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 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 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF ISSUE PRESENTED FOR REVIEW . . . . . . . . . . . . . 3 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. District Court Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2. The District Court Erred in Dismissing Mr. Metts' Complaint for Lack of Subject Matter Jurisdiction, Where Proceedings Under State Law Were Commenced and Terminated Pursuant to a Worksharing Agreement Between the Commission and the North Carolina Office of Administrative Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUMTABLE OF AUTHORITIES FEDERAL CASES Anita's New Mexico Style Mexican Food, Inc. v. Anita's Mexican Food Corp, 201 F.3d 314 (4th Cir. 2000) 10 Davis v. North Carolina Dep't of Correction, 48 F.3d 134 (4th Cir. 1995) 7, 9, 15, 17, 18, 19 EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988) 11, 13 EEOC v. Techalloy Maryland, Inc., 894 F.2d 676 (4th Cir. 1990) 8, 10, 12, 14 Love v. Pullman Co., 404 U.S. 522 (1972) 18 Petrelle v. Weirton Steel Corp., 953 F.2d 148 (4th Cir. 1991) 14, 15 FEDERAL STATUTES 28 U.S.C. § 1331 2 28 U.S.C. § 1291 3 Age Discrimination in Employment Act 29 U.S.C. § 633(b) 14 Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. 1, 2, 3 42 U.S.C. § 12117 3 Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e-5(b) 16 42 U.S.C. § 2000e-5(c) passim 42 U.S.C. § 2000e-5(f)(1) 5 STATE STATUTES N.C. Gen. Stat. § 7A-759(b1) 17 N.C. Gen. Stat. § 168A 6 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 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC" or "Commission") is the agency charged by Congress with the administration, interpretation, and enforcement of the federal laws prohibiting employment discrimination, including the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"). This case raises the question whether an ADA plaintiff has commenced proceedings under state law within the meaning of 42 U.S.C. § 2000e-5(c) such that the Commission may process his charge, thus conferring subject matter jurisdiction on the district court. The question presented is important to the Commission's enforcement efforts because, under the district court's erroneous interpretation of the law, many charging parties would be deprived of a means to vindicate their federal statutory rights. Resolution of the question will involve the interpretation of a worksharing agreement between the Commission and the North Carolina Office of Administrative Hearings that governs when proceedings under state law have been commenced. Deference is to be accorded the Commission's "view of how [a] work-sharing agreement should be construed." EEOC v. Techalloy Maryland, Inc., 894 F.2d 676, 679 (4th Cir. 1990). The Commission therefore offers its views to the Court. STATEMENT OF JURISDICTION The district court erroneously held that it lacked subject matter jurisdiction. Contrary to the district court's holding, it had jurisdiction over Mr. Metts' claim pursuant to 28 U.S.C. § 1331 and 42 U.S.C. §§ 12101 et seq. The district court granted a motion to dismiss and entered judgment in favor of the State. (R.16, 17).<1> This Court has appellate jurisdiction to review the district court's final decision under 28 U.S.C. § 1291. STATEMENT OF ISSUE PRESENTED FOR REVIEW Whether the district court erred in dismissing Mr. Metts' complaint for lack of subject matter jurisdiction, where proceedings under state law were commenced and terminated pursuant to a worksharing agreement between the Commission and the North Carolina Office of Administrative Hearings. STATEMENT OF THE CASE This is an employment discrimination case arising under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. John Metts, proceeding pro se, claims that he was denied a reasonable accommodation of his disability in violation of the ADA. The district court dismissed his lawsuit, holding that it lacked subject matter jurisdiction because Mr. Metts failed to comply with the deferral provision in Title VII, which is incorporated into the ADA. See 42 U.S.C. § 12117. The deferral provision requires that proceedings be initially commenced under state law. See 42 U.S.C. § 2000e-5(c). 1. Facts The Commission and the North Carolina Office of Administrative Hearings ("OAH") have entered into a worksharing agreement ("Agreement")<2> "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 in 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.<3> The Commission referred the charge to OAH. However, pursuant to its waiver in the Agreement, OAH returned the matter to the Commission for investigation.<4> 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").<5> 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 State of North Carolina filed a motion to dismiss for lack of subject matter jurisdiction. 2. District Court Decision The district court granted the State's motion, 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). The district court began its analysis by noting that proceedings must be initially commenced under state law only if state law affords a remedy for the alleged violation. (R.16 at 3). The district court, therefore, looked to North Carolina law to determine whether it provided a remedy for an employer's alleged failure to accommodate an individual's disability. Mr. Metts had argued below that state law did not provide a remedy, but the district court disagreed, concluding that N.C. Gen. Stat. § 168A provides a remedy for failure to accommodate. (R.16 at 4-5). Thus, the district court concluded, Mr. Metts was required to commence proceedings under state law. The district court acknowledged that the Commission referred Mr. Metts' charge "to the OAH pursuant to the work sharing agreement of those agencies" and that OAH transferred the charge back to the Commission.