UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ No. 10-30789 _______________________ ANGEL GRANGER; CASEY DIXON DESCANT, Plaintiffs-Appellees, v. AARON'S, INCORPORATED, Defendant-Appellant. _____________________________________________________ On Appeal from the United States District Court for the Western District of Louisiana _____________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS AND IN FAVOR OF AFFIRMANCE ______________________________________________________ P. DAVID LOPEZ General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION LORRAINE C. DAVIS Acting Associate General Counsel Office of General Counsel 131 M Street, N.E., 5th Floor VINCENT J. BLACKWOOD Washington, DC 20507 Assistant General Counsel (202) 663-4721 fax: (202) 663-7090 BARBARA L. SLOAN barbara.sloan@eeoc.gov Attorney TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings. . . . . . . . . . . . . . . . . .3 2. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . . . . . 6 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT I. UNDER THE MOU BETWEEN EEOC AND OFCCP, PLAINTIFFS' CHARGES SHOULD BE DEEMED TIMELY FILED WITH EEOC EVEN IF OFCCP LACKED JURISDICTION OVER THE COMPLAINTS. . . . . . . . . . . . . . . . . . . 11 II. THE DISTRICT COURT REASONABLY CONCLUDED THAT, EVEN THOUGH PLAINTIFFS WERE REPRESENTED BY COUNSEL, LIMITATIONS SHOULD BE EQUITABLY TOLLED ON THEIR COMPLAINTS UNDER THE SPECIFIC FACTS AND CIRCUMSTANCES IN THIS CASE. . . . . . . . . . . . . . . . . . . . . 17 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Barrs v. Sullivan, 906 F.2d 120 (5th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . 10 Burnett v. New York Central Railroad, 380 U.S. 424 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Carter v. Texas Department of Health, 119 F. App'x 577 (5th Cir. 2004) (unpublished). . . . . . . . . . . . . . . 22 Davis v. Johnson, 158 F.3d 806 (5th Cir.1998). . . . . . . . . . . . . . . . . . . . . . . . 17 EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14 Egelston v. State University College at Geneseo, 535 F.2d 752 (2d Cir. 1976). . . . . . . . . . . . . . . . . . . . . . . . 13 FDIC v. Dawson, 4 F.3d 1303 (5th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . 10 Franks v. Bowman Transport Co., 424 U.S. 747 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 Hamel v. Prudential Insurance Co., 640 F. Supp. 103 (D. Mass. 1986). . . . . . . . . . . . . . . . . . . . . . . 25 Henderson v. Thaler, --, F.3d --, 2010 WL 4616876 (5th Cir. Nov. 16, 2010). . . . . . . . . 10, 18 Holland v. Florida, 130 S. Ct. 2549 (2010). . . . . . . . . . . . . . . . . . . . . . .17, 18, 20-21 Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 J.D. Thornton v. East Texas Motor Freight, 497 F.2d 416 (5th Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . 28 Love v. Pullman Co., 404 U.S. 522 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 McClain v. Lufkin Industries, 519 F.3d 264 (5th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . 27 Mohasco Corp. v. Silver, 447 U.S. 807 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Moore v. Astra Pharmaceutical Products, No. 91-2206, 1992 WL 59372 (E.D. La. March 19, 1992) (unpublished). . . . . . . . . . . . 23 Morgan v. Washington Manufacturing Co., 660 F.2d 710 (6th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . 23 NAACP Labor Committee v. Laborers' International Union, 902 F. Supp. 688 (W.D. Va. 1993), aff'd sub nom. Baltimore v. Laborers' International Union, 1995 WL 578084 (4th Cir. Oct. 2, 1995). . . . . . . . . . . . . . . . . . 15, 26 National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Perez v. United States, 167 F.3d 913 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . 22 Prieto v. Quarterman, 456 F.3d 511 (5th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . 18 Ramirez v. City of San Antonio, 312 F.3d 178 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . 10 Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663 (4th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . .13-14 Robinson v. Dalton, 107 F.3d 1018 (3d Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . 19 Silva v. Universidad de Puerto Rico, 849 F. Supp. 829 (D.P.R. 1994). . . . . . . . . . . . . . . . . . . . . . . . 14 Taylor v. General Telephone Co., 759 F.2d 437 (5th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . 27 Trahan v. Lowe's, No.01-3243, 2002 WL 1560272 (E.D. La. July 12, 2002). . . . . . . . . . . .24-25 Walker v. Novo Nordisk Pharmaceutical Industries, No. 99-2015, 2000 WL 1012960 (4th Cir. Jun 24, 2000). . . . . . . . . . . .25-26 Watson v. Gulf & Western Industries, 650 F.2d 990 (9th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . .28-29 STATUTES, REGULATIONS and RULES Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 2000e-4(g)(1). . . . . . . . . . . . . . . . . . . . . . . . . . .12 42 U.S.C. § 2000e-5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 64 Fed. Reg. 17664 (April 12, 1999). . . . . . . . . . . . . . . . . . . . . . . . 11 OTHER AUTHORITY Memorandum of Understanding Between EEOC and OFCCP available at www.eeoc.gov/policy/docs/dolmou-2.html. . . . . . . . . . . .passim UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________ No. 10-30789 _______________________ ANGEL GRANGER; CASEY DIXON DESCANT, Plaintiffs-Appellees, v. AARON'S, INCORPORATED, Defendant-Appellant. _________________________________________________ On Appeal from the United States District Court for the Western District of Louisiana _________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS AND IN FAVOR OF AFFIRMANCE _________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is charged by Congress with interpreting and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and other federal employment discrimination laws. Because the agency can normally investigate alleged violations of Title VII only in response to a timely charge, cases raising charge-filing issues are of special concern to the Commission. In this case, the district court held that a Memorandum of Understanding between EEOC and the Department of Labor's Office of Federal Contract Compliance Programs ("OFCCP"), intended to provide that complaints filed with OFCCP and alleging conduct