Paul D. Ramshaw California State Bar # 113988 Equal Employment Opportunity Commission 131 M St., NE, Room 5SW18K Washington, DC 20507 paul.ramshaw@eeoc.gov (202) 663-4737 (202) 663-7090 (fax) Attorney for amicus EEOC IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO ) JULIE MADSEN, an individual, ) ) Plaintiff, ) Case No. CV 08-243 ) vs. ) EEOC'S MEMORANDUM AS AMICUS ) IN SUPPORT OF PLAINTIFF'S IDAHO EMERGENCY PHYSICIANS, ) MOTION FOR RECONSIDERATION P.A., an Idaho professional corporation; ) and DAVID KIM, M.D., an individual, ) ) Defendants. ) ____________________________________ ) I. STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the federal agency that Congress established to enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and other federal laws prohibiting employment discrimination. 42 U.S.C. § 2000e-4(a). Since Title VII and the ADA require employees who have experienced employment discrimination to file timely charges with the EEOC if they want to preserve their right to sue, 42 U.S.C. § 2000e-5(e)-(f), the EEOC has a strong interest in assisting federal courts as they apply the relevant statutory and regulatory provisions in determining whether a particular charge of discrimination was timely filed with the EEOC. II. BACKGROUND Julie Madsen is a doctor, and the defendant, Idaho Emergency Physicians ("IEP"), is a group of doctors that staffs the emergency room at a hospital. R-56 at 1-2. Madsen began working for IEP in early 2002. Id. She became pregnant in early 2004, experienced complications, and took substantial medical and pregnancy leave that year. Id. at 2. She was also on medical leave for the first half of 2006. Id. Madsen alleges that IEP took various adverse actions against her at various times because of her gender and her disability, post-partum depression. R-43 at 9-14. Among other things, she alleges that, during the spring of 2006, IEP failed to maintain confidentiality with respect to her disability. R-43-1 at 12-13. She also alleges that in the summer of 2006 IEP refused to allow her to return to work part-time. Id. at 14-16. The parties dispute when her employment with IEP ended. She did not work for IEP after mid-July of 2006. R-56 at 3. Madsen filed a charge with the Idaho Human Rights Commission on January 22, 2007, and asked that it be filed also with the EEOC. R-60-2, Exh. A. The charge alleged discrimination beginning in March 2002 and continuing until mid-October 2006. Id. The EEOC has a work-sharing agreement with the IHRC that was in effect when Madsen submitted her charge. (Copy attached as Exhibit A to Durbin declaration.) In the work-sharing agreement, each agency appoints the other as its agent "for the purpose of receiving and drafting charges." Work-Sharing Agreement ("WSA") II.A. The agreement also states that a charge will normally be processed by the agency that "originally receive[s]" it, WSA III.A, except that Title VII and ADA charges received by the IHRC "240 days or more after the date of the violation" shall be "initially process[ed]" by the EEOC. WSA III.A.1. In its motion for summary judgment, IEP argued that some of Madsen's claims were time-barred, but IEP's argument assumed that Madsen had 300 days to file her charge. R-29 at 4-5. IEP did not argue that Madsen had only 180 days. Id. This Court granted summary judgment in late March 2010, ruling that all of Madsen's federal claims were time-barred. R-56 at 9-10. The Court noted that § 706(e)(1) of Title VII allows a person 300 days to file her charge only if she "initially instituted proceedings with a State or local agency." Id. at 9. According to the Court, "The longer 300-day time limit is inapplicable here because the Plaintiff filed with both entities on the same day; she did not initially file with the IHRC." Id. at 10. Since Madsen failed to allege any specific adverse actions that occurred within 180 days of the filing of her charge, the court dismissed all her federal claims as untimely. Id. at 10-11. III. ARGUMENT MADSEN HAD 300 DAYS TO FILE HER CHARGE. Section 706(e)(1) of Title VII gives a person in a deferral state<1> 300 days to file her charge with the EEOC if she "initially instituted proceedings" with the state agency. 42 U.S.C. § 2000e-5(e)(1). However, section 706(c) states that a charge cannot be filed with the EEOC in a deferral state until the state agency terminates its proceedings or 60 days have passed (after the state charge was filed), whichever occurs first. 