Doe v. Oberweis Dairy, 7th Cir. Brief as amicus July 13, 2005 UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 05-1998 JANE DOE, Plaintiff-Appellant, v. OBERWEIS DAIRY, Defendant-Appellee. On Appeal from the United States District Court for the Northern District of Illinois, Chicago Division Honorable John W. Darrah, Judge AMICUS BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF APPELLANT JANE DOE ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7044 Washington, DC 20507 (202) 663-4731 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF ISSUE . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE 1. Statement of the Relevant Procedural Facts . . . . . .2 2. District Court Decision. . . . . . . . . . . . . . . .3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 BECAUSE DOE FULFILLED THE PROCEDURAL PREREQUISITES TO SUIT SPECIFIED IN TITLE VII, THE DISTRICT COURT ERRED IN DISMISSING HER SUIT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 17 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Adler v. Espy, 35 F.3d 263 (7th Cir. 1994) . . . . . . . . . . . . . 11, 17 Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). . . . . . . . . . . . . . . . . 1, 4, 17 Associated Dry Goods Corp. v. EEOC, 720 F.2d 804 (4th Cir. 1983). . . . . . . . . . . . . . . 16 Brown v. General Servs. Admin., 425 U.S. 820 (1976) . . . . . . . . . . . . . . . . 8, 9, 10 Chandler v. Roudebush, 425 U.S. 840 (1976) . . . . . . . . . . . . . . . . . . . .8 Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497 (7th Cir. 1994) . . . . . . . . . . . . . . . 12 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . 15 Doe v. Oberweis Dairy, 2005 WL 782709 (N.D. Ill. Apr. 6, 2005) . . .3, 4, 7, 13, 14 Duncan v. Consolidated Freightways Corp., 1995 WL 530652 (N.D. Ill. Sept. 7, 1995). . . . . . . . 3, 7 Edelman v. Lynchburg College, 535 U.S. 106 (2002) . . . . . . . . . . . . . . . . . . . .5 EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981) . . . . . . . . . . . . . . . .1, 14, 17 EEOC v. Commercial Office Prods. Co., 486 U.S. 107 (1988) . . . . . . . . . . . . . . . . . . . 15 Gibson v. West, 201 F.3d 990 (7th Cir. 2000). . . . . . . . . . . . . . 6, 7 Gilardi v. Schroeder, 833 F.2d 1226 (7th Cir.1987). . . . . . . . . . . . . . . 15 Glisson v. United States Forest Serv., 55 F.3d 1325 (7th Cir. 1995). . . . . . . . . . . . . . . .8 Hill v. Potter, 352 F.3d 1142 (7th Cir. 2003) . . . . . . . . . . 3, 6, 7, 9 Hill v. Potter, 959 F. Supp. 488 (N.D. Ill. 1997) . . . . . . . . . . .9, 10 Horton v. Jackson County Bd. of County Comm'rs, 343 F.3d 897 (7th Cir. 2003). . . . . . . . . . . . . . . .8 Hottenroth v. Village of Slinger, 388 F.3d 1015 (7th Cir. 2004) . . . . . . . . . . . . . . 12 Jasch v. Potter, 302 F.3d 1092 (9th Cir. 2002) . . . . . . . . . . . . . . 10 Long v. Ringling Bros.-Barnum & Bailey Combined Shows, 9 F.3d 340 (4th Cir. 1993). . . . . . . . . . . . . . . . .4 McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002). . . . . . . . . . . . . . .5 McCarthy v. Madigan, 503 U.S. 140 (1992) . . . . . . . . . . . . . . . . . . . 12 McCottrell v. EEOC, 726 F.2d 350 (7th Cir. 1984). . . . . . . . . . . . . . . 16 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . .4, 5, 8, 13, 15, 16 McGinty v. United States Department of the Army, 900 F.2d 1114 (7th Cir. 1990) . . . . . . . . . . . . . . 11 McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995) . . . . . . . . . . . . . . . . . . . .1 Mohasco Corp. v. Silver, 447 U.S. 807 (1980) . . . . . . . . . . . . . . . . . . . .5 Morris v. Albertson, Inc., 2001 WL 936118 (N.D. Ill. Aug. 17, 2001). . . . . . . . 3, 7 Mourning v. Family Publications Serv., Inc., 411 U.S. 356 (1972) . . . . . . . . . . . . . . . . . . . 15 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) . . . . . . . . . . . . . . . . . . . .6 Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979) . . . . . . . . . . . . . . . . . . . .5 Robinson v. Dalton, 107 F.3d 1018 (3d Cir. 1997). . . . . . . . . . . . . . . 11 Sedlacek v. Hach, 752 F.2d 333 (8th Cir. 1985). . . . . . . . . . . . . . . .5 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) . . . . . . . . . . . . . . . . . . . 15 University of Tenn. v. Elliott, 478 U.S. 788 (1986) . . . . . . . . . . . . . . . . . . . 16 Ward v. EEOC, 719 F.2d 3111 (9th Cir. 1983) . . . . . . . . . . . . . . 16 Zugay v. Progressive Care, 180 F.3d 901 (7th Cir. 1999). . . . . . . . . . . . . . 4, 7 STATUTES, REGULATIONS AND RULES 29 U.S.C. § 621 et seq . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e et seq.. . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . . . . .4, 12 42 U.S.C. § 2000e-5(c) . . . . . . . . . . . . . . . . . . .4, 12 42 U.S.C. § 2000e-5(e) . . . . . . . . . . . . . . . . . . .4, 12 42 U.S.C. § 2000e-5(f) . . . . . . . . . . . . . . . . . . . . 12 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . .4, 12, 13, 14 42 U.S.C. § 2000e-12(a). . . . . . . . . . . . . . . . . . 14, 15 42 U.S.C. § 2000e-16(c). . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 12101 et seq . . . . . . . . . . . . . . . . . . . .1 29 C.F.R. § 1601.6 . . . . . . . . . . . . . . . . . . . . . . 