CV-2000-00205
SECOND JUDICIAL DISTRICT COURT
COUNTY OF BERNALILLO
STATE OF NEW MEXICO
LOVELACE HEALTH SYSTEMS, INC., )
)
Respondent-Appellant, )
)
v. ) No. CV-2000-00205
)
CATALINA MARTINEZ, )
)
Complainant-Appellee. )
MEMORANDUM OF LAW OF EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS AMICUS CURIAE IN SUPPORT OF MS. MARTINEZ
The Equal Employment Opportunity Commission ("Commission" or "EEOC")
is the federal agency charged by Congress with administering,
interpreting, and enforcing Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and other
federal anti-discrimination laws. The instant case raises the question
whether an attorney can be held in contempt of court or sanctioned for
transferring his client's charge of discrimination from the New Mexico
Human Rights Commission ("Human Rights Commission") to the EEOC after
this Court has granted a motion to compel arbitration. The Court's
resolution of the issue may have an effect on a charging party's right
to unfettered access to the Commission's enforcement mechanism, and,
hence, may directly impact the Commission's ability to carry out its
congressional mandate. Therefore, the Commission respectfully offers
its views to the Court.
A. BACKGROUND
Ms. Martinez filed a charge of discrimination with the Human Rights
Commission alleging that her employer, Lovelace Health Systems,
Inc. ("Lovelace"), subjected her to sexual harassment and retaliated
against her, in violation of Title VII. The Human Rights Commission
issued a determination of probable cause on all allegations and set the
case for a hearing. Lovelace then asked the Human Rights Commission to
compel arbitration of the dispute. The Human Rights Commission denied
Lovelace's request for arbitration.
Pursuant to New Mexico law, Lovelace filed a de novo appeal to this
Court, seeking review of the Human Rights Commission's order denying
its motion to compel arbitration. On July 31, 2000, the Court held
a bench trial to determine whether Ms. Martinez's claims are subject
to arbitration. The Court ruled from the bench that Ms. Martinez
voluntarily signed a binding arbitration agreement, thus consenting
to arbitrate her claims in accordance with Lovelace's arbitration
policy.<1>
Approximately one month after the trial, Ms. Martinez's attorney,
Stephen Peterson, apparently contacted the Human Rights Commission,
requesting that Ms. Martinez's charge be transferred to the EEOC.
Based upon Mr. Peterson's request, the Human Rights Commission
transferred Ms. Martinez's file to the EEOC on or about August 31, 2000.
On September 8, 2000, Lovelace filed a motion to show cause in the
instant proceedings.
In its motion to show cause, Lovelace argues that Mr. Peterson engaged in
an "ex parte communication" when he asked the Human Rights Commission to
transfer Ms. Martinez's charge to the EEOC. (Motion to Show Cause at ¶
10). Lovelace further maintains that Mr. Peterson asked the Human Rights
Commission to transfer Ms. Martinez's charge to the EEOC "in an attempt
to subvert this Court's authority in ordering the case to arbitration."
(Motion to Show Cause at ¶ 6). In order to penalize Mr. Peterson for
his "subversive action," (Motion to Show Cause at ¶ 7), Lovelace asks
the Court to "issue a contempt order and assess sanctions" against him.
B. DISCUSSION
1. Filing a charge of discrimination with the Commission is absolutely
protected activity that cannot form the basis of a contempt order or
an assessment of sanctions.
An attorney should not face the threat of sanctions or a contempt order
for doing what he has an absolute right to do on behalf of his client.
