No. 11-16119 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ELLAMAE MYERS-DESCO, Plaintiff, Appellant, v. LOWE'S HIW, INC., a Washington Corporation, d/b/a LOWE'S, Defendant, Appellee. __________________________________________________________________ On Appeal from the U.S. District Court for the District of Nevada Civil Action No. 2:10-cv-1746 The Hon. Roger L. Hunt, Chief U.S.D.J. __________________________________________________________________ BRIEF OF THE EEOC AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND FOR REVERSAL __________________________________________________________________ P. DAVID LOPEZ GENERAL COUNSEL SUSAN R. OXFORD ATTORNEY CAROLYN L. WHEELER U.S. EEOC ACTING ASSOCIATE GENERAL COUNSEL 131 M Street, N.E. Washington, D.C. 20507 LORRAINE C. DAVIS (202) 663-4791 ASSISTANT GENERAL COUNSEL fax (202) 663-7090 susan.oxford@eeoc.gov TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Statement of the Case and Course of Proceedings. . . . . . . . . . . . 3 2. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . 6 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 MYERS-DESCO SATISFIED TITLE VII'S STATUTORY PREREQUISITES FOR A LAWSUIT, AND THE DISTRICT COURT THEREFORE ERRED IN DISMISSING HER LAWSUIT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. . . . . . . . . . . . . . . . . . . . . . . . 9 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). . . . . . . . .1, 9, 22 Arnold v. United States, 816 F.2d 1306 (9th Cir. 1987). . . . . . . . . 19 Associated Dry Goods Corp. v. EEOC, 720 F.2d 804 (4th Cir. 1983). . . 21 Brown v. General Servs. Admin., 425 U.S. 820 (1976). . . . . . . . . . . .18 Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006). . . . . . . . 2, 15, 16 Edelman v. Lynchburg College, 535 U.S. 106 (2002). . . . . . . . . . . . 11 EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981). . . . . . . . 1, 22 Greenlaw v, Garrett, 59 F.3d 994 (9th Cir. 1995). . . . . . . . . . . . 18 Johnson v. Bergland, 614 F.2d 415 (5th Cir. 1980). . . . . . . . . . . . 14 Jones v. American State Bank, 857 F.2d 494 (8th Cir. 1988). . . . . . . . 11 Long v. Ringling Bros.-Barnum & Bailey Combined Shows, Inc., 9 F.3d 340 (4th Cir. 1993). . . . . . . . . . . . . . . . . . . . 3, 13 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . 9, 10, 12, 21 Mohasco Corp. v. Silver, 447 U.S. 807 (1980). . . . . . . . . . . . . . . 10 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977). . . . . . . . . . .11 Sedlacek v. Hach, 752 F.2d 333 (8th Cir. 1985) . . . . . . . . . 3, 12, 13 Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005) . . 3, 16 Sommatino v. United States, 255 F.3d 704 (9th Cir. 2001). . . . . .7, 17, 18 Surrell v. Calif. Water Serv. Co., 518 F.3d 1097 (9th Cir. 2008). . . 11 Tanious v. IRS, 915 F.2d 410 (9th Cir. 1990). . . . . . . . . . . . . . . 18 University of Tenn. v. Elliott, 478 U.S. 788 (1986). . . . . . . . . . . .21 Vasquez v. County of Los Angeles, 349 F.3d 634 (9th Cir. 2003). . . . . . 6 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983). . . . . . . . . . . . . . . 21 Wrenn v. Sec., Dep't of Veterans Affairs, 918 F.2d 1073 (2d Cir. 1990). . 13 Zipes v. Transworld Airlines, Inc., 455 U.S. 385 (1982). . . . . . . . . 11 Zugay v. Progressive Care, 180 F.3d 901 (7th Cir. 1999). . . . . . . . 2, 14 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). . . . . . . . . . . . . . . . . . . . . . . . . . .6 42 U.S.C. § 2000e-5(b)-(f). . . . . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. §§ 2000e-5(c), (e). . . . . . . . . . . . . . . . . . . . . . . .9 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . . . . . . .1, 9 42 U.S.C. § 2000e-16(c). . . . . . . . . . . . . . . . . . . . . . . . 14 Regulations 29 C.F.R. § 1601.10. . . . . . . . . . . . . . . . . . . . . . . . . . . 20 29 C.F.R. § 1601.28(a)(3). . . . . . . . . . . . . . . . . . . . . . . . 20 29 C.F.R. § 1601.75(a). . . . . . . . . . . . . . . . . . . . . . . . 20 29 C.F.R. §§ 1601.76-1601.79. . . . . . . . . . . . . . . . . . . . . . . 21 29 C.F.R. § 1601.80. . . . . . . . . . . . . . . . . . . . . . . . . . . 20 NAC 233.220 § 1(f). . . . . . . . . . . . . . . . . . . . . . . . . . .5, 19 Rules Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. Civ. P. 12(b)(1). . . . . . . . . . . . . . . . . . . . . . . . 6 STATEMENT OF INTEREST Congress established the Equal Employment Opportunity Commission (EEOC or Commission) to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Although Congress empowered the Commission to bring lawsuits to enforce Title VII, Congress also provided that individuals-like the plaintiff in this action-who believe they have been injured by illegal discrimination can bring private rights of action after they have complied with Title VII's pre-suit administrative requirements. 