12 29 C.F.R. § 1601.18(b) . . . . . . . . . . . . . . . . . . 13, 15 29 C.F.R. § 1601.28(b)(3). . . . . . . . . . . . . . . . . 14, 15 29 C.F.R. §1601.28 (e) . . . . . . . . . . . . . . . . . . 14, 15 29 C.F.R. § 1601.29. . . . . . . . . . . . . . . . . . . . . . 12 29 C.F.R. § 1601.29(b)(3). . . . . . . . . . . . . . . . . . . .4 29 C.F.R. § 1614.104 . . . . . . . . . . . . . . . . . . . . . 10 29 C.F.R. § 1614.401 . . . . . . . . . . . . . . . . . . . . . 10 29 C.F.R. § 1614.408 . . . . . . . . . . . . . . . . . . . . . 10 Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . .2 SECONDARY AUTHORITY http://www.eeoc.gov/fedprocess.html. . . . . . . . . . . . . . 10 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), as well as the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and Title I of the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.. Effective enforcement of these statutes depends on lawsuits brought by individuals such as the plaintiff in this action who believe they have been injured by illegal discrimination. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974) (Title VII); McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 357-58 (1995) (ADEA). Although the Commission is empowered to bring enforcement actions, Congress also provided for a private right of action and "considered the charging party a ‘private attorney general,' whose role in enforcing the ban on discrimination is parallel to that of the Commission itself." EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602 (1981). This appeal raises an important issue concerning the procedural prerequisites individuals must meet before filing suit against private employers under Title VII, and by extension, under the ADA and the ADEA. In this case, the district court dismissed the suit for failure to exhaust administrative remedies because the EEOC dismissed the charge for failure to cooperate after the charging party refused to submit personally to an interview during the investigation of the charge. In taking this action, the court read into Title VII a condition precedent to judicial action that this Court has not recognized and that neither Congress nor the EEOC has imposed. That condition precedent has no basis in the statute or regulations, and the court's ruling is contrary to the EEOC's interpretation of the statute and its own regulations. If allowed to stand, the ruling will inevitably foreclose other plaintiffs from seeking redress in the courts for alleged employment discrimination, diminish private enforcement of Title VII, and undermine the EEOC's ability to process charges and enforce the law. Therefore, pursuant to Fed. R. App. P. 29(a), we offer our views to the Court. STATEMENT OF THE ISSUE<1> Whether a plaintiff who has satisfied the statutory prerequisites to a Title VII suit may proceed with a claim against a private sector employer regardless of whether the EEOC dismissed her charge for failure to cooperate during the administrative process. STATEMENT OF THE CASE 1. Statement of the Relevant Procedural Facts On November 18, 2002, plaintiff Jane Doe's mother, Jane Roe, along with her attorney, filed an EEOC charge on behalf of Doe, alleging sexual harassment. R.138, Pl. Ex., Tab 64-EEOC Charge, p.16. Notice of the charge was provided to Oberweis Dairy. Id.-Notice of Charge of Discrimination, p. 18. In January 2003, the EEOC investigator assigned to Doe's charge attempted to schedule an interview with Doe through her lawyers. Id.-Investigator Notes, p. 102. One of Doe's attorneys indicated that she would produce her client for an interview after she determined her availability, id., and subsequently communicated that Doe would not be available in March. Id.- Gorman e-mail to EEOC investigator, p. 75. The investigator sent a letter on March 25, 2003, reminding Doe's counsel that EEOC regulations require the charging party's cooperation and that failure to participate in an interview within 33 days would result in termination of the investigation and dismissal of the charge. District Court Opinion at 5. On April 7, 2003, Doe's attorney wrote to the investigator to say that on advice of Doe's mother and her counselor, Doe could not be interviewed, but that she (the attorney) was willing to answer any questions about the charge. R. 138, Pl. Ex., Tab 64-Gorman Letter to EEOC, p. 135. After the investigator failed to secure a face- to-face interview with Doe, on April 28, 2003, the district director dismissed the charge for failure to cooperate. Id.