Table of Contents

Table of Authorities............................................................................. iii

Statement of Interest............................................................................. 1

Statement of the Issues......................................................................... 2

Pertinent Statutory and Regulatory Provisions................................. 2

Statement of the Case........................................................................... 3

A. Statutory and Regulatory Background.................................... 3

B. Factual Background................................................................... 6

C. District Court Decision.............................................................. 7

D. Post-Dismissal Developments.................................................. 9

Summary of Argument...................................................................... 10

Argument............................................................................................. 12

I. The appeal may be moot..................................................... 12

II. Section 2000e-5(f)(1) is ambiguous, satisfying

step one of Chevron............................................................... 14

A. The text of section 2000e-5(f)(1) is ambiguous................. 15

B. The statutory context supports finding section

2000e-5(f)(1) ambiguous.................................................... 21

C. The legislative history does not reveal Congress’s intent................................................................................................ 26

D. Three circuit courts and many district courts agree Title

VII is ambiguous................................................................. 28

III. The EEOC’s regulation is a permissible construction of

section 2000e-5(f)(1), warranting deference under step

two of Chevron...................................................................... 32

Conclusion........................................................................................... 37

Certificate of Compliance.......................................................................

Addendum...............................................................................................

Table of Authorities

Cases

Arizonans for Off. Eng. v. Arizona, 520 U.S. 43 (1997).................. 10, 13

Berry v. Delta Air Lines, Inc., 75 F. Supp. 2d 890 (N.D. Ill. 1999).... 31, 32, 34

Brown v. Puget Sound Elec. Apprenticeship & Training Tr.,

732 F.2d 726 (9th Cir. 1984)................................................................ 30

Bryant v. Cal. Brewers Ass’n, 585 F.2d 421 (9th Cir. 1978)................ 30

Cal. Brewers Ass’n v. Bryant, 444 U.S. 598, 610 (1980)......................... 5

Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA,

846 F.3d 492 (2d Cir. 2017)............................................................ 26, 28

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984)........................................................................ passim

Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992)........ 13

Cuthill v. Blinken, 990 F.3d 272 (2d Cir. 2021)............................. 21, 22

Edelman v. Lynchburg Coll., 535 U.S. 106 (2002).......................... 33, 34

EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981)................... 5

EEOC v. Com. Off. Prods. Co., 486 U.S. 107 (1988)....................... 34, 35

EEOC v. Sterling Jewelers Inc., 801 F.3d 96 (2d Cir. 2015)................. 32

EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).................................. 5

Evans v. Maax-KSD Corp., CIV.A. 06-2804, 2006 WL 3488708

(E.D. Pa. Nov. 30, 2006)...................................................................... 19

Figueira v. Black Entm’t Television, Inc., 944 F. Supp. 299

(S.D.N.Y. 1996)............................................................................... 27, 34

Gibb v. Tapestry, Inc., 18-CV-6888 (LAP), 2018 WL 6329403

(S.D.N.Y. Dec. 3, 2018)........................................................................ 31

Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006).................................. 6, 15

Hernandez v. Premium Merch. Funding One, LLC, 19-CV-1727,

2020 WL 3962108 (S.D.N.Y. July 13, 2020)........................................ 31

King v. Dunn Mem’l Hosp., 120 F. Supp. 2d 752 (S.D. Ind. 2000)..... 31

Lauricia v. MicroStrategy Inc., 114 F. Supp. 2d 489 (E.D. Va. 2000). 37

Lopez v. Davis, 531 U.S. 230 (2001)..................................................... 17

Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015)........................... 3, 16

Martini v. Fed. Nat. Mortg. Ass’n, 178 F.3d 1336 (D.C. Cir. 1999)........................................................................................................ passim

McGrath v. Nassau Health Care Corp., 217 F. Supp. 2d 319

(E.D.N.Y. 2002).................................................................................... 31

Mizrahi v. Gonzales, 492 F.3d 156 (2d Cir. 2007)................................ 15

Moteles v. Univ. of Pa., 730 F.2d 913 (3d Cir. 1984)........................... 30

Naimoli v. Ocwen Loan Servicing, LLC, 22 F.4th 376 (2d Cir. 2022). 32, 33

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,

545 U.S. 967 (2005)............................................................................... 33

Occidental Life Ins. Co. of California v. EEOC, 432 U.S. 355 (1977) 5, 16

Richardson v. Valley Asphalt, Inc., 109 F. Supp. 2d 1332

(D. Utah 2000)...................................................................................... 19

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)............................... 15, 21

Rodriguez v. Connection Tech. Inc., 65 F. Supp. 2d 107 (E.D.N.Y. 1999)............................................................................................................... 32

Ruesch v. Comm’r of Internal Revenue, 25 F.4th 67 (2d Cir. 2022)..... 13

Seybert v. W. Chester Univ., 83 F. Supp. 2d 547 (E.D. Pa. 2000)....... 27

Simler v. Harrison Cnty. Hosp., 110 F. Supp. 2d 886 (S.D. Ind. 2000)............................................................................................................... 31

Sims v. Trus Joist MacMillan, 22 F.3d 1059 (11th Cir. 1994)....... passim

Stetz v. Reeher Enters., Inc., 70 F. Supp. 2d 119 (N.D.N.Y. 1999)...... 32

United States v. Munsingwear, Inc., 340 U.S. 36 (1950)...................... 14

Walker v. United Parcel Serv., Inc., 240 F.3d 1268 (10th Cir. 2001)... 29, 34

Weise v. Syracuse Univ., 522 F.2d 397 (2d Cir. 1975)................... 15, 22

White v. Gen. Servs. Admin., 652 F.2d 913 (9th Cir. 1981)................. 24

Statutes

42 U.S.C. §§ 2000e et seq........................................................................ 1

42 U.S.C. § 2000e-5(b)................................................................... passim

42 U.S.C. § 2000e-5(f)(1)............................................................... passim

42 U.S.C. § 2000e-5(f)(4)...................................................................... 23

42 U.S.C. § 2000e-5(f)(5)................................................................ 23, 24

42 U.S.C. § 2000e–12(a)....................................................................... 33

Rules and Regulations

29 C.F.R. § 1601.28(a)(2)............................................................... passim

29 C.F.R. § 1601.28(a)(3)...................................................................... 16

42 Fed. Reg. 47828 (Sep. 22, 1977).................................................. 4, 34

Fed. R. App. P. 29(a)............................................................................. 1