42 U.S.C. § 2000e-5(f)(1). In such private actions, an aggrieved individual is considered "a 'private attorney general,' whose role in preventing and remedying discrimination is parallel to that of the Commission itself." EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602 (1981). Effective enforcement of Title VII depends on full access to the courts by both the Commission and private litigants. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974). This case involves the important question of whether district courts can limit private litigants' access to the courts by imposing pre-suit requirements beyond those specified in Title VII. Plaintiff Ellamae Myers-Desco complied with Title VII's only two prerequisites for bringing a private action: she filed a timely charge with the EEOC, and she waited until she received a right-to-sue notice from the EEOC before adding her Title VII claims to her pending state-law claims. Nevertheless, the district court dismissed her Title VII claims as "file[d] prematurely" because she had filed a state court action alleging only state-law claims while her discrimination charges were still pending before the state administrative agency and the EEOC. In dismissing this lawsuit on these grounds, the district court read into Title VII a procedural bar to judicial action that neither Congress nor the EEOC has ever imposed-namely, that a party who files a lawsuit alleging separate and distinct state tort claims while the administrative agency is still completing its investigation of the party's Title VII discrimination complaint is barred from seeking judicial enforcement of her statutory anti- discrimination claims. Such a limitation has no basis in the statutory language, the EEOC's regulations, or any decision of this Court or the Supreme Court. If allowed to stand, the ruling will inevitably foreclose other plaintiffs from seeking judicial redress for alleged employment discrimination and, thereby, will diminish effective enforcement of federal statutory rights. Because of the importance of this issue to effective enforcement of Title VII, the EEOC has, over the years, successfully offered its views in a number of similar cases in other courts of appeals.<1> Because the issue remains just as important today, pursuant to Fed. R. App. P. 29(a), we offer our views to this Court. STATEMENT OF THE ISSUE<2> Whether the district court contravened Title VII when it dismissed Myers-Desco's Title VII claims for failure to exhaust administrative remedies although she fully complied with the statutory prerequisites for bringing a Title VII private action. STATEMENT OF THE CASE 1. Statement of the Case and Course of Proceeding On June 8, 2010, Plaintiff Ellamae Myers-Desco filed this lawsuit against Defendant Lowe's HIW, Inc., in Nevada state court alleging only two tort claims under state law. R.9 (Lowe's Motion to Dismiss First Amended Complaint), Exh. B. On October 4, 2010, after receiving an EEOC right-to-sue notice, Myers- Desco amended her complaint to add two Title VII claims. R.9 (Motion to Dismiss), Exh. A. After Lowe's removed the complaint to federal court, R.1, the district court granted Lowe's motion to dismiss the Title VII claims on April 12, 2011, on the ground that Myers-Desco had "failed to exhaust her administrative remedies as required by law." R.23. This appeal followed. 2. Statement of Facts On March 29, 2010, Plaintiff Ellamae Myers-Desco contacted the Nevada Equal Rights Commission (NERC) to initiate the process for filing a discrimination complaint. Myers-Desco alleged that during her ten years as an employee of Defendant Lowe's HIW, Inc., she was denied promotions and training opportunities and was subjected to harassment because of her sex. The NERC forwarded Myers-Desco's complaint to the EEOC, which documented its receipt of the complaint the following day, March 30, 2010. Six weeks later-on May 15, 2010-Lowe's discharged Myers-Desco. On June 8, 2010, Myers-Desco filed a lawsuit in Nevada state court alleging two state law claims against Lowe's: negligent infliction of emotional distress and negligent hiring, training, and supervision. R.9, Exh. B. Myers-Desco thereafter perfected her administrative charge by signing and verifying a formal Charge of Discrimination asserting discrimination based on sex in promotion, training, and sexual harassment.