UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________________ No. 06-4632 ______________________ MORRIS HOLENDER Plaintiff-Appellant, v. MUTUAL INDUSTRIES NORTH, INC. Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania _____________________________________________________ BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND FOR REVERSAL _____________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD EQUAL EMPLOYMENT Assistant General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7038 SUSAN L.P. STARR Washington, D.C. 20507 Attorney (202) 663-4727 TABLE OF CONTENTS page STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3 A. Nature of the Case and Course of Proceedings. . 3 B. Statement of the Facts . . . . . . . . . . . . 3 C. District Court Decision . . . . . . . . . . . . 5 STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . 8 HOLENDER SATISFIED THE ADEA'S ADMINISTRATIVE PREREQUISITES TO SUIT . . . . . . . . . . . . . . . . . . 8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 17 CERTIFICATION OF COMPLIANCE . . . . . . . . . . . . . . . 18 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES page CASES Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). . . 10 Angelino v. New York Times Co., 200 F.3d 73 (3rd Cir. 2000) 5-6 Bihler v. Singer Co., 710 F.2d 96 (3rd Cir. 1983). . . . . passim Diez v. Minnesota Mining and Manufacturing Co., 88 F.3d 672 (8th Cir. 1996) . . . . . . . . . . . 7 Dilworth v. Metropolitan Life Ins. Co., 418 F.3d 345 (3rd Cir. 2005) . . . 7 Edelman v. Lynchburg College, 535 U.S. 106, (2002) . . . . . . . . . . . . . . 11 Gulezian v. Drexel, 1999 WL 153720 (E.D. Pa. Mar. 19, 1999) . . . . . . . . 12-13 Hicks v. ABT Assoc., 572 F.2d 960 (3rd Cir. 1978). . . . . . . . . . . . . . 14-15 Johnson v. Knorr, 477 F.3d 75 (3rd 2007) . . . . . . . . . . . . . . . . . 7 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . 10-11 Michelson v. Exxon Research & Eng'g Co., 808 F.2d 1005 (3rd Cir. 1987) . . . 13 Mohasco Corp. v. Silver, 477 U.S. 807 (1980) . . . . . . . . . . . . . . . . . 11 Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979). . . . . . . . . . . . . . . . . 12 Sedlacek v. Hach, 752 F.2d 333 (3rd Cir. 1985) . . . . . . . . . . . . . . . . . 15 TABLE OF AUTHORITIES (cont.) page STATUTE Age Discrimination in Employment Act, 29 U.S.C. § 626 . . . . . . . . . . . . . . . . . . . . . . . . . . . passim REGULATION 29 C.F.R. § 1626.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 RULE Fed.R.Civ.P. 56(c). . . . . . . . . . . . . . . . . . . . . . . . . . 7 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________________ No. 06-4632 ______________________ MORRIS HOLENDER Plaintiff-Appellant, v. MUTUAL INDUSTRIES NORTH, INC. Defendant-Appellee. _____________________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania _____________________________________________________ BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND FOR REVERSAL _____________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 626 et seq., as well as other federal statutes prohibiting employment discrimination. This appeal raises an important issue concerning the ADEA's charge-filing requirement which may affect many other cases under that statute, as well as cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e st seq., and Title I of the Americans With Disabilities Act, 42 U.S.C. §§ 12111 et seq., which have similar charge-filing requirements. The district court dismissed the plaintiff's ADEA action on the ground that he did not file a charge with the EEOC, notwithstanding the fact that he submitted a fully completed and signed charge form to the EEOC which unequivocally evinced his intent to initiate proceedings under the ADEA. Because the document submitted by the plaintiff clearly satisfied all of the requirements for a charge under the ADEA, the district court erred in holding that a charge was not filed notwithstanding the EEOC's failure to treat the document as a charge. To assist the Court in resolving this important issue, we offer our views to the Court as amicus curiae. STATEMENT OF THE ISSUE Whether a plaintiff who has submitted a completed and signed charge form to the EEOC, which unequivocally evinced his intent to initiate proceedings under the ADEA, satisfied the statutory prerequisites to suit regardless of whether the EEOC dockets or otherwise treats the submission as a charge.<1> STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment dismissing plaintiff's action in its entirety. Plaintiff alleges that the defendant violated the ADEA by failing to hire him because of his age. Appellant's Appendix ("A") 26A. On October 20, 2006, the district court granted defendant's motion for summary judgment, and entered judgment dismissing all of plaintiff's claims. 11A. Plaintiff filed a timely a notice of appeal on October 29, 2006, and an amended notice of appeal on October 31, 2006. 1A, 3A.. 2. Statement of Facts Morris Holender was interviewed for a position as a customer service representative with Mutual Industries North on July 10, 2005. 