_________________________________
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
DALLAS, TEXAS
_________________________________
GEORGIA ALLISON,
Plaintiff-Appellee,
v.
TAYLOR PUBLISHING CO.,
Defendant-Appellant.
__________________________________________________
On Appeal from the District Court of Dallas County, Texas
160th Judicial District
__________________________________________________
BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS AMICUS CURIAE
__________________________________________________
C. GREGORY STEWART GAIL S. COLEMAN
General Counsel Attorney (pro hac vice)
PHILIP B. SKLOVER U.S. EQUAL EMPLOYMENT
Associate General Counsel OPPORTUNITY COMMISSION
Office of General Counsel
CAROLYN L. WHEELER 1801 L Street, N.W., Room 7034
Assistant General Counsel Washington, D.C. 20507
phone: (202) 663-4055
fax: (202) 663-7090
IDENTITY OF AMICUS CURIAE AND COUNSEL
Amicus Curiae
U.S. Equal Employment Opportunity Commission
Attorneys for Amicus Curiae
C. Gregory Stewart, General Counsel
Philip B. Sklover, Associate General Counsel
Carolyn L. Wheeler, Assistant General Counsel
Gail S. Coleman, Attorney
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7034
Washington, D.C. 20507
TABLE OF CONTENTS
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . .3
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
The district court properly held that Allison's TCHRA charges
were timely filed.. . . . . . . . . . . . . . . . . . . . .5
A. Standard of Review . . . . . . . . . . . . . . . . . .5
B. Under the controlling worksharing agreements between the
EEOC and the TCHR, the charges that Allison filed with
the EEOC were automatically filed with the TCHR. . . .6
C. Even if Allison's charges were not automatically filed with the
TCHR, equity demands that she not be penalized where she
reasonably relied on the EEOC to satisfy the TCHRA's
filing requirements on her behalf. . . . . . . . . . 10
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ADDENDUM
A. Wallace Affidavit. . . . . . . . . . . . . . . . . .A-1
B. Worksharing Agreements for FY 1994, FY 1995. . . . .A-3
C. Allison's Charges of Discrimination. . . . . . . . A-17
CERTIFICATE OF SERVICE INDEX OF AUTHORITIES
CASES
Atwood v. Kleberg,
163 F.2d 108 (5th Cir. 1947) . . . . . . . . . . . . . . . . . 11
Blumberg v. HCA Management Co.,
848 F.2d 642 (5th Cir. 1988) . . . . . . . . . . . . . . . . . .9
EEOC v. Green,
76 F.3d 19 (1st Cir. 1996) . . . . . . . . . . . . . . . . . . .9
Griffin v. City of Dallas,
26 F.3d 610 (5th Cir. 1994) . . . . . . . . . . . . . . . . .2,6
Love v. Pullman Co.,
404 U.S. 522 (1972) . . . . . . . . . . . . . . . . . . . . . 11
McKee v. McDonnell Douglas Technical Servs. Co.,
700 F.2d 260 (5th Cir. 1983) . . . . . . . . . . . . . . . . . 11
Price v. Philadelphia Am. Life Ins. Co.,
934 S.W.2d 771 (Tex. App. - Houston 1996, writ requested) . . .6
Schroeder v. Texas Iron Works, Inc.,
813 S.W.2d 483 (Tex. 1991) . . . . . . . . . . . . . . . . . . .7
Specialty Retailers, Inc. v. DeMoranville,
933 S.W.2d 490 (Tex. 1996) . . . . . . . . . . . . . . . . . . .7
Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) . . . . . . . . . . . . . . . . . . .5
White v. Dallas Indep. Sch. Dist.,
581 F.2d 556 (5th Cir. 1978) . . . . . . . . . . . . . . . . . 11
Woodson v. Scott Paper Co.,
109 F.3d 913 (3d Cir.), cert. denied, 118 S. Ct. 299 (1997) .7,8
Worthington v. Union Pac. R.R.,
948 F.2d 477 (8th Cir. 1991) . . . . . . . . . . . . . . . . . .9
STATUTES
Texas Commission on Human Rights Act,
Tex. Lab. Code Ann.
