Office Products, 486 U.S. at 117. Where, as here, the state
agency prospectively waives its exclusive jurisdiction over a category
of charges, the waiver is self-executing and is not contingent upon
confirmation of the waiver by the state agency in a particular case.
EEOC v. Techalloy Maryland, Inc., 894 F.2d 676, 679 (4th Cir. 1990).
Pursuant to this provision, the VCHR terminated its proceeding when
Smith submitted her charge to the EEOC and the charge was "filed" under
Title VII at that time.
Defendant argues that Smith did not commence proceedings under state law
within the meaning of § 706(c) because her charge does not explicitly
refer to state law, and she did not affirmatively request that her charge
be filed with the applicable state agency by checking the box on the
charge form. Def.'s Br. at 7-8. There is no question, however, that the
charge Smith submitted to the EEOC was sufficient to initiate proceedings
under Virginia law. The VCHR considers a charge sufficient to institute
proceedings under Virginia law if it contains "a brief factual statement
disclosing the type of discrimination alleged and identifying the
employer." See Flippo v. American Home Products Corp., 59 F. Supp. 2d
572, 576 (E.D. Va. 1999) (citing affidavit of VCHR official Sandra
Norman). VCHR staff make a determination whether a violation of the
Virginia Human Rights Act, Virginia's anti-discrimination law, is
alleged in the factual allegations of discrimination related in the
charge filed with the EEOC. See id.; see also Dew v. Nabisco, Inc.,
No.3:99cv353, slip op. at 17-18 (E.D. Va. Oct. 4, 1999); JA 138-39
(Norman Dep. at 30-31). This assessment is not based on whether or
not a complainant cites to state law. JA 143 (Norman Dep. at 35) ("We
would look for the number of employees and the cause of discrimination
. . . . [U]nder the Virginia Human Rights Act, we know that we can take
it under sex . . . .").
Nothing in Virginia law requires complainants to allege violations of
the Virginia Human Rights Act when filing an administrative charge.
The Virginia Administrative Code directs that a complaint "should
contain" information identifying the complainant and the person
against whom the complaint is made, a clear and concise statement
of the facts, information about whether and when the complaint was
filed with another agency, and any documentation that might support
the claim. 22 Va. Admin. Code § 25-10-50(A). All that a complaint
must contain to be legally sufficient, however, is "a written statement
which identifies the parties and describes generally the action or
practices complained of." Id. at § 25-10-50(B).<4>
The statements in the documents Smith submitted were sufficient to
apprise the VCHR of any claims Smith may have had under the Virginia
Human Rights Act. The defendant does not dispute that the charge
and attached affidavit contain allegations of sexual harassment and
retaliation which would constitute violations of state law if true.
Smith's charge was therefore adequate to commence state proceedings.
Given that the charge was sufficient to commence state proceedings and
that the worksharing agreement provides that EEOC's receipt of a charge
commences proceedings with the VCHR, the defendant's argument amounts
to a contention that, simply because the charge refers to provisions
of federal law, but not state law, the Court should infer that Smith
intended only to commence proceedings with the VCHR under federal law.
This argument fails for several reasons. First, Smith's references to
Title VII constitute allegations of a violation of state law because
the Virginia Human Rights Act essentially makes a violation of federal
law a violation of Virginia law. See Va. Code Ann. § 2.1-716 ("Conduct
which violates any Virginia or federal statute or regulation governing
discrimination on the basis of race, color, religion, national origin,
sex, pregnancy, childbirth or related medical conditions, age, marital
status or disability shall be an 'unlawful discriminatory practice'
for purposes of this chapter."). See also Grimes v. Canadian American
Transp. C.A.T. (U.S.), Inc., 72 F. Supp. 2d 629, 634 (W.D. Va. 1999)
("[B]y setting forth facts that would establish a possible Title VII
claim, [plaintiff] has also set forth facts which indicate a possible
violation of the VHRA . . . .").
Furthermore, the inference the defendant asks the Court to draw is
completely unreasonable under the circumstances of this case. If the
VCHR proceedings commenced by Smith's charge were exclusively under
federal law and not state law, then the Title VII charge which Smith
presented to the EEOC could never be filed because the requirement to
commence proceedings under state law would never be met. Thus, the
defendant would glean from the wording of Smith's charge the perverse
intent on her part to sabotage the Title VII charge that she went to the
trouble of filing with the EEOC. Smith's failure to specify expressly
provisions of state law in her charge is too thin a reed to support
this result.
