Betty J. Lauricia v. Microstrategy Inc. 00-2297 00-2434 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Nos. 00-2297, 00-2434 BETTY J. LAURICIA, Plaintiff-Appellee, v. MICROSTRATEGY INCORPORATED, Defendant-Appellant. On Appeal from the United States District Court for the Eastern District of Virginia Alexandria Division BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7010 Washington, D.C. 20507 TABLE OF CONTENTS STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Nature of Case and Course of Proceedings Below . . . . . . . . . . . . . 2 2. Statement of Facts . . . . . . . . . . . . .. . . . . . . . . . . . . . . 3 3. District Court Decision . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ONCE THE EEOC INVESTIGATED THE PLAINTIFF'S CHARGE, FOUND REASONABLE CAUSE AND ATTEMPTED CONCILIATION, THE PLAINTIFF WAS ENTITLED TO BRING AN ACTION ON HER RETALIATION CLAIM REGARDLESS OF WHETHER 180 DAYS HAD PASSED SINCE SHE FILED HER CHARGE . . . . . . . . . . . 8 A. Section 706(f)(1) of Title VII Does Not Apply to Lauricia's ADEA Claim . 9 B. Section 706(f)(1) of Title VII Does Not Prohibit the Issuance of a Notice of Right To Sue Less Than 180 Days After a Charge Has Been Filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 i. The Terms of the Statute Do Not Support Defendant's Argument . . 11 ii. The Legislative History Supports the District Court's Reading of the Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 iii. The Structure of Title VII Supports the District Court's Decision . . 18 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 TABLE OF AUTHORITIES Cases Page(s) Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)............................ 2 Brown v. GSA, 425 U.S. 820 (1976).............................................. 22 Brown v. Puget Sound Electric Apprenticeship & Training Trust, 732 F.2d 726 (9th Cir. 1984).......................................16, 24 Bryant v. California Brewers Association, 585 F.2d 421 (9th Cir. 1978)...............................................12 Clockedile v. New Hampshire Dep't. of Corrections, 2001 WL 293201 (1st Cir. March 20, 2001)...................................... 10 Hooks v. RCA Corp., 620 F. Supp. 1 (E.D. Pa. 1984)............................. 27 Johnson v. Seaboard Air Line R.R. Co., 405 F.2d 645 (4th Cir. 1968)............ 27 Long v. Ringling Brothers, 9 F.3d 340 (4th Cir. 1993).......................... 25 Martini v. Federal National Mortgage Association, 178 F.3d 1336 (D.C. Cir. 1999)............................................... passim Milner v. National School of Health Tech., 409 F. Supp. 1389 (E.D. Pa. 1976)................................................ 27 Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992).................................... 10 Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977)....................... 13, 14 Sims v. Trus Joint MacMillan, 22 F.3d 1059 (11th Cir. 1994)........... 12, 16, 18, 24 Walker v. United Parcel Service, Inc., 240 F.3d 1268 (10th Cir. 2001).....12, 15, 24 TABLE OF AUTHORITIES -- (cont'd) Cases Page(s) West v. Gibson, 527 U.S. 212 (1999)........................................ 22 MicroStrategy v. Lauricia, Alex. Cir. Ct. Chancery no. 000520 (filed Apr. 27, 2000)..........................4 Statutes Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq................... 1 42 U.S.C. § 2000e-5(b)...................................................24 42 U.S.C. § 2000e-5(f)(1)...............................................9, 11, 19 42 U.S.C. § 2000e-16(c)...................................................21 Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.......................... 1 29 U.S.C. § 626(d)...............................9 Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ............................. 3 28 U.S.C. § 1292(b).....................................................3 Miscellaneous 29 C.F.R. § 1601.28(a)(2)..................................................24 29 C.F.R. § 1614.110....................................................23 29 C.F.R. § 1614.405 (a) & (b).................................................23 29 C.F.R. § 1626.12......................................................10 TABLE OF AUTHORITIES -- (cont'd) Miscellaneous Page(s) H.R. Rep. No. 92-238, 92d Cong., 2d Sess. ................................. 15 JOINT EXPLANATORY STATEMENT OF MANAGERS AT THE CONFERENCE ON H.R. 1746 TO FURTHER PROMOTE EQUAL EMPLOYMENT OPPORTUNITIES FOR AMERICAN WORKERS................. 27 118 Cong. Rec. 1069 (1972) ...................................................17 118 Cong. Rec. 7168 (1972) ...................................................................18 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Nos. 00-2297, 00-2434 BETTY J. LAURICIA, Plaintiff-Appellee, v. MICROSTRATEGY INCORPORATED, Defendant-Appellant. On Appeal from the United States District Court for the Eastern District of Virginia Alexandria Division BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with interpreting, administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and other federal anti-discrimination laws. Private Title VII actions play an essential role in combating employment discrimination. Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974). In this appeal, defendant urges the Court to impose a limitation on private enforcement actions which has no basis in the applicable statutes. If this argument were accepted, effective enforcement of Title VII and the ADEA would be needlessly impeded. Accordingly, the Commission offers its views to the Court. STATEMENT OF THE ISSUE Whether a plaintiff who has received a notice of right to sue from the EEOC may file suit under Title VII and the ADEA regardless of whether 180 days have passed since the filing of the plaintiff's charge where, as here, the EEOC has investigated her charge, and determined that conciliation efforts would be futile. STATEMENT OF THE CASE 1. Nature of Case and Course of Proceedings Below. These are consolidated interlocutory appeals from an order of the district court denying defendant's motion to dismiss this action. Plaintiff filed suit on June 16, 2000, alleging unlawful retaliation under Title VII and the ADEA. J.A. 3. Defendant moved to dismiss the action, arguing that plaintiff should be compelled to arbitrate her claims pursuant to an arbitration agreement and, alternatively, that Title VII bars plaintiff from bringing suit less than 180 days after a charge was filed with the EEOC. On September 13, 2000, the district court denied defendant's motion to dismiss. J.A. 50. On September 25, 2000, defendant appealed from the order insofar as it denied its motion to compel arbitration. J.A. 53-54. On October 13, 2000, the district court granted defendant's motion to certify the issue of whether plaintiff has exhausted her administrative remedies for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). J.A. 51. This Court granted defendant's application for permission to appeal on that issue, and consolidated the two appeals. J.A. 56, 58-59. 2. Statement of Facts. Betty Lauricia filed a charge with the EEOC on March 8, 2000, alleging that her employer, MicroStrategy, Inc., discriminated against her on the basis of age and sex. J.A. 28. On March 13, 2000, Lauricia, who was MicroStrategy's Vice- President of Corporate Development Operations, informed the company of the charge. Id. On March 16, 2000, MicroStrategy sued Lauricia in federal court for theft of trade secrets and breach of fiduciary duty; the company also sought a declaratory judgment as to whether it had engaged in unlawful retaliation under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. J.A. 331. On March 14, 2000, MicroStrategy placed Lauricia on unpaid leave. J.A. 330. On April 27, 2000, after MicroStrategy's federal suit was dismissed, the company filed a second action against Lauricia in a Virginia state court, alleging theft of trade secrets and breach of fiduciary duty. MicroStrategy v. Lauricia, Alex. Cir. Ct. Chancery no. 000520 (filed Apr. 27, 2000). The state court action is still pending. On May 9, Lauricia filed a second charge with the EEOC alleging that MicroStrategy retaliated against her for filing her first charge. J.A. 65. On May 11, the EEOC issued a Letter of Determination finding reasonable cause to believe that MicroStrategy did retaliate against Lauricia. J.A. 66-67. On May 19, the EEOC sent a letter informing MicroStrategy that the agency found reasonable cause to believe the charge of retaliation was true, and "inviting the parties to participate in conciliation." J.A. 69. The letter asked MicroStrategy to respond by May 31, 2000, if it wished to participate in conciliation. Id. On May 25, the EEOC notified MicroStrategy that, because Lauricia declined to participate in conciliation, it concluded that efforts to conciliate this charge "have been unsuccessful" and "that further conciliation efforts would be futile or non-productive." J.A. 68. On the same day, the EEOC issued a right-to-sue notice to Lauricia. J.A. 64. On June 15, 2000, MicroStrategy filed yet another suit against Lauricia, this time in federal court alleging civil conspiracy and violation of the Virginia Code and seeking a declaration that its conduct did not and would not violate the FLSA, Title VII or the ADEA. J.A. 345-61. On June 16, Lauricia commenced this action. J.A. 3. On August 4, 2000, MicroStrategy fired Lauricia. 3. District Court Decision. MicroStrategy filed a motion to dismiss arguing that Lauricia's notice of right to sue was invalid because it was issued less than 180 days after she filed her charge.<1> The district court disagreed. The court rejected MicroStrategy's argument that "the plain language" of § 706(f)(1) of Title VII requires the EEOC to wait 180 days before issuing a right to sue. J.A. 45. Rather, the court concluded, the language of that provision describes the circumstances when the EEOC "must issue" a right-to-sue letter, but "nothing in the statutory language addresses or limits whether the EEOC may issue a right-to-sue letter prior to the expiration of the 180-day period." Id. at 46 (emphasis in original). The court noted that, had Congress desired to impose such a limit. it could have readily done so by stating that right-to-sue letters "will issue only" in the case of a dismissal of the complaint or "expiration of the 180-day period." Id. (emphasis in original). The district court noted that the appellate courts are divided on whether or not a person can obtain a right-to-sue notice prior to 180 days, and that the Fourth Circuit has not addressed the issue. J.A. 46-47. The district court stated that the view that the Commission