42 U.S.C. § 2000e-5(c); see EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 110-11, (1988) (restating § 706(c)'s prohibition). If the state agency waives its right to the 60-day exclusive processing period, that action terminates the agency's proceedings for § 706(c) purposes, and the EEOC is then free to file the charge and start processing and investigating it. Commercial Office Prods., 486 U.S. at 114-22 (holding that a state agency's waiver of its exclusive processing period "terminates" that agency's proceedings under § 706(c)). Thus three events have to occur in the following sequence for a charging party to benefit from the extended filing period: (a) a charge must be filed with the state agency; (b) the state- agency proceeding must be terminated or waived (or 60 days must pass); and (c) the charge must be filed with the EEOC. See, e.g., Griffin v. City of Dallas, 26 F.3d 610, 612-14 (5th Cir. 1994) (discussing the three steps); Green v. Los Angeles County Supt. of Schools, 883 F.2d 1472, 1476 (9th Cir. 1989) (same). The standard work-sharing agreement is designed to ensure that these three events occur in the proper sequence and render charges filed within 300 days of the alleged discrimination timely. The work-sharing agreement here rendered Madsen's charge timely as to any adverse actions that occurred within 300 days of when she filed her charge. On January 22, 2007, she filed a charge with the IHRC. That was the first required step: she initially instituted proceedings with the state agency. At the same time, the IHRC, acting as the EEOC's agent (pursuant to the agent-appointment clause in the work-sharing agreement, WSA II-A), received the charge as an EEOC charge. See Green v. Los Angeles County Supt. of Schools, 883 F.2d 1472, 1476 (9th Cir. 1989). In Green, the plaintiff physically filed a charge only with the state agency, as Madsen did here, but her charge was deemed to have been received by the EEOC on the same day [that she filed it with the state agency] because under the worksharing agreement the [state agency] was an agent of the EEOC for the purpose of receiving charges. Id. at 1476. The second required step is for the IHRC to terminate its proceedings (including by waiving the exclusive processing period) or for 60 days to pass. The analysis differs for alleged discriminatory actions that occurred within 239 days of when Madsen filed her IHRC charge, on the one hand, and alleged discriminatory actions that occurred between 240 and 300 days before she filed, on the other. With respect to the former, the IHRC did not, in the work-sharing agreement, waive its right to initially process those allegations, but it did not have to waive that right for those allegations to be timely filed with the EEOC. If someone files a charge with the IHRC 220 days after the alleged discriminatory action, for example, the charge is deemed received by the EEOC on the same day, is held there in suspended animation for 60 days, and then springs to life and is deemed automatically filed with the EEOC on day 280, within the 300- day period. See, e.g., Commercial Office Products, 486 U.S. at 111 (stating that a charge received by the EEOC before the state agency's proceedings are terminated or waived is held in suspended animation during the state agency's 60-day exclusive processing period); EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir. 2000) (stating that "a charge filed with a state agency within 240 days of the unlawful employment practice will be guaranteed timely filing with the EEOC"). Insofar as Madsen alleged discrimination that occurred between 240 and 300 days before she filed her IHRC charge, the state agency, in the work-sharing agreement, waived the exclusive processing period with respect to those allegations.<2> That waiver applies to a category of charges and is self-executing, as the Ninth Circuit held in Green. Green, 883 F.2d at 1477-80. There was therefore no need to wait until the IHRC made a decision or filled out a form with respect to Madsen's specific charge. The waiver is deemed to take effect when the IHRC receives the charge. Id. at 1477 (stating that if the state agency's waiver in the work-sharing agreement is self-executing, the state agency's proceedings are deemed "terminated . . . upon filing with the [state agency]"). The waiver constituted the second of the three required steps, because it terminated the state agency's proceedings. See Commercial Office Products, 486 U.S. at 114-22 (holding that a state agency's waiver of the exclusive processing period terminates the agency's proceedings and therefore satisfies that requirement in §706(c)). Once the IHRC proceedings had been instituted