Other Authority

Ballentine’s Law Dictionary (3d ed. 2010)........................................ 16

Black’s Law Dictionary (5th ed. 1979)............................................... 16

Complaint, Stidhum v. 161-10 Hillside Auto Ave, LLC,

21-cv-07163 (E.D.N.Y. Dec. 29, 2021)............................................. 9, 14

Docket, Stidhum v. 161-10 Hillside Auto Ave, LLC,

21-cv-07163 (E.D.N.Y.)........................................................................ 10

EEOC, All Statutes (Charges filed with EEOC) FY 1997 - FY 2020,

https://www.eeoc.gov/statistics/all-statutes-charges-filed-

eeoc-fy-1997-fy-2020............................................................................. 9

EEOC, EEOC Mediation Statistics FY 1999 through FY 2020,

https://www.eeoc.gov/eeoc-mediation-statistics-fy-1999-

through-fy-2020..................................................................................... 9

EEOC, Mediation, https://www.eeoc.gov/mediation...................... 26

EEOC, What You Can Expect After You File a Charge,

www.eeoc.gov/what-you-can-expect-after-you-file-charge........... 35

H.R. Rep. No. 92–238 (1971), reprinted in

1972 U.S.C.C.A.N. 2137........................................................... 27, 35, 36

The Random House Dictionary of the English Language

College Edition (1968)......................................................................... 17

118 Cong. Rec. 7,166 (1972).......................................................... 27, 28

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with administering and enforcing federal laws prohibiting workplace discrimination, including T itle VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. At issue on appeal is the EEOC’s procedural regulation at 29 C.F.R. § 1601.28(a)(2), which interprets Title VII to allow the EEOC to issue right-to-sue notices in less than 180 days after a charge is filed in certain circumstances, enabling a complainant to file suit in court. Because the EEOC has a substantial interest in enforcing Title VII and in the validity of its procedural regulations, and in response to this Court’s order of January 24, 2022, the EEOC offers its views to the Court. See Fed. R. App. P. 29(a).

Statement of the Issues[1]

1. Whether this appeal may be moot.

2. Whether the notices described in 42 U.S.C. § 2000e-5(f)(1) are the only notices that create a right to sue under Title VII, barring the initiation of a Title VII suit upon receipt of a notice issued solely pursuant to 29 C.F.R. § 1601.28(a)(2).

3. If 42 U.S.C. § 2000e-5(f)(1) is ambiguous with respect to the validity of notices issued pursuant to 29 C.F.R. § 1601.28(a)(2), whether 29 C.F.R. § 1601.28(a)(2) is entitled to agency deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

Pertinent Statutory and Regulatory Provisions

Pertinent statutory and regulatory provisions are reproduced in the addendum.

Statement of the Case

A. Statutory and Regulatory Background

Title VII “sets out a detailed, multi-step procedure through which the Commission enforces the statute’s prohibition on employment discrimination.” Mach Mining, LLC v. EEOC, 575 U.S. 480, 483 (2015). The process generally begins when an individual files a charge of discrimination. See 42 U.S.C. § 2000e-5(b). The EEOC then notifies the employer and investigates the charge. Id. If the EEOC finds “there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify” the parties. Id. In contrast, if the EEOC determines there is reasonable cause, it must attempt to resolve the charge through conciliation. Id. The EEOC may then file a lawsuit if it has been unable to obtain an acceptable conciliation agreement. 42 U.S.C. § 2000e-5(f)(1).

Title VII also provides a path for charging parties to receive a notice from the EEOC that allows them to proceed to federal court to file their own lawsuit:

If a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . , the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent . . . .

Id.

In 1977, the EEOC amended its procedural regulations, including the rules implementing section 2000e-5(f)(1). Procedural Regulations, 42 Fed. Reg. 47828, 47836-37 (Sep. 22, 1977). The relevant regulation, 29 C.F.R. § 1601.28(a)(2), addresses right-to-sue notices issued less than 180 days from the filing of the charge. It interprets the statute to provide that when a charging party requests a right-to-sue notice and the respondent is a non-governmental employer “the Commission may issue” the notice “prior to the expiration of 180 days from the date of filing of the charge” provided that a designated EEOC official “has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect.” Id. The designated official EEOC must be “the District Director, the Field Director, the Area Director, the Local Director, the Director of the Office of Field Programs or upon delegation, the Director of Field Management Programs.” Id.

The Supreme Court acknowledged the regulation, without ruling on its validity, shortly after the EEOC adopted it. In EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 595 n.6 (1981), the Supreme Court cited 29 C.F.R. § 1601.28(a)(2) and stated that “[u]nder Commission regulations, . . . the Commission may issue a right-to-sue letter earlier if it finds that it cannot complete its consideration of a charge within 180 days of filing.”^{^[2]} See also EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002) (“The EEOC has exclusive jurisdiction over the claim for 180 days. During that time, the employee must obtain a right-to-sue letter from the agency before prosecuting the claim.”). Like the Supreme Court, this Court has acknowledged 29 C.F.R. § 1601.28(a)(2) without ruling on its validity. See Hankins v. Lyght, 441 F.3d 96, 101 (2d Cir. 2006) (“We express no opinion on the issue here[.]”).

B. Factual Background

Hillside hired Leticia Stidhum as a salesperson in May 2018. A-004. Stidhum alleges that Hillside discriminated against her based on her sex and pregnancy, including by denying her commissions and bonuses. A-004–A-007.

Stidhum filed a charge of discrimination on or about April 19, 2019.[3] On or about July 19, 2019, the District Director for the EEOC’s New York District Office responded to a request from Stidhum by issuing a right-to-sue notice.[4] A-106. The District Director checked the box stating that “[l]ess than 180 days have passed since the filing of this charge, but I have determined that it is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the filing of this charge.” Id. The District Director also checked the box explaining the EEOC was “terminating its processing of the charge.” Id.

Stidhum filed suit, and Hillside moved to dismiss on the ground that Stidhum’s right-to-sue notice was premature because the EEOC issued it less than 180 days after her charge. A-001–A-012; A-19–A-29. The district court ordered supplemental briefing on whether 42 U.S.C. § 2000e–5(f)(1) “invalidates plaintiff’s early right-to-sue letter” and whether the court should defer to the EEOC’s interpretation in 29 C.F.R. § 1601.28(a)(2). A-057.