-EEOC Dismissal and Notice of Rights, p. 14. The notice indicated that if Doe wanted to pursue her charge further, she had "the right to sue the respondent named in the charge in a court of competent jurisdiction" as long as she did so within 90 days of receipt of the notice. Id. 2. District Court Decision Doe filed a timely complaint in district court, alleging inter alia sex discrimination and harassment under Title VII. The district court entered summary judgment against Doe on the procedural ground that she failed to exhaust her administrative remedies. Doe v. Oberweis Dairy, 2005 WL 782709, * 3-*6 (N.D. Ill. Apr. 6, 2005). The court ruled that a plaintiff must cooperate with the EEOC to meet the exhaustion requirement, id. at *3, citing inter alia, Hill v. Potter, 352 F.3d 1142 (7th Cir. 2003), and that it was undisputed that plaintiff failed to cooperate with the EEOC investigator's request for an interview, id. at *3. The court rejected plaintiff's argument that the district court's reliance on federal employee cases was misplaced, noting that it had also cited private sector decisions such as Morris v. Albertson, Inc., 2001 WL 936118, at *2 (N.D. Ill. 2001) and Duncan v. Consol. Freightways Corp., 1995 WL 530652, at *3 (N.D. Ill. 1995). Doe 2005 WL 782709 at *4. The district court also rejected plaintiff's argument that her receipt of a right to sue notice signified that she had exhausted administrative remedies, holding that the EEOC's issuance of a right to sue notice in accord with its regulation providing for issuance of notices after dismissal for failure to cooperate, 29 C.F.R. § 1601.29(b)(3), "does not guarantee a Title VII claim may be brought in federal court." Id. at *5. ARGUMENT BECAUSE DOE FULFILLED THE PROCEDURAL PREREQUISITES TO SUIT SPECIFIED IN TITLE VII, THE DISTRICT COURT ERRED IN DISMISSING HER SUIT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES The district court erred in dismissing this case on the ground that Doe failed to attend an interview with an EEOC investigator because its ruling was based on an exhaustion requirement that is not found in the statute. Title VII expressly requires a plaintiff challenging discrimination in a state like Illinois, which has a law prohibiting the discrimination, to file a charge with the EEOC within 300 days of the alleged discriminatory conduct and to institute proceedings with the appropriate state agency. 42 U.S.C. § 2000e-5(c) & (e).<2> In addition, a plaintiff alleging a Title VII claim must obtain a notice of right to sue and bring her lawsuit no more than 90 days thereafter. 42 U.S.C. § 2000e-5(f)(1). These are the only two administrative requirements that a private sector plaintiff such as Doe must satisfy before bringing a discrimination lawsuit. See Alexander v. Gardner-Denver, 415 U.S. 36, 47 (1974) (Title VII "specifies with precision" that the two prerequisites for filing suit are the filing of a timely charge and receipt of a notice of right to sue); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973) (prerequisites to Title VII suit are filing a timely charge and receiving and acting upon a notice of right to sue). See also Zugay v. Progressive Care, 180 F.3d 901, 902 (7th Cir. 1999) ("[i]t is well-established" that a timely charge and receipt of a right to sue letter are the prerequisites to suit filing under Title VII); Long v. Ringling Bros.–Barnum & Bailey Combined Shows, 9 F.3d 340, 342 (4th Cir. 1993) (Title VII's "only" prerequisites are filing a charge with EEOC and bringing suit within 90 days of receiving a right to sue); Sedlacek v. Hach, 752 F.2d 333, 335 (8th Cir. 1985) (same); but see McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002) (also requiring that ADA plaintiff persuade the district court that she cooperated with EEOC during the administrative process). Title VII plainly does not contain a requirement that a plaintiff cooperate with EEOC during the administrative process. The Supreme Court has repeatedly rejected attempts by the lower courts or defendants to read additional requirements, beyond those expressly provided by Congress, into the federal statutes prohibiting employment discrimination. In McDonnell Douglas, 411 U.S. at 798-99, for example, the Supreme Court rejected the argument that a plaintiff could not include a claim in a Title VII lawsuit unless EEOC had found reasonable cause on that claim. Noting that the "Act does not restrict a complainant's right to sue [in that way]," the Court explained that it would "not engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts." Id. Similarly, in Mohasco Corp. v. Silver, 447 U.S. 807 (1980), the Court noted its disapproval of a judicially-created requirement that a Title VII plaintiff initiate state proceedings within 180 days of the alleged discriminatory occurrence. The Court observed that Title VII contains no such "express" requirement, adding, "a court should not read in a time limitation provision that Congress has not seen fit to include." Id. at 816 n.19. The Court reasoned, "experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Id. at 826. See also e.g., Edelman v. Lynchburg College, 535 U.S. 106, 114 (2002) (rejecting a judicially-created requirement that Title VII charges must be verified within the charge-filing period); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758-65 (1979) (refusing to read into ADEA's provision that plaintiff must "commence" state proceedings a requirement that a state charge must be timely under state law); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 360-72 (1977) (refusing to infer that state statute of limitations applies to EEOC suits under Title VII). In this case, it is undisputed that before instituting