Filing a charge of discrimination with the Commission is absolutely
protected activity. See, e.g., Pettway v. American Cast Iron Pipe Co.,
411 F.2d 998, 1005 (5th Cir. 1969) (right to file a charge is absolutely
protected because it is essential to the Commission's enforcement of
the civil rights laws); McGarry v. Bd. of County Commissioners, 175
F.3d 1193, 1201 (10th Cir. 1999) (filing an EEOC charge is protected
activity under Title VII); Kim v. Nash Finch Co., 123 F.3d 1046,
1061 (8th Cir. 1997) (same); Miller v. Fairchild Indus., Inc., 797
F.2d 727, 731 (9th Cir. 1986) (same); see also Blizzard v. Newport
News Redevelopment and Housing Authority, 670 F. Supp. 1337, 1344
(E.D. Va. 1984) ("the participation clause in 42 U.S.C. § 2000e-3(a)
grants an absolute privilege for filing a claim with the EEOC");
id. ("The filing of a claim with the EEOC is a protected right, the
exercise of which cannot be infringed by the employer."). If the Court
holds Mr. Peterson in contempt or sanctions him for coming to the EEOC
with his client's charge of discrimination, this will have a chilling
effect on employees' and attorneys' willingness to file charges of
discrimination with the Commission.
This chilling effect, in turn, will have a deleterious effect on the
Commission's enforcement efforts. The Commission relies heavily on the
filing of charges as its principal source of allegations of unlawful
discriminatory conduct. See EEOC v. Cosmair, Inc., 821 F.2d 1085,
1090 (5th Cir. 1987); see also EEOC v. Bd. of Governors, 957 F.2d
424, 431 (7th Cir. 1992) (stating that effective enforcement of Title
VII depends on the participation of individual employees). In fact,
"the Commission's power to investigate is dependent upon the filing
of a charge of discrimination." EEOC v. Astra USA, Inc., 94 F.3d
738, 746 (1st Cir. 1996). A charge not only empowers the Commission
to investigate, but also to conciliate, and, if necessary, litigate
in order to eradicate discrimination in the workplace. 42 U.S.C. §§
2000e-5(b) & (f)(1). If individuals were unwilling to file charges of
discrimination with the Commission due to the threat of sanctions or a
contempt order, the Commission's enforcement efforts would be thwarted.
The general public would thereby be harmed, as well. As one court has
emphasized, "an employee's right to communicate with the EEOC must be
protected . . . to safeguard the public interest." Astra, 94 F.3d at
744 n.5; see also id. (stressing the "significant public interest in
encouraging communication with the EEOC").
Furthermore, the Commission's broad investigatory powers allow it to
pursue not only the allegations contained in the charge, but any other
discriminatory practices that may be unearthed during the investigation
of the initial charge, as well. See Astra, 94 F.3d at 746 (stating that
a charge of discrimination "serves as a jurisdictional springboard"
enabling the Commission to investigate not only the charge itself but
the surrounding circumstances) (citation omitted). It is imperative,
then, that charging parties have unhindered access to the Commission's
enforcement mechanism.
Moreover, any conduct that deters the filing of discrimination
charges violates public policy. See, e.g., Cosmair, 821 F.2d at 1090
(holding that a "waiver of the right to file a charge is void as against
public policy"); EEOC v. United States Steel Corp., 671 F. Supp. 351,
358 (W.D. Pa. 1987) (lowering a retiree's pension benefits for
filing a charge tends to deter charge filing and therefore violates
public policy), rev'd on other grounds, 921 F.2d 489 (3d Cir. 1990).
As one court has observed, anything "that materially interferes with
communication between an employee and the Commission sows the seeds
of harm to the public interest." Astra, 94 F.3d at 744. A sanction
or contempt order itself, then, would be antithetical to public policy
because it would deter the filing of charges by others.
Should the Court hold Mr. Peterson in contempt or sanction him,
Ms. Martinez will effectively be penalized for resorting to Title
VII's legal procedures. Such a ruling would have the impermissible
consequence of interfering with the EEOC's ability to enforce the law.
The strong public policy that prohibits interference with governmental
law enforcement activities would thereby be infringed. The public
interest demands vigorous enforcement of Title VII by the EEOC, which
in turn requires that any person with relevant information remain free
to apprise the EEOC of a charge without fear that she may have to show
cause why she should not be sanctioned or held in contempt of court.