28A. During the interview, Mutual's president, Edmund Dunn, stated, "I am not allowed to ask you these questions under law, but if I were to ask you these questions, but remember that I am not allowed to ask you, . . . what year did you graduate from high school?" 29A. Holender replied that he graduated from high school in 1965. Id. Dunn told Holender that he met all of the qualifications for the position, and stated that he would contact Holender as soon as his references were checked because Dunn wanted to fill the position quickly. Id. Holender's references were not checked and no one from the company contacted Holender following this interview. Id. On August 23, 2005, Holender submitted to the EEOC a completed and signed charge form alleging that Mutual refused to hire him because of his age. 36A-37A. The charge included the names, addresses and phone numbers of both Holender and Mutual, stated that Mutual had more than fifteen employees, indicated age as the basis for the charge, and specified Holender's date of birth. 36A. In addition, Holender attached to the charge form a one-page statement setting forth the facts underlying his allegation of discrimination. 37A. This attachment also stated, "I . . . do hereby bring this EEOC Complaint against Mutual . . . for age discrimination," and "I am . . . filing this instant charge . . . ." Id. On October 19, 2005, 57 days after Holender submitted the charge, the district office sent Holender's attorney a letter stating, "before the EEOC can formally docket this matter as a charge and begin its investigatory and/or mediation process, certain additional/supporting information from you/your client is required." 39A. The letter was broadly written and provided general guidance to claimants' attorneys who have submitted "a potential charge of discrimination" under the ADEA, Title VII, or the ADA. 39A-40A. The letter stated that, after several enclosed questionnaires were completed, "the EEOC will review your response to determine whether or not this inquiry should be formalized as a charge." 39A. Among the enclosed questionnaires was one entitled "Discipline," notwithstanding the fact that Holender's charge form made clear that he was never employed by Mutual. Id. In addition, the letter requested information Holender had already provided, such as "charge information" and respondent's "complete address." Id. Finally, the letter cautioned that unless "all intake requirements are met" within 33 days of the date of the letter, EEOC "will not do any further processing of this matter." 40A. Holender did not respond to the letter. On November 14, 2005, more than 60 days after submitting the completed charge form to the EEOC, Holender filed suit in federal district court. R1. B. District Court Decision The district court granted Mutual's motion for summary judgment. The court initially rejected the company's argument that Holender's failure to file a charge would deprive the district court of subject matter jurisdiction over his ADEA claims. 7A. The court noted that this Court has clearly held that "the exhaustion of administrative remedies under the ADEA is ‘in the nature of a statute of limitations' and ‘does not affect the District Court's subject matter jurisdiction.'" Id. (quoting Angelino v. New York Times Co., 200 F.3d 73, 87 (3rd Cir. 2000) (internal citations omitted). Accordingly, since it was considering evidence beyond the complaint, the district court treated Mutual's motion to dismiss as a motion for summary judgment. Id. The court noted that Mutual argues that Holender "failed to properly comply with the ADEA's requirement that claimants file a written charge with the EEOC alleging unlawful discrimination . . . at least sixty (60) days before commencing a civil action for age discrimination." 8A (footnote omitted). According to the court, "[a] communication to the EEOC in or reduced to writing, including an intake questionnaire, may constitute a charge if it is ‘of a kind that would convince a reasonable person that a grievant has manifested an intent to activate the Act's machinery." 9A (internal citations omitted). The court noted that "[p]laintiff's filings with the EEOC would appear to satisfy this requirement." Id. However, the court added, "courts have held that intake questionnaires or other communications do not constitute a charge where the EEOC advises the grievant that he will need to provide further information and get back in touch with the agency to complete a formal charge and commence an investigation." Id. (internal citations omitted). This is particularly true, according to the court, "where the plaintiff is represented by counsel." Id. (internal citation omitted). Here, because "the EEOC sent [p]laintiff's attorney a letter indicating that the EEOC would not file a formal charge until [p]laintiff completed and returned questionnaires concerning his claim," and "[p]laintiff and/or his attorney completely disregarded this letter," to treat Holender's submission as a charge would "frustrate[] a major goal of the ADEA, which is to encourage pre-litigation resolution of claims." 