C. District Court Decision

The district court entered a minute order granting Hillside’s motion to dismiss, A-092, and later issued its opinion holding that Stidhum’s suit was premature because she lacked “the [right-to-sue] notice that is a statutory prerequisite to” suit. A-107. The court held that 42 U.S.C. § 2000e-5(f)(1) permits right-to-sue notices only when (1) the EEOC dismisses the charge or (2) the EEOC has not filed a civil action or entered into a conciliation agreement within 180 days of the charge. A-108. The district court rejected Stidhum’s argument for deference to the EEOC’s regulation, stating, “[a]ssuming that Chevron is the appropriate framework to use,” Congress “unambiguously prescribed the type of notice that is a precondition to a Title VII suit.” Id.

The district court recognized the split in courts as to the validity of the regulation but sided with the courts holding the regulation invalid. A-105–06, 109. Rejecting the views of other courts, the district court reasoned that it was not pointless to require charging parties to wait 180 days, even when the EEOC officials believed it unlikely the investigation would be completed within that time, because it gave “employers—some of whom very much want to attempt conciliation— . . . a guaranteed window to pursue informal resolution before a lawsuit is filed.” A-109–10 (internal quotation marks omitted). Permitting exceptions to the 180-day rule, the court reasoned, would also “diminish pressure on [the EEOC] to efficiently investigate and conciliate” and would improperly shift the agency’s workload to the courts. A-110.

The district court dismissed the complaint without prejudice, stating Stidhum could refile after receiving a notice from the EEOC that it had dismissed the charge or processed it for the full 180 days. See A-111–12. Although the EEOC was not a party, the district court directed the EEOC to reopen Stidhum’s charge. Id.

D. Post-Dismissal Developments

Although the record below does not reflect it, Stidhum filed a new lawsuit against Hillside on December 29, 2021. Complaint, Stidhum v. 161-10 Hillside Auto Ave, LLC, 21-cv-07163 (E.D.N.Y. Dec. 29, 2021). The Complaint avers that the EEOC issued Stidhum a new Notice of Dismissal and Right to Sue on September 30, 2021, after the EEOC processed the charge for more than 180 days. See id. ¶¶ 9-10. As of March 3, 2022, there is no entry on the docket in the Eastern District of New York for service executed or a waiver of service, making it unclear whether Hillside is aware of the new complaint. Docket, Stidhum v. 161-10 Hillside Auto Ave, LLC, 21-cv-07163 (E.D.N.Y.).

Summary of Argument

The two questions this Court posed to the EEOC concern the agency’s authority under Title VII and 29 C.F.R. § 1601.28(a)(2) to issue right-to-sue notices less than 180 days after a charge is filed when the EEOC determines it is unlikely to complete the administrative processing necessary to file a lawsuit or successfully conciliate the charge within 180 days. Before addressing those questions, however, the EEOC notes this appeal may be moot. See Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 68 n.23 (1997) (attorneys have a duty to inform the court about “facts that may raise a question of mootness”). Stidhum filed a new complaint against Hillside alleging the EEOC issued a new right-to-sue notice after the EEOC had processed the charge for 180 days.

If this Court determines the appeal is not moot, it should hold that section 2000e-5(f)(1) is ambiguous and defer to the EEOC’s interpretation at 29 C.F.R. § 1601.28(a)(2), which reasonably permits the agency to issue right-to-sue notices prior to 180 days when the agency certifies in writing that it is improbable that it will complete its administrative process within that timeframe. The answers to this Court’s two questions lead to this result because both questions require an assessment of the statutory language and regulation under Chevron’s two-step framework, which looks at whether the statute is silent or ambiguous and, if so, whether the agency’s regulation was reasonable.

At the outset, we note that this Court’s first question suggests that right-to-sue notices issued pursuant to 29 C.F.R. § 1601.28(a)(2) are a separate category of notices untethered from 42 U.S.C. § 2000e-5(f)(1). They are not. The statute is ambiguous as to whether the right-to-sue notices Title VII explicitly authorizes—when EEOC has not filed suit or entered into a conciliation agreement within 180 days after a charge is filed—can be issued earlier when the EEOC determines it is improbable that it will complete its administrative processing in that time. The text and statutory context of section 2000e-5(f)(1) support finding section 2000e-5(f)(1) ambiguous on the precise question of whether the EEOC must wait 180 days to issue a right-to-sue notice under these circumstances, a conclusion buttressed by decisions from three other courts of appeals.

Because the statute is ambiguous, the next question under Chevron’s two-step analysis—which is this Court’s second question—is whether 29 C.F.R. § 1601.28(a)(2) is entitled to deference. It is. The regulation is a procedural regulation within the EEOC’s authority under Title VII, and the EEOC issued it in a notice-and-comment rulemaking. And the regulation reasonably interprets section 2000e-5(f)(1) to further Congress’s interest in the prompt resolution of charges, consistent with the statutory language and context, while ensuring that charging parties may only receive a right-to-sue notice in less than 180 days when the EEOC certifies that it is unlikely to complete its administrative processing within 180 days.

Argument

I. The appeal may be moot.

Neither the parties nor this Court have raised the issue, but the Court may wish to consider whether this appeal may be moot. “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’” Arizonans for Off. Eng. v. Arizona, 520 U.S. at 67 (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). “[I]f an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, the appeal must be dismissed.” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal quotation marks omitted) (case was not moot because court could still offer relief); see also Ruesch v. Comm’r of Internal Revenue, 25 F.4th 67, 2022 WL 244008, at *3 (2d Cir. 2022) (per curiam) (case was moot because tax court could not provide any further relief).

Stidhum’s new lawsuit appears to provide the relief Stidhum seeks in this appeal. Stidhum asks this Court to reverse the district court order dismissing her complaint without prejudice. That order dismissed Stidhum’s lawsuit and held Stidhum could renew her complaint if the EEOC issued another right-to-sue notice after dismissing her charge or after processing her charge for another 89 days without filing suit or entering into a conciliation agreement. A-111–12. Stidhum then filed a complaint in district court six months later that appears identical in all relevant respects to her complaint here, except that it added paragraphs describing the district court’s previous order and averring that the EEOC issued a Notice of Dismissal and Right to Sue on September 30, 2021, after the EEOC processed the charge, cumulatively, for more than 180 days. Complaint ¶¶ 9-10, Stidhum v. 161-10 Hillside Auto Ave, LLC, 21-cv-07163 (E.D.N.Y. Dec. 29, 2021). It thus appears there may be no effective relief for this Court to grant.

If the appeal is moot, this Court may consider whether to instruct the district court to vacate the underlying order. United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).