can issue a right-to-sue notice prior to the expiration of 180 days "best comports with the statute's language" and with the purpose of § 706(f)(1), "which ensures that a claim will not languish" at the EEOC before the complainant can go to court. Id. at 47. This purpose, the court concluded, "does not require that a lawsuit must await the passage of 180 days in any and all events, including where, as here, the EEOC completes its inquiry prior to the expiration of the 180 days. Id. Furthermore, the court noted, the split in the circuits "rests in part on the concern, not present in this case, that permitting the issuance of a right-to-sue letter prior to 180 days" where no investigation has been made "allows the EEOC to 'relax its aggregate effort to comply with its statutory duty to investigate every charge filed.'" Id. (quoting Martini v. Federal National Mortgage Association, 178 F.3d 1336, 1347 (D.C. Cir. 1999)). No such concern is present in this case, the court stated, because "the EEOC completed its investigation and determined that reasonable cause exists before it issued the right-to-sue letter." Id. The district court rejected MicroStrategy's argument that the suit should be dismissed because Lauricia refused to participate in the conciliation process. J.A. 48. The court first noted that this issue is moot because it had stayed proceedings and ordered the parties to attempt conciliation with the EEOC, but that effort was unsuccessful. Id. The court observed that Lauricia has no statutory duty to engage in conciliation, and the EEOC, whose only statutory duty is "to attempt conciliation," fulfilled that obligation by inviting both parties to conciliate. J.A. 48-49. According to the court, the EEOC's determination, based on Lauricia's "lack of interest," that conciliation would be "'futile or non-productive,'" was "plainly not unreasonable," especially considering the hostile relationship between plaintiff and MicroStrategy at the time. Id. at 49. ARGUMENT ONCE THE EEOC INVESTIGATED THE PLAINTIFF'S CHARGE, FOUND REASONABLE CAUSE AND ATTEMPTED CONCILIATION, THE PLAINTIFF WAS ENTITLED TO BRING AN ACTION ON HER RETALIATION CLAIM REGARDLESS OF WHETHER 180 DAYS HAD PASSED SINCE SHE FILED HER CHARGE. On May 9, 2000, Lauricia filed a charge of discrimination alleging that MicroStrategy had retaliated against her for having filed a previous charge. J.A. 65. On May 11, the EEOC found reasonable cause to believe that Lauricia's charge was true (J.A. 66-67), and on May 19, informed MicroStrategy that the EEOC would "endeavor to eliminate the unlawful employment practice by inviting the parties to participate in conciliation." J.A. 69. When Lauricia refused the invitation to conciliate, the EEOC, on May 25, notified MicroStrategy that attempts to conciliate this charge "have been unsuccessful" and that the EEOC had determined "that further conciliation efforts would be futile or non-productive." J.A. 68. On the same day, the EEOC issued a notice of right to sue to Lauricia. On June 16, 2000, thirty-eight days after she filed her charge, Lauricia filed suit under Title VII and the ADEA. J.A. 3. MicroStrategy argues that, notwithstanding the fact that the EEOC had completed its investigation of Lauricia's retaliation charge, found reasonable cause to believe it was true, and attempted conciliation, this suit must be dismissed because less than 180 days had elapsed between the filing of the charge and the issuance of the notice of right to sue. The district court correctly rejected this argument. Neither the language nor purpose of the procedural provisions of Title VII or the ADEA supports MicroStrategy's argument that Lauricia was required to wait for months after the EEOC's administrative process was completed before bringing suit. A. Section 706(f)(1) of Title VII Does Not Apply to Lauricia's ADEA Claim. Although MicroStrategy seeks dismissal of all of Lauricia's claims, neither in the district court nor on appeal has the company offered even an arguable basis for dismissal of Lauricia's ADEA claim. MicroStrategy's arguments for dismissal are based on its contention that § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1), imposes a mandatory 180-day waiting period before suit may be filed. However, this provision does not apply to claims under the ADEA. The only limitation on the filing of a lawsuit is the provision in § 7(d) that "[n]o civil action may be commenced . . . until 60 days after a charge alleging unlawful discrimination has been filed." 29 U.S.C. § 626(d). Lauricia initiated this action more than 60 days after she filed her first charge with the EEOC in March 2000. Although this charge did not allege retaliation, this Court has held that a claim of retaliation for filing a charge may be based on the original charge even though that charge does not allege retaliation.