21.001(1) . . . . . . . . . . . . . . . . . . . . . . .7,9
21.201. . . . . . . . . . . . . . . . . . . . . . . . . .3
21.202. . . . . . . . . . . . . . . . . . . . . . . . . .3
21.252(d) . . . . . . . . . . . . . . . . . . . . . . . 10
Title VII of the Civil Rights Act of 1964,
42 U.S.C. 2000e-5(c) . . . . . . . . . . . . . . . . . . . . 10
REGULATION
29 C.F.R. 1601.13(a)(3) . . . . . . . . . . . . . . . . . . 10
OTHER
Brooks William Conover, III, Jurisdictional and Procedural
Issues Under the Texas Commission on Human Rights Act,
47 BAYLOR L. REV. 683 (Summer 1995) . . . . . . . . . . . 7,8,10
No. 05-98-01958-CV
_________________________________
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
DALLAS, TEXAS
_________________________________
GEORGIA ALLISON,
Plaintiff-Appellee,
v.
TAYLOR PUBLISHING CO.,
Defendant-Appellant.
__________________________________________________
On Appeal from the District Court of Dallas County, Texas
160th Judicial District
__________________________________________________
BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS AMICUS CURIAE
__________________________________________________
STATEMENT OF INTEREST
The U.S. Equal Employment Opportunity Commission ("EEOC") is charged
by Congress with interpreting, administering, and enforcing federal
anti-discrimination
laws. Its state counterpart in Texas is the Texas Commission on Human Rights
("TCHR"), which enforces state anti-discrimination law. In light of
their common
jurisdiction and goals, the EEOC and the TCHR have entered into a worksharing
agreement in which each designates the other as its agent for the
purpose of receiving
and drafting charges. See Addendum at A-4, A-11.
At issue in this case is the proper construction of the EEOC-TCHR
worksharing
agreement. The U.S. Court of Appeals for the Fifth Circuit has
already held that a
charge which is initially filed with the EEOC is automatically dual
filed with the
TCHR. See Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir. 1994). This
Court, however, has not had occasion to interpret the automatic dual
filing provision.
Because proper construction of the worksharing agreement is crucial to effective
enforcement of the federal anti-discrimination laws, the EEOC offers
its views to the
Court.
STATEMENT OF THE CASE
This is an appeal from a final judgment of the district court
finding Taylor
Publishing Co. ("Taylor") liable under the Texas Commission on Human Rights Act
("TCHRA") for discrimination against Georgia Allison. Allison filed
this action on
July 13, 1995, alleging sex discrimination, sexual harassment, and
retaliation in
violation of the TCHRA. (CR 13-16.) Her claims were tried to a jury,
which found
for Allison and awarded substantial damages. On August 31, 1998, the
district court
reduced the amount of damages to comply with the statutory cap and entered
judgment for Allison. (CR 692-94.)
ISSUE PRESENTED
Does the worksharing agreement between the EEOC and the TCHR cause a
charge that is initially filed with one agency to be concurrently dual
filed with the
other agency?
STATEMENT OF FACTS
A plaintiff may not sue under the TCHRA without first filing a charge of
discrimination with the TCHR. See Tex. Lab. Code Ann. 21.201. In order to be
timely, a TCHR charge must be filed within 180 days of the alleged
discrimination.
See id. 21.202.
Allison filed three charges between November 1993 and January 1995, all
within 180 days of the alleged discrimination. She did not file any
of the charges
directly with the TCHR; instead, she filed all three with the EEOC.
See Addendum
at A-17 to -19. Allison named both the EEOC and the TCHR as recipients of the
charges, but she neglected to check the box stating that she wanted
the charges cross
filed with both agencies. She was given EEOC charge numbers but not TCHR charge
numbers. See id. There is no evidence in the record whether the EEOC
physically
transmitted a copy of the charges to the TCHR.
Pursuant to a worksharing agreement between the EEOC and the TCHR, each
agency "designate[s] the other as its agent for the purpose of
receiving and drafting
charges." Id. at A-4, A-11. Jim Wallace, enforcement manager in the
EEOC's Dallas
District Office, stated under oath that both agencies deem a charge
filed with either
agency to be concurrently dual filed with the other. See id. at A-1.
He also stated that
"in accordance with the [worksharing] agreements . . . and in keeping with the
customs and practices of both the EEOC and TCHR, the claims made by Georgia D.