Defendant's contention that Smith failed to initiate proceedings under
state law because she did not affirmatively request that her charge be
filed with the appropriate state agency by checking the box on the charge
form is similarly ill-conceived. First, checking or not checking the
box has no effect on whether a charge of discrimination will actually
be forwarded to the VCHR. JA 122, 135-37 (Norman Dep. at 14, 27-29);
JA 446 (Patterson Dep. at 61)("Regardless of whether the box is checked
or not, the Worksharing Agreement is what allows us to be able to pursue
the charge with regard to dual filing with the Virginia Council on Human
Rights."). EEOC intake staff do not discuss the box with complainants.
JA 453 (Patterson Dep. at 68). There is no need to do so, as the
worksharing agreement does not require that complainants check the
box and dictates that charges are automatically forwarded, making the
check-mark irrelevant for purposes of EEOC claims filed within Virginia.
Second, it is manifestly unreasonable to infer from the mere failure
to check a box on the part of the EEOC staff person typing up the form
that the complainant intended to sabotage her Title VII claim. See Dew,
No. 3:99cv353, slip op. at 17 (finding it unwarranted to infer that by
not checking the box a complainant affirmatively has renounced state
law relief).
Contrary to defendant's argument, this Court's decision in Davis
v. North Carolina Dep't of Corrections, 48 F.3d 134 (4th Cir. 1995),
does not control this case. The principal question in Davis was whether
the district court had removal jurisdiction, and the principal holding
was that the district court lacked removal jurisdiction because the
EEOC had never issued Davis a right-to-sue letter. 48 F.3d at 138.
That holding is irrelevant here, as Smith was issued a right-to-sue
letter. See JA 30. The Court went on to hold that the plaintiff had
not complied with § 706(c) because although a state proceeding had been
instituted, it was not a proceeding "under state law" as required by
§ 706(c). 48 F.3d at 139.
That holding turned on two unusual facts that are not present in
this case. First, the conclusion that Davis did not commence state
proceedings was not based merely on an inference from his failure to cite
state law. Rather, Davis "insist[ed]" and "steadfastly maintain[ed]"
that he wanted the conduct viewed as a violation of only federal law and
not state law. 48 F.3d at 139, 141. In addition, the state agency had
actually investigated Davis's charge and had "unequivocally" treated the
conduct as a violation of only federal law and not state law. The Davis
court recognized that the situation it was addressing was "something
of an aberration" and accordingly emphasized that its holding that
Davis's Title VII charge was invalid should not necessarily be extended
beyond those unusual facts.<5> Id. at 139. In this case, by contrast,
Smith did not take any action disavowing an intent to claim a violation
of state law, and the VCHR did not take any action indicating that it
viewed the charge as alleging only a violation of federal law.
This Court should not extend Davis beyond its unusual facts for two
reasons. First, cases like Smith's do not present the danger that the
Davis court feared: that plaintiffs would pursue litigation in federal
court without having first complied in good faith with the § 706(c)
requirement to institute a state proceeding under state law. Id. at 141.
In this case, the plaintiff, the EEOC and the VCHR each attempted to
comply with § 706(c), and there is nothing to suggest that Smith was
attempting to evade the § 706(c) requirements. Secondly, extending Davis
to cases like Smith's could have serious consequences for the enforcement
of the federal laws prohibiting employment discrimination. Very few
charges filed with the EEOC identify the state law allegedly violated.
See JA 177 (Norman Dep. at 69) (VCHR official with ten years experience
testified that she had never seen a charge reference a specific state
law that was violated). Extending Davis to invalidate all charges that
do not name the state law purportedly violated or have the box checked
requesting deferral could call into question numerous charges filed with
the EEOC in deferral states - without giving any consideration to the
merits of the substantive allegations of unlawful activity contained
in those charges.
In addition, the Court should not follow its unpublished decision in
Dodge v. Philip Morris, 175 F.3d 1014, 1999 WL 162955 (4th Cir. March
25, 1999).<6> In Dodge, the plaintiff filed a charge with the EEOC
which named various federal laws that were allegedly violated, but did
not mention any Virginia statute. Like Smith, the plaintiff had not
checked the box on the charge form indicating that she wished proceedings
initiated with a state agency. Believing that Dodge's charge had not
been referred to the VCHR, the district court held that Dodge had not
instituted proceedings "under state law," because she had not requested
referral to the state agency by checking the box and had not named any
state law that had allegedly been violated. This Court affirmed, holding
that "[b]ecause Dodge never pursued her claims under state law, her
charges were never properly pending before the EEOC." 1999 WL 162955,
at *2. The panel assumed that the case was governed by Davis, and did
not discuss the significant factual and procedural differences between
the two cases. The court did not have before it the deposition testimony
or affidavits of EEOC and VCHR officials who have described in detail
how the worksharing agreement between the EEOC and the VCHR actually
operates. See Flippo, 59 F. Supp. 2d at 577 ("[T]he two agencies whose
participation and cooperation Section 706(c) was drafted to ensure
consider Plaintiff's charge of discrimination sufficient to commence
proceedings under state law."); Dew, No. 3:99cv353, slip op. at 16-18.