which would violate Title VII would be considered simultaneously filed with EEOC under Title VII, did not apply to plaintiffs' charges because the OFCCP did not have jurisdiction over their complaints. We believe that this ruling, if affirmed, would undermine the effectiveness of the MOU. On the other hand, we believe that the district court correctly ruled that, although the plaintiffs timely but mistakenly filed charges with OFCCP rather than with the Commission, the charge-filing period should be equitably tolled in light of various mitigating factors. In challenging that ruling, defendant takes the position that equitable tolling is per se unavailable because plaintiffs were represented by counsel. This view, if adopted by the Court, would hamstring district courts' ability to exercise their equitable judgment where, as here, there are good reasons for excusing an otherwise arguably untimely charge. We therefore present our views to the Court. STATEMENT OF ISSUES<1> (1) Whether the district court erred in interpreting the Memorandum of Understanding between EEOC and OFCCP to provide that charges filed with OFCCP and alleging employment discrimination based on sex are deemed simultaneously filed with EEOC only where OFCCP has jurisdiction over the substance of the complaint. (2) Whether the district court reasonably concluded that, even though plaintiffs were represented by counsel, the filing period for their charges of sexual harassment should be equitably tolled under the specific facts and circumstances in the case. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an interlocutory appeal from an order denying defendant's motion to dismiss this Title VII action on the ground that plaintiffs' charges were untimely. Plaintiffs brought suit in state court in August 2009, alleging sex discrimination and constructive discharge under federal and state law. Defendant removed the case to federal court and moved to dismiss or for summary judgment. District court docket number ("R.") 1, 9. A magistrate judge recommended that the motion be granted (USCA5-240), but, following timely objections by plaintiffs (R.29), the district court rejected in part the magistrate's recommendation. USCA5-334. The court concluded that, although plaintiffs' Title VII charges could not be considered constructively filed with EEOC as of the date they were filed with OFCCP, the charge-filing period should be equitably tolled in large part because of OFCCP's lengthy delay in transferring the charges to EEOC. See generally USCA5-334-50. This Court granted defendant's petition for interlocutory review. USCA5-368. 2. Statement of Facts Casey Descant and Angel Granger worked as customer service representatives for Aaron's, a company that sells and rents furniture, appliances and electronics. Descant was employed from March 8 to June 30, 2007; Granger was employed from July 7 to September 23, 2007. They allege that throughout their employment they were subjected to sexual harassment by their supervisor, Store Manager Kennard Williams. Because, despite complaints, nothing was done to stop the harassment, both women felt compelled to resign. USCA5-334-35. Within weeks of Granger's September 23 resignation, plaintiffs contacted an attorney. On November 7, 2007, they filed complaints alleging sexual harassment with OFCCP, an agency within the Department of Labor ("DOL") whose duties include enforcing Executive Order 11246 which, like Title VII, prohibits employment discrimination based on sex and other grounds but only with respect to federal contractors and sub-contractors. USCA5-335. Between November 2007 and June 2008, the attorney's paralegal, Kristen Bergeron, and law clerk, Mary Anderson, telephoned OFCCP over half a dozen times to check on the status of the complaints. Typically, the women left detailed messages, but the calls were not returned. Two or three times, however, Bergeron did reach someone who informed her that the agency was still investigating the complaints. USCA5-314 (Bergeron Aff.). In addition, in late June, Anderson was told that plaintiffs' complaints had been transferred to Houston and were still under investigation. USCA5-318 (Anderson Aff.). In early September, OFCCP transferred the complaints to EEOC's New Orleans office along with letters stating that OFCCP had closed both complaints because they were "individual in nature" (USCA5-133, 136); EEOC received the complaints on September 9 and promptly sent notice to Aaron's. USCA5-214 (Hill Aff.). Plaintiffs were also told of the transfer but were assured that it would not affect timeliness because the complaints had been stamped "filed" by OFCCP when received on November 7, and EEOC would honor that filing date. USCA5- 335 (district court decision); USCA5-139 (DOL email); USCA5-314-15 (Bergeron Aff.). After plaintiffs filed suit, defendant moved to dismiss or for summary judgment, arguing that plaintiffs failed to file timely charges. Plaintiffs responded that limitations should be equitably tolled under the circumstances of the case or, by virtue of a Memorandum of Understanding ("MOU") between EEOC and OFCCP, the charges should be deemed constructively filed with EEOC when they were submitted to OFCCP. R.16. The MOU provides that complaints of employment discrimination filed with OFCCP under Executive Order 11246 "will be considered charges simultaneously filed under Title VII whenever the complaints also fall within the jurisdiction of Title VII." See Memorandum of Understanding between DOL and EEOC § 7(a), available at www.eeoc.gov/policy/docs/dolmou-2.html. For purposes of determining the timeliness of such "dual-filed" complaints, "the date the matter was received by OFCCP shall be deemed to be the date it was received by EEOC." Id. The MOU also provides that OFCCP will notify the employer about the complaint within ten days of its receipt and will investigate dual-filed class complaints but will refer individual complaints to EEOC. § 7(b)-(c), (d)(1). The director of EEOC's New Orleans office submitted an affidavit attesting that EEOC considers the charges timely since they were timely filed with OFCCP: "the dates the complaints were received by OFCCP [would] be the date [they would] be deemed filed with the EEOC under the parameters of the MOU." See USCA5-213-14 (Hill Aff.). 