John Van B. Metts III v. North Carolina Department of Revenue 00-1274 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-1274 JOHN VAN B. METTS III, Plaintiff-Appellant, v. NORTH CAROLINA DEPARTMENT OF REVENUE, Defendant-Appellee. On Appeal from the United States District Court for the Eastern District of North Carolina, Southern Division BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT'S PETITION FOR REHEARING AND REHEARING EN BANC C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CAREN I. FRIEDMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW, 7th Floor Washington, D.C. 20507 (202) 663-4720 STATEMENT OF PURPOSE Pursuant to Fed. R. App. P. 35(b)(1)(A) and 4th Cir. R. 40(b), I express a belief, based on a reasoned and studied professional judgment, that the panel decision: 1) overlooks a material legal matter; and 2) is in conflict with a decision of the United States Court of Appeals for the Fourth Circuit, namely Puryear v. County of Roanoke, 214 F.3d 514 (4th Cir. 2000), and the conflict is not addressed in the opinion. Consideration by the full Court is necessary to secure and maintain uniformity of this Court's decisions. TABLE OF CONTENTS STATEMENT OF PURPOSE. . . . . . . . . . . . . . . . . . . . . . . . . -i- TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . - iii- STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . .. . . . . . . . . . . . . . . . 3 1. District Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Panel Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 6 Mr. Metts Commenced Proceedings Under State Law Pursuant to a Worksharing Agreement Between the Commission and the North Carolina Office of Administrative Hearings, and Pursuant to the North Carolina Legislature's Fix after Davis . . . . . . . . . . . . . . . 6 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUMTABLE OF AUTHORITIES FEDERAL CASES Davis v. North Carolina Dep't of Correction, 48 F.3d 134 (4th Cir. 1995) 2,5,7,12 EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988) 7 EEOC v. Techalloy Maryland, Inc., 894 F.2d 676 (4th Cir. 1990) 7,11-12 Puryear v. County of Roanoke, 214 F.3d 514 (4th Cir. 2000) -i-,2,8-11 FEDERAL STATUTES Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. 1 42 U.S.C. § 12117 5 Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e-5(c) 5,7,8,12 42 U.S.C. § 2000e-5(f)(1) 4 FEDERAL RULES Fed. R. App. P. 35(b)(1)(A) -i- 4th Cir. R. 40(b) -i- STATE STATUTES N.C. Gen. Stat. § 7A-759(b1) 8,12 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-1274 JOHN VAN B. METTS III, Plaintiff-Appellant, v. NORTH CAROLINA DEPARTMENT OF REVENUE, Defendant-Appellee. On Appeal from the United States District Court for the Eastern District of North Carolina, Southern Division BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT'S PETITION FOR REHEARING AND REHEARING EN BANC STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC" or "Commission") is the federal agency charged with interpreting and enforcing the federal laws prohibiting employment discrimination, including the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"). In this private ADA action, a panel of this Court affirmed dismissal of Mr. Metts' complaint on the grounds that he had not commenced proceedings under state law within the meaning of Title VII's deferral provision, which is incorporated into the ADA. In so doing, the panel relied exclusively on Davis v. North Carolina Department of Correction, 48 F.3d 134 (4th Cir. 1995). Davis, however, is no longer viable because the North Carolina legislature has enacted a legislative fix of the problem addressed in the Davis opinion, clarifying that proceedings under state law are commenced on the date a charge is filed with the EEOC. Furthermore, this Court's recent decision in Puryear v. County of Roanoke, 214 F.3d 514 (4th Cir. 2000), makes clear that where, as here, a worksharing agreement has the effect of commencing proceedings under state law upon filing a charge with the EEOC, Davis cannot control. The panel's erroneous application of Davis will have a significant impact on the EEOC's enforcement efforts and on private litigants' ability to obtain redress for unlawful employment discrimination. The Commission, therefore, offers its views as amicus curiae. STATEMENT OF THE ISSUE Whether Mr. Metts commenced proceedings under state law pursuant to a worksharing agreement between the Commission and the North Carolina Office of Administrative Hearings, and pursuant to the North Carolina legislature's fix after Davis. STATEMENT OF FACTS The Commission and the North Carolina Office of Administrative Hearings ("OAH") have entered into a worksharing agreement ("Agreement")<1> "designed to provide individuals with an efficient procedure for obtaining redress for their grievances under appropriate State and Federal laws." (Agreement ¶ I.B.). Pursuant to the Agreement, each agency designated the other as its agent for the purpose of receiving charges such that a charge received by the Commission will automatically initiate proceedings of both the Commission and OAH simultaneously. (Agreement ¶ II.A.). The Agreement further provides that, for charges filed initially with the Commission, OAH waives