To ensure unrestricted access to the Commission's administrative
machinery and to ensure the Commission a free hand in the exercise
of its congressionally mandated duties, the Court should refrain from
ordering contempt or sanctions.
Finally, it is worth noting that, although the Court has compelled
arbitration, Ms. Martinez is not obligated to begin arbitrating, and,
therefore, there is no basis on which to hold her attorney in contempt
or sanction him. First of all, Ms. Martinez has a right to appeal the
order compelling arbitration, which apparently she has done. See Lyman
v. Kern, 128 N.M. 582, 585-86, 995 P.2d 504, 507-08 (Ct. App. 1999),
cert. denied, 128 N.M. 688, 997 P.2d 820 (2000) (trial court's order
compelling arbitration is final and appealable); Britt v. Phoenix
Indemnity Ins. Co., 120 N.M. 813, 815-16, 907 P.2d 994, 996-97 (1995)
(same). Second, even if the New Mexico Court of Appeals affirms,
Ms. Martinez is under no obligation to resolve her employment dispute
in an arbitral forum; she could choose to forego that right altogether.
Third, the Human Rights Commission has authority to process a claim
only under New Mexico law, and, therefore, as it stated in its Order
on Motion to Compel Arbitration, it "does not have the authority to
compel federal arbitration in this matter." Thus, the Court only had
jurisdiction to compel arbitration of Ms. Martinez's state claim.
For all of these reasons, Lovelace's assertion that Mr. Peterson
is attempting to "subvert" the Court's authority is without merit.
Consequently, a contempt or sanctions order is wholly unwarranted.
2. Ms. Martinez's arbitration agreement, even if binding, can neither
prevent her from filing a charge with the EEOC nor prevent the EEOC
from processing the charge.
The Commission takes no position on the question whether the arbitration
agreement between Ms. Martinez and Lovelace is valid and binding.
However, even if the agreement is valid and binding, it certainly
does not prevent Ms. Martinez from filing a charge of discrimination
with the EEOC. Nor can such an agreement prevent the Commission from
processing the charge.
Because the EEOC "depends on the filing of charges for notification of
possible discrimination," Ms. Martinez may not "contract away her right
to file a charge with the EEOC, as such contracts are void as against
public policy." EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448,
456 (6th Cir. 1999). Indeed, the Supreme Court has confirmed that even
if a claimant "is not able to institute a private judicial action" due
to a binding arbitration agreement, she would "still be free to file
a charge with the EEOC." Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 28 (1991). In fact, now that Ms. Martinez's charge of
discrimination resides with the EEOC, she is not permitted to withdraw
it without the EEOC's consent. See Frank's Nursery, 177 F.3d at 456
(citing 29 C.F.R. § 1601.10).
Moreover, an agreement between Ms. Martinez and Lovelace, even if binding
with respect to her, cannot bind the Commission. That is because private
agreements to arbitrate are unenforceable as against the EEOC. See
Frank's Nursery, 177 F.3d at 462. Indeed, the Commission is permitted
to seek broad injunctive relief in federal court "notwithstanding
the charging party's agreement to arbitrate." EEOC v. Waffle House,
Inc., 193 F.3d 805, 812-13 (4th Cir. 1999), petition for cert. filed,
68 U.S.L.W. 3726 (U.S. Oct. 2, 2000) (No. 99-1823).
The Commission has its own interest in eradicating employment
discrimination, independent of an individual's interest. See Frank's
Nursery, 177 F.3d at 459 ("Congress granted to the EEOC the right to
represent an interest broader than that of a particular individual when
it exercises its authority to sue"). Once the Commission investigates
Ms. Martinez's charge and attempts conciliation, it is empowered to
file suit not only on her behalf, but on behalf of the public interest.