and terminated, Madsen's charge, which was deemed already received by the EEOC, was deemed automatically filed with the EEOC. See Griffin, 26 F.3d at 613 (holding that the state agency's self-executing waiver "instantaneously transformed the EEOC's receipt of [the plaintiff's] charge into a filing of that charge") (emphasis in original); 29 C.F.R. § 1601.13(b)(1) (stating in part that "[w]hen a charge is initially presented to a [state fair-employment-practice] agency and the charging party requests that the charge be presented to the Commission, the charge will be deemed to be filed with the Commission . . . upon waiver of the [state] agency's right to exclusively process the charge"). Since Madsen's charge was deemed filed with the EEOC on the same day that she filed it with the IHRC, she had the benefit of the 300-day extended filing period. See Laquagla v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1175 (9th Cir. 1999) (holding that where the plaintiff, 261 days after the alleged discrimination, filed a charge only with the state agency, her charge was timely filed with the EEOC on the same day if the state agency, in the work-sharing agreement, had "waived the 60-day deferral provision for her type of charge"); Green, 883 F.2d at 1480 (holding that where the plaintiff on day 289 filed a charge only with the state agency, the state agency's waiver in the work-sharing agreement with respect to that type of charge allowed her charge to be deemed filed with the EEOC on the same day and therefore timely). In its March 23 order, this Court focused on the fact that § 706(e)(1) allows a 300-day filing period only if the charging party "initially instituted" proceedings with the state agency and ruled that Madsen did not qualify for the extended period because she stated in her complaint that she filed her charge with both the IHRC and the EEOC on the same day. The Court erred in assuming that a person has to file her charge with the EEOC on a different (later) day than that on which she filed with the state agency in order to benefit from the extended period. There is no such requirement. On the contrary, the Ninth Circuit and other courts of appeals have repeatedly held that a charge can be filed (or deemed filed) with the state agency and the EEOC on the same day and still qualify for the 300-day period. See, e.g., Laquaglia, 186 F.3d at 1175 (stating that since state-agency waivers in work-sharing agreements are self-executing, "a charge filed with the state agency before the 300-day filing deadline expires is deemed automatically filed with the EEOC on that same day"); Griffin, 26 F.3d at 612-14 (300-day period applies even when the state filing, the state waiver and the EEOC filing all occur on the same day); Griffin v. Air Prod. & Chem., Inc., 883 F.2d 940, 943-45 (11th Cir. 1989) (same). CONCLUSION The EEOC accordingly respectfully urges the Court to grant the plaintiff's motion for reconsideration. Respectfully submitted this 28th day of May 2010, Equal Employment Opportunity Commission as amicus /s/ Paul D. Ramshaw Attorney VINCENT J. BLACKWOOD Assistant General Counsel CAROLYN L. WHEELER Associate General Counsel P. DAVID LOPEZ General Counsel Equal Employment Opportunity Commission 131 M St., NE, 5th floor Washington, DC 20507 CERTIFICATE OF SERVICE I hereby certify that on this 28th day of May, 2010, I electronically filed this document with the U.S. District Court. Notice will automatically be electronically delivered to the following counsel of record, who are registered with the U.S. District Court CM/ECF system: Keely E. Duke, ked@hallfarley.com Colleen D Zahn, cdz@hallfarley.com Julie Klein Fischer, jfischer@morrowfischer.com Shellie D. Stewart, sstewart@morrowfischer.com /s/ Paul D. Ramshaw *********************************************************************** <> <1> A deferral state is a state that has a state law prohibiting employment discrimination and a state agency that can seek relief for violations of that state law. § 706(c), 42 U.S.C. § 2000e-5(c). Idaho is a deferral state. 29 C.F.R. § 1601.74. <2> The work-sharing agreement states that with respect to charges "to be initially processed by the EEOC," the IHRC "waives its right of exclusive jurisdiction to initially process such charges . . . for the purpose of allowing the EEOC to proceed immediately with the processing of such charges." WSA III.A.1. One category of charges to be initially processed by the EEOC is Title VII and ADA charges "received by the [IHRC] 240 days or more after the date of the violation." Id. (first bullet point).