II. S ection 2000e-5(f)(1) is ambiguous, satisfying step one of Chevron.

The statutory text and the statutory context of section 2000e-5(f)(1) suggest that Title VII is ambiguous as to whether the EEOC can issue right-to-sue notices upon request in less than 180 days when the EEOC determines that it is probable it will not complete its administrative processing within 180 days from the filing of the charge. Cf. Chevron, 467 U.S. at 842-43 (when a court reviews an agency’s construction of the statute it administers, the first step is to determine whether the statute is clear or “silent or ambiguous with respect to the specific issue”). The legislative history, meanwhile, does not make Congress’s intent clear. And, although this Court has not yet interpreted this provision,[5] the decisions from three other courts of appeals and many district courts buttress this interpretation of section 2000e-5(f)(1).

A. The text of section 2000e-5(f)(1) is ambiguous.

We begin with the text of the statute. Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997); Mizrahi v. Gonzales, 492 F.3d 156, 158 (2d Cir. 2007). Section 2000e-5(f)(1) provides that, if the EEOC dismisses a charge or 180 days passes without the EEOC filing a civil action or entering into a conciliation agreement, the EEOC “shall so notify the person aggrieved.” Id. (emphasis added). The use of “shall,” rather than “may” renders section 2000e-5(f)(1) ambiguous on the question presented here.

“Shall” suggests an act is “mandatory, not precatory.” Mach Mining, LLC, 575 U.S. at 486; Shall, Ballentine’s Law Dictionary (3d ed. 2010) (“Ordinarily, a word of mandate, the equivalent of ‘must,’ where appearing in a statute.”); Shall, Black’s Law Dictionary (5th ed. 1979) (“It has the invariable significance of excluding the idea of discretion”). Because Congress used the verb “shall,” section 2000e-5(f)(1) unambiguously removes the EEOC’s discretion to decline to issue a requested right-to-sue notice after 180 days.[6] In other words, the statute establishes a maximum amount of time (180 days) for EEOC to process a charge before individuals must be allowed to proceed to court, if they so desire.

If Congress had instead said the EEOC “may” issue a right-to-sue notice when it has not filed a lawsuit or entered a conciliation agreement within 180 days, it would have conveyed that the EEOC could not issue right-to-sue notices any earlier. “May,” unlike “shall,” typically conveys what is permitted rather than what is required. May, The Random House Dictionary of the English Language College Edition (1968) (“[U]sed to express possibility, opportunity, or permission”). The use of “may” would have clarified that the EEOC was only permitted to issue right-to-sue notices after 180 days had passed without suit or conciliation agreement, but not before. See Lopez v. Davis, 531 U.S. 230, 241 (2001) (contrasting the use of “may” and “shall” in same section of statute).

Section 2000e-5(f)(1) uses the structure if “a” happens, then the EEOC shall do “b,” rather than if “a” happens, the EEOC may do “b.” The latter formulation would support the inference that if “a” does not occur, then the EEOC may not do “b.” The “shall” formulation does not support the same inference, as the following example makes clear. If a teacher gives students an assignment and tells them, “After 30 minutes, you shall stop working on it,” there would be no doubt that the student must stop work after 30 minutes. But it would not follow that students must work for 30 minutes. A student could, for example, finish the assignment early. But, “after 30 minutes, you may stop working” not only gives the students discretion on whether to stop after 30 minutes, it also prohibits them from stopping work early. As in that example, the use of “shall,” rather than “may,” renders section 2000e-5(f)(1) ambiguous as to whether the EEOC can issue a right-to-sue notice earlier than 180 days in appropriate circumstances.

Put differently, the use of “shall” rather than “may” means that section 2000e-5(f)(1) is ambiguous as to whether 180 days is the minimum or maximum amount of time that a charging party must wait to receive a right-to-sue notice if the charge is not dismissed. The use of “may” would have set a minimum: the EEOC could not issue a right-to-sue notice in less than 180 days without a dismissal. With “shall,” section 2000e-5(f)(1) plausibly sets a maximum. Indeed, courts interpreting section 2000e-5(f)(1) find it sets “the maximum amount of time the EEOC can hold onto a complaint” if the charging party requests a right-to-sue notice. See Evans v. Maax-KSD Corp., CIV.A. 06-2804, 2006 WL 3488708, at *4 (E.D. Pa. Nov. 30, 2006); Richardson v. Valley Asphalt, Inc., 109 F. Supp. 2d 1332, 1337 (D. Utah 2000); cf. Martini v. Fed. Nat. Mortg. Ass’n, 178 F.3d 1336, 1344 (D.C. Cir. 1999) (noting that “[n]othing in section 2000e–5(f)(1)’s language forecloses [the] view that the 180–day provision is simply a maximum, not minimum, waiting period for complainants seeking access to federal court,” but relying on different statutory provision to hold right-to-sue notice issued in less than 180 days was impermissible).

This distinction aligns with the way Title VII elsewhere used “may” instead of “shall.” The first sentence of section 2000e-5(f)(1), for example, states: “If within thirty days after a charge is filed . . . the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent . . . .” Id. (emphasis added). Like the sentence of section 2000e-5(f)(1) at issue here, this sentence begins with “if.” But it follows the conditional “if” with “may” rather than “shall.” See id. The first sentence thus conveys that the EEOC is permitted to file suit only after the condition listed occurs, i.e., the EEOC may sue only after 30 days. In contrast, the sentence at issue here in section 2000e-5(b) uses “shall” to convey that the EEOC is required to provide a notice when one of two conditions occur (i.e., dismissal or 180 days without EEOC action). Congress’s use of “may” rather than “shall” in the same section of Title VII shows it could distinguish between the two terms and that “shall” in section 2000e-5(f)(1) is at least ambiguous as to whether right-to-sue notices in less than 180 days are permitted.

The district court reasoned that section 2000e-5(f)(1) is unambiguous because of the terms “so notify” and “such notice.” A-108–09. According to the district court, these phrases unambiguously refer only to notices that one of two events occurred: “when a charge is dismissed or when 180 days have passed without certain agency actions.” A-108. As a result, the court reasoned, “the only notices that create a right to sue” are notices of those two events. A-109.

The EEOC agrees that “so notify” and “such notice” refer to the two categories of right-to-sue notices: notices of dismissal, and notices of 180 days without suit or a conciliation agreement. But, as discussed above, Title VII remains ambiguous as to whether the second category of right-to-sue notices in section 2000e-5(f)(1) can be issued before 180 days have passed. If Congress had wanted all right-to-sue notice to issue only after dismissal or 180 days, it could have used “may” (as it did elsewhere in Title VII) or a less ambiguous formulation. It did not, and the language Congress did use is ambiguous on the precise question presented here.