3. District Court's Decision The district court denied defendant's motion. The court noted that the 300- day charge-filing period expired on April 25 for Descant and on July 19 for Granger. Accordingly, the court reasoned, the charges, which were received by EEOC on September 9, would be untimely unless (1) they could be considered constructively filed with EEOC when filed with OFCCP or (2) equitable tolling applied. USCA5-338 (Order at 5). The court rejected plaintiffs' argument that their Title VII charges should be deemed filed when OFCCP received the complaints, noting a "lack of updated jurisprudential support for the 'constructive filing' theory" as well as the Supreme Court's statement that courts should "'strictly adhere' to Title VII's procedural requirements." USCA5-340 (Order at 7). Nor was the court persuaded that the MOU compelled a different result. Under the terms of the MOU, the court noted, "complaints filed with OFCCP which 'also fall within the jurisdiction of Title VII'" will be considered "dual filed." USCA5-340-41 (Order at 7-8). The court reasoned, however, that because Aaron's is not a federal contractor, "EEOC did not also have jurisdiction; only EEOC had jurisdiction." USCA5-341 (Order at 8). Therefore, the court determined, the complaints were not dual filed, and the "date- imputing provision of the MOU cannot be applied." Id. On the other hand, the court concluded, equitable tolling would be appropriate. The court acknowledged that the facts of the case did not "neatly fit" into any of the three most common bases for equitable tolling recognized by the Fifth Circuit. USCA5-343-45 (Order at 10-12) (noting that (1) there is no allegation that Aaron's attempted to conceal any facts surrounding the claim from plaintiffs; (2) OFCCP provided incomplete rather than inaccurate information to plaintiffs; and (3) the delay did not occur while the parties were litigating an action in the wrong forum under state law). The court noted, however, that these bases are not exclusive. The court pointed to caselaw holding, for example, that tolling may be appropriate, in the absence of prejudice to defendants, where a plaintiff actively pursues a claim in the wrong administrative or judicial forum. USCA5- 344-46 (Order at 12-13) (citing cases). The court stressed that it was taking "careful note of the fact that the Plaintiffs . . . were represented by counsel," and counsel's error typically does not justify equitable tolling. The court added that because the OFCCP complaint form is captioned "Complaint of Discrimination in Employment under Federal Government Contracts," counsel plainly should have known that the complaints did not belong with OFCCP. USCA5-246-47 (Order at 13-14). Nevertheless, the court reasoned that, in deciding equitable tolling, it "must consider the totality of circumstances," and here, counsel's error "was not the only factor which contributed to the untimeliness of the Plaintiffs' EEOC charges." USCA5-347 (Order at 14). Other mitigating factors include the fact that (1) plaintiffs quickly sought counsel after leaving Aaron's, (2) plaintiffs acted diligently to protect their rights and preserve their claims by filing complaints well within the limitations period, (3) OFCCP received the complaints months before the limitations period expired, (4) counsel's staff made repeated calls to check on the status of the claims, (5) OFCCP personnel never told plaintiffs that the agency lacked jurisdiction over the claims but rather assured them that the claims were being investigated, (6) OFCCP delayed from November 2007 until September 2008 before informing plaintiffs - outside the limitations period - that their complaints were filed in error, (7) EEOC continues to assure plaintiffs that their charges were timely filed, and (8) Aaron's likely suffered no prejudice from the misfiling. Id. (footnote omitted). The court cautioned that its ruling "in no way excuses counsel's error or seeks to 'open the flood gates' to otherwise time-barred litigation." Finding that the case "presents exceptional circumstances," however, the court held that "the unusual events in the case - in particular, the glaring and lengthy administrative oversight - tips the balance of equities in the Plaintiffs' favor." USCA5-348 (Order at 15) (adding, at n.10, that plaintiffs should not be charged with OFCCP's failure to notify defendant and that defendant had not shown any prejudice from the delayed notice). In sum, the court concluded, "the Court's equity powers exist to address cases which do not fit neatly into categories and in which the demands of justice would be served by exercising those powers. As this is such a case, summary disposition of the Plaintiffs' claim is not appropriate." USCA5-349 (Order at 16). STANDARD OF REVIEW There are two lines of authority within this Circuit as to the appropriate standard of review for rulings regarding equitable tolling. One line applies an abuse of discretion standard; the other applies a de novo standard. Compare Henderson v. Thaler, -- F.3d --, 2010 WL 4616876, at *6 (5th Cir. Nov. 16, 2010) (noting that "our precedent . . . requires that we review the district court's decision [not to apply equitable tolling] for abuse of discretion"), with Ramirez v. City of San Antonio, 312 F.3d 178, 183 & n.5 (5th Cir. 2002) (stating that Court is "bound" by precedent that "the district court's determination on the applicability of equitable [tolling or] estoppel [should be reviewed] de novo"); cf. FDIC v. Dawson, 4 F.3d 1303, 1308 (5th Cir. 1993) (applying de novo standard where "district court held that equitable tolling was unavailable as a matter of law and did not withhold [it] simply as a matter of discretion"). The earliest case we identified was Barrs v. Sullivan, 906 F.2d 120 (5th Cir. 1990), which appears to apply an abuse of discretion standard. See id. at 122 (noting that plaintiff did not show that "a determination that he failed to demonstrate grounds for equitable tolling constitutes a plain abuse of discretion" or that "his case falls within the narrow class of cases in which the equities in favor of tolling the limitations