<2> Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992) (allowing a plaintiff to allege retaliation for the first time in district court "is the inevitable corollary " of the generally accepted principle that a judicial complaint may include any matter that could reasonably be expected to grow out of an EEOC investigation). See also Clockedile v. New Hampshire Dep't. of Corrections, 2001 WL 293201 at *3 n.3 (1st Cir. March 20, 2001)(citing Nealon). Accordingly, Lauricia's ADEA retaliation claim may be based on her original charge filed on March 8, and her civil action was properly filed more than 60 days from the date of her charge. B. Section 706(f)(1) of Title VII Does Not Prohibit the Issuance of a Notice of Right To Sue Less Than 180 Days After a Charge Has Been Filed. i. The Terms of the Statute Do Not Support Defendant's Argument. With respect to Lauricia's Title VII claim, the district court correctly rejected MicroStrategy's argument that § 706(f)(1) "unambiguously provides that a complainant may not file suit in federal court until her charge has remained with the EEOC for 180 days." Defendant's br. at 17. Section 706(f)(1) of Title VII provides: [i]f a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . , the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge. 42 U.S.C. § 2000e-5(f)(1). As the district court recognized, "[t]his language, given its plain meaning, describes the circumstances where the EEOC must issue a right-to-sue letter." J.A. 46 (emphasis in original). However, the issue in this case is whether the EEOC may issue a right-to-sue notice within 180 days where the agency has investigated, found reasonable cause and attempted conciliation. The district court correctly concluded that issuance of a right-to-sue notice in such a case is not prohibited by the language of § 706(f)(1). In support of its argument that § 706(f)(1) expressly prohibits the EEOC from issuing a notice of right to sue sooner than 180 days after a charge is filed, MicroStrategy relies on three district court decisions. Defendant's br. at 23. MicroStrategy fails to mention, however, that every appellate court to consider the question has rejected its argument. See Walker v. United Parcel Service, Inc., 240 F.3d 1268, 1274 (10th Cir. 2001) (§ 706(f)(1) "does not expressly prohibit EEOC from issuing [right-to-sue] notices earlier" than 180 days); Martini v. Federal National Mortgage Ass'n, 178 F.3d 1336, 1344 (D.C. Cir. 1999) (nothing in the language of § 706(f)(1) "forecloses" the "view that the 180-day provision is simply a maximum, not minimum, waiting period for complainants seeking access to federal court"); Sims v. Trus Joint MacMillan, 22 F.3d 1059, 1062 (11th Cir. 1994) (plain language "does not prohibit the Commission from issuing a right-to-sue letter before the 180 days have expired"); Bryant v. California Brewers Ass'n, 585 F.2d 421, 425 (9th Cir. 1978) ("[n]owhere does [§ 706(f)(1)] prohibit the EEOC from issuing such notice before the expiration of the 180-day period"). Instead the courts, including the D.C. Circuit in Martini, supra, on which MicroStrategy heavily relies, agree that the language of § 706(f)(1) is ambiguous on the question of whether a notice may be issued before 180 days have passed. As the district court recognized, Congress could easily have specified that right-to-sue notices would "issue only in the circumstances prescribed," if that was its intent. J.A. 46. (emphasis in original). See Martini, 178 F.3d at 1342 (recognizing that "the statute nowhere says that complainants may sue only if one of these conditions occurs") (emphasis in original). MicroStrategy also refers to a statement in Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 361 (1977), that a complainant "must wait 180 days" before bringing suit under Title VII. Defendant's br. at 21-22. However, as MicroStrategy acknowledges, the language it relies on in Occidental Life is dicta. In that case, the Supreme Court was addressing a different question, viz., whether § 706(f)(1) requires the EEOC to bring an action within the 180-day period. Occidental, 432 U.S. at 361.<3> The issue in this case "was neither raised in Occidental Life nor addressed by the Supreme Court" and, consequently, because the Court's reading of § 706(f)(1) "was not essential to its holding," it "does not dictate the result in this case." Martini, 178 F.3d at 1342. Furthermore, even under the district court's ruling in this case, a complainant "must wait 180 days" before she has the right to demand a notice of right to sue. There is no reason to believe that the Occidental Court gave any thought to the question of whether the EEOC is permitted to issue a notice of right to sue earlier if it has completed the administrative process. ii. The Legislative History Supports the District Court's Reading of the Statute. The district court concluded that permitting the EEOC to issue right-to-sue notices "where, as here, the EEOC completes its inquiry prior to the expiration of 180 days" furthers the purpose of § 706(f)(1) by "ensur[ing] that a claim will not languish in the EEOC for months or years before the complainant may sue." J.A. 47. MicroStrategy asserts that the legislative history of § 706(f)(1) shows that Congress "authorized private actions only after 180 days." Defendant's br. at 32-35. On the contrary, the legislative history fully supports the district court's holding that the statute permits the EEOC to issue a notice of right to sue sooner if it has completed the administrative process. The procedural requirements in § 706 of Title VII were designed by Congress to balance a desire that as many disputes as possible would be resolved informally with a concern that the right of an individual aggrieved by discrimination to obtain redress not be unnecessarily impeded or delayed. H.R. Rep. No. 