B. The statutory context supports finding section 2000e-5(f)(1) ambiguous.

Statutory context can also inform whether statutory language is ambiguous. See Robinson, 519 U.S. at 341-42 (relying in part on statutory context); Cuthill v. Blinken, 990 F.3d 272, 281 (2d Cir. 2021) (when “the plain text does not conclusively resolve the question,” courts can use “tools, including statutory structure, to discern the text’s meaning and purpose”). By doing so, courts can identify a statute’s “core structural principles” that allow them to identify the interpretation most consistent with those principles. See Cuthill, 990 F.3d at 281. Here, Congress, throughout Title VII, emphasized the prompt resolution of charges, which supports finding section 2000e-5(f)(1) ambiguous on the precise question presented here.

“Congress intended that complaints be handled expeditiously.”

Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1063 (11th Cir. 1994); Weise v. Syracuse Univ., 522 F.2d 397, 412 (2d Cir. 1975) (one of Congress’s substantive purposes was “the expeditious handling of complaints”). Congress required charges to be filed within 180 or 300 days of the last act of discrimination. 42 U.S.C. § 2000e-5(e)(1). The EEOC must then serve the respondent with notice within ten days. Id. And, despite Congress’s awareness of the large number of charges pending with the EEOC, Congress instructed that the EEOC “shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge.” Id. § 2000e-5(b). Section 2000e-5(f)(1) also unambiguously permits the EEOC to issue a right-to-sue notice as soon as it dismisses a charge, no matter how long (or short) the process leading to that dismissal is. And, aware of the EEOC’s backlog, Congress set a maximum length of time (180 days) the EEOC could process a charge without filing suit or entering a conciliation agreement before it had to issue a right-to-sue notice, if requested, and allow the complainant to go to court. See Sims, 22 F.3d at 1063.

Congress redoubled its emphasis on prompt resolution when it authorized lawsuits under Title VII. Section 2000e-5(f)(1) authorizes the EEOC to file a lawsuit if has been unable to secure a conciliation agreement within thirty days after a charge is filed. And Congress commanded that, for all Title VII lawsuits, “[i]t shall be the duty of the chief judge of the district . . . in which the case is pending immediately to designate a judge in such district to hear and determine the case.” 42 U.S.C. § 2000e-5(f)(4) (emphasis added). Once the case is assigned, “[i]t shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited.” 42 U.S.C. § 2000e-5(f)(5) (emphasis added). Should the case not be scheduled for trial within 120 days, Congress authorized courts to “appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure.” Id.; see also White v. Gen. Servs. Admin., 652 F.2d 913, 915 (9th Cir. 1981) (Title VII relaxed Rule 53’s normal restrictions to further “expedit[e] the disposition of Title VII cases”).

Title VII’s repeated emphasis on prompt resolution confirms that section 2000e-5(f)(1) is at least ambiguous as to whether right-to-sue notices can be issued prior to 180 days. Allowing right-to-sue notices to be issued prior to 180 days when the EEOC certifies it is probable it will be unable to finish processing a charge before that time “protect[s] the aggrieved party from extended administrative proceedings or bureaucratic backlog.” Sims, 22 F.3d at 1061. And a contrary interpretation would needlessly force charging parties “to stand by and mark time until the 180-day period expires.” Id.

For much the same reasons, courts like the district court that prioritize Title VII’s interest in informal resolution overstate how this part of section 2000e-5(f)(1) serves that interest. The district court asserted that the section provides employers “a guaranteed window to pursue informal resolution before a lawsuit is filed.” A-110 (citing Spencer v. Banco Real, S.A., 87 F.R.D. 739, 746 (S.D.N.Y. 1980)). But Title VII does not provide a guaranteed 180-day window for conciliation. Section 2000e-5(f)(1) allows the EEOC to file a lawsuit if it is unable to obtain a conciliation agreement within thirty days after a charge is filed. And the EEOC can issue a right-to-sue notice as soon as it dismisses the charge, with no conciliation. 42 U.S.C. § 2000e-5(f)(1). Only the EEOC is required to initiate conciliation to informally resolve a lawsuit before it is filed—and Title VII authorizes the EEOC to attempt conciliation only after issuing a cause finding. See 42 U.S.C. § 2000e-5(b); 42 U.S.C. § 2000e-5(f)(1). This means that the conciliation process set out in Title VII is not part of the administrative processing for most charges. See EEOC, All Statutes (Charges filed with EEOC) FY 1997 - FY 2020, https://www.eeoc.gov/statistics/all-statutes-charges-filed-eeoc-fy-1997-fy-2020.

An interpretation of section 2000e-5(f)(1) that requires 180 days to pass thus does not match the process Title VII sets out for conciliation. And issuing a right-to-sue notice in less than 180 days does not preclude the parties from engaging in voluntary mediation, which the EEOC can offer to the parties shortly after a charge is filed. See generally EEOC, Mediation, https://www.eeoc.gov/mediation; EEOC, EEOC Mediation Statistics FY 1999 through FY 2020, https://www.eeoc.gov/eeoc-mediation-statistics-fy-1999-through-fy-2020 (EEOC successfully mediated roughly 9,000 charges per year the last four fiscal years).

C. The legislative history does not reveal Congress’s intent.

The district court did not explicitly rely on the legislative history, and this Court is “generally ‘reluctant to employ legislative history at step one of Chevron analysis.’” Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492, 515 (2d Cir. 2017) (quoting Mizrahi v. Gonzales, 492 F.3d 156, 166 (2d Cir. 2007)). However, this “general” principle does not apply when legislative history makes “‘Congress’s intent clear ‘beyond reasonable doubt.’” Id. Here, the legislative history here does not meet that high standard because “the implications of the legislative history cut both ways.” Figueira v. Black Entm’t Television, Inc., 944 F. Supp. 299, 306 (S.D.N.Y. 1996); see also Seybert v. W. Chester Univ., 83 F. Supp. 2d 547, 551 (E.D. Pa. 2000) (“The legislative history is not less equivocal.”).