<6> (R.16 at 7). The district court further acknowledged that the Commission investigated the charge and found cause to believe that Mr. Metts' employer had unlawfully discriminated. Finally, the district court recognized that when conciliation failed, the case was transferred to the Department of Justice, which issued Mr. Metts a notice of right to sue. 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 processed a 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 at 6-7 (quoting Davis, 48 F.3d at 139)). The district court likened Mr. Metts to the Davis plaintiff, stating, "like Davis, [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 state's motion and dismissed Mr. Metts' complaint. SUMMARY OF ARGUMENT The district court erred in dismissing Mr. Metts' complaint. Under the deferral provision applicable to the ADA, 42 U.S.C. § 2000e-5(c), proceedings must first be commenced under state law before a charging party may pursue a claim with the Commission. However, as the Supreme Court has made clear, and as this Court has acknowledged, states may waive their right to have "first crack" at employment discrimination charges. See EEOC v. Techalloy Maryland, Inc., 894 F.2d 676, 678 n.3 (4th Cir. 1990) (citing EEOC v. Commercial Office Products Co., 486 U.S. 107, 117-20 (1988)). When a state waives its deferral right in a worksharing agreement, the legal effect of the agreement is to commence and terminate proceedings under state law, within the meaning of the statute, so that the Commission may process the claim immediately. That is exactly what occurred in the case at bar. The district court erroneously relied on Davis v. North Carolina Dep't of Correction, 48 F.3d 134 (4th Cir. 1995), which held that, under circumstances wholly distinct from the circumstances surrounding Mr. Metts' charge, the plaintiff had not commenced proceedings under state law. For a myriad of reasons, Davis is simply not applicable to the case at bar. First of all, in Davis, unlike in the case at bar, the state deferral agency addressed a federal, as opposed to a state, claim. Moreover, in Davis there was no waiver pursuant to a worksharing agreement that commenced state proceedings. Additionally, since Davis, the North Carolina legislature has amended the state deferral statute to clarify that the date a charge is filed with the Commission is considered to be a commencement of proceedings under state law. For all of these reasons, Davis is inapposite. The district court's ruling is contrary to Fourth Circuit and Supreme Court precedent governing the operation of worksharing agreements. The district court's error has cost Mr. Metts his day in court, depriving him of the means to vindicate his federal right to be free of disability discrimination in the workplace. The Court should reverse and remand for Mr. Metts to proceed with his ADA claim. ARGUMENT 1. Standard of Review Whether the district court had subject matter jurisdiction is a question of law that the Court reviews de novo. Anita's New Mexico Style Mexican Food, Inc. v. Anita's Mexican Foods Corp., 201 F.3d 314, 316 (4th Cir. 2000). In deciding the question of subject matter jurisdiction, the Court will be called upon to interpret a worksharing agreement to which the Commission is a party. The Commission's "view of how [a] work-sharing agreement should be construed . . . should be respected." EEOC v. Techalloy Maryland, Inc., 894 F.2d 676, 679 (4th Cir. 1990). 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). Id. at 678. 2. The District Court Erred in Dismissing Mr. Metts' Complaint for Lack of Subject Matter Jurisdiction, Where Proceedings Under State Law Were Commenced and Terminated Pursuant to a Worksharing Agreement Between the Commission and the North Carolina Office of Administrative Hearings. The district court erred in dismissing Mr. Metts' complaint. In holding that it lacked subject matter jurisdiction, the district court failed to appreciate the legal effect of the Agreement. The district court, therefore, misunderstood the requirements necessary to commence proceedings under state law within the meaning of 42 U.S.C. § 2000e-5(c). 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 Products Co., 486 U.S. 107, 110-11 (1988). In order to administer the enforcement provisions of anti-discrimination statutes expeditiously, many deferral states have entered into worksharing agreements with the Commission. The Commission and OAH have entered into just such an agreement, designed, by its terms, "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. (Agreement ¶ II.A.). By the express terms of the Agreement, a charge received by the Commission will automatically initiate proceedings in the Commission and OAH simultaneously. (Id.). Furthermore, the 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 Agreement, 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, state proceedings are commenced and terminated by operation of the Agreement, such that the Commission may process the claim without any further delay. As this Court has made clear, "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 Products, 486 U.S. at 117-20). Indeed, the waiver "is a voluntary choice made through [an] individually negotiated agreement[] . . . ." Commercial Office Products, 486 U.S. at 117. Moreover, worksharing agreements benefit both the Commission and the states because they clarify which agency has primary responsibility for processing different categories of charges. Id. at 117-18. Where, as here, a state agency enters into a worksharing agreement