this action against her former employer Doe satisfied Title VII's express prerequisites to suit–i.e., a timely charge was filed on her behalf with the EEOC and she brought suit well within the requisite 90 days of receiving notice that the EEOC had dismissed her charge. Consistent with Supreme Court precedent, therefore, the district court should have determined that Doe was entitled to proceed with her Title VII lawsuit. In holding instead that Doe's suit was barred, the district court concluded that, despite her compliance with Title VII's express requirements, Doe had not exhausted her administrative remedies because she failed adequately to cooperate with the EEOC during the administrative process. Since Title VII contains no such requirement, the court reached this conclusion only by engrafting an additional requirement – cooperation with the EEOC's administrative process – onto the statute. This was error. As noted above, courts are not free to read in requirements that may inhibit judicial review of private sector discrimination claims or lead to uneven administration of the law. There can be no doubt that the new procedural requirement the court imposed in this case had precisely those effects. Lacking any statutory basis for its ruling that Doe had not exhausted her administrative remedies, the district court relied on this Court's decisions in federal employee cases such as Hill v. Potter, 352 F.3d 1142 (7th Cir. 2003) and Gibson v. West, 201 F.3d 990 (7th Cir. 2000), and district court decisions applying the rule of federal sector cases to private sector employees. See Doe, 2005 WL at *3.<3> As this Court observed in Zugay, 180 F.3d at 902, a district court's reliance on a federal employee case–there to determine that Zugay had failed to exhaust her remedies before the state agency with which her charge was initially filed–"was misplaced," because of the procedural differences in the administrative requirements for federal employees and private sector employees.<4> In Doe's case too, because of the different purposes of the federal and private sector administrative requirements, and because of the fundamental differences between the complex administrative process for federal employees and the EEOC procedures for processing charges against private employers, it was inappropriate for the district court to import the federal exhaustion requirement of cooperating with the federal agency, identified in Hill, 352 F.3d at 1146, into the private sector. As an initial matter, the Commission notes that the usual purposes of administrative exhaustion are not implicated at all in employment discrimination cases, whether federal or private employees are involved, because all such individuals are entitled to de novo trial of their claims in federal court, as the Supreme Court noted in McDonnell Douglas, 411 U.S. at 799 with reference to private sector employees, and in Chandler v. Roudebush, 425 U.S. 840, 848 (1976), with respect to federal employees. The doctrine of exhaustion, as this Court has observed, is ordinarily invoked in cases that come to court for review of an agency decision to "preserve[] the integrity and autonomy of the administrative process, and ensure[] that when the administrative proceeding does come before the court, the court will have before it the mature, considered, and final articulation of the basis of the agency's action." Glisson v. United States Forest Serv., 55 F.3d 1325, 1326 (7th Cir. 1995). Since courts do not review agency determinations in Title VII de novo proceedings, this purpose of exhaustion does not come into play. Fulfillment of the administrative prerequisites to suit in Title VII cases is routinely referred to as an exhaustion requirement as well, but the purpose of these requirements is significantly different from that in cases involving review of agency actions, and, more importantly, it is significantly different in federal sector and private employee cases. In all cases, rather than creating an administrative record for judicial review, the purpose of whatever administrative prerequisites Congress created is to notify employers of the existence of a claimed violation of the statutes, to provide some opportunity for agency resolution, and if that is unsuccessful, to give the aggrieved individual notice of a right to sue. See, e.g., Horton v. Jackson County Bd. of County Comm'rs, 343 F.3d 897, 899 (7th Cir. 2003) (explaining notice function of administrative exhaustion requirement in non-federal employee case); Brown v. General Servs. Admin., 425 U.S. 820, 832-833 (1976) (holding that Title VII is the exclusive remedy for discrimination by federal agencies and that "rigorous administrative exhaustion requirements" are part of a carefully designed statutory scheme that requires a complainant first to "seek relief in the agency that has allegedly discriminated against him" before filing suit). The differences between the administrative prerequisites to suit for federal and private sector employees and between the animating purposes of those requirements can be illustrated by analyzing one of the cases cited by the district court in this case. In Hill, this Court noted that a Postal Service supervisory employee failed to cooperate with the EEOC during the administrative processing of his discrimination claims against his employer agency. 