See id. at 458 ("'[w]hen the EEOC acts, albeit at the behest of and
for the benefit of specific individuals, it acts also to vindicate the
public interest in preventing employment discrimination'") (quoting
General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980)); see also EEOC
v. Goodyear Aerospace Corp., 813 F.2d 1539, 1543 (9th Cir. 1987) (noting
that the EEOC has the authority "to vindicate rights belonging to the
United States as sovereign"). It is clear, then, that Ms. Martinez's
agreement to arbitrate cannot prevent the Commission from carrying out
its congressional mandate. And in order to do so, it is imperative
that the Commission receive charges.
3. Lovelace's action in seeking a contempt order and sanctions is
retaliatory.
Lovelace's action in seeking a contempt order and sanctions against
Mr. Peterson constitutes unlawful retaliation under Title VII.<2> Title
VII states that "[i]t shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . . because he
has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing under this subchapter." 42 U.S.C. § 2000e-3(a). In enacting
the anti-retaliation provision of Title VII, Congress recognized that
the employees on whom Title VII's enforcement depends are vulnerable
to retribution by employers displeased at being made to answer for
their unlawful employment practices. Congress therefore expressly
prohibited employers from retaliating against employees because they
have participated in protected activity or opposed unlawful practices.
According to the plain language of the statute, bringing a charge to
the Commission's attention is protected activity. See 42 U.S.C. §
2000e-3(a).
The Supreme Court has made clear that former employees such as
Ms. Martinez are covered by Title VII's protection against unlawful
retaliation. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)
(holding that the definition of the term "employee" as used in Title
VII includes former employees). Moreover, the Supreme Court has held
that filing a baseless lawsuit with the intent of retaliating is an
unfair labor practice under the National Labor Relations Act ("NLRA").
See Bill Johnson's Restaurants, Inc. v. National Labor Relations Board,
461 U.S. 731, 744 (1983); cf. Martinez v. Deaf Smith County Grain
Processors, Inc., 583 F. Supp. 1200, 1209 (N.D. Tex. 1984) (concluding
that filing a state lawsuit may constitute retaliation prohibited by
the Fair Labor Standards Act). The NLRA's anti-retaliation provision
is similar to that of Title VII. Compare 29 U.S.C. § 158(a)(4) (making
it unlawful "to discharge or otherwise discriminate against an employee
because he has filed charges or given testimony" under the Act) with
42 U.S.C. § 2000e-3(a) (making it unlawful to discriminate against an
employee because she has opposed an unlawful practice or because she
has "made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing" under the Act). In fact,
the NLRA provided the model for Title VII's anti-retaliation provision.
See Hearings Before the General Subcommittee on Labor of the Committee
on Education and Labor, House of Representatives, 88th Cong., 1st Sess.,
pp. 83-84 (May 3, 1963). Thus, Bill Johnson's Restaurants' holding
with respect to the NLRA should apply with equal force to Title VII.
Indeed, courts have found that filing a lawsuit against one who has
filed a charge of discrimination violates Title VII's prohibition
against retaliation. For example, in EEOC v. Virginia Carolina Veneer
Corp., 495 F. Supp. 775 (W.D. Va. 1980), the charging party filed
a charge of sex discrimination against her employer. The employer
responded by filing a state defamation action against her. Id. at 776.
The Commission sued the employer for retaliation, and the district
court granted the Commission's motion for summary judgment, holding
that the employer's actions in filing the defamation lawsuit "clearly
violate the participation clause" of Title VII [42 U.S.C. § 2000e-3(a)].
Id. at 777. The court emphasized that because "the charge process is
the lifeblood of Title VII," there is "an absolute privilege for the
filing of a discrimination charge." Id. The court reiterated that
"to insure uninhibited access to Title VII's enforcement mechanism,
Congress included [42 U.S.C. § 2000e-3(a)] in the Act prohibiting
employer retaliation in any form." Id. (emphasis added).