Allison are deemed to be dually filed with both agencies." Id.
Taylor argues that Allison's EEOC charges did not satisfy her charge-filing
requirement under the TCHRA. It emphasizes her failure to check the
box requesting
cross filing, and it points to the lack of evidence that the EEOC
actually mailed her
charges to the TCHR. See Taylor's Appellant Br. at 9-12.
SUMMARY OF ARGUMENT
Allison's charges were timely filed with the TCHR because the EEOC received
them on behalf of the state agency. Under the controlling worksharing
agreements,
the TCHR designated the EEOC as its limited agent for the purpose of receiving
charges. The Fifth Circuit has already held that this language in the
worksharing
agreements means that a charge which is filed with the EEOC is automatically,
simultaneously filed with the TCHR. In keeping with the TCHRA's purpose of
correlating state and federal laws against discrimination, this Court
should interpret
the worksharing agreement in the same way that the Fifth Circuit did.
Even if Allison's charges were not automatically dual filed, the EEOC had a
legal obligation to send copies to the TCHR. The Supreme Court has held that
mailing by the EEOC satisfies state filing requirements. In the
absence of evidence
to the contrary, this Court must presume that the EEOC fulfilled its
duty of mailing
Allison's charges to the TCHR. Even if the EEOC failed to mail the
charges, Allison
was entitled to assume that it would do so and she should not be
penalized for relying
on a federal agency to comply with its legal obligations.
ARGUMENT
The district court properly held that Allison's TCHRA charges were
timely filed.
A. Standard of Review
Whether Allison's TCHRA charges were timely filed is a question of law.
Questions of law are reviewed de novo. See Walker v. Packer, 827
S.W.2d 833, 839
(Tex. 1992).
B. Under the controlling worksharing agreements between the
EEOC and the TCHR, the charges that Allison filed with
the EEOC were automatically filed with the TCHR.
The EEOC-TCHR worksharing agreement "is designed to provide individuals
with an efficient procedure for obtaining redress for their grievances
under appropriate
State of Texas or Federal laws." Addendum at A-3 to -4, A-10. In
keeping with this
purpose, the EEOC and the TCHR "each designate the other as its agent for the
purpose of receiving and drafting charges." Id. at A-4, A-11. The
Fifth Circuit has
already interpreted this language to mean that a charge which is
initially filed with the
EEOC is automatically dual filed with the TCHR, whether or not that charge is
physically transmitted to the state agency. See Griffin, 26 F.3d at
612-13. Notably,
Taylor does not cite this precedent. See Taylor's Appellant Br. at 9-12.
In practice, both the EEOC and the TCHR have long treated a
charge filed with
one agency as automatically dual filed with the other. See Wallace
Aff., Addendum
at A-1 ("in keeping with the customs and practices of both the EEOC
and the TCHR,
the claims made by Georgia D. Allison are deemed to be dually filed with both
agencies"); Brooks William Conover, III (General Counsel of TCHR),
Jurisdictional
and Procedural Issues Under the Texas Commission on Human Rights Act, 47
BAYLOR L. REV. 683, 688 (Summer 1995) [hereinafter "Conover, Jurisdictional and
Procedural Issues"] ("Complaints are dual-filed as a matter of law at
the time they are
received by either agency. Thus, a complainant need not file a
separate charge with
the EEOC after having filed a charge with the [TCHR], and vice
versa."). The Fifth
Circuit's holding in Griffin comports with the agencies' understanding.
If this Court rejects the Fifth Circuit's interpretation and
holds that the EEOC-
TCHR worksharing agreement does not authorize automatic dual filing, it will
undermine the agencies' stated goal of making the charge-filing
process more efficient.
See Addendum at A-3 to -4, A-10. Rejecting the Fifth Circuit's
holding would also
violate a fundamental purpose of the TCHRA: the "correlation of state law with
federal law in the area of discrimination in employment." Schroeder
v. Texas Iron
Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991); see also Tex. Lab. Code Ann.
21.001(1); Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex.
1996).