92-238, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad. News, p. 2144. To address the first objective Congress required an aggrieved individual to file a charge with the EEOC before initiating enforcement proceedings in court. The language at issue in this case was included to protect the complainant from lengthy delays in the EEOC's administrative process by giving her a right to go to court 180 days after she filed a charge if the EEOC has not fininshed its administrative process. See Walker, 240 F.3d at 1274 ("Congress added [the provision requiring the EEOC to issue a notice of right to sue after 180 days] as part of the 1972 amendments to Title VII to protect aggrieved parties from lengthy delays occasioned by administrative backlog"); Martini, 178 F.3d at 1345 (the 180-day provision provided "a means by which an [aggrieved party] may be able to escape from the administrative quagmire which occasionally surrounds a case caught in an overloaded administrative process") (internal quotations omitted); Sims, 22 F.3d at 1063 ("the 180-day time period was designed to protect claimants from extended administrative proceedings"); Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir. 1984) ("Congress enacted [§ 706(f)(1)] to protect aggrieved individuals from undue delay."). The interpretation of § 706(f)(1) advanced by MicroStrategy is inconsistent with this legislative purpose. Under the company's approach a provision designed to prevent delay in the vindication of aggrieved individual's rights would be construed to require pointless delay in cases such as this where the EEOC has completed its administrative process in less than 180 days. MicroStrategy points to nothing in the legislative history to support this illogical construction of the statute. The particular passages from the legislative history relied on by MicroStrategy are fully consistent with the district court's holding. As the company notes, some statements by legislators reflect a recognition that, since the proposed statutory language requires the EEOC to issue a notice of right to sue on an active charge only after 180 days, a complainant's right to file suit before that time is "'restrict[ed].'" Defendant's br. at 35 (quoting 118 Cong. Rec. 1069 (1972)). But this says nothing about the issue presented in this case. Under the district court's view, a complainant's right to sue before 180 days is also "restricted." If the EEOC has not completed its administrative proceedings on her charge, she cannot demand a notice of right to sue until 180 days has elapsed. There is nothing in the legislative history indicating that Congress intended to require a plaintiff like Lauricia to continue to wait for months after the EEOC completed its administrative process before filing suit. As the Martini court observed, the portion of the legislative history on which MicroStrategy relies "contains the same ambiguity as the statutory language." See Martini, 178 F.3d at 1345. It is clear that Congress intended for complainants to be entitled to a right-to-sue notice after 180 days as a means of "escaping the administrative process." Id. What is not clear from the passages MicroStrategy cites is whether Congress intended the 180-day period to prohibit private actions within 180 days. Id. MicroStrategy points out that Congress "hoped" that the EEOC would handle most complaints and that resort to private litigation would be the exception, not the rule. Defendant's br. at 32-33. However, Congress also believed that "the individual's rights are paramount under the provisions of Title VII," and therefore that "it is necessary that all avenues be left open for quick and effective relief." 118 Cong. Rec. 7168 (1972); accord Sims, 22 F.3d at 1063 (it is clear from the legislative history that Congress intended to protect an "aggrieved person's option to seek a prompt remedy in the best manner available"). Where, as here, the EEOC has completed its administrative processing of a charge, but conciliation has failed, it does not further Congress's intent in enacting § 706(f)(1) to require Lauricia to wait for several months to file her lawsuit. See Sims 22 F.3d at 1063 (when the EEOC has fulfilled its administrative duty without resolving the charge, "the avenue for a 'prompt remedy' is through the courts," and there is no reason to "force victims of discrimination to undergo further delay"). iii. The Structure of Title VII Supports the District Court's Decision. MicroStrategy argues that "[r]eading the relevant language in [§ 706(f)(1)] within the context of Title VII as a whole dispels any doubt that Congress intended the 180-day period to act as a fixed period bar to the filing of private suits." Defendant's br. at 24. To illustrate this point, the company cites to three other provisions of the statute that it says demonstrate that the district court's interpretation of § 706(f)(1) must be wrong. In fact, correctly understood, each one of these provisions reinforces the conclusion that Congress did not require complainants to wait needlessly after the EEOC completed its administrative process. MicroStrategy points to the first sentence in § 706(f)(1) stating that, "[i]f within thirty days after a charge is filed with the Commission . . . [it] has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action." 