352 F.3d at 1146. The Hill case had a complicated procedural history. Id. at 1143. Hill's initial suit alleging age, race and sex discrimination and retaliation was dismissed without prejudice for a failure to exhaust administrative remedies, and Hill subsequently went to the EEOC in an attempt to exhaust his remedies but "[i]t refused to give him any relief, on the ground that he had failed to cooperate with it when he had first filed charges with the agency, before filing suit, and that once the suit was filed and decided it was too late for him to try to exhaust his administrative remedies." Id. The district court's explanation of Hill's failure to cooperate that led to its failure-to- exhaust dismissal focused on Hill's failure to provide information to the equal employment officer at the Postal Service who originally attempted to investigate his complaint. Hill, 959 F. Supp. 488, 494- 496 (N.D. Ill. 1997). The EEOC's only role in processing Hill's complaint had been to review the file at Hill's request and remand the case to the employer agency to allow it to develop the record by obtaining Hill's affidavit explaining the issues and bases of his complaint. Id. at 494. After refusing for many months to cooperate with his employer agency, Hill finally began to provide information, and then, after two months, "became impatient, and rushed to the court house" thereby "effectively abandon[ing] administrative remedies in midstream." Id. at 495. The factual scenario in the Hill case illustrates a crucial difference between the federal and private employee administrative procedures. As the Supreme Court emphasized in Brown, 425 U.S. at 832, the federal employee presents his complaint in the first instance to his employer agency, which then must conduct an investigation and ultimately come to a final decision about whether discrimination has occurred and if so, what remedies will be instituted. See 42 U.S.C. § 2000e-16(c) (discussing administrative procedures and civil actions in federal employer context); 29 C.F.R. §§ 1614.104-.204, .401-.410 (same); and see http://www.eeoc.gov/federal/fedprocess.html (explaining federal process). The employee has a right to file a de novo civil action in court or appeal to the EEOC and then file a de novo action if relief is not provided, see 29 C.F.R. § 1614.408, but the federal scheme is designed to allow employer agencies to respond to discrimination complaints in the first instance. See Jasch v. Potter, 302 F.3d 1092, 1096 (9th Cir. 2002) (Title VII's exhaustion requirements for suits against federal government agencies were intended to give the agency the opportunity to right any wrong it may have committed). The Supreme Court explained that this "careful blend of administrative and judicial enforcement powers," Brown, 425 U.S. at 833, is a product of Congress' concern with the appropriate limits on this significant waiver of sovereign immunity, id. at 827-833 (discussing legislative history regarding sovereign immunity barriers to judicial recourse for federal employees before enactment of section 717 of Title VII, 42 U.S.C. § 2000e-16). Because government agencies, as employers, are statutorily empowered to investigate and remedy discrimination themselves, it is not surprising that they assert a failure to exhaust remedies when federal employees ignore or abandon the administrative avenues provided to them and instead seek immediate access to federal district court, as Hill did. Hill, 959 F. Supp. at 495 (Hill "effectively abandoned administrative remedies in midstream"). To allow federal employees to sue without fulfilling the administrative requirements would essentially permit a suit against the sovereign on terms other than those Congress specified, in clear derogation of the doctrine of sovereign immunity. Another related factor this Court has identified that weighs in favor of exhaustion in federal employer cases, but that counts for less in private sector cases, is the "‘pragmatic, prudential'" reason that a plaintiff's abandonment of "‘administrative remedies he has initiated would tend to frustrate the ability of the agency to deal with complaints.'" McGinty v. United States Department of the Army, 900 F.2d 1114, 1117 (7th Cir. 1990) (citation omitted). See also Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir.1997) (stating that one purpose of exhaustion of administrative remedies requirement as applied specifically to federal employees is to "respect [ ] executive autonomy by allowing an agency the opportunity to correct its own errors"). Again, this is an interest only when the employer is a federal agency empowered to investigate and remedy discrimination in the first instance. This Court has noted that agencies should not "be put to the bother of conducting administrative proceedings from which the complainant can decamp at any time without consequence" and that this is "a consideration