its right to a 60-day period of exclusive jurisdiction, so that the Commission may immediately begin processing the claim. (Agreement ¶ III.A.1.). Mr. Metts filed a charge with the Commission in December 1997, alleging that his employer, the North Carolina Department of Revenue, engaged in disability discrimination in violation of the ADA when it failed to accommodate his disability. The Commission referred the charge to OAH. However, pursuant to its waiver in the Agreement, OAH returned the matter to the Commission for investigation. The Commission proceeded to investigate Mr. Metts' claim and, in September 1998, found reasonable cause to believe that Mr. Metts' employer had violated the ADA. In December 1998, the Commission notified the parties that efforts to conciliate had failed. The Commission then forwarded a litigation recommendation to the Department of Justice ("DOJ").<2> DOJ determined not to file suit, and, accordingly, issued a notice of right to sue on May 13, 1999. On August 9, 1999, Mr. Metts filed suit pro se in the United States District Court for the Eastern District of North Carolina, alleging a violation of the ADA. In answer to the complaint, the Department of Revenue filed a motion to dismiss for lack of subject matter jurisdiction. 1. District Court Proceedings The district court granted the motion to dismiss, concluding that it lacked subject matter jurisdiction to adjudicate Mr. Metts' ADA claim because proceedings had not first been "commenced" under state law within the meaning of 42 U.S.C. § 2000e-5(c).<3> In deciding that Mr. Metts failed to commence proceedings under state law, the district court relied primarily on Davis v. North Carolina Department of Correction, a case where the plaintiff charged a violation of federal law and the state agency purported to process the claim under federal law. 48 F.3d 134 (4th Cir. 1995). The district court noted that, according to Davis, where "'a complainant steadfastly maintains that he has brought only a [federal] claim and the state referral agency unequivocally addresses only that claim, proceedings under state law have not commenced . . . .'" (R.16<4> at 6-7 (quoting Davis, 48 F.3d at 139)). The district court observed that Mr. Metts "filed a complaint with the EEOC which alleged only a violation of federal law" and he never "attempted to instigate an action under state law." (R.16 at 7). The district court did not find, however, that OAH addressed Mr. Metts' federal claim. The district court held that "pursuant to Davis, the EEOC never had jurisdiction over plaintiff's complaint such that [DOJ] could issue a valid right to sue letter." (R.16 at 8.). Due to what it viewed as an invalid right-to-sue notice, the district court concluded that it lacked subject matter jurisdiction. Id. Accordingly, the district court granted the motion and dismissed Mr. Metts' complaint. 2. Panel Opinion The panel affirmed the district court's dismissal of Mr. Metts' complaint in an unpublished per curiam opinion that cites Davis as the sole legal ground for affirmance.<5> The brief panel opinion acknowledges neither the worksharing agreement between the EEOC and the state of North Carolina, nor the legislative fix that the North Carolina General Assembly enacted after Davis, both of which make clear that proceedings under state law were commenced in the instant case. ARGUMENT Mr. Metts Commenced Proceedings Under State Law Pursuant to a Worksharing Agreement Between the Commission and the North Carolina Office of Administrative Hearings, and Pursuant to the North Carolina Legislature's Fix after Davis. Under Title VII's enforcement provisions, in a deferral state such as North Carolina, "no charge may be filed . . . by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law [prohibiting the unlawful employment practice], unless such proceedings have been earlier terminated . . . ." 42 U.S.C. § 2000e-5(c). This deferral provision gives states "an opportunity to combat discrimination free from premature federal intervention . . . ." EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 110-11 (1988). As this Court has made clear, however, "when a state or local agency voluntarily agrees to waive its rights to have the first crack at remedying local discrimination, no harm is done to the principles of comity which underlie the 60-day deferral period." EEOC v. Techalloy Maryland, Inc., 894 F.2d 676, 678. n.3 (4th Cir. 1990) (citing Commercial Office Prods., 486 U.S. at 117-20). Indeed, the waiver "is a voluntary choice made through [an] individually negotiated agreement[] . . . ." Commercial Office Prods., 486 U.S. at 117. The North Carolina Office of Administrative Hearings has entered into just such a worksharing agreement with the EEOC. The panel opinion, citing Davis v. North Carolina Department of Correction, 48 F.3d 134 (4th Cir. 1995), held that the district court properly dismissed Mr. Metts' complaint because he did not commence proceedings under state law. There are two reasons why Davis simply cannot support the result reached by the panel. First, this Court recently clarified that Davis is inapplicable in a case where, as here, the state, through a worksharing agreement, has