9A-10A (citing Diez v. Minnesota Mining and Manufacturing Co., 88 F.3d 672, 676-77 (8th Cir. 1996)). According to the court, "[t]he result of the failure to provide the additional information was that no charge was ever filed and there was no administrative process." 10A. STANDARD OF REVIEW This Court reviews a district court's grant of summary judgment de novo, applying the same standard applied by the district court. Johnson v. Knorr, 477 F.3d 75, 81 (3rd 2007). Consequently, summary judgment is permitted only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law" and the appellate court must "view the record on appeal in the light most favorable to the party who lost on summary judgment in district court." Fed.R.Civ.P. 56(c); Dilworth v. Metropolitan Life Ins. Co., 418 F.3d 345, 349 (3rd Cir. 2005). ARGUMENT HOLENDER SATISFIED THE ADEA'S ADMINISTRATIVE PREREQUISITES TO SUIT The ADEA provides that "[n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the EEOC." 29 U.S.C. § 626(d). The statute does not define what constitutes a charge; however, EEOC's regulations provide that "a charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act(s)." 29 C.F. R. § 1626.6. As the district court recognized, Holender submitted to the EEOC a document which meets these requirements more than 60 days before he filed suit. See 9A ("Plaintiff's filings with the EEOC would appear to satisfy [the statute's] requirement."). Therefore, the district court erred in holding that Holender did not file a charge. This Court has held that, "[i]n order to to constitute a charge that satisfies the requirement of section 626(d), notice to the EEOC must be of a kind that would convince a reasonable person that the grievant has manifested an intent to activate the Act's machinery." Bihler v. Singer Co., 710 F.2d 96, 99 (3rd Cir. 1983) (footnote omitted). Holender's submission clearly met this requirement as well. In Bihler, this Court held that the plaintiff did not manifest an intent to initiate proceedings under the ADEA by merely sending the EEOC a copy of a letter he had earlier sent to his employer, Singer, complaining of age discrimination, and stating, "I intend to institute legal procedures if satisfactory action is not taken by Singer." Id. at 98. Here, by contrast, Holender submitted directly to the EEOC a completed charge form setting forth his allegations of age discrimination. The submission of a signed charge alleging age discrimination to the EEOC is enough to manifest an intent to initiate proceedings under the ADEA. If there was any doubt regarding Holender's intent, it was removed by the unequivocal statements in the attachment to the charge that he is "bringing the instant complaint for age discrimination" and is "filing the instant charge." 37A. This clearly meets the requirement in Bihler that he "manifest[] an intent to activate the Act's machinery." Bihler, 710 F.2d at 99. As noted, supra at 8, the district court seemed to recognize that Holender's submission met the statutory requirements for a charge. However, the court was troubled by Holender's failure to respond to EEOC's request for additional information. The court stated that this lack of response was relevant because it precluded full administrative processing of his charge. 10A. ("The intentional failure of Plaintiff and his counsel to comply with the EEOC's request ‘frustrates a major goal of the ADEA, which is to encourage pre-litigation resolution of claims.'") (internal citation omitted). According to the court, even though his filing meets the legal thresholds, "[t]o permit [p]laintiff's claim to proceed under these circumstances would seriously undermine the entire purpose of the ADEA's administrative process." Id. (citation omitted). To correct this perceived problem, the district court effectively ruled that, in addition to the explicit procedural requirements of the statute and regulations, claimants must comply with EEOC's requests for information, regardless of whether the information requested is over and above what is required by the statute. The effect of this holding is to impose on claimants an additional administrative requirement not in the statute or regulations in direct conflict with established case law. This Court stated in Bihler that it endorsed "the prevailing jurisprudence that a charge need not comply with a plethora of particular requirements." Bihler, 710 F.2d at 99-100 (internal citations and footnote omitted). Moreover, it made clear that a claimant's ability to file suit in federal court cannot "depend[] on the EEOC's actually having taken some action in response to a filed charge." Id. at 99, n.7. This Court stated that to do so "would establish a prerequisite to suit beyond a prospective plaintiff's control and therefore would be contrary to the spirit and purpose of the Act." Id. The Bihler holding is fully supported by Supreme Court precedent which has consistently rejected attempts to impose additional administrative requirements onto statutes prohibiting employment discrimination. See e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974) (discrimination statutes specify "with precision" the administrative requirements that private sector plaintiffs must satisfy before bringing a lawsuit in federal court). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99 (1973), for example, the Supreme Court held that a plaintiff may bring suit on a claim that was not addressed in the EEOC's cause determination, explaining that it would "not engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in federal courts." Id. And in Mohasco Corp. v. Silver, 477 U.S. 807, 826 (1980), the Court rejected imposition of requirements on claimants not "express[ly]" found in the statute, stating that "strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law."<2> The district court's holding is directly contrary to this precedent. Holender's failure to respond to the EEOC's request for additional information cannot negate the fact that he had already submitted a document to the agency which satisfies all of the requirements of a charge. Holender's completed charge form provided to the EEOC all the information it needed to initiate administrative proceedings and made clear that he wished to initiate proceedings. The ADEA requires that he do no more. To hold Holender responsible for the EEOC's failure to initiate proceedings "would be contrary to the spirit and purpose of the Act." Bihler, 710 F.2d at 99, n.7. The district court cited for support two cases in which it was determined that the grievant did not file a charge with the Commission. These cases are distinguishable because in neither case did the plaintiff submit a timely charge to the EEOC which satisfied the statutory and regulatory requirements. In Gulezian v. Drexel, 1999 WL 153720 (E.D. Pa. Mar. 19, 1999), the plaintiff filled out an intake questionnaire, not a charge form. The information supplied on the form was incomplete. The Commission told the plaintiff that he needed to return to file a charge form because his submission "provided no substantive details" supporting his age claim. Gulezian, 1999 WL 153720 at *2. There is nothing in the decision to suggest that the information provided on the questionnaire was sufficient to meet the statute's requirements for a valid charge. In contrast with the facts in Gulezian, in this case it is uncontested that Holender did submit sufficient substantive information to meet the ADEA's charge filing requirements. Moreover, although EEOC's letter states, in general, "certain additional/supporting information from you/your client is required," no where in that letter does it identify any information Holender failed to provide which would preclude the Commission from docketing the charge. Therefore, the district court's reliance on this decision as support for its dismissal of Holender's case is misplaced. The other case cited by the district court is similarly inapplicable. In Michelson v. Exxon Research & Eng'g Co., 808 F.2d 1005, 1010 (3rd Cir. 1987), the plaintiff relayed, by telephone, information to an EEOC intake officer. The intake officer memorialized the information in writing on a charge form and assigned it a charge number. EEOC records show that the plaintiff stated to the intake officer only that he was "interested in filing a charge." Id. The Commission then told the plaintiff that more information was necessary before a formal charge could be filed. The Commission instructed the plaintiff to get back in touch with the Commission with the additional information so that formal processing could begin. Id. By contrast, in this case, Holender provided sufficient substantive information for the Commission to initiate proceedings. In addition, Holender unambiguously evinced his intent to activate the EEOC processes. Thus, the district court's reliance on this case, similar to its reliance on Gulezian, is equally unavailing. Moreover, the unfairness to Holender in dismissing his case is particularly apparent given the circumstances. As noted above, under the ADEA, Holender was entitled to file suit 60 days after he filed a charge. It was not until 57 days had elapsed after Holender submitted his completed charge form to the EEOC that he received a letter from the district office stating that administrative proceedings would not be commenced until he submitted additional information. Further, some of the information requested in the letter and attached questionnaires either had already been submitted or was manifestly irrelevant to his charge. Under these circumstances, it was not unreasonable for Holender not to respond to the letter and simply proceed with his lawsuit. Holender submitted to the Commission a fully completed charge form. The Commission's request for additional information was superfluous. Furthermore, because the 60-day waiting period mandated by the ADEA was about to end when he received the EEOC's letter, it would have been apparent to Holender and his attorney that, by the time he submitted his response to the letter, the waiting period would have expired. This Court and other courts of appeals have consistently held that a claimant is not barred from suit due to the EEOC's error in administrative processing, even if it means that an employer was not notified of the claimant's allegations and there was no attempt at conciliation. In Hicks v. ABT Assoc., the EEOC improperly refused to amend a Title VII charge to include a claim of sex discrimination. 