period are so great that deference to the agency's determination is inappropriate"). Due to the equitable nature of the inquiry, we believe the abuse of discretion should apply; however, the ruling in this case should stand under either standard. ARGUMENT I. UNDER THE MOU BETWEEN EEOC AND OFCCP, PLAINTIFFS' CHARGES SHOULD BE DEEMED TIMELY FILED WITH EEOC EVEN IF OFCCP LACKED JURISDICTION OVER THE COMPLAINTS. The district court erred in holding that plaintiffs' charges were untimely despite being filed with OFCCP well within 300 days of the last alleged discriminatory act. By virtue of the Memorandum of Understanding between EEOC and OFCCP, because the charges were filed timely with OFCCP, they should likewise be deemed timely filed with EEOC. As part of its responsibility to "prevent" employers from engaging in unlawful employment practices, the EEOC is charged with investigating and attempting to resolve charges alleging employment discrimination based on sex. See 42 U.S.C. § 2000e-5. OFCCP, which is part of the Department of Labor, bears a similar responsibility under Executive Order 11246 with respect to federal contractors and subcontractors. See Exec. Order 11246 §§ 201-205, available at http://www.dol.gov/ofccp/regs/oe11246.htm. In light of these overlapping responsibilities, since 1981, EEOC and OFCCP have entered into a series of MOUs designed to "strengthen EEO enforcement" and "increase the agencies' efficiency and effectiveness." 64 Fed. Reg. 17664 (April 12, 1999). Title VII expressly authorizes the Commission to enter into such agreements with other federal and state enforcement agencies to effectuate the purposes of Title VII. See 42 U.S.C. § 2000e-4(g)(1). The MOU in effect when plaintiffs filed their charges contains several terms of relevance to this case. First, "[c]omplaints of employment discrimination filed with OFCCP under Executive Order 11246 will be considered charges simultaneously filed under Title VII whenever the complaints also fall within the jurisdiction of Title VII." See Memorandum of Understanding between DOL and EEOC § 7(a), available at www.eeoc.gov/policy/docs/dolmou-2.html. The MOU denominates such charges as "dual-filed." For purposes of determining the timeliness of dual-filed charges, "the date the matter was received by OFCCP shall be deemed to be the date it was received by EEOC." Id. Second, while reserving the right to makes exceptions in specific cases, OFCCP generally agrees to retain complaints alleging class or systemic violations but to refer complaints alleging individual violations - like those at issue here - to EEOC. MOU § 7(b)-(c). Finally, OFCCP agrees to notify the employer "within ten days" that it has received a charge of employment discrimination under Executive Order 11246 and Title VII; the notice will include "the date, place and circumstances of the alleged unlawful employment practice(s)." MOU § d(1). As evidenced by the affidavit of EEOC's New Orleans office director and the information OFCCP provided to plaintiffs when informing them that their charges were being transferred to EEOC, both EEOC and OFCCP interpret the MOU as providing that complaints filed with OFCCP that also allege conduct which would violate Title VII will be treated as simultaneously filed under Executive Order 11246 and Title VII without regard to whether the charge actually falls within OFCCP's jurisdiction. See USCA5-214-15 (Hill Aff.); USCA5-139 (DOL email). As the reasonable interpretation of the agencies that drafted and are parties to the agreement, this interpretation is entitled to deference. See Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663, 669 (4th Cir. 1977) (discussing earlier MOU); cf. EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115 (1988) (discussing deference to EEOC's interpretation of the phrase "terminate" proceedings). In addition, courts construing earlier versions of the MOU have concluded that complaints filed with OFCCP would be deemed filed with EEOC when the acts alleged would violate Title VII. See, e.g., Reynolds Metals, 564 F.2d at 669-70; Egelston v. State Univ. College, 535 F.2d 752, 755 n.4 (2d Cir. 1976). Interpreting the agreement in this way effectuates its purposes by encouraging efficient processing of charges; preventing duplication of effort by both the agencies and the investigated employer; eliminating the need for employees to file multiple charges; and avoiding the creation of legal technicalities that are particularly inappropriate in a statutory scheme designed to permit "laymen, unassisted by trained lawyers" to initiate the administrative process. See Love v. Pullman Co., 404 U.S. 522, 526-27 (1982); see also Reynolds Metal, 564 F.2d at 668-69 (discussing purposes of MOU). Moreover, courts, including the Supreme Court, have explicitly endorsed work-sharing agreements which, like the MOU, treat charges as filed when received by a state or local fair employment practice agency. See, e.g., Commercial Office Prods., 486 U.S. at 125. Indeed, this principle has been extended to cases like this one where the agency receiving the charge lacked jurisdiction over the substance of the charge. See, e.g., Silva v. Universidad de P.R., 849 F. Supp. 829, 831-32 (D.P.R. 1994) (even though state law did not cover claims against governmental entities, Title VII charge against state university filed with state agency within 180 days of alleged discriminatory act constituted timely filing with EEOC); cf. Commercial Office Prods., 486 U.S. at 124 (rejecting argument that deferred Title VII charge must be timely under state law); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 123-24 (1979) (same under ADEA). Notwithstanding this strong precedent and the interpretation of the two enforcement agencies who are parties to the agreement, the district court here held that the MOU does not apply to the charges filed in this case. Focusing on the word "also" in the phrase "whenever complaints also fall within the jurisdiction of Title VII," the court reasoned that the simultaneous-filing provisions apply only to "dual-filed" charges, and, in the court's view, complaints are not dual filed unless both OFCCP and EEOC have jurisdiction to resolve them. Because Aaron's is not a federal contractor, OFCCP did not have jurisdiction over the complaints, so, according to the court, the complaints could not be considered dual filed for purposes of the simultaneous-filing provisions.