A number of district courts in Virginia have recently considered this
issue, and all but one have concluded that complainants are not required
to cite to specific state law provisions in their charges. See Dew,
No. 3:99cv353, slip op. at 13; Carter v. Arlington Pub. Sch. Sys.,
82 F. Supp. 2d 561, 567 (E.D. Va. 2000); Morris v. Waste Management
of Virginia, Inc., 71 F. Supp. 2d 537, 543 (E.D. Va. 1999);
Barrett v. Applied Radiant Energy Corp., 70 F. Supp. 2d 644, 651
(W.D. Va. 1999), appeal docketed, No. 99-2634 (4th Cir. Dec. 13,
1999); EEOC v. Waste Management of Virginia, Inc., No. 99-1461-A,
slip op. at 8 (E.D. Va. Nov. 9, 1999); Bolinsky v. Carter Mach. Co., 69
F. Supp. 2d 842, 847-48 (W.D. Va. 1999); Nash v. D.S. Nash Constr. Co.,
70 F. Supp. 2d 639, 644 (W.D. Va. 1999); Puryear v. County of Roanoke, 71
F. Supp. 2d 551, 554 (W.D. Va. 1999), appeal docketed, No. 99-2359 (4th
Cir. Oct. 14, 1999); LaFranca v. Wal-Mart Stores, Inc., No. 98-0372-R,
slip op. at 4(W.D. Va. Aug. 31, 1999); Capps v. City of Lynchburg &
Lynchburg Sch. Bd., 67 F. Supp. 2d 589, 593 (W.D. Va. 1999); Flippo,
59 F. Supp. 2d at 578; Grimes, 72 F. Supp. 2d at 635; Harris v. TJX
Cos., Inc., 60 F. Supp. 2d 562, 565 (W.D. Va. 1999). But see Walker
v. Electrolux Corp., 55 F. Supp. 2d 501, 504(W.D. Va. 1999) (holding that
the court lacked subject matter jurisdiction because plaintiff failed
to allege a state law claim in her amended complaint, but failing to
discuss pleading requirements to set forth charge of discrimination).
Similarly, in cases where the box on the charge form requesting deferral
was not checked, district courts have held that failure to check the
box was irrelevant and did not divest the court of its ability to
hear Title VII claims. Carter, 82 F. Supp. 2d at 566; EEOC v. Waste
Management, No. 99-1461-A, slip op. at 8; Bolinsky, 69 F. Supp. 2d at
847; Nash, 70 F. Supp. 2d at 643; Dew, No. 3:99cv353, slip op. at 16-17.
See also McIntyre-Handy v. West Telemarketing Corp., 2000 WL 679978 at,
*7 (E.D. Va. May 19, 2000) (neither failure to check the box on the
charge form nor failure to prove the claim was actually referred to
the VCHR divests a federal court of jurisdiction).
To ignore the reasoning in the above decisions and follow Dodge would
both defeat the purpose of the worksharing agreement and be fundamentally
unfair to complainants pursuing discrimination claims. Worksharing
agreements avoid duplication of effort and reduce bureaucracy;
they are designed "to minimize red tape and to expeditiously process
discrimination charges." Techalloy, 894 F.2d at 679. The VCHR and the
EEOC have overlapping jurisdictions in enforcing anti-discrimination
laws in Virginia, as both are authorized to investigate and conciliate
charges of employment discrimination based on race, color, religion,
national origin, sex, age, and disability. Neither state agencies nor
the EEOC have the resources to process and investigate every charge
filed, and it would be a pointless waste of time and money for both to
investigate the same claims. Worksharing agreements allow complainants
to file discrimination charges with either the EEOC or the state or
local agency using one form that results in automatic dual filing with
the other agency. This cooperation reduces the burden on employers as
well, who need only respond in one forum.
Additionally, to dismiss potentially meritorious claims on procedural
technicalities of which the lay person would not be aware would elevate
form over substance and be unjust. Title VII is a remedial statute
designed to be accessible to unrepresented complainants seeking redress
for discrimination. In holding that § 706(c)'s deferral requirement
had been met where an unrepresented complainant neither cited state
law nor checked the box requesting deferral, one court reasoned that
"[g]iven the complexity of the laws in this area, it is unrealistic to
expect claimants to cite specific state statutes in their complaints,
to check certain boxes, or to go to a particular state agency. A result
different from the one reached here would essentially mean that claimants
likely would not satisfy Title VII's exhaustion requirements unless
they were either lawyers or lucky." Carter, 82 F. Supp. 2d at 567.