42 U.S.C. § 2000e-5(f)(1). According to the company, that provision "tracks, in all material respects," the provision at issue here, and, because courts have "uniformly read" the first sentence as a "30-day bar" on the Commission's right to bring suit, the same interpretation should be adopted here. Defendant's br. at 25-26. Even if we accept MicroStrategy's premise that the first sentence of § 706(f)(1) prohibits the EEOC from suing within 30 days after a charge is filed,<4> the company's argument fails because the two provisions differ in a fundamental way. As discussed above, the language at issue in this case states that the EEOC "shall" notify the complainant if the charge is not resolved within 180 days. By contrast, the first sentence of § 706(f)(1) states that the EEOC "may" file an action if it has not resolved the charge within 30 days. In other words, the 30-day provision is of the form: if "a" happens, then the EEOC may do "b." The 180-day provision is of the form: if "a" happens, then the EEOC shall do "b." The former statement arguably supports an inference that, if "a" does not happen, then the EEOC may not do "b," but the latter statement does not. An example will make this point clear. Suppose a teacher tells her students to take out their books and work on some problems and tells them, "After 30 minutes, you may stop working." It would be reasonable to infer from this statement that the students may not stop working before 30 minutes have elapsed. However, if a teacher gives her students an examination and tells them, "After 30 minutes, you shall stop working," no one would infer that a student could not stop working before 30 minutes had elapsed, if she had completed the examination. Yet that is precisely the type of inference MicroStrategy asks the Court to draw in this case. Accordingly, the first sentence of § 706(f)(1) only serves to illustrate how easy it would have been for Congress to write the 180-day provision in a way that would provide, or at least suggest, that the EEOC is not permitted to issue a notice of right to sue sooner than 180 days after a charge is filed by simply substituting the word "may" for "shall." MicroStrategy also relies on § 717 of Title VII that deals with complaints of discrimination in federal employment. Contrary to MicroStrategy's argument, the language in § 717(c) of Title VII supports the view that, in a case like this one, where the EEOC has finished its processing, a complainant need not wait for 180 days before bringing suit. Defendant's br. at 24-25. Section 717(c) provides: Within 90 days of receipt of notice of final action taken by a department, agency, or unit . . . , or by the [EEOC]. . . upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination . . . , or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the [EEOC] . . . an employee or applicant for employment . . . may file a civil action as provided in section 2000e-5 of this title . . . . 42 U.S.C. § 2000e-16(c). MicroStrategy argues that "it could not be clearer" that this provision bars private suits for 180 days after a charge is filed and that "[i]t would hardly make sense to have one procedure in place for federal employees and another for private employees." Defendant's br. at 25. Initially it should be noted that, whether it makes sense to MicroStrategy or not, the procedures for federal sector claims under Title VII differ in significant ways from those for private sector claims. Most importantly, under § 717, the administrative process is more formal and, unlike under § 706, it may result in a determination binding on the employer. West v. Gibson, 527 U.S. 212, 215 (1999). For that reason, the administrative exhaustion requirements under § 717 have been construed more rigorously. Brown v. GSA, 425 U.S. 820, 833 (1976) (discussing § 717's "rigorous administrative exhaustion requirements"). Therefore, MicroStrategy's assumption that the procedures under the two provisions were intended to be the same is flawed. A comparison of the text of the two provisions only supports the district court's decision. Like the first sentence of § 706, § 717(c) takes the form: if "a" happens, then the complainant "may" do "b." Accordingly, the language can support an inference that a complainant may not do "b" if "a" does not occur, that is, he may not file suit if 180 days have not passed. As explained above, a similar inference may not be drawn from the language of the 180-day provision. More importantly, read as a whole, the provisions of § 717(c) clearly permit a complainant to bring a lawsuit whenever the administrative process is complete, even if that occurs in less than 180 days. It provides two alternative conditions that permit the complainant to sue either "receipt of notice of final action taken by a department, agency, or unit,"<5> or "after one hundred and eighty days from the filing of the initial charge." Accordingly, a federal sector complainant is never forced to wait for months after the administrative process is completed. Since § 717 does not bar an aggrieved individual from filing suit in less than 180 days where the administrative process is complete, the analogy MicroStrategy suggests supports, rather than undermines, the district court's decision. Finally, MicroStrategy argues that the district court's decision is inconsistent with § 706(b) which provides that the EEOC "shall make an investigation" of a charge and, if it finds reasonable cause to believe discrimination has occurred, "shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). In making this argument, MicroStrategy relies heavily on the District of Columbia Circuit's decision in Martini, holding that the EEOC's regulation permitting issuance of a right-to-sue notice upon certification that the EEOC probably would not complete the administrative process prior to 180 days conflicts with § 706(b).