<2> In our view, this was error. The court attached too much importance to the word "also" and too little significance to the agencies' interpretation as well as the overall intent of the provision. The court's interpretation is not the only possible reading of the provision, nor the best one. Rather, the phrase "complaints of employment discrimination . . . under Executive Order 11246" should be read as simply a short-hand for "complaints of employment discrimination on the basis of sex, race, national origin, religion or color" - what Executive Order 11246 prohibits. Thus, if a complaint alleging discrimination on one or more of these bases is timely filed with OFCCP and the complaint also alleges conduct that would violate Title VII, the complaint/charge should be considered dual filed for all purposes. That is, it will be considered timely under Title VII; OFCCP will notify the employer within ten days of its receipt; and where, as here, the allegations are "of an individual nature," OFCCP will normally refer the charge to EEOC for investigation and resolution. This interpretation makes sense from an enforcement perspective. A key goal of the MOU is to ensure that individuals do not inadvertently lose their rights despite having taken timely measures to protect them. As noted above, however, the complaint/charge process is often initiated by "laymen" who may not know whether they work for a federal contractor or understand the difference between OFCCP and EEOC since both agencies enforce laws prohibiting employment discrimination on comparable bases.<3> Moreover, as this case demonstrates, it may take OFCCP many months to determine whether the employer is a federal contractor. Under the agencies' interpretation of their own agreement, even a lengthy delay in this determination would not adversely affect a complaining party's rights because the complaint would be deemed filed when received by OFCCP. The court's contrary interpretation - that the simultaneous filing provisions kick in only if and after OFCCP determines that it too has jurisdiction over the complaint regardless of how long it takes to make that determination - has the opposite effect. Even employees who attempt diligently to enforce their rights may lose their claims if they mistakenly file with the wrong agency and OFCCP delays too long in processing their complaints. Nor has the court or defendant offered any reason why EEOC and OFCCP, two agencies charged with enforcing the discrimination laws, would have signed onto such a scheme. We therefore urge the Court to reject the district court's interpretation of the MOU and hold that plaintiffs' charges here were timely filed under Title VII. II. THE DISTRICT COURT REASONABLY CONCLUDED THAT, EVEN THOUGH PLAINTIFFS WERE REPRESENTED BY COUNSEL, LIMITATIONS SHOULD BE EQUITABLY TOLLED ON THEIR COMPLAINTS UNDER THE SPECIFIC FACTS AND CIRCUMSTANCES IN THIS CASE. Alternatively, this Court should affirm the district court's holding that limitations should be equitably tolled under the circumstances of this case. Although plaintiffs in deferral states like Louisiana normally must file Title VII charges within 300 days of the last alleged discriminatory act, equitable tolling can rescue a claim that would otherwise be untimely where the plaintiff can show that she exercised due diligence in pursuing and preserving her claim and it would be inequitable to bar her claim. See, e.g., Holland v. Florida, 130 S. Ct. 2549, 2562- 63 (2010) (habeas case); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998) ("doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable"). As the Supreme Court recently reaffirmed, in determining whether tolling is appropriate, courts should apply a case-by-case assessment, considering all of the relevant circumstances including the efforts plaintiffs made to protect their rights within the limitations period. See Holland, 130 S. Ct. at 2563 (noting that the "'exercise of a court's equity powers . . . must be made on a case-by-case basis," with "flexibility") (citations omitted); accord Henderson v. Thaler, -- F.3d --, 2010 WL 4616876, at *5 (5th Cir. Nov. 16, 2010) (describing inquiry as "fact- intensive"); see also Prieto v. Quarterman, 456 F.3d 511, 514, 516 (5th Cir. 2006) (noting that court should consider the "facts and circumstances" of each case, and finding that "totality of the circumstances" justified tolling in that case). Notably, although the doctrine should be used "sparingly," perfect performance by the plaintiff is not essential: the "diligence" required for equitable tolling purposes is "'"reasonable diligence,"' not '"'maximum feasible diligence.'"'" Holland, 130 S. Ct. at 2565 (citations omitted). And because of the equitable nature of the inquiry, "mechanical rules" should avoided. Id. at 2563. While courts "exercise judgment in light of prior precedent," they must do so "with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case." Id. Applying these principles in this case, it is clear that the district court's decision should be upheld. The court considered the relevant factors and reasonably concluded that equitable tolling was appropriate under the circumstances of the case. While recognizing that relief is often denied where plaintiffs are represented by counsel, the court also noted that equitable tolling has been allowed in situations where as here claimants have timely asserted their rights mistakenly in the wrong forum. USCA5-345 (citing Irwin v. Department of Vet. Affairs, 498 U.S. 89, 96 (1990); Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997)). Further, the court reasoned that other factors unique to this case - particularly OFCCP's lengthy delay in addressing plaintiffs' complaints, coupled with plaintiffs' very timely efforts to protect their rights and counsel's repeated follow-up calls to inquire as to the status of the complaints - constituted "extraordinary circumstances" justifying the application of equitable tolling. USCA5-346-49. This ruling does not constitute reversible