<3> The NERC learned of Myers-Desco's pending lawsuit in state court. Although, at that point, the suit still alleged only state-law claims, NERC notified Myers-Desco by letter dated August 16, 2010, that, "[b]ecause a lawsuit has been filed regarding this complaint," the NERC was "closing this case." R.9, Exh. D. The NERC's letter referenced a provision of the NERC's regulations found in Nevada Administrative Code (NAC) chapter 233.220, which permits (but does not require) the NERC to close a case if "[a] party files a lawsuit involving any of the allegations in the complaint." NAC 233.220 § 1(f) (emphasis added). Pursuant to its worksharing agreement with the EEOC, NERC notified the EEOC that it was closing Myers-Desco's administrative complaint of discrimination. On September 23, 2010-approximately six months after Myers- Desco first initiated her administrative claim with the EEOC-the Commission sent Myers-Desco a dismissal notice indicating the EEOC was adopting the administrative action of the state fair employment practices agency that investigated the charge, i.e., the NERC. The EEOC notice checked off the box that provided the following additional explanation: After factoring in resource considerations, assuring that the Charging Party has been provided a fair opportunity to present his/her case and to elect a course of action in pursuing all allegations therein; sufficient information has been received to conclude that this charge should be dismissed. R.9, Exh. E. The EEOC Dismissal Notice advised Myers-Desco that, if she wished to file a lawsuit against Lowe's under federal law based on the charge, she had ninety days to do so. On October 4, 2010, Myers-Desco amended her state court complaint to add two discrimination claims: gender discrimination in violation of Title VII and Nevada state law, and hostile work environment in violation of Title VII. R.9, Exh. A. Lowe's removed the complaint to federal court and moved to dismiss the Title VII claims on the ground that Myers-Desco had "failed to exhaust her administrative remedies as required by law." R.1; R.9, at 2. Myers-Desco objected on the ground that the lawsuit she initially filed did not include any Title VII claims and that she had amended her lawsuit to allege Title VII violations only after she received her right-to-sue letter from the EEOC. R.14, at 1, 2. 3. District Court Decision The district court dismissed Myers-Desco's Title VII discrimination claims for failure to exhaust her administrative remedies. R.23 (Order), at 5. Noting that, under Federal Rule of Civil Procedure 12(b)(1), a claim may be dismissed for lack of subject matter jurisdiction, the court stated that "[t]o establish federal subject matter jurisdiction over Title VII claims, plaintiffs must first exhaust their administrative remedies before seeking federal adjudication of those claims." See id. at 4 (citing 42 U.S.C. § 2000e-5(b) and Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003)). The court further stated that "abandonment or failure to cooperate in the administrative process prevents exhaustion and precludes judicial review." Id. at 5 (quoting Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001)). The court reasoned that, by filing suit "in State Court alleging the [state] tort claims . . . before either [NERC or EEOC] had investigated her claims" and by basing her tort claims "on the same facts that she alleged in her complaint to the NERC and EEOC," Myers-Desco "caused NERC and EEOC to close her discrimination case before they conducted an investigation." Id. at 5. The court concluded that, having done so, "Myers-Desco failed to exhaust her administrative remedies." Id. (stating that, since Myers-Desco "filed suit before the agencies had the opportunity to conduct their investigations . . . she caused the agencies' failure to investigate"). The district court further concluded that, if it failed to dismiss Myers- Desco's federal discrimination claims, the court would, in effect, be sanctioning an "end-run" around Title VII's administrative exhaustion requirement: Here, NERC and the EEOC ended their investigations solely because of Myers-Desco's decision to file suit prematurely. . . . [T]he Court cannot condone such conduct by allowing Myers-Desco to proceed here. If the Court were to allow Myers-Desco to proceed any other plaintiff could bypass NERC and the EEOC by merely filing suit on the same facts for separate cause[s] of action, forcing the agencies to close their cases and issue right-to-sue letters. The Court will not sponsor this end run around the administrative process. Id. at 5-6. SUMMARY OF ARGUMENT The district court erred in dismissing this lawsuit for lack of subject matter jurisdiction on the ground that Myers-Desco failed to exhaust her administrative remedies. To the contrary, Myers-Desco did all that Title VII requires before filing a lawsuit alleging Title VII violations: she filed a charge with the EEOC and she waited until she received a right-to-sue notice before filing Title VII claims in court. Indeed, Title VII's requirements that a plaintiff file a charge with the EEOC and receive a right-to-sue notice from the EEOC before filing a Title VII claim in court are not even "jurisdictional" requirements, but are simply statutory