Recognizing, perhaps, that its argument against automatic dual filing is
unpersuasive, Taylor makes much of Allison's failure to check the box
stating that she
wanted her charges to be cross filed with the TCHR. Even if some charges can be
automatically dual filed, Taylor says, Allison's cannot. See Taylor's
Appellant Br. at
10-11. This Court should reject Taylor's hyper-technical rule. See Conover,
Jurisdictional and Procedural Issues, 77 BAYLOR L. REV. at 687 ("The broad
remedial purposes of the TCHRA necessitate a reading of the statute
which does not
elevate form over substance.").
While it is true that Allison failed to check the appropriate box
on her charges,
she did address all three charges to the TCHR as well as to the EEOC.
In light of the
EEOC's status as the TCHR's agent for the purpose of receiving charges, the EEOC
would have done nothing differently even if Allison had checked the
appropriate box.
Where the federal and state agencies have agreed to automatic dual
filing, and where
the charging party identifies both agencies as the recipients of her
charge, no purpose
would be served by conditioning her substantive rights on her ability
to fill out a form
perfectly. In this case, "good enough" should be just that. See
Worthington v. Union
Pac. R.R., 948 F.2d 477, 480 (8th Cir. 1991) (charge was automatically
dual filed
even though charging party did not check box requesting dual filing);
cf. EEOC v.
Green, 76 F.3d 19, 23 (1st Cir. 1996) (EEOC produced evidence that it
sent copy of
charge to state agency even though charging party did not check box
requesting dual
filing). But see Blumberg v. HCA Management Co., 848 F.2d 642, 646 (5th Cir.
1988) (naming TCHR as charge recipient is not enough to show that charging party
asked EEOC to transmit charge; court does not mention worksharing agreement or
discuss possibility of automatic dual filing).
Taylor makes two final arguments -- both flawed -- against the
application of
automatic dual filing in this case. First, it says, it never received
notice that Allison
was bringing any TCHRA charges against it. See Taylor's Appellant Br. at 9.
However, because the TCHRA is coextensive with Title VII, see Tex.
Lab. Code Ann.
21.001(1), notice of Allison's Title VII charges necessarily
incorporated notice of
her TCHRA charges. Second, Taylor says, the TCHR never investigated any of
Allison's charges and did not issue a notice of right to sue until
after she had already
initiated her lawsuit. See Taylor's Appellant Br. at 9-10. This
argument ignores the
TCHR's voluntary decision to let the EEOC initially process dual-filed
charges that
are first brought to the federal agency. See Addendum at A-5, A-12. The TCHRA
does not require the TCHR to investigate a dual-filed charge after the EEOC has
already reviewed it. See Conover, Jurisdictional and Procedural
Issues, 47 BAYLOR
L. REV. at 698 ("[A] complaint originally filed with the EEOC will generally be
investigated by the EEOC. Such an arrangement avoids duplicative
state and federal
investigations."). Moreover, the TCHR's failure to issue a notice of
right to sue does
not bar a charging party from filing an action under the TCHRA. See
Tex. Lab. Code
Ann. 21.252(d).
C. Even if Allison's charges were not automatically filed with
the TCHR, equity demands that she not be penalized where
she reasonably relied on the EEOC to satisfy the TCHR's
filing requirements on her behalf.
By filing Title VII charges with the EEOC, Allison legally
obligated the EEOC
to transmit a copy of her charges to the TCHR. Title VII grants the TCHR the
exclusive right to process allegations of discrimination occurring
within Texas for a
period of sixty days. See 42 U.S.C. 2000e-5(c). In order to comply with this
statutory mandate, the EEOC has undertaken through regulations the
duty to transmit
a copy of all Texas Title VII charges to the TCHR. See 29 C.F.R.
1601.13(a)(3).
The EEOC is required to send copies of charges to the TCHR even when,
as here, the
TCHR has waived its right to the period of exclusive processing. See id.
1601.13(a)(3)(iii); see also Addendum at A-5, A-12 (TCHR waives
right to initial
processing of Title VII charges that are first filed with the EEOC).
Because the
Supreme Court has held that the EEOC may initiate state proceedings on
behalf of the
complainant, see Love v. Pullman Co., 404 U.S. 522, 525 (1972), a charging party
who files with the EEOC need not take any further action to ensure
that her charges
will be dual filed with the TCHR.