572 F.2d 960, 964-65 (3rd Cir. 1978). This Court held "[t]he individual employee should not be penalized" when the Commission errs in its administrative processing of a charge, even when the error results in the Commission failing to give the defendant proper notice of the charge. In rejecting the defendant's argument, this Court stated: [T]he defendant asks the court to penalize a plaintiff for the possible misconduct of the EEOC. If the EEOC's investigation is unreasonably narrow or improperly conducted, the plaintiff should not be barred from his statutory right to a civil action. .... [T]he purpose of the filing requirement is to allow the EEOC to settle a complaint informally. Defendant does not have a right under the statute to conciliation attempts by the agency. A civil suit will lie even where the EEOC has failed to give defendant notice of the charge or has failed to attempt to reconcile the parties either because of administrative failure or because of its finding of no reasonable cause. Id. at 966. See also Sedlacek v. Hach, 752 F.2d 333, 335 (3rd Cir. 1985) ("The action or inaction of the EEOC and its failure to attempt conciliation cannot affect a complainant's substantive rights."). Holender's submission provided the EEOC with all the required information and made clear his intent to initiate proceedings. The agency should have docketed it as a charge and commenced proceedings. As a result of this error, Mutual did not receive prompt notice that Holender was pursuing his rights under the ADEA. However, as this Court has expressly made clear, Mutual has no "right" to conciliation and this type of administrative error by the Commission does not permit a court to dismiss plaintiff's case. The decisions of this Court, guided by the law and principles of equity, dictate that the burden of the Commission's administrative error should not be borne by Holender. Holender's right to have his claim heard in court should be restored. CONCLUSION For all of the foregoing reasons, we respectfully submit that this Court should reverse the judgment of the district court and remand the case for further proceedings. Respectfully Submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel SUSAN L.P. STARR. Attorney Equal Employment Opportunity Commission 1801 L Street, N.W., Suite 7038 Washington, D.C. 20507 Dated: April 12, 2007 (202) 663-4727 Certificate of Compliance with Rule 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 3,334 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. 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 this brief has been prepared in a proportionally spaced typeface using Word Perfect 9 in font size 14 Times New Roman. __________________________________ SUSAN L.P. STARR Attorney U.S. Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7038 Washington, D.C. 20507 (202) 663-4727 Date: April 12, 2007 ELECTRONIC FILING OF BRIEF I, Susan L.P. Starr hereby certify that this brief is identical to the hard copy briefs filed on April 12, 2007, with the exception of the addition of this page. This brief has been checked for viruses. The Commission's anti-viral system installed on our computers is Symantec Anti-Virus, Version 9.0.3.1000. Susan L.P. Starr, Esq. EEOC, Appellate Services Division May 1, 2007 CERTIFICATE OF SERVICE I hereby certify that two paper copies of the foregoing brief were sent by first class mail, postage pre-paid, on this the 12th day of April, 2007, to the following counsel of record: COUNSEL FOR APPELLANT MORRIS HOLENDER Ari R. Karpf, Esq. KARPF, KARPF & VIRANT 3070 Bristol Pike Building 1 Suite 102 Bensalem, PA 19020 COUNSEL FOR APPELLEE MUTUAL INDUSTRIES NORTH, INC. Cary L. Flitter, Esq. Theodore E. Lorenz, Esq. LUNDY, FLITTER, BELDECOS & BERGER 450 North Narberth Avenue Narberth, PA 19072-1898 __________________________________ SUSAN L.P. STARR Attorney U.S. Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7038 Washington, D.C. 20507 (202) 663-4727 Date: April 12, 2007 *********************************************************************** <> <1> The Commission takes no position on any other questions raised in this appeal. <2> See also 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 impose on the ADEA state statutes of limitations in addition to the time frames already “explicit[ly]” contained in §§ 626(d) and (e)).