prerequisites subject to waiver and estoppel in appropriate circumstances. The state-law claims that Myers-Desco filed in court while her Title VII charge was pending administratively did not "cause" the EEOC to dismiss her charge, even if it was the reason NERC gave for its discretionary, administrative decision to dismiss her charges under Nevada's anti-discrimination statute. Nothing in the language of Title VII or the EEOC's regulations expressly or implicitly requires the EEOC to dismiss a Title VII charge if the state agency decides, for any reason, to discontinue its investigation of a comparable state-law charge. Nor did Myers-Desco's decision to file her state-law tort claims in court while her Title VII charge was still pending before the EEOC pose any other impediment to her pursuit of judicial relief on her federal statutory claims. Nothing in the language of Title VII expressly or implicitly requires an aggrieved individual to refrain from filing a state-law claim until the EEOC has completed its investigation. ARGUMENT MYERS-DESCO SATISFIED TITLE VII'S STATUTORY PREREQUISITES FOR A LAWSUIT, AND THE DISTRICT COURT THEREFORE ERRED IN DISMISSING HER LAWSUIT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. Title VII "specifies with precision" the only two statutory prerequisites for filing a lawsuit alleging a Title VII claim. Alexander v. Gardner-Denver, 415 U.S. 36, 47 (1974). A plaintiff seeking to pursue a claim of sex discrimination under Title VII must first file a charge with the EEOC that fairly encompasses the claim in question. In a state like Nevada, which has a state law prohibiting employment discrimination, this charge must be filed within 300 days of the alleged discriminatory conduct. 42 U.S.C. §§ 2000e-5(c), (e). A plaintiff must also obtain a right-to-sue notice from the EEOC and file her Title VII claims in court no later than ninety days thereafter. 42 U.S.C. § 2000e-5(f)(1). These are the only administrative requirements that a private-sector plaintiff such as Myers-Desco must satisfy before bringing a discrimination lawsuit under Title VII. See Alexander, 415 U.S. at 47 (the two prerequisites for filing lawsuit are the filing of a timely charge and receipt of a notice of right-to-sue); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99 (1973) (prerequisites to Title VII suit are filing a timely charge and receiving and acting upon a notice of right-to-sue). Applying this principle, the Supreme Court in McDonnell Douglas rejected the argument that a plaintiff could include a claim in a Title VII lawsuit only if the EEOC found reasonable cause on that claim. 411 U.S. at 798-99. Noting that Title VII "does not restrict a complainant's right-to-sue [in that way]," the Court explained that it would "not engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts." Id. at 789-99. Similarly, in Mohasco Corp. v. Silver, 447 U.S. 807 (1980), the Supreme Court noted its disapproval of a judicially-created requirement that a Title VII plaintiff must initiate state proceedings within 180 days of the alleged discriminatory occurrence, even though the statute provided only that, in a state that has a state anti-discrimination statute, a charging party must file his or her charge within 300 days. The Court observed that Title VII contains no such "express" requirement that state proceedings be initiated within 180 days, adding, "a court should not read in a time limitation provision that Congress has not seen fit to include." Id. at 816 n.19. The Court reasoned that "experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Id. at 826. See also, e.g., Edelman v. Lynchburg College, 535 U.S. 106, 114 (2002) (rejecting a judicially- created requirement that Title VII charges must be verified within the charge-filing period); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 360-72 (1977) (refusing to infer that state statute of limitations applies to EEOC suits under Title VII). Although the Supreme Court, in Alexander and McDonnell Douglas, referred to the two Title VII pre-suit requirements as "jurisdictional prerequisites," the Court later explained in Zipes v. Transworld Airlines, Inc., 455 U.S. 385 (1982), that the requirement that a charge be timely filed is not a jurisdictional requirement but more akin to a statute of limitations, "subject to waiver, estoppel and equitable tolling." Id. at 393, 398. The Court noted that viewing the timeliness of an EEOC charge in this manner not only gives effect to the structure of the statute, but also "honor[s] the remedial purpose of [Title VII] as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer." Id. at 398. This Court and other courts of appeals have extended this same rationale in holding that the statutory pre-suit requirement that a plaintiff receive a right-to-sue notice from