designed for the benefit of the agencies, not of the judges." Adler v. Espy, 35 F.3d 263, 265 (7th Cir. 1994). Such concerns of sovereign immunity and the pragmatic value of encouraging federal plaintiffs to exhaust the remedies provided by their employers have little to no relevance in the instant case, where both plaintiff and defendant are private parties. The federal agency whose administrative processes have been aborted–the EEOC–is not the employer, is not a party to the litigation, and has no interest in barring a charging party's access to court. Since, as this Court said, the considerations animating an exhaustion requirement are for the benefit of agencies, "and if the agencies don't want it, there is no reason for us to give it great weight," id., the Court should not preclude Doe's suit because of her failure to appear for a face-to-face interview with an EEOC investigator, because the EEOC, as the enforcement agency, does not "want" that result. The EEOC's role in processing private sector employment discrimination charges is very different from the role of agencies in processing federal employee complaints. The EEOC does not have the authority to adjudicate the conflict or to order the private employer to remedy discrimination. See McCarthy v. Madigan, 503 U.S. 140, 147-48 (1992) ("doubt as to whether the agency was empowered to grant effective relief" is key circumstance weighing "heavily" against requiring administrative exhaustion). All the Commission can do is determine whether there is any basis to believe that discrimination occurred and attempt to conciliate. And its determinations are not binding on either party. See generally, 42 U.S.C. § 2000e-5(b)-(f) (discussing administrative procedures and civil actions by individuals against private employers); 29 C.F.R. §§ 1601.6-1601.29 (same). This Court has observed, in a private sector case, that a purpose of the administrative process is to give "‘the EEOC and the employer an opportunity to settle the dispute through conference, conciliation, and persuasion.'" Hottenroth v. Village of Slinger, 388 F.3d 1015, 1034 (7th Cir. 2004) (quoting Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). In Hottenroth, 388 F.3d at 1034, the Court held that a plaintiff's failure adequately to allege harassment in her charge bars her from pursuing a harassment claim in court because she had not exhausted her administrative remedies on that claim. This Court's concern with the function of a charge in giving notice to the employer of the nature of the alleged violation is not implicated in this case. To the extent a failure to cooperate terminates an investigation because the Commission is unable to resolve the charge, of course no conciliation efforts are undertaken by the Commission, and the charging party must shoulder the burden of proving her claim in court without further assistance from the EEOC. The statute, however, does not obligate a private charging party to attempt conciliation before filing suit. See 42 U.S.C. § 2000e-5(f)(1). Conciliation is solely the responsibility of the Commission and efforts to conciliate are a precondition to suit only when the Commission itself brings suit. Id. While it may seem unwise to fail to use the EEOC process, that does not convert cooperation into a condition precedent for suit where Congress has not imposed that requirement. See McDonnell Douglas, 411 U.S. at 798-99 (Court would "not engraft on the statute a requirement which may inhibit the review of claims of discrimination in the federal courts"). In this case, the district court also found support for dismissing Doe's complaint in the EEOC's regulation that permits the agency to dismiss a charge if the aggrieved person fails to provide requested information, refuses to be interviewed, or otherwise refuses to cooperate. Doe, 2005 WL at * 5 (citing 29 C.F.R. § 1601.18(b)). Just as the statutory provisions do not support imposition of a cooperation requirement on private sector employees, neither does anything in the Commission's regulations support such a requirement. Nothing in the plain language of section 1601.18(b) supports the district court's interpretation that cooperation with the EEOC is a condition precedent to suit. The regulation simply alerts the charging party that she risks EEOC dismissal of the charge, not dismissal of a later-filed court action, if she "refuses to cooperate to the extent that the Commission is unable to resolve the charge." 