After concluding that plaintiff successfully commenced state proceedings
under state law when she provided the EEOC a written statement of
relevant facts and asked that the charge of discrimination be forwarded
to the VCHR, another district court pointed out: "To hold otherwise would
transform the laudatory effort to achieve state and federal cooperation
in resolving claims of discrimination into a jurisdictional minefield for
unwary and unrepresented complainants." Flippo, 59 F. Supp. 2d at 578.
The purpose of Title VII is to afford a federal remedy to victims of
discrimination. The purpose of worksharing agreements is to facilitate
that remedy. Requiring precise pleading requirements where lay persons
must cite to a particular state statute or are required to check a box
on a charge form cannot be reconciled with these goals.
CONCLUSION
For the reasons stated above, the Commission urges the Court to affirm
the district court's decision denying defendant's motion to dismiss.
REQUEST FOR ORAL ARGUMENT
The Commission requests oral argument and submits that it would be of
assistance to the Court.
Respectfully submitted,
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
VINCENT J. BLACKWOOD
Assistant General Counsel
___________________________________
JULIE L. GANTZ
Attorney
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4718
June 8, 2000
CERTIFICATE OF COMPLIANCE
Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been
prepared in monospaced (nonproportionally spaced) typeface using Corel
Word Perfect 8, Courier New 12-point font, and the textual portion
contains 4754 words. I understand that a material misrepresentation
in completing this certificate can result in the Court's striking the
brief and imposing sanctions. If the Court so directs, I will provide
an electronic version of the brief and/or a copy of the word or line
print-out.
_________________________
Julie L. GantzCERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing brief have been mailed
first class, postage prepaid, to the following counsel of record:
COUNSEL FOR PLAINTIFF-APPELLEE RUBY G. SMITH
Jay J. Levit
LEVIT, MANN & HALLIGAN
1301 North Hamilton Place
Suite 100
Richmond, VA 23230
COUNSEL FOR DEFENDANTS-APPELLANTS CENTER FORD, INC.; HALL AUTO
WORLD, INC.
F. Bradford Stillman
Brian N. Casey
TAYLOR & WALKER, P.C.
1300 First Virginia Tower
555 Main Street
Norfolk, VA 23514
____________________________
Julie L. Gantz, Esq.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 L Street, N.W.
Washington, D.C. 20507
June 8, 2000
ADDENDUM
1 Later versions of the worksharing agreement explicitly provide that
"EEOC's receipt of charges on the FEPA's behalf will automatically
initiate the proceedings of both EEOC and the FEPA for the purposes of
Section 706(c) and (e)(1) of Title VII." 1998 Worksharing Agreement II.A,
Joint Exh. B to Deposition of Roxie Raines Kornegay.
2 Citations to the record proper are abbreviated "R." and refer to the
district court docket sheet number.
3 Title VII authorizes the EEOC to enter into cooperation
agreements with state and local agencies which administer fair employment
practices laws. See 42 U.S.C. §§ 2000e-4(g)(1) & 2000e-8(b); see
also EEOC v. Commercial Office Products Co., 486 U.S. 107, 122 (1988).
The EEOC has entered into worksharing agreements with most such agencies.
The Virginia Human Rights Act likewise authorizes the VCHR to enter into
worksharing agreements with "federal agencies or local commissions,
including the deferral of complaints of discrimination to federal
agencies. . . ." Va. Code Ann. 2.1-720(5).
4 The same is true at the federal level. All that is necessary for
a legally sufficient Title VII charge is "a written statement sufficiently
precise to identify the parties, and to describe generally the action
or practices complained of." 29 C.F.R. § 1601.12(b). There is no
requirement that the charging party identify the federal law allegedly
violated.
5 Such a scenario is unlikely to recur. Following Davis, the North
Carolina legislature amended state law to clarify the North Carolina
Office of Administrative Hearing's ("OAH") role as a deferral agency.
The relevant statute now provides that a deferred charge - a charge filed
by a state employee alleging an unlawful employment practice prohibited
by state law — may be filed with either OAH or the EEOC and that the
date of filing "is considered to be a commencement of proceedings under
State law for purposes of 42 U.S.C. § 2000e-5(c)." N.C. Gen. Stat. §
7A-759(b1) (1988).
6 Unpublished decisions are not binding precedent in this Court.
See Mueller v. Angelone, 181 F.3d 557, 579 n. 15 (4th Cir. 1999)
(citing Local Rule 36(c)).
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