the EEOC is not a jurisdictional prerequisite to suit, but a statutory condition precedent subject to cure after a Title VII lawsuit has commenced. See, e.g., Surrell v. Calif. Water Serv. Co., 518 F.3d 1097, 1104-05 (9th Cir. 2008); Jones v. American State Bank, 857 F.2d 494, 499-500 (8th Cir. 1988). Consistent with Alexander and McDonnell Douglas, courts of appeals have rejected district court efforts to impose additional, administrative pre-suit requirements for Title VII claims, such as requiring a charging party to wait for the EEOC to complete its investigation, to accept relief offered in conciliation, to participate in an administrative fact-finding conference, or otherwise to cooperate with the administrative investigation. In Sedlacek v. Hach, 752 F.2d 333 (8th Cir. 1985), for instance, the Eighth Circuit reversed a district court's dismissal of the plaintiff's Title VII sex discrimination claim where the district court had concluded it lacked subject matter jurisdiction because the EEOC had not yet investigated or attempted to conciliate the plaintiff's discrimination claim. The EEOC, the local civil rights commission, and the Iowa Civil Rights Commission had all dismissed the plaintiff's charge without investigating the merits because they wrongly believed the defendant lacked the statutory minimum of fifteen employees. Id. at 334. The Eighth Circuit noted the Supreme Court's holding in McDonnell Douglas that the only prerequisites to a federal action under Title VII are filing a timely charge and receiving and acting upon an EEOC right-to-sue notice. See id. at 335 (citing McDonnell Douglas, 411 U.S. at 798). The Eighth Circuit further observed that the EEOC's decision not to investigate Sedlacek's charge-based on the Commission's erroneous conclusion that her former employer had fewer than fifteen employees-was "beyond her control." Id. The court ruled: "The action or inaction of the EEOC and its failure to attempt conciliation cannot affect a complainant's substantive rights under Title VII." Id. (citations omitted). Similarly, in Long v. Ringling Bros.-Barnum & Bailey Combined Shows, Inc., 9 F.3d 340, 342 (4th Cir. 1993), the Fourth Circuit reversed the district court's dismissal of a plaintiff's Title VII sex discrimination claim on the ground that her rejection of the defendant's offer of "full relief" during conciliation barred her from filing suit in federal court. Id. at 341-42. As the Fourth Circuit explained, "[b]y submitting her claim to the Commission and acting on the right-to-sue notice, Long satisfied all of the prerequisites for her Title VII action." Id. at 342; see also id. (filing a timely charge and receiving an EEOC notice of right-to-sue are "the only prerequisites a claimant must satisfy") (citing Sedlacek, 752 F.2d at 335). The Fourth Circuit rejected the defendant's reliance on a decision involving a federal employee, explaining that Title VII imposes administrative exhaustion requirements on federal employees that are not imposed on private sector employees. Id. at 343 (ruling inapposite Wrenn v. Sec., Dep't of Veterans Affairs, 918 F.2d 1073 (2d Cir. 1990)). The Seventh Circuit, applying the same "well-established" principle that filing a timely charge with the EEOC and receiving a right-to-sue letter from the EEOC are the only statutory prerequisites to suit under Title VII, reversed a district court's ruling that a charging party lost her right to proceed in court on her pregnancy discrimination claim when she withdrew her charge shortly before the state administrative agency was scheduled to conduct a fact-finding conference. Zugay v. Progressive Care, 180 F.3d 901, 902 (7th Cir. 1999). The district court had dismissed her federal lawsuit on the ground that the scheduled fact-finding conference might have resulted in an administrative resolution of the plaintiff's claims and that Zugay had "frustrated" the state agency's "attempts to reach the merits of her claim" by withdrawing her claim before the fact-finding conference took place. Id. As the Seventh Circuit explained, however, "[n]owhere does Title VII state that a plaintiff must complete the state administrative process before starting federal proceedings. . . . [T]o the extent that there is an exhaustion requirement for state administrative remedies, the requirement was satisfied when Zugay filed a charge with the IDHR and cooperated with the agency for more than 60 days." Id. The Seventh Circuit explained that the district court's reliance on a case involving a federal employee "was misplaced" because federal employees are subject to a different set of administrative requirements. Id. at 903.