error under any standard of review. Aaron's arguments that the decision nevertheless should be reversed center around the fact that plaintiffs were represented by counsel. The company argues that equitable tolling is unavailable as a matter of law on that ground alone. According to defendant, "The fact that [plaintiffs] were represented by counsel during the limitations period and therefore charged with knowledge of the procedural requirements of filing an EEOC complaint forecloses the application of equitable tolling in this case as a matter of law. On this basis alone, this Court should reverse the District Court's decision and dismiss [plaintiffs'] Title VII claims with prejudice." Aaron's Brief at 26. Defendant also argues that it has "cited extensive and persuasive precedent demonstrating that [courts] consistently have held that equitable tolling is unavailable where . . . plaintiffs were represented by counsel during the limitations period." Id. at 21-22 (citing cases). This argument is flawed since it ignores the fact that "[i]n equity, as nowhere else, courts eschew rigid absolutes." Franks v. Bowman Transp. Co., 424 U.S. 747, 778 (1976). Indeed, the Supreme Court recently rejected a similar argument. See Holland, 130 S. Ct. 2549. In Holland, the court of appeals had held that equitable tolling was unavailable as a matter of law where plaintiff was represented by counsel, absent an allegation that counsel "made knowing or reckless factual misrepresentations" or had "exhibited dishonesty, divided loyalty or mental impairment." See id. at 2559-60. In reversing the judgment, the Supreme Court explained that such per se rules are unsuited to the equitable nature of the tolling inquiry. See id. Rather, the Court stressed, the determination of whether equitable tolling is appropriate should be made on a "case-by-case basis," and, while courts may seek guidance from decisions made in other cases, they must "exercise their judgment" with "an awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in appropriate cases." Id. at 2563. Similarly, here, this Court should decline Aaron's invitation to adopt a per se rule that equitable tolling is unavailable whenever the plaintiff has counsel. The fact that a plaintiff is represented is clearly relevant but it is not dispositive of whether tolling is appropriate. Here, the district court did "take careful note" of the plaintiffs' representation but concluded that its importance was outweighed by other factors such as "the glaring and lengthy administrative oversight." USCA5- 348. The cases cited by defendant are easily distinguished since none of them involves analogous facts. To the contrary, with one exception, all of the cases involve garden-variety missed deadlines. See Aaron's Brief at 22-23 (listing cases). Plaintiffs and/or their attorneys, through inadvertence or neglect, failed to file a charge, a suit, or an appeal within the limitations period, raising the inference that they were sleeping on their rights. The exception, an unpublished decision, is even more inapt. There, the plaintiff was seeking what he referred to as "equitable tolling" where his initial suit had been dismissed for discovery violations and lack of diligence, and he was attempting to resurrect his claim by filing a subsequent action. See Carter v. Texas Dep't of Health, 119 F. App'x 577, 579-80 (5th Cir. 2004) (unpublished). None of these cases supports defendant's argument that the district court's exercise of its equitable judgment should be reversed. Alternatively, Aaron's argues that "counsel's lack of diligence in researching the filing requirements of Title VII forecloses the application of equitable tolling," citing as authority other cases involving garden-variety missed deadlines. Aaron's Brief at 26-27. Unlike the plaintiffs in those cases, however, plaintiffs here did not simply miss a filing deadline; they timely filed charges but in the wrong forum. As the district court noted, one of the recognized circumstances where equitable tolling is often found appropriate is where the plaintiff mistakenly files his claim in the wrong forum and, by the time the error is discovered, limitations on the claim have expired. See USCA5-345 (decision); see also Burnett v. New York Cent. R.R., 380 U.S. 424, 425-29 (1965) (holding that plaintiff's second FELA suit was not untimely where her first suit was dismissed for failure to satisfy state venue provision); Perez v. United States, 167 F.3d 913, 917 (5th Cir. 1999) (holding that plaintiff's second federal court suit was not untimely where she learned, after limitations had expired, that she had mistakenly filed her original action in state court). Courts reason that, although more careful research would have revealed counsel's error, equitable tolling may be appropriate since the plaintiff nevertheless "exercised due diligence" in protecting her rights. See Perez, 167 F.3d at 918 (distinguishing wrong-forum error from "garden- variety claim of excusable neglect" because plaintiff did not sleep on her rights but rather "took some step recognized as important by the statute before the end of the limitations period"). The same reasoning applies directly in this case. See Morgan v. Washington Mfg. Co., 660 F.2d 710, 712 (6th Cir. 1981) (holding that "equitable considerations should toll the [charge-filing] period when the claimant makes a timely filing with a federal agency, like the Labor Department, which has jurisdiction in some fields of employment discrimination and when that complaint is forwarded to the EEOC shortly after the time period has expired"). Without acknowledging the Burnett/Perez line of cases, Aaron's points to Moore v. Astra Pharmaceutical Products, No.91-2206, 1992 WL 59372 (E.D. La. March 19, 1992), where the plaintiff had filed a charge with the DOL and, although DOL transferred the charge to EEOC, it nevertheless was untimely. According to defendant, "This authority clearly precludes the application of equitable tolling in this case." Aaron's Brief at 24. That is simply wrong. An unpublished district court decision is not controlling on another district court, let alone on this Court. As Aaron's notes, the district court here acknowledged the case (Aaron's