<6> Defendant's br. at 27-28. Once again, the comparison that MicroStrategy invites only serves to confirm that the district court's decision is correct. The Martini court believed that the regulation at issue there was inconsistent with § 706(b)'s provision that the EEOC "shall investigate" charges because the regulation permits issuance of a notice of right to sue where admittedly no investigation of a charge was undertaken. Here, as the district court recognized, "the EEOC completed its investigation and determined that reasonable cause exists before it issued the right-to-sue letter." J.A. 47. Consequently, the district court was correct in concluding that there is no concern in this case, as there was in Martini, "that permitting the issuance of a right-to-sue letter prior to 180 days allows the EEOC to 'relax its aggregate effort to comply with its statutory duty to investigate every charge filed.'" J.A. 47, quoting Martini, 178 F.3d at 1347. In fact, by contrast, permitting Lauricia to proceed with litigation promptly upon the EEOC's completion of the administrative process serves as an incentive, not a disincentive, for the agency to investigate charges expeditiously and attempt to resolve them informally. Because there is no question that the EEOC completed its investigation before it issued Lauricia a notice of right to sue, MicroStrategy must argue that the conflict here is with § 706(b)'s provision relating to conciliation. However, because it is also clear that the EEOC did attempt conciliation,<7> MicroStrategy must base its argument on a mischaracterization of the conciliation requirement. MicroStrategy is wrong in claiming that the EEOC has an obligation to conduct "extended conciliation efforts." Defendant's br. at 28-29. The statute's plain language states that the EEOC "shall endeavor" to eliminate unlawful employment practices through conciliation (§ 706(b)) and shall notify the complainant where the EEOC "has not entered into a conciliation agreement" that is acceptable to the complainant (§ 706(f)(1)). There is nothing in this language to support MicroStrategy's argument that where, as here, a party has made it absolutely clear to the EEOC that it is not willing to conciliate, the EEOC must either continue attempting conciliation or sit on the charge until 180 days have passed. MicroStrategy argues that the 180-day time period in § 706(f)(1) reflects Congress's view that it was necessary for the EEOC to conduct the extensive conciliation efforts required by § 706(b). However, this argument is flatly inconsistent with the language in the first sentence of § 706(f)(1), which permits the EEOC to file suit after 30 days if there is no conciliation. Here, the EEOC could have filed its own action after 30 days. Obviously, if Congress believed that effective conciliation could not be achieved short of 180 days, it would have attached the same time period to EEOC actions. In fact, when Congress amended Title VII in 1972, it simply stated that, if the EEOC found reasonable cause, "it shall attempt conciliation in conformity with existing law." JOINT EXPLANATORY STATEMENT OF MANAGERS AT THE CONFERENCE ON H.R. 1746 TO FURTHER PROMOTE EQUAL EMPLOYMENT OPPORTUNITIES FOR AMERICAN WORKERS at 17, reprinted in 1972 U.S.C.C.A.N. 2179, 2181. At the time, existing law simply required "that the Commission must be given an opportunity to persuade before an aggrieved person may resort to court action" and recognized that the Commission might be "prevented . . . from attempting persuasion" by the recalcitrance of one of the parties. Johnson v. Seaboard Air Line R.R. Co., 405 F.2d 645, 649 (4th Cir. 1968). In this case, the EEOC invited the parties to conciliate, but Lauricia declined that invitation. Accordingly, there is no need for her charge "to collect dust in the EEOC" for several months before "making its way to [] court." Hooks v. RCA Corp., 620 F.Supp. 1, 2 (E.D. Pa. 1984); cf. Milner v. National Sch. of Health Tech., 409 F. Supp. 1389, 1392 (E.D. Pa. 1976) ("If the Commission determines that conciliation is unlikely, it serves no useful purpose to insist on the running of the full 180-day period before issuance of the right-to-sue letter."). MicroStrategy argues that forcing an aggrieved party to wait for months before filing suit serves the statutory purpose of promoting informal resolution of disputed by imposing a "cooling-off period" before the parties are in litigation. Defendant's br. at 36. This argument has a particularly hollow ring in this case because in the interval between Lauricia's first charge and her lawsuit - during the so-called "cooling-off period" - MicroStrategy filed three separate lawsuits against Lauricia, including a suit seeking a declaratory judgment that it had not retaliated against her. In this context, it becomes clear that what MicroStrategy seeks is a six-month period where the company has the exclusive right to take action against Lauricia while she is forced to sit on her hands. Nothing in Title VII provides such an advantage to respondents. In its conclusion, MicroStrategy states that Lauricia "should be required to exhaust administrative remedies before proceeding with this lawsuit." Defendant's br. at 58. In the context of this case, MicroStrategy's request can only mean returning this case to the EEOC for further conciliation. Such a request makes no sense. The 180-day period has long passed; thus, there is no need to make Lauricia wait any additional time. Moreover, there have already been two attempts at conciliation, both of which proved futile.