Several parts of the legislative history support the EEOC’s interpretation of section 2000e-5(f)(1) as permitting right-to-sue notices prior to 180 days. According to the House Report, “[t]he primary concern must be protection of the aggrieved person’s option to seek a prompt remedy in the best manner available.” H.R. Rep. No. 92–238 (1971), reprinted in 1972 U.S.C.C.A.N. 2137, 2148. And the provision that became section 2000e-5(f)(1) “provides the aggrieved party a means by which he may be able to escape from the administrative quagmire which occasionally surrounds a case caught in an overloaded administrative process.” Id. at 2147-48. Congress thus stated that the provision would “allow the person aggrieved to elect to pursue his or her own remedy . . . in the courts where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution.” 118 Cong. Rec. 7,166, 7,168 (1972) (section by section analysis). And Congress emphasized, “the individual’s rights to redress are paramount . . . [and] it is necessary that all avenues be left open for quick and effective relief.” Id.

We acknowledge some other statements in the legislative history suggest right-to-sue notices should not issue prior to 180 days without a dismissal. Congress hoped “recourse to the private lawsuit [would] be the exception and not the rule, and that the vast majority of complaints will be handled through the offices of the EEOC or the Attorney General, as appropriate.” 118 Cong. Rec. at 7168. And when Congress increased the relevant time from 150 days to 180 days, two senators suggested no lawsuits could be filed before the time had passed. See Martini, 178 F.3d at 1347.

With statements cutting both ways, the legislative history at most parallels the statute’s ambiguity. But it does not make Congress’s intent clear, so it does not resolve whether section 2000e-5(f)(1) is ambiguous under Chevron’s first step. See Catskill Mountains, 846 F.3d at 515.

D. Three circuit courts and many district courts agree Title VII is ambiguous.

The Ninth, Tenth, and Eleventh Circuits agree that Title VII does not speak directly to the question at issue here. While the D.C. Circuit held such notices were invalid, it also found that section 2000e-5(f)(1) did not resolve this question. District courts also disagree on how to interpret section 2000e-5(f)(1), but the weight of appellate authority, paired with the split in cases addressing this issue, buttresses the conclusion that the text of that section is at minimum ambiguous on this question.

Every circuit court to reach the issue has treated section 2000e-5(f)(1) as ambiguous on the question presented here. The Tenth Circuit deferred to the regulation under Chevron and noted that even the D.C. Circuit “agrees with the other Circuits that Section 2000e-5(f)(1) does not unambiguously address that issue—that is, it does not expressly prohibit EEOC from issuing such notices earlier.” Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1274 (10th Cir. 2001) (citation omitted). And the Eleventh Circuit observed:

The language of this section clearly states that if the Commission dismisses the charge or if 180 days pass without action by the Commission, the charging party must be so notified and may then bring suit within 90 days. However, the statute on its face does not prohibit the Commission from issuing a right to sue letter before the 180 days have expired.

Sims, 22 F.3d at 1062. Meanwhile, the Ninth Circuit held that “[s]ection 2000e-5(f)(1) simply requires the EEOC to issue a notice of right-to-sue if it has failed to file suit or arrange a conciliation agreement within 180 days. Nowhere does the statute prohibit the EEOC from issuing such notice before the expiration of the 180-day period.” Bryant v. Cal. Brewers Ass’n, 585 F.2d 421, 425 (9th Cir. 1978), vacated and remanded on other grounds, 444 U.S. 598 (1980); see also Brown v. Puget Sound Elec. Apprenticeship & Training Tr., 732 F.2d 726, 729 (9th Cir. 1984) (applying Bryant to a right-to-sue notice issued under 29 C.F.R. § 1601.28(a)(2)). And, although the D.C. Circuit held that the EEOC could not issue a right-to-sue notice in less than 180 days, it also stated that the text of section 2000e-5(f)(1) did not reveal “‘the unambiguously expressed intent of Congress.’”[7] Martini, 178 F.3d at 1345 (quoting Chevron, 467 U.S. at 843).

Many district courts in this Circuit have divided on this question. Compare Hernandez v. Premium Merch. Funding One, LLC, 19CV1727, 2020 WL 3962108, at **5-6 & n.4 (S.D.N.Y. July 13, 2020) (collecting cases and finding the EEOC’s regulation permissible under Chevron), and McGrath v. Nassau Health Care Corp., 217 F. Supp. 2d 319, 326-27 & n.7 (E.D.N.Y. 2002) (same), with Gibb v. Tapestry, Inc., 18-CV-6888 (LAP), 2018 WL 6329403, at *4 (S.D.N.Y. Dec. 3, 2018) (collecting cases and requiring the EEOC to wait 180 days). District courts in other circuits are similarly split. See, e.g., King v. Dunn Mem’l Hosp., 120 F. Supp. 2d 752, 755-58 (S.D. Ind. 2000) (allowing right-to-sue notice in less than 180 days); Simler v. Harrison Cnty. Hosp., 110 F. Supp. 2d 886, 887-90 (S.D. Ind. 2000) (collecting cases and holding right-to-sue notice in less than 180 days is impermissible without meaningful investigation); Berry v. Delta Air Lines, Inc., 75 F. Supp. 2d 890, 891-93 (N.D. Ill. 1999) (finding statute ambiguous and regulation permissible).

Several of the courts finding Title VII unambiguous on this question follow Martini in holding that section 2000e-5(b) resolves any ambiguity in 2000e-5(f)(1) because section 2000e-5(b) imposes a “duty to investigate [that] is both mandatory and unqualified.” Martini, 178 F.3d at 1346 (discussing 42 U.S.C. § 2000e-5(b)); see also, e.g., Stetz v. Reeher Enters., Inc., 70 F. Supp. 2d 119, 123 (N.D.N.Y. 1999); Rodriguez v. Connection Tech. Inc., 65 F. Supp. 2d 107, 110 (E.D.N.Y. 1999). The D.C. Circuit reasoned that right-to-sue notices issued before 180 days would “allow[] the EEOC to relax its aggregate effort to comply with its statutory duty to investigate every charge filed.” Martini, 178 F.3d at 1347. But “[n]othing in 42 U.S.C. § 2000e–5(b) suggests that Congress wanted to dictate the duration of every investigation to the EEOC.” Berry, 75 F. Supp. 2d at 892. And “Title VII does not define ‘investigation’ or prescribe the steps that the EEOC must take in conducting an investigation.” EEOC v. Sterling Jewelers Inc., 801 F.3d 96, 100 (2d Cir. 2015) (citation omitted). Section 2000e-5(b) therefore does not resolve the precise question here: whether section 2000e-5(f)(1) is at least ambiguous as to whether the EEOC may issue right-to-sue notices earlier than 180 days in the circumstances described in 29 C.F.R. § 1601.28(a)(2).