that waives its deferral right, this waiver "terminates" proceedings within the meaning of §2000e-5(c). Commercial Office Products, 486 U.S. at 115-16. In the case at bar, not only were state proceedings commenced and terminated by operation of the waiver, but the Commission physically transmitted the charge to OAH, which transferred the charge back to the Commission for investigation. There can be no doubt, then, that OAH waived its period of exclusive jurisdiction to process Mr. Metts' charge. Consequently, the Commission had jurisdiction to process his claim, and his right-to-sue notice was valid, conferring subject matter jurisdiction on the district court. Following the Supreme Court's lead in Commercial Office Products, this Court has held that the state's waiver in a worksharing agreement "is self-executing" and, therefore, state proceedings are commenced and terminated by operation of the agreement. Techalloy, 894 F.2d at 678. The worksharing agreement in Techalloy contained a waiver provision similar to the one in the case at bar. See id. Thus, under the holding in Techalloy, proceedings under state law were commenced and terminated. This Court's decision in Petrelle v. Weirton Steel Corp., 953 F.2d 148 (4th Cir. 1991), which, like Techalloy, the district court failed to address, also compels a different result than the one that the district court reached. In Petrelle, as in Techalloy, the Court once again signaled its approval of worksharing agreements as a means to waive a state's deferral rights, thereby commencing proceedings under state law. Petrelle arose under the ADEA, which contains a deferral provision analogous to the one in Title VII. See 29 U.S.C. § 633(b) (stating that, in a deferral state, no suit may be brought "before the expiration of sixty days after proceedings have been commenced under . . . State law, unless such proceedings have been earlier terminated"). The Court held that, under the particular worksharing agreement in that case, proceedings under state law are "commenced" when the Commission refers the charge to the state deferral agency. Petrelle, 953 F.2d at 153. Although the worksharing agreement in the case at bar is less restrictive in that respect -- that is, it does not require a physical transmittal of the charge for proceedings to be commenced under state law -- nonetheless, Mr. Metts' charge was transmitted and received by OAH. If state proceedings were commenced in Petrelle, a case involving a more restrictive worksharing agreement, then state proceedings were certainly commenced in the instant case. In concluding that it lacked subject matter jurisdiction, the district court relied on Davis v. North Carolina Dep't of Correction, 48 F.3d 134 (4th Cir. 1995). We submit that the district court's insistence that Davis is applicable to the case at bar is due to the district court's misreading of Davis, and, most likely, to the fact that the district court had not been made aware of the specific terms of the worksharing agreement. In Davis, the plaintiff challenged the removal of his employment discrimination action from the state administrative agency to federal court. Id. at 136. This Court agreed that removal was improper. Id. The Court's holding rested on the fact that the district court did not have jurisdiction over the claim because proceedings under state law were not commenced. Id. at 139-40. However, the holding in Davis is limited to a particular set of factual and procedural circumstances that were "something of an aberration" and that are not present in the case at bar. See id. at 141. The plaintiff in Davis had filed a charge with the Commission under Title VII, and the Commission referred the charge to the state so that it could conduct proceedings under state law. Instead of processing the charge under state law, however, the state deferral agency processed the plaintiff's charge under federal law. Id. at 138-39. Thus, the Court concluded that proceedings under state law were not commenced. Id. at 139-40. The Court elaborated that 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" within the meaning of § 2000e-5(c). Id. at 139 (emphasis added). Davis is readily distinguishable from the case at bar, both factually and legally. Although Mr. Metts filed his charge under the ADA, the state deferral agency did not "unequivocally address only that [federal] claim." By operation of the Agreement, state proceedings were commenced and terminated, whereas in Davis there was no waiver pursuant to a worksharing agreement. Pursuant to the Agreement here, OAH transferred the charge back to the Commission for investigation. The Commission investigated Mr. Metts' charge, found cause to believe that the ADA had been violated, and, when DOJ determined that it would not file suit, it issued a right-to-sue notice. Thus, in the instant case, unlike in Davis, proceedings under state law were commenced and terminated under § 2000e-5(c) by operation of the Agreement, and Mr. Metts exhausted his administrative remedies under § 2000e-5(b). Davis was "something of an aberration" according to this Court because the state referral agency processed a federal claim. Davis, 48 F.3d at 141. Since the decision in Davis was handed down, two important things have happened. First, it is our understanding that OAH no longer investigates and processes charges under federal law (no doubt because of the ruling in Davis). Secondly, and more importantly, the North Carolina legislature amended state law to clarify OAH's role as a deferral agency. Specifically, the pertinent statute now provides that a deferred charge may be filed either with OAH or with the Commission 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)."