29 C.F.R. § 1601.18(b). Thus, on its face, the regulation only notifies the charging party that she may lose the EEOC's assistance in the resolution of her claim. The regulation cannot fairly be read to suggest that, if the Commission is dissatisfied with the charging party's level of cooperation during the administrative process, she may also lose her right to go to court. Indeed, that construction is contrary to the terms of the Dismissal and Notice of Rights form Doe received, which specifically stated she had 90 days to file a civil action. See R. 138, Pl. Ex., Tab 64-EEOC Dismissal and Notice of Rights, p. 14 (notifying Doe that she had "the right to sue the respondent named in the charge in a court of competent jurisdiction" as long as she did so within 90 days of receipt of the notice). It is the Commission's position that, regardless of the agency's reason for dismissing a charge, if the charging party has satisfied the express prerequisites to suit, she has the right to sue her employer, based on the charge, and have a court determine the merits of her discrimination claim. That is why the notice of right to sue that Doe received is worded as it is. Despite the district court's characterization of the Commission's notice as "‘pro forma'" precisely because such a notice is issued regardless of the basis for the Commission's dismissal of a charge, see Doe, 2005 WL at *5 (citation omitted), the Commission's practice is entirely consistent with the statute and with its interpretation of the statutory prerequisites to suit. See 29 C.F.R. §§ 1601.28(b)(3) & (e) ("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)" which in turn provides that the notice "shall include" authorization "to bring a civil action under title VII . . . within 90 days"). The EEOC's regulations merely echo the express terms of Title VII, which states that "[i]f a charge . . . is dismissed by the Commission . . . 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 named in the charge." 42 U.S.C. § 2000e-5(f)(1); see also Associated Dry Goods Corp., 449 U.S. at 595 ("If the EEOC dismisses the charge, the employee may immediately file a private action."). In enacting Title VII, Congress charged the Commission with the responsibility to enforce the statute and vested it with the authority "to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this subchapter." 42 U.S.C. § 2000e-12(a). The regulations codified at 29 C.F.R. §§ 1601.18(b) and 1601.28(b)(3) & (e), are precisely such procedural regulations. A regulation promulgated pursuant to 42 U.S.C. § 2000e-12(a) must be upheld "so long as it is ‘reasonably related to the purposes of the enabling legislation.'" Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 369 (1972); see EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115 (1988) (EEOC's interpretation of statutory language "need only be reasonable to be entitled to deference"). There can be no serious suggestion that the Commission's procedural regulations governing dismissal of charges and issuance of right to sue notices are in any way unreasonable and thus they must be accepted as " based on a permissible construction of the statute." Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). The Commission's interpretation of its own regulations and their intended effect is likewise entitled to deference. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (court "must defer to [agency's] interpretation [of its own regulation] unless an alternative reading is compelled by the regulation's plain language or by other indications of [agency's] intent at the time of the regulation's promulgation"); Gilardi v. Schroeder, 833 F.2d 1226, 1232 (7th Cir.1987) ("[t]his Court is bound to give substantial weight to the EEOC's interpretation of the statute that it administers"). The Supreme Court held in McDonnell Douglas, 792 U.S. at 799, that plaintiffs may bring claims to court despite the absence of an EEOC determination of reasonable cause to believe discrimination has occurred, relying in part on the fact that the "Commission itself does not consider the absence of a ‘reasonable cause' determination as providing employer immunity from similar charges in a federal court." (citing Commission regulation). Consistent with the Commission's regulations and its understanding of their role in implementing the statutory requirements, this Court should hold that the EEOC's issuance of a right to sue notice to a private sector charging party does in fact signal exhaustion of administrative remedies and fulfillment of the conditions precedent to suit. Finally, the district court's creation of this additional condition precedent must be rejected because it is wholly inconsistent with the logic and rationale of an unbroken line of cases holding that the EEOC's conduct during the administrative process does not affect the charging party's right to a de novo review of the merits of her complaint. See University of Tenn. v. Elliott, 478 U.S. 788, 793 (1986) ("it is settled that decisions by the EEOC do not preclude a trial de novo in federal court"); accord McCottrell v. EEOC, 726 F.2d 350, 351-52 (7th Cir.1984) ("[i]t is settled law, in this and other circuits, that Title VII does not provide either an express or implied cause of action against the EEOC to challenge its investigation and processing of a charge[;]" "plaintiff's remedy in a case such as this is to commence suit in the district court against the party allegedly engaged in discrimination."); see also Associated Dry Goods Corp. v. EEOC, 720 F.2d 804, 809, 812 (4th Cir. 1983) ("no rule or decision of the Commission, however denominated, can affect the rights or impose any obligation on any party"); Ward v. EEOC, 719 F.2d 311, 313-14 (9th Cir. 1983) (EEOC's conduct during administrative