III. The EEOC’s regulation is a permissible construction of section 2000e-5(f)(1), warranting deference under step two of Chevron

The EEOC’s interpretation of section 2000e-5(f)(1) should receive Chevron deference. “When Congress has entrusted rulemaking authority under a statute to an administrative agency, the court evaluates the agency’s implementing regulations under” the Chevron framework. Naimoli v. Ocwen Loan Servicing, LLC, 22 F.4th 376, 383 (2d Cir. 2022). Under Chevron, if a statute is “silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” 467 U.S. at 843. Courts defer to an interpretation that “is a ‘reasonable policy choice for the agency to make.’” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 986 (2005) (quoting Chevron, 467 U.S. at 845). If the statute is ambiguous and the agency’s interpretation is reasonable, under Chevron, a court must “accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.” Id. at 980. Here, the EEOC adopted 29 C.F.R. §1601.28(a) under its procedural rulemaking authority, and the regulation is a permissible construction of section 2000e-5(f)(1).

Congress delegated rulemaking authority to the EEOC to establish procedures implementing Title VII. 42 U.S.C. § 2000e–12(a); see Edelman v. Lynchburg Coll., 535 U.S. 106, 113 (2002). Pursuant to this authority, the EEOC adopted 29 C.F.R. § 1601.28(a)(2) after notice and comment. Procedural Regulations, 42 Fed. Reg. at 47,831.

The regulation the EEOC adopted is a permissible interpretation of the statute. As explained above, the EEOC’s regulation is consistent with Title VII’s text, statutory context, and its focus on the expeditious resolution of charges. Thus, when courts considering Title VII and 29 C.F.R. § 1601.28(a)(2) reach Chevron’s second step, they routinely find the regulation is a permissible interpretation of the statute. See, e.g., Walker, 240 F.3d at 1275 (“EEOC’s realistic evaluation of the situation by adopting the Regulation must be viewed as a reasonable interpretation of the statute as amended,”); Figueira, 944 F. Supp. at 304 (the regulation “is a reasonable regulation, not in conflict with the language or the purpose of Title VII”); Berry, 75 F. Supp. 2d at 893 (the regulation “is a permissible interpretation of [the EEOC’s] obligations under Title VII”).

The regulation is also a reasonable policy choice as it aids the EEOC in promptly resolving charges and avoids pointless delay. See EEOC v. Com. Off. Prods. Co., 486 U.S. 107, 120 (1988) (deferring to the EEOC’s interpretation of section 2000e-5(c) because a contrary interpretation of that provision would cause “pointless delay”). Without the regulation and the EEOC’s processes for issuing a right-to-sue notice, charging parties would be forced to endure the “administrative quagmire which occasionally surrounds a case caught in an overloaded administrative process.” H.R. Rep. No. 92–238, supra, at 2148. This is not a hypothetical concern: the EEOC issued 3,516 right-to-sue notices upon request in less than 180 days in FY 2019; 3,688 in FY 2020; and 3,096 in FY 2021. The average EEOC investigation takes ten months—far longer than 180 days. See EEOC, What You Can Expect After You File a Charge, www.eeoc.gov/what-you-can-expect-after-you-file-charge (“On average, we take approximately 10 months to investigate a charge.”). As a result, an interpretation of Title VII that bars the EEOC from issuing right-to-sue notices prior to 180 days—even when the agency certifies it is improbable it can finish processing a particular claimant’s charge within that time—would mean that thousands of claimants each year would have to wait weeks or months until the 180-day period expires. The regulation thus reasonably serves Congress’s interest in the “protection of the aggrieved person’s option to seek a prompt remedy in the best manner available.” H.R. Rep. No. 92–238, supra, at 2148; see also Sims, 22 F.3d at 1063 (“When the Commission cannot process a claimant’s charge within the prescribed time period and certifies that it is unable to process such charge, the avenue for a ‘prompt remedy’ is through the courts.”).

The regulation also ensures the EEOC’s issuance of right-to-sue notices is tied to the second condition in section 2000e-5(f)(1) regarding the EEOC’s ability to file a lawsuit or obtain a conciliation agreement within 180 days. The regulation ensures the EEOC will only issue a right-to-sue notice without dismissal in less than 180 days if the charging party requests it and an authorized official “has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge.” 29 C.F.R. § 1601.28(a)(2). And the EEOC must attach “a written certificate to that effect” when it issues a right-to-sue notice in less than 180 days without dismissal. Id. Following these steps requires the EEOC to consider for each request whether it is probable that it can complete within 180 days the administrative processing required to file a lawsuit or initiate conciliation.

The regulation also reasonably avoids results Congress did not intend. If the district court were correct that the section unambiguously requires the EEOC to wait 180 days, the EEOC could not issue a right to sue without dismissal in less 180 days even if it had issued a letter of determination and attempted conciliation without obtaining a conciliation agreement. See Lauricia v. MicroStrategy Inc., 114 F. Supp. 2d 489, 494-96 (E.D. Va. 2000), vacated on other grounds by MicroStrategy, Inc., v. Lauricia, 268 F.3d 244 (4th Cir. 2001). Such a needless delay runs directly counter to Title VII’s interest in the prompt resolution of charges, confirming that 29 C.F.R. § 1601.28(a)(2) embodies the agency’s reasonable policy choice in how to interpret section 2000e-5(f)(1).

Conclusion

If this Court does not conclude the appeal is moot, it should find that section 2000e-5(f)(1) is ambiguous and that 29 C.F.R. § 1601.28(a)(2) is entitled to deference.

Respectfully submitted,

CHRISTOPHER LAGE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

/s/ James Driscoll-MacEachron

James Driscoll-maceachron

Attorney, Appellate Litigation
Services

Office of General Counsel

Equal Employment Opportunity
Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(602) 661-0014

james.driscoll-maceachron@eeoc.gov

March 3, 2022

42 U.S.C. § 2000e-5. Enforcement Provisions.

(a) Power of Commission to prevent unlawful employment practices

The Commission is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title.

(b) Charges by persons aggrieved or member of Commission of unlawful employment practices by employers, etc.; filing; allegations; notice to respondent; contents of notice; investigation by Commission; contents of charges; prohibition on disclosure of charges; determination of reasonable cause; conference, conciliation, and persuasion for elimination of unlawful practices; prohibition on disclosure of informal endeavors to end unlawful practices; use of evidence in subsequent proceedings; penalties for disclosure of information; time for determination of reasonable cause

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause exists, the Commission shall accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law pursuant to the requirements of subsections (c) and (d). If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d), from the date upon which the Commission is authorized to take action with respect to the charge.