<8> CONCLUSION For the foregoing reasons, the district court's order denying defendant's motion to dismiss plaintiff's complaint on the basis that she failed to exhaust her administrative remedies should be affirmed. Respectfully submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7010 Washington, D.C. 20507 (202) 663-4716 CERTIFICATE OF COMPLIANCE I hereby certify, pursuant to Rule 32(7)(B) & (C), that this brief was prepared in 14 point Times New Roman and that the word count is 6242. JOHN F. SUHRE AttorneyCERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed first class on this the 16th day of April, 2001, to the following counsel of record: Claude D. Convisser, Esq. Law Office of Claude D. Convisser 922 King Street Alexandria, Virginia 22314 Counsel for Plaintiff-Appellee Carter G. Phillips, Esq. Daniel Meron, Esq. Amanda L. Tyler, Esq. SIDLEY & AUSTIN 1722 Eye Street, N.W. Washington, D.C. 20006 Counsel for Defendant-Appellant JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7016 Washington, D.C. 20507 (202) 663 1 MicroStrategy also argued that this action should be dismissed because Lauricia was required to arbitrate her retaliation claims pursuant to an arbitration agreement. The district court held that the company had waived its right to require arbitration by engaging in significant litigation activity that caused actual prejudice to Lauricia. J.A. 38-44. We do not address this aspect of the court's decision. 2 Moreover, even if Lauricia's retaliation claim were based on the May 9 charge which alleges retaliation, it would be proper pursuant to the EEOC's regulation which provides that, upon notification that conciliation efforts have failed, a claimant may "commence action to enforce [her] rights without waiting for the lapse of 60 days." 29 C.F.R. § 1626.12. 3 MicroStrategy states that the petitioner in Occidental argued that the 180-day period referred to in § 706(f)(1) "applied to the EEOC and barred the agency from suing an employer until 180 days from the date it received complainant's charge." Def.'s br. at 21. This is incorrect. To the contrary, the petitioner argued that the EEOC was required to file suit within the 180-day period after a charge was received. See Occidental, 432 U.S. at 358. 4 The only support MicroStrategy offers for this statement are statements in two district court decisions where the issue was not presented. Defendant's br. at 25-26. As far as we are aware, no court has definitively ruled on the question. 5 A "final action" under § 717 contains "findings on the merits of each issue in the complaint and, when discrimination is found, appropriate remedies and relief." 29 C.F.R. § 1614.110. Further, the EEOC's final decision on appeal also addresses the merits and appropriate remedies where reasonable cause is found. See 29 C.F.R. § 1614.405 (a) & (b). 6 MicroStrategy devotes a portion of its brief to an argument that 29 C.F.R. § 1601.28(a)(2), the regulation at issue in Martini is invalid. Def.'s br. at 37. The Commission disagrees with Martini, and notes that every other court of appeals to address the issue has upheld the regulation. See Walker, 240 F.3d at 1277; Sims, 22 F.3d at 1062-63; Brown, 732 F.2d at 729. However, as the district court recognized, that regulation is not at issue here because the EEOC had investigated and found reasonable cause prior to issuing the right-to-sue letter. J.A. 47. 7 This Court has held that "the Commission's failure to attempt conciliation" does not "bar a claimant's resort to the district court." Long v. Ringling Bros., 9 F.3d 340, 342 (4th Cir. 1993). Thus, even if the EEOC had not attempted to conciliate this charge, that would provide no basis for dismissing Lauricia's lawsuit. 8 Contrary to MicroStrategy's argument, there is no inconsistency between the district court's decision to stay the proceedings for another attempt at conciliation and its determination that the EEOC correctly concluded that further attempts at conciliation would have been futile. Defendant's br. at 29-30. The EEOC has no authority to force either a complainant or a respondent to engage in conciliation. District courts, however, can, and regularly do, stay proceedings and order litigants to attempt settlement. Thus, the district court here simply was exercising its inherent authority to require settlement discussions. As MicroStrategy recognizes, the court-ordered settlement attempt failed after a few days. Defendant's br. at 29. Thus, the district court was correct in concluding that the question as to the conciliation of this charge is moot. J.A. 48.