No evidence exists that the EEOC failed to transmit Allison's
charges. In the
absence of such evidence, this Court must presume that the EEOC
fulfilled its legal
obligation. See Atwood v. Kleberg, 163 F.2d 108, 113 (5th Cir. 1947)
("it will be
presumed that persons charged with the performance of a duty have discharged it
fairly and in accordance with their commission until evidence is
introduced which
overthrows this presumption"). Even if the EEOC erred, however, its
alleged mistake
should not prejudice Allison, who filed her charges with enough time
for the EEOC
to accomplish a timely state filing. See McKee v. McDonnell Douglas Technical
Servs. Co., 700 F.2d 260, 264 (5th Cir. 1983) ("'The complainant is not to be
prejudiced by the EEOC's failure to fulfill its duty.'") (quoting
Williams v. Owens-
Illinois, Inc., 665 F.2d 918, 923 n.2 (9th Cir. 1982)); White v.
Dallas Indep. Sch. Dist.,
581 F.2d 556, 562-63 (5th Cir. 1978) (en banc) ("Confronted with a
charging party
who has not engaged in dilatory tactics and who has been substantially
misled by the
EEOC's mistake of law, we are unwilling to bar her action in district court.").
PRAYER
Pursuant to the controlling worksharing agreements, Allison's EEOC charges
were automatically dual filed with the TCHR when the EEOC received them as the
TCHR's limited agent. Even if the charges were not automatically dual
filed, Allison
was entitled to rely on the EEOC's carrying out its legal obligation
to transmit the
charges to the TCHR. For the reasons stated above, this Court should affirm the
district court's holding that Allison's TCHRA charges were timely filed.
Respectfully submitted,
______________________________
C. GREGORY STEWART GAIL S. COLEMAN
General Counsel Attorney (pro hac vice)
PHILIP B. SKLOVER U.S. EQUAL EMPLOYMENT
Associate General Counsel OPPORTUNITY COMMISSION
Office of General Counsel
CAROLYN L. WHEELER 1801 L Street, N.W., Room 7034
Assistant General Counsel Washington, D.C. 20507
phone: (202) 663-4055
fax: (202) 663-7090
May 13, 1999
ADDENDUM
CERTIFICATE OF SERVICE
I, Gail S. Coleman, hereby certify that I served one copy of the
foregoing brief
this 13th day of May, 1999, by first-class mail, postage pre-paid, to
the following
counsel of record:
Counsel for Georgia Allison, Plaintiff-Appellee:
R. Rogge Dunn
Jennifer L. Gabel
Gregory M. Clift
MATTHEWS, CARLTON, STEIN, SHIELS, PIERCE, DUNN
& KNOTT, L.L.P.
8131 LBJ Freeway, Suite 700
Dallas, TX 75251
Counsel for Taylor Publishing Co., Defendant-Appellant:
John F. McCarthy, Jr.
M. Scott McDonald
LITTLER MENDELSON,
A Professional Corporation
2001 Ross Avenue, Suite 2600, L.B. 116
Dallas, TX 75201
_____________________________
GAIL S. COLEMAN
Attorney (pro hac vice)
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W., Room 7034
Washington, D.C. 20507
phone: (202) 66304955
fax: (202) 663-7090
__________________________
1 Pursuant to Rule 11 of the Texas Rules of Appellate Procedure,
the EEOC states that this brief has been prepared by a salaried
employee and that no additional fee has been or will be paid for its
preparation.
2 The EEOC takes no position on any other issue in this case.
3 One Texas court has misread Griffin to require physical
transmittal of a charge. See Price v. Philadelphia Am. Life Ins.
Co., 934 S.W.2d 771, 773 (Tex. App. - Houston 1996, writ requested).
However, there was evidence in Price that the EEOC had sent the charge
to the TCHR, and therefore the question of automatic dual filing never
arose. This Court should not defer to Price's misunderstanding of
Griffin, but should, instead, let Griffin speak for itself.
4 One Texas court has misread Griffin to require physical
transmittal of a charge. See Price v. Philadelphia Am. Life Ins.
Co., 934 S.W.2d 771, 773 (Tex. App. - Houston 1996, writ requested).
However, there was evidence in Price that the EEOC had sent the charge
to the TCHR, and therefore the question of automatic dual filing never
arose. This Court should not defer to Price's misunderstanding of
Griffin, but should, instead, let Griffin speak for itself.
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