(c) State or local enforcement proceedings; notification of State or local authority; time for filing charges with Commission; commencement of proceedings

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a)¹ by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.

(d) State or local enforcement proceedings; notification of State or local authority; time for action on charges by Commission

In the case of any charge filed by a member of the Commission alleging an unlawful employment practice occurring in a State or political subdivision of a State which has a State or local law prohibiting the practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, the Commission shall, before taking any action with respect to such charge, notify the appropriate State or local officials and, upon request, afford them a reasonable time, but not less than sixty days (provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective day of such State or local law), unless a shorter period is requested, to act under such State or local law to remedy the practice alleged.

(e) Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or local agency; seniority system

(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.

(2) For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchapter (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.

(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

(B) In addition to any relief authorized by section 1981a of this title, liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

(f) Civil action by Commission, Attorney General, or person aggrieved; preconditions; procedure; appointment of attorney; payment of fees, costs, or security; intervention; stay of Federal proceedings; action for appropriate temporary or preliminary relief pending final disposition of charge; jurisdiction and venue of United States courts; designation of judge to hear and determine case; assignment of case for hearing; expedition of case; appointment of master

(1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d), the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d), whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsection (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance.

(2) Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and to cause such cases to be in every way expedited.

(3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.

(4) It shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediately to designate a judge in such district to hear and determine the case. In the event that no judge in the district is available to hear and determine the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case.

(5) It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the case for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure.

29 C.F.R. § 1601.28. Notice of right to sue: Procedure and authority.

(a) Issuance of notice of right to sue upon request.

(1) When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued and the charge to which the request relates is filed against a respondent other than a government, governmental agency or political subdivision, the Commission shall promptly issue such notice as described in § 1601.28(e) to all parties, at any time after the expiration of one hundred eighty (180) days from the date of filing of the charge with the Commission, or in the case of a Commissioner charge 180 days after the filing of the charge or 180 days after the expiration of any period of reference under section 706(d) of title VII as appropriate.

(2) When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued, and the charge to which the request relates is filed against a respondent other than a government, governmental agency or political subdivision, the Commission may issue such notice as described in § 1601.28(e) with copies to all parties, at any time prior to the expiration of 180 days from the date of filing of the charge with the Commission; provided that the District Director, the Field Director, the Area Director, the Local Director, the Director of the Office of Field Programs or upon delegation, the Director of Field Management Programs has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect.

(3) Issuance of a notice of right to sue shall terminate further proceeding of any charge that is not a Commissioner charge unless the District Director; Field Director; Area Director; Local Director; Director of the Office of Field Programs or upon delegation, the Director of Field Management Programs; or the General Counsel, determines at that time or at a later time that it would effectuate the purpose of title VII, the ADA, or GINA to further process the charge. Issuance of a notice of right to sue shall not terminate the processing of a Commissioner charge.

(4) The issuance of a notice of right to sue does not preclude the Commission from offering such assistance to a person issued such notice as the Commission deems necessary or appropriate.

(b) Issuance of notice of right to sue following Commission disposition of charge.

(1) Where the Commission has found reasonable cause to believe that title VII, the ADA, or GINA has been violated, has been unable to obtain voluntary compliance with title VII, the ADA, or GINA, and where the Commission has decided not to bring a civil action against the respondent, it will issue a notice of right to sue on the charge as described in § 1601.28(e) to:

(i) The person claiming to be aggrieved, or,

(ii) In the case of a Commissioner charge, to any member of the class who is named in the charge, identified by the Commissioner in a third-party certificate, or otherwise identified by the Commission as a member of the class and provide a copy thereof to all parties.

(2) Where the Commission has entered into a conciliation agreement to which the person claiming to be aggrieved is not a party, the Commission shall issue a notice of right to sue on the charge to the person claiming to be aggrieved.

(3) Where the Commission has dismissed a charge pursuant to § 1601.18, it shall issue a notice of right to sue as described in § 1601.28(e) to:

(i) The person claiming to be aggrieved, or,

(4) The issuance of a notice of right to sue does not preclude the Commission from offering such assistance to a person issued such notice as the Commission deems necessary or appropriate.

(c) The Commission hereby delegates authority to District Directors, Field Directors, Area Directors, Local Directors, the Director of the Office of Field Programs, or Director of Field Management Programs or their designees, to issue notices of right to sue, in accordance with this section, on behalf of the Commission. Where a charge has been filed on behalf of a person claiming to be aggrieved, the notice of right to sue shall be issued in the name of the person or organization who filed the charge.

. . . .

[1] The EEOC takes no position on any other issues raised.

[2] Before the EEOC adopted the regulation, the Supreme Court had observed in dicta that an individual’s private right of action “does not arise until 180 days after a charge has been filed.” Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 361 (1977); cf. Cal. Brewers Ass’n v. Bryant, 444 U.S. 598, 610 (1980) (exercising jurisdiction in a pre-regulation case with an RTS notice issued less than 180 days after the charge was filed).

[3] Although we rely on the dates in the district court’s order, which appear to be taken from Stidhum’s complaint (A-002), we note that Stidhum’s charge is dated April 14, 2019. A-117, A-122.

[4] The right-to-sue notice is dated July 29, 2019. A-124-25. Stidhum’s complaint alleges the EEOC issued it on July 19, 2019. A-002.

[5] Hankins, 441 F.3d at 101 (expressing no opinion on the validity of the regulation in an age discrimination case, while noting that “two circuits and several district courts within this circuit have disagreed” with courts holding the regulation invalid); cf. Weise v. Syracuse Univ., 522 F.2d 397, 412 (2d Cir. 1975) (permitting a pre-regulation right-to-sue notice in less than 180 days based on particular facts of the case).

[6] The EEOC investigation can continue past 180 days. See Occidental, 432 U.S. at 361 (complainant can “continue to leave the ultimate resolution of his charge to the efforts of the EEOC”); 29 C.F.R. § 1601.28(a)(3) (EEOC can further process charge after right-to-sue notice).

[7] The Third Circuit has expressed concern about the regulation but has not ruled on its validity. See Moteles v. Univ. of Pa., 730 F.2d 913, 916-17 (3d Cir. 1984).