Brief at 24, citing USCA5- 346), but was not bound to follow it. In any event, as is true for defendant's other cited cases, the facts in Moore differ materially from those in this case. There, because the plaintiff waited until the last minute to file a charge, limitations had expired even though DOL acted promptly in transferring the charge to the Commission. Here, in contrast, it was OFCCP's long delay in forwarding the charges rather than any eleventh-hour conduct by the plaintiffs that resulted in EEOC receiving the charges more than 300 days after the alleged discrimination. Aside from these "per se" arguments, Aaron's largely picks at the various factors the district court considered in concluding that equitable tolling was appropriate. The court relied on four main factors: (1) the diligence of plaintiffs and their counsel despite the error in filing with OFCCP; (2) OFCCP's "glaring and lengthy administrative oversight" both in reassuring plaintiffs that the charges were under investigation and in delaying for ten months before transferring the complaints to EEOC; (3) the fact that EEOC takes the position that the charges were timely under the MOU; and (4) the apparent absence of any resulting prejudice to Aaron's. USCA5-347-48. Aaron's argues that these factors do not justify equitable tolling, but, as before, the arguments do not warrant reversal of the court's decision. On the first point, Aaron's points to Trahan v. Lowe's, No.01-3243, 2002 WL 1560272 (E.D. La. July 12, 2002), an unreported district court decision, for the proposition that diligence cannot be shown by unreturned calls to the enforcement agency. Aaron's Brief at 33. The plaintiff in Trahan, however, did not file a timely charge and was arguing that three calls to EEOC, in which she left voicemail messages without seeking advice, should toll the limitations period. Id. at *2, *6. See also Aaron's Brief at 23, 34-35 (citing Hamel v. Prudential Ins. Co., 640 F. Supp. 103 (D. Mass. 1986) (refusing to toll limitations where plaintiff waited until the last minute to file an Intake Questionnaire and limitations expired before she had received and signed an EEOC Form 5). The district court could reasonably find that plaintiffs here, in contrast, exercised due diligence by filing very timely charges albeit with the wrong agency and following up with repeated calls to check upon the status of the complaints. On the second point, defendant argues that OFCCP had no duty to inform plaintiffs that the agency had no jurisdiction over their claims. Aaron's Brief at 34-36. Even if that were true in theory, actions speak louder than words; OFCCP did eventually alert plaintiffs that their charges belonged with EEOC. The difficulty, as the district court recognized, was that the agency (consistent with its interpretation of the MOU) gave plaintiffs the impression that they had done all that was needed to preserve their rights and then delayed so long in transferring the charges to the Commission. On the third point, defendant argues that the district court could not reasonably rely on EEOC's position that the charge was filed when received by OFCCP because that position has been "firmly rejected" by "the jurisprudence." Aaron's Brief at 36, citing Walker v. Novo Nordisk Pharm. Indus., No. 99-2015, 2000 WL 1012960 (4th Cir. Jun 24, 2000), and NAACP Labor Comm. v. Laborers' Int'l Union, 902 F. Supp. 688 (W.D. Va. 1993), aff'd on unrelated grounds in an unpublished decision sub nom. Baltimore v. Laborers' Int'l Union, 1995 WL 578084 (4th Cir. Oct. 2, 1995). That is incorrect. Significantly, neither of these cases is controlling on this case. Walker is unpublished, NAACP is a district court decision, and neither is from this Circuit. Moreover, and importantly, neither was construing the MOU at issue here. To the contrary, the MOU in Walker provided that "complaints filed with OFCCP within the jurisdiction of the EEOC" would be "deemed charges filed jointly with EEOC" when OFCCP referred them to EEOC. As the Court pointed out in Walker, however, OFCCP did not refer the charge to EEOC; the agency instead investigated and resolved the charge itself, but plaintiff then filed a new charge with EEOC and argued, unsuccessfully, that limitations should be tolled in light of the earlier OFCCP complaint. 2000 WL 1012960 at *3-*4. In contrast, here, not only did OFCCP refer the complaints to EEOC, but the language of the MOU is different, and the Walker Court expressed no opinion as to whether that plaintiff's complaint would be considered timely under the present language. See id. at *5 n*; see also NAACP, 902 F. Supp. at 700-01 (interpreting earlier MOU as treating OFCCP as "merely a conduit to receive misdirected Title VII complaints and 'promptly transmit' them to the EEOC"). As discussed above, both EEOC and OFCCP interpret the language in the present MOU to provide for simultaneous filing. Because defendant's cited cases are not controlling, any "lack of familiarity [by plaintiffs] with this jurisprudence" (Aaron's Brief at 36) would have no bearing on the appropriateness of equitable tolling in this case. Defendant then goes on to argue that the rulings in those cases are "in line" with Fifth Circuit "jurisprudence," citing McClain v. Lufkin Industries, 519 F.3d 264, 274 (5th Cir. 2008), and Taylor v. General Telephone Co., 759 F.2d 437, 440 (5th Cir. 1985). See Aaron's Brief at 36. However, the defendant's parenthetical descriptions of the cases mask their lack of relevance. In McClain, the plaintiff, who had filed a disparate treatment charge with EEOC, was attempting to piggyback on an unrelated OFCCP disparate impact investigation, having persuaded the district court that this investigation should satisfy his charge-filing requirements. 