process has no "determinate consequences" since it is merely "preparatory to a lawsuit" by EEOC or the charging party). In contrast, under the district court's ruling in this case, the Commission's decision to dismiss Doe's charge for failure to cooperate, rather than take some other action, has significantly affected Doe's rights by foreclosing her private right of action. Had the EEOC instead simply dismissed Doe's charge for failure to state a claim, or because the investigator had not discovered sufficient evidence to believe a violation had occurred, Doe could have tested the validity of her allegations de novo in court. McDonnell Douglas, 411 U.S. at 799 (absence of EEOC reasonable cause determination no barrier to de novo review of claim). In determining how to use its limited resources effectively, the EEOC needs the flexibility to resolve particular charges as it deems best within the context of its overall enforcement program. If the district court's rule is upheld, it will restrict that flexibility. If the district court's ruling is affirmed, given the adverse consequences the EEOC's decisions might have on charging parties' substantive rights, investigators may feel constrained in the future to retain charges like Doe's even though that means devoting less time to charges that, in the investigator's judgment, would otherwise warrant more extensive treatment. Thus, the district court's rule would actually hamper, rather than assist, the EEOC's ability to carry out its statutory obligations. See Adler, 35 F.3d at 265 (considerations underlying exhaustion are for the benefit of the agencies, "and if the agencies don't want it, there is no reason for us to give it great weight"). It is apparent in this case that the district court's imposition of an extra-statutory administrative cooperation requirement has vitiated the charging party's ability to function as a "‘private attorney general,' whose role in enforcing the ban on discrimination is parallel to that of the Commission itself," Associated Dry Goods Corp., 449 U.S. at 602, and has undermined the long- standing rule that "the final responsibility for enforcement of Title VII is vested with the federal courts." Alexander, 415 U.S. at 44. Therefore, this Court should reverse the district court's ruling on exhaustion and hold, consistent with Supreme Court precedent, that a private sector plaintiff who has satisfied the administrative requirements that Congress specified in Title VII is entitled to a de novo judicial determination of the merits of her discrimination claim whether or not her underlying charge was dismissed for failure to cooperate with the EEOC. CONCLUSION The district court improperly dismissed this case on exhaustion grounds and this Court should reverse that erroneous ruling. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ______________________________ PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed.R.App.P. 32(a)(7)(B). This brief contains 5,668 words and the typeface is Times Roman 12 point. _________________________________ PAULA R. BRUNER CERTIFICATE OF SERVICE This is to certify that on July 13, 2005, two copies of the foregoing brief and a computer diskette along with the certificate of service was mailed first class, postage prepaid, to the following counsel of record: H. Candace Gorman, Esq. Gorman & Caporusso 542 S. Dearborn, Suite 1060 Chicago, Illinois 60605 Anthony J. Crement, Esq. Franczek Sullivan, P.C. 300 S. Wacker Dr., Suite 3400 Chicago, Illinois 60606 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 July 13, 2005 *************************************** <> <1> The Commission takes no position on other issues raised by this appeal. <2> Title VII also expressly permits charges to be filed “on behalf of a person claiming to be aggrieved” as occurred in this case. See 42 U.S.C. § 2000e-5(b). <3> In Gibson, a federal employee who successfully pursued his sex discrimination claim during the administrative process, was denied compensatory damages when he sued in federal court because he had failed to request them when his case was before the EEOC. 201 F.3d at 991-92. On appeal, this Court ruled that, although this particular component of the exhaustion requirement was not a jurisdictional requirement, he could not succeed on his equitable estoppel theory because his agency’s failure to advise him of the need to seek damages during the administrative process was, at most, ordinary negligence and not an “affirmative act to misrepresent or mislead.” Id. at 994. The necessity to present the claims to be pursued in court to the administrative agency is not implicated in this case. <4> The district court’s reliance in this case on private sector-exhaustion cases, Duncan v. Consolidated Freightways Corp , 1995 WL 530652 (N.D. Ill. Sept. 7, 1995) and Morris v. Albertson, Inc., 2001 WL 936118 (N.D. Ill. Aug. 17, 2001), see Doe, 2005 WL at *3-4, is equally infirm because those decisions, like that of the lower court in Zugay, uncritically adopted the rationale of the federal employee plaintiff cases, which are distinguishable for the reasons discussed in text.