agreed to waive its 60-day period of exclusive jurisdiction and has agreed that filing a charge with the Commission commences proceedings under state law. See Puryear v. County of Roanoke, 214 F.3d 514, 519 (4th Cir. 2000) (finding that Davis is neither controlling nor persuasive where state proceedings are commenced pursuant to a worksharing agreement between the EEOC and the state). Second, after this Court decided Davis, the North Carolina General Assembly amended North Carolina law to clarify that a charge may be filed either with the Office of Administrative Hearings (i.e., the state) or with the EEOC and that the date of filing "is considered to be a commencement of proceedings under State law for purposes of 42 U.S.C. § 2000e-5(c)." N.C. Gen. Stat. § 7A-759(b1) (1998) (emphasis added). In ruling that Mr. Metts did not commence proceedings under state law, the panel's per curiam opinion relied exclusively on Davis and addressed neither the Puryear decision nor the legislative fix after Davis. In short, the panel opinion did not address the fact that North Carolina has, in two separate fora, expressly stated that when an individual files a charge of discrimination with the EEOC, proceedings under state law have been commenced. We shall first address North Carolina's worksharing agreement with the Commission and the ramifications of that agreement under Puryear. Next, we shall address North Carolina's legislative fix after Davis. Each demonstrates that Mr. Metts commenced proceedings under state law. In Puryear, the state of Virginia had entered into a worksharing agreement with the EEOC that is virtually identical to the worksharing agreement in the instant case. By the terms of the Puryear agreement, each agency designated the other as its "agent for the purpose of receiving and drafting charges of discrimination" so that "a claim received by one agency is deemed received by the other, initiating each agency's proceedings for purposes of Title VII." Puryear, 214 F.3d at 519 (citations omitted); see also id. at 520 n.6 ("the EEOC's receipt of charges on behalf of the [state agency] automatically initiates the proceedings of both the EEOC and the [state agency] for the purposes of Section 706(c) . . . of Title VII [42 U.S.C. § 2000e-5(c)]"). Likewise, in the instant case, each agency designated the other as its agent for the purpose of receiving charges such that a charge received by the Commission will automatically initiate proceedings in the Commission and OAH simultaneously. See Agreement ¶ II.A. ("EEOC's receipt of charges on [OAH's] behalf will automatically initiate the proceedings of both EEOC and [OAH] for the purposes of Section 706(c) . . . of Title VII [42 U.S.C. § 2000e-5(c)]"). The Puryear agreement also provided that for charges originally received by the EEOC, the state agency "waives its right of exclusive jurisdiction to initially process such charges for a period of 60 days for the purpose of allowing the EEOC to proceed immediately with the processing of such charges before the 61st day." Puryear, 214 F.3d at 519. Thus, the Puryear Court noted, "under the express terms of the [worksharing agreement], a plaintiff, by filing charges with the EEOC, thereby commences proceedings with both the [state agency] and the EEOC." Id. Likewise, in the instant case, the worksharing agreement provides that "[f]or charges originally received by the EEOC . . . [OAH] waives its right of exclusive jurisdiction to initially process such charges for a period of 60 days for the purpose of allowing the EEOC to proceed immediately with the processing of such charges before the 61st day." (Agreement ¶ III.A.1.). Thus, by the express terms of the worksharing agreement in the instant case, when a charge is initially filed with the Commission, OAH waives its deferral right, and the Commission may immediately begin processing the charge. In other words, according to Puryear, state proceedings are commenced by operation of the worksharing agreement. In Puryear, the employer, citing Davis, argued that the plaintiff had failed to commence proceedings under state law. The Court rejected this argument, stating that the existence of the worksharing agreement precluded application of Davis because in Davis, a worksharing agreement's "waiver provision was not at issue." Puryear, 214 F.3d at 519. The Court noted that "the state's waiver provision is entirely consistent with the remedial nature of Title VII, in that it promotes the efficient handling of cases." Id. at 520 (citing Commercial Office Prod., 486 U.S. at 118-19; Techalloy, 894 F.2d at 679). The Court then concluded that the worksharing agreement "between the EEOC and the [state agency] is reasonable, is plainly authorized, serves the goals of the federal legislation, and deserves our deference." Puryear, 214 F.3d at 521 (citations omitted). "We therefore agree," the Court continued, "that the [worksharing agreement's] self-executing operation upon the filing of a complaint with the EEOC complies with Title VII's requirements for the commencement of proceedings under state or local law." Id. The Court went on to note that "[o]ur sister circuits also agree with our position here, as demonstrated