519 F.3d at 274. It is in this context that the statement defendant references was made: this Court concluded that "an investigation by another federal agency can[not] exhaust claims that must be handled by EEOC." Aaron's Brief at 36 (quoting McClain, 519 F.3d at 274). As for Taylor, it simply stands for the unremarkable proposition that a charge is considered filed when received [by an agency], not when it is mailed. See 759 F.2d at 440 ("'mailing' may not be construed as 'filing' for purposes of Title VII"). Regarding the fourth point, defendant argues that the district court erred in finding that the company "likely suffered no prejudice" from the delayed transfer of the charge from OFCCP to EEOC. In particular, defendant notes that it did not receive notice of the charges until shortly after they were transferred to EEOC, some ten months after they were filed. Aaron's Brief at 37-38. There are two responses to this argument. First, the agency's failure to notify defendant is not an error that should be charged to plaintiffs, particularly because they had every reason to assume that Aaron's would receive timely notice. Not only were they repeatedly informed that OFCCP was investigating their claims - an action that would typically include hearing the employer's side of the story - but the OFCCP complaint forms indicate that OFCCP will promptly notify the employer. USCA5-217(Descant); USCA5-224 (Granger). The agency simply dropped the ball. Second, as the district court noted, defendant points to no evidence that it suffered any prejudice as a result. Assertions in Aaron's brief that it in fact was prejudiced are simply that - unsupported arguments of counsel. In the absence of prejudice, courts have consistently held that an agency's failure to fulfill its obligations is not a proper basis for dismissing a suit. See, e.g., J.D. Thornton v. East Texas Motor Freight, 497 F.2d 416, 424 (5th Cir. 1974) (stating that "plaintiff is not responsible for the acts or omissions of the Commission"); see also Watson v. Gulf & Western Indus., 650 F.2d 990, 992 (9th Cir. 1981) (stating that "EEOC's failure to serve the charge on [the employer] does not interfere with [plaintiff's] rights, adding "'[a] Title VII complainant is not charged with the commission's failure to perform its statutory duties'") (citing Russell v. American Tobacco Co., 528 F.2d 357, 365 (4th Cir. 1975)).. Finally, defendant expresses concern that upholding the district court's decision to permit equitable tolling in this case would "open the flood gates for [] abuse" and "gut the line of cases in this Circuit holding that attorney error and neglect cannot justify equitable tolling." Aaron's Brief at 39. In our view, this concern is unwarranted. As noted above, this case is quite unlike the garden- variety attorney error cases in defendant's lengthy string-cites. Rather, it more closely resembles the "wrong-forum" cases. Although courts including the Supreme Court have long recognized an exception for such cases, plaintiffs have not willy-nilly concluded that they are free to "file an EEOC charge with any federal agency (rather than the EEOC)." See Aaron's Brief at 38-39. To the contrary, such cases are few and far between. When a charge comes through OFCCP, however, both EEOC and OFCCP have concluded, consistent with Congress's directive that the Commission cooperate with other agencies, that the charge should be deemed filed simultaneously with EEOC whenever the allegations would state a claim under Title VII. As noted above, this Court and the Supreme Court have each recently rejected arguments like those advanced by defendant here that the court should adopt a per se rule against equitable tolling. Instead, both courts have endorsed an approach like the district court here applied - reviewing the facts and circumstances on a case-by-case basis and concluding that, under the specific facts and circumstances in the case, the court should exercise its discretion and hold that equitable tolling is appropriate. The ruling here should therefore be affirmed. CONCLUSION For the foregoing reasons, the ruling below should be upheld and the case remanded to the district court for discovery and trial. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel /s/ Barbara L. Sloan _____________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4721 barbara.sloan@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,705 words, from the Statement of Jurisdiction through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2003 with Times New Roman 14-point font. _/s/ Barbara L. Sloan____________ Attorney for Equal Employment Opportunity Commission Dated: December 15, 2010__ CERTIFICATE OF SERVICE I certify that on December 15, 2010, a copy of the foregoing brief of the EEOC as amicus curiae was filed with the Clerk of Court using the CM/ECF system. I also certify that that this electronic submission is an exact copy of the paper document, and the document has been scanned for viruses with the most recent version of a commercial virus scanning program and is free of viruses. Notice of this filing will be sent to all counsel of record by operation of the Court's electronic filing system to: Benjamin A. Luke BENJAMIN A. LUKE, ATTORNEY AT LAW LLC 643 North Main Street Marksville, LA 71351 Michael P. Maraist MARAIST LAW FIRM Suite 810, Chase Tower 600 Jefferson Street Lafayette, LA 70501 Christine S. Goldberg Eric R. Miller Vasilos Manthos THE KULLMAN FIRM, PLC 4605 Bluebonnet Boulevard, Suite A Baton Rouge, LA 70809 /s/ Barbara L. Sloan _____________________ Barbara L. Sloan ********************************************************************************** <> <1> The Commission takes no position on any other issue in this case. <2> Citing Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980), National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-09 (2002), and NAACP Labor Comm. v. Laborers' International Union, 902 F. Supp. 688, 703-04 (W.D. Va. 1993), aff'd on unrelated grounds sub nom. Baltimore v. Laborers' Int'l Union, 1995 WL 578084 (4th Cir. Oct. 2, 1995) (unpublished)), the court also concluded that the trend is toward strict adherence to filing deadlines. USCA5-339-40. As noted above, however, the Supreme Court has endorsed work-sharing agreements; the MOU is such an agreement. <3> An employer may be covered by Executive Order 11246 if one or more parts of a company does at least $10,000 worth of business with the government in a given year, but it need not be the part of the company where the complaining individual works. See OFCCP Frequently Asked Questions for the Employer ## 2- 3, available at http://ww.dol.gov/pfccp/regs/compliance/faqs.html.