Courts are in agreement with Virginia Carolina Veneer, that initiating
judicial proceedings against one who has exercised her rights under Title
VII can constitute unlawful retaliation within the meaning of the Act.
See, e.g., Steffes v. Stepan Co., 144 F.3d 1070, 1075 (7th Cir. 1998)
("actions taken in the course of litigation could constitute retaliation"
prohibited by Title VII); Berry v. Stevinson Chevrolet, 74 F.3d 980,
986 (10th Cir. 1996) (pressing criminal charges against one who has
filed a charge of discrimination with the EEOC may form the basis of a
Title VII retaliation claim); Beckham v. Grand Affair of N.C., Inc.,
671 F. Supp. 415, 419 (W.D.N.C. 1987) (when an employer causes an
employee to be arrested and prosecuted in retaliation for her having
filed a charge of discrimination with the EEOC, this states a cause
of action under 42 U.S.C. § 2000e-3(a)); EEOC v. Levi Strauss & Co.,
515 F. Supp. 640, 643 (N.D. Ill. 1981) ("There is little doubt that a
state court defamation action filed in retaliation for having engaged in
conduct protected by [42 U.S.C. § 2000e-3(a)], including the filing of
a charge with the Commission, violates this section."). Permitting an
employer to retaliate against an employee in a "court proceeding" would
have a "chilling effect" on "an employee's protected right to challenge
discrimination under Title VII." Levi Strauss, 515 F. Supp. at 642-43.
In the instant case, Lovelace's coercive action in filing a motion
to show cause is analogous to filing a retaliatory lawsuit against
Ms. Martinez. Indeed, Lovelace's motivation in filing the motion is
manifestly retaliatory. Not only did Lovelace file its motion just
one week after the charge of discrimination was transferred to the
Commission, but Lovelace admits in the body of the motion that the
reason it filed the motion is because Mr. Peterson sought to have the
EEOC process the charge. Lovelace's motion subjects Ms. Martinez to
the burden of expending time and money to defend herself in the instant
proceedings, and to the stress of knowing that her attorney could be
held in contempt and sanctioned. Lovelace's egregious conduct has
placed Ms. Martinez in an untenable position simply because she has
come to the EEOC with a charge of discrimination.
C. CONCLUSION
For the foregoing reasons, the Commission urges the Court to
deny Lovelace's request for a contempt order or sanctions against
Ms. Martinez's attorney for bringing his client's charge to the
Commission.
Respectfully submitted,
C. GREGORY STEWART
General Counsel
PHILIP B. SKLOVER
Associate General Counsel
LORRAINE C. DAVIS
Assistant General Counsel
___________________________________
CAREN I. FRIEDMAN (N.M. Bar # 7905)
Attorney
Counsel for Amicus Curiae
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
1801 L Street, NW, 7th Floor
Washington, D.C. 20507
(202) 663-4720
CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of October 2000, a true and
correct copy of the foregoing Memorandum of Law was mailed via Federal
Express to counsel of record at the following addresses:
Stephen M. Peterson, Esq.
1332 Gusdorf Road, Suite E
Taos, New Mexico 87571
(505) 758-3071
Lorna M. Wiggins, Esq.
WIGGINS, CAMPBELL & WELLS, LLP
200 Third Street, NW, Suite 710
Albuquerque, New Mexico 87102
(505) 764-8400
______________________________
1The Court entered Findings of Fact and Conclusions of Law on
September 13, 2000.
2Ms. Martinez has filed a separate charge of discrimination with the
Commission, alleging that Lovelace has retaliated against her by filing
the Motion to Show Cause in the instant proceedings. That charge is
currently under investigation. Should either she or the Commission
file suit on that charge, the following elements would have to be met
to establish a prima facie case: 1) Ms. Martinez "engaged in protected
opposition to discrimination;" 2) she was subjected "to an adverse
employment action subsequent to the protected activity;" and 3) there
is a causal nexus between the protected activity and the adverse action.
Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000).
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