<7> N.C. Gen. Stat. § 7A-759(b1) (1998) (emphasis added). This portion of the statute was not in effect at the time Davis was decided. This amendment provides further support for the Commission's position that, since state proceedings were commenced, the district court erroneously relied on Davis. Davis should remain limited to its own peculiar factual and procedural scenario, one that is unlikely to occur again in light of the legislature's subsequent action. Ignoring the legal effect of the Agreement and North Carolina's legislative fix after Davis, the district court insisted that Mr. Metts "has never alleged that he has, at any time, attempted to instigate an action under state law." (R.16 at 7). However, one need not actually file a charge with a state agency, or even make reference to a state law, in order to "commence" proceedings under state law. Indeed, as the Supreme Court has observed, "[n]othing in [Title VII's deferral provision] suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself . . . ." Love v. Pullman Co., 404 U.S. 522, 525 (1972) (holding that the requirement of commencing proceedings under state law was satisfied where the Commission orally referred the charge to the state agency, which then indicated that it declined to take action). Plainly, state proceedings were commenced and terminated here, even though Mr. Metts neither filed his charge with the state agency nor cited a North Carolina statute in his charge. As the Supreme Court has admonished, courts should not make filing a charge of discrimination a trap for the unwary, particularly where the claimant is unrepresented. See Love, 404 U.S. at 526-27 (judicial embellishment of Title VII with additional procedural technicalities is "particularly inappropriate" because Title VII is "a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process."). It should be enough that, as here, the claimant recounts the factual basis for the claim. Once that is done, it is up to the respective agencies, through operation of the law and any controlling contractual agreement, to take care of the procedural aspects of processing the claim. The Commission and OAH did just that in the case at bar. In sum, without having the benefit of the terms of the Agreement, the district court erroneously relied on Davis, to the exclusion of governing Supreme Court precedent, Fourth Circuit precedent, and the North Carolina statute declaring when state proceedings are commenced. The district court's error has deprived Mr. Metts, a pro se litigant who has a potentially meritorious claim, of his day in court. Moreover, the district court's error perpetuates a common misreading of Davis that jeopardizes future complainants' access to federal court to obtain redress for violations of federal anti-discrimination laws. CONCLUSION For the foregoing reasons, this Court should reverse the district court's dismissal of Mr. Metts' complaint and remand for further proceedings. 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 April 12, 2000CERTIFICATE 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 3,952 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 12th day of April 2000, eight true and correct copies of the foregoing brief were mailed via Federal Express to the Clerk of Court, and two true and correct copies were mailed via Federal Express to counsel of record at the following address: James Peeler Smith, Esq. Special Deputy Attorney General North Carolina Department of Justice Post Office Box 629 Raleigh, North Carolina 27602 Two true and correct copies of the foregoing brief were also mailed first class, postage pre-paid, to the pro se plaintiff-appellant at the following address: John Van B. Metts III 302 Jarvis Circle Wilmington, North Carolina 28412 Caren I. Friedman A D D E N D U M 1Citations to the record proper are abbreviated "R." and refer to the district court docket sheet number. 2The Agreement is contained in an Addendum to this brief. 3The charge number is 141980193. Mr. Metts filed a subsequent charge, number 141990077, which is not at issue in this appeal. 4In order for state proceedings to be commenced, the Agreement does not require referral when a charge under the ADA is initially filed with the Commission. (Agreement ¶ III.A.). Nevertheless, the Agreement provides for some flexibility in order to achieve the goal of efficiency. See, e.g., Agreement ¶ II.C. ("Charges may be transferred between EEOC and Office of Administrative Hearings within the framework of a mutually agreeable system."); Agreement ¶ III.B. ("Notwithstanding any other provision of the Agreement, [the agencies] may request to be granted the right to initially process any charge."). 5If 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). 6The district court inaccurately stated that OAH transferred the charge back to the Commission for the "completion of the investigation and final processing." (R.16 at 7) (emphases added). There is no record evidence that OAH at any time investigated Mr. Metts' claim before sending it back to the Commission. 7The North Carolina statute defines a "deferred charge," for purposes of 42 U.S.C. § 2000e-5(c), as one that is filed by a state employee and that alleges an unlawful employment practice prohibited under state law. As discussed above, the district court rejected Mr. Metts' argument that failure to accommodate a disability is not prohibited by North Carolina law. On appeal, Mr. Metts reasserts this argument, unaided by legal counsel. In our view, the district court was correct that North Carolina law provides a remedy. Accordingly, state proceedings were commenced and terminated pursuant to the Agreement and to N.C. Gen. Stat. § 7A-759(b1) (1998).