by their interpretations of analogous worksharing agreements between federal and state agencies." Id. (gathering cases). The panel's opinion is irreconcilable with Puryear, which plainly controls the outcome here. As Puryear notes, deference must be accorded the Commission's worksharing agreements with state agencies. Id.; see also Techalloy, 894 F.2d at 679 (the Commission's "view of how [a] work-sharing agreement should be construed in light of the requirements of Title VII should be respected"). Additionally, "deference is due EEOC's reasonable interpretation of when state proceedings are commenced and terminated" within the meaning of 42 U.S.C. § 2000e-5(c). Techalloy, 894 F.2d at 678-79. The panel opinion neither discussed, nor even acknowledged the existence of, the worksharing agreement between the EEOC and the OAH. The panel opinion also does not address the Davis legislative fix. After Davis, the North Carolina legislature expressly stated that the date of filing with either the state agency or the EEOC "is considered to be a commencement of proceedings under State law for purposes of 42 U.S.C. § 2000e-5(c)." N.C. Gen. Stat. § 7A-759(b1) (1998) (emphasis added). Davis has no continuing vitality in light of this legislative fix. Davis was based on an aberrational set of circumstances as to the manner in which the state of North Carolina processed a claim of discrimination in that case. See Davis, 48 F.3d at 141 (stating that "[w]e believe this case to be something of an aberration" because the state agency addressed only a federal claim). Those circumstances cannot recur, and thus are not present here, since the North Carolina legislature has clarified that state proceedings are commenced within the meaning of Title VII when a charge is filed with the EEOC. Mr. Metts, a pro se litigant in this Court, has been subjected to a grave injustice by having the dismissal of his complaint affirmed on faulty legal grounds. Mr. Metts did everything he was supposed to do when he filed a timely charge of discrimination with the Commission. By filing his charge with the Commission, Mr. Metts commenced proceedings under state law not only by virtue of the terms of the worksharing agreement, as Puryear makes clear, but also pursuant to North Carolina's legislative fix after Davis. Moreover, the case at bar has far-reaching practical implications beyond the unjust dismissal of Mr. Metts' complaint. The panel's erroneous application of Davis will continue to hamper the Commission's enforcement efforts. By ruling that a litigant has not commenced proceedings under state law, even in the face of a worksharing agreement and a state statute that dictates when proceedings under state law have commenced, the panel is, in effect, denying access to federal court. CONCLUSION For the foregoing reasons, the Court should reverse the district court's dismissal of Mr. Metts' complaint and remand for trial on the merits. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel CAREN I. FRIEDMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 (202) 663-4720 September 25, 2000 CERTIFICATE OF COMPLIANCE WITH TYPEFACE AND LENGTH LIMITATIONS I hereby certify that this brief has been prepared using WordPerfect 8, fourteen point Times New Roman. Exclusive of the table of contents, table of authorities, certificate of service, and addendum, this brief contains 2,614 words. I understand that a material misrepresentation can result in the Court's striking the brief and imposing sanctions. If the Court so directs, I will provide an electronic version of the brief and/or a copy of the word or line print-out. Caren I. Friedman CERTIFICATE OF SERVICE I hereby certify that on this 25th day of September 2000, twenty (20) true and correct copies of the foregoing brief were mailed via Federal Express to the Clerk of Court, and two (2) true and correct copies were mailed first class, postage pre-paid to counsel of record and to the pro se plaintiff-appellant at the following addresses: James Peeler Smith, Esq. Special Deputy Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602 John Van B. Metts III 302 Jarvis Circle Wilmington, North Carolina 28412 Caren I. Friedman A D D E N D U M A. Panel Opinion in Metts v. North Carolina Dep't of Revenue, No. 00-1274 (per curiam) (4th Cir. Sept. 12, 2000) B. Worksharing Agreement Between the EEOC and the North Carolina Office of Administrative Hearings Addendum A Panel Opinion in Metts v. North Carolina Dep't of Revenue, No. 00-1274 (per curiam) (4th Cir. Sept. 12, 2000) Addendum B Worksharing Agreement Between the EEOC and the North Carolina Office1The Agreement is included in an Addendum to this brief. 2If the Commission is unable to secure a conciliation agreement in a case against a governmental agency, the Commission "shall refer the case to the Attorney General who may bring a civil action against" the governmental agency or otherwise must issue a notice of right to sue. 42 U.S.C. § 2000e-5(f)(1). 3Title VII's deferral provision is incorporated into the ADA. See 42 U.S.C. § 12117. 4The district court's order is document number 16 on the district court docket sheet. 5A copy of the panel's opinion is included in an Addendum to this brief.