<4> A few years later, the Seventh Circuit clarified that Title VII does not impose a pre-suit requirement that a charging party "cooperate" with the EEOC before bringing Title VII claims in court. In Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006), the Seventh Circuit reversed the district court's dismissal of a plaintiff's Title VII sexual harassment claim on the ground that Doe, who had been a teenager when she was allegedly harassed by her male supervisor, declined to discuss the harassment with the EEOC investigator. Although the EEOC dismissed her administrative charge for lack of cooperation, the Commission nevertheless issued her a right-to-sue letter. Id. at 709. The Seventh Circuit, in rejecting the district court's conclusion that Doe's failure to cooperate was an absolute bar to suit, noted the difficulties that would be introduced by any pre-suit requirement that a private-sector plaintiff must "cooperate" with the EEOC investigation as a precondition to suit. Id. at 710-11 (a cooperation requirement, "if widely adopted, . . . would protract and complicate Title VII litigation, . . . with little or no offsetting benefit"). The court also acknowledged that a different rule applies when the Title VII plaintiff is a federal employee, because of the different statutory framework. See id. at 712. The court found such a rule inapplicable, in any event, to private sector employees because it exceeds what Title VII provides. Id. at 710-12.<5> The courts of appeals in each of these cases reaffirmed the principle that Title VII imposes only two pre-suit requirements: that an aggrieved individual file a charge concerning the subject matter of her lawsuit, and that she obtain a right- to-sue notice from the EEOC. Beyond that, the statute imposes no pre-suit requirement that a Title VII plaintiff, for example, participate in a state agency's fact-finding conference; await the agency's reasonable cause finding; accept an offer of "full relief" during conciliation; or in any other way "cooperate" with the administrative agency during its investigation. If Congress intended such circumstances to serve as prerequisites for a Title VII lawsuit (and, hence, a bar to a lawsuit where they have not been met), Congress could have so specified. It did not, and the Supreme Court, as well as the Fourth, Seventh, and Eighth Circuits, have properly rejected district court efforts to engraft any such requirements onto Title VII. Myers-Desco's pursuit of alternative, state-law remedies in state court while her charge was pending with the administrative agencies was no more "uncooperative" than the conduct of the plaintiffs in the cases discussed above, but for the same reasons noted in those cases, her state-law action did not justify dismissal of her Title VII claims. Congress did not specify in Title VII that a plaintiff must refrain from filing any state-law tort action while her administrative charge is pending. In erroneously imposing this additional pre-suit requirement on Myers-Desco, the district court here, like the district courts in the cases discussed above, strayed outside the statutory language and mistakenly relied on a decision involving a Title VII action filed by a federal employee, Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001). See R.23 (Order), at 5 (quoting Sommatino for the principle that "abandonment or failure to cooperate in the administrative process prevents exhaustion and precludes judicial review"). The court's reliance on Sommatino is misplaced, as the quoted statement pertains to federal sector employees, not private sector employees like Myers-Desco. Sommatino worked for the Naval Postgraduate School as a civilian employee. The plaintiffs in the two cases this Court cited as support for the quoted statement were both federal employees, as well. See id. at 708 (citing Greenlaw v. Garrett, 59 F.3d 994, 1000 (9th Cir. 1995) (sex discrimination complaint against Department of the Navy); Tanious v. IRS, 915 F.2d 410, 411 (9th Cir. 1990) (Title VII and Rehabilitation Act claims against Internal Revenue Service)). Before federal employees can file suit, they are required to follow a different set of procedural exhaustion requirements than their private sector counterparts. See Brown v. General Servs. Admin., 425 U.S. 820, 832-833 (1976) (holding that Title VII is the exclusive remedy for discrimination by federal agencies and that "rigorous administrative exhaustion requirements" are part of a carefully designed statutory scheme that requires a complainant first to "seek relief in the agency that has allegedly discriminated against him" before filing suit). Not only did Sommatino fail to follow these procedures, she failed to file any formal administrative complaint with her federal employer before filing her Title VII claims in federal court, and under the administrative procedures that govern federal sector claims, that failure serves as a bar to litigation. Sommatino, 255 F.3d at 707-09 ("where a plaintiff has never presented a discrimination complaint to the appropriate administrative authority, . . . the district court does not have subject matter jurisdiction"). Given that Sommatino involved the very different statutory and regulatory exhaustion requirements applicable only to federal sector actions, this Court's analysis in Sommatino is inapposite here. The district court, in addition, erred in concluding that Myers-Desco's conduct compelled the EEOC and NERC to close her case. See R.23 (Order), at 5 (Myers-Desco, by filing suit "before the agencies had the opportunity to conduct their investigations . . . caused the agencies' failure to investigate"). This is simply not the case. The NERC was not required to dismiss her charge; the regulation cited in the NERC dismissal letter, NAC 233.220 § 1, clearly makes this a permissive determination ("A case may be closed if: (f) A party files a lawsuit involving any of the allegations in the complaint.") (emphasis added). It is also not clear that the NERC's dismissal was appropriate, even under this permissive provision, as Myers-Desco's state-law tort claims are not the same "allegations" as the sex discrimination and harassment charge she filed with NERC and cross-filed with the EEOC. Cf. Arnold v. United States, 816 F.2d 1306, 1312-13 (9th Cir. 1987) ("the wrong underlying [plaintiff's] Title VII claim is distinct from that underlying her state-law tort claims"). The district court even more clearly erred in concluding that Myers-Desco's pending state-law tort claims "caused the [EEOC]'s failure to investigate." Nothing in Title VII or in any EEOC regulation requires the EEOC to cease investigating a charge simply because the charging party filed a separate lawsuit asserting state-law claims. Indeed, there is no EEOC regulation that speaks to any effect the pendency of a state-law action has on the Commission's administrative processes. It is likely quite common that individuals like Myers-Desco, who have both state-law claims and federal discrimination claims against their employer arising out of the same circumstances, will file a lawsuit asserting the state-law claims to prevent any loss of rights due to statutes of limitations, and then amend their complaint to add the federal claims after the EEOC and the state administrative agency complete their administrative processes. The pendency of such a state-law action in no way compels the EEOC to stop its investigation. Cf. 29 C.F.R. §§ 1601.10, 1601.28(a)(3) (EEOC reserves the right to continue investigating a charge, even if the charging party asks to withdraw the charge or requests a right-to-sue notice). The EEOC dismissed Myers-Desco's charge because the NERC informed the EEOC that it was closing Myers-Desco's case and, in accordance with the EEOC's worksharing agreement with the Nevada Equal Rights Commission, the EEOC adopted the NERC's determination. See R.9, Exhs. D & E; 29 C.F.R. §§ 1601.75(a), 1601.80 (Commission accepts findings of "certified designated" state agencies; listing Nevada Commission as a "certified designated FEP agency"). The EEOC could have continued investigating Myers-Desco's charge, see, e.g., 29 C.F.R. §§ 1601.76-1601.79, but simply elected not to due to "resource considerations." R.9, Exh. E. Finally, this Court should reject the district court's creation of this additional condition precedent because it is wholly inconsistent with the logic and rationale of an unbroken line of cases holding that the EEOC's conduct during the administrative process does not affect the charging party's right to a de novo review of the merits of her complaint. See, e.g., University of Tenn. v. Elliott, 478 U.S. 788, 793 (1986) ("it is settled that decisions by the EEOC do not preclude a trial de novo in federal court"); see also Associated Dry Goods Corp. v. EEOC, 720 F.2d 804, 809, 812 (4th Cir. 1983) ("no rule or decision of the Commission, however denominated, can affect the rights or impose any obligation on any party"); Ward v. EEOC, 719 F.2d 311, 313-14 (9th Cir. 1983) (EEOC's conduct during administrative process has no "determinate consequences" since it is merely "preparatory to a lawsuit" by EEOC or the charging party); McDonnell Douglas, 411 U.S. at 798-99 (neither absence of EEOC finding of reasonable cause nor EEOC finding of "no reasonable cause" bars a de novo lawsuit by charging party). The district court's imposition of an extra-statutory requirement that a charging party refrain from initiating an action asserting state-law tort claims while her discrimination charges are pending before the administrative agencies vitiates the charging party's ability to function as a "'private attorney general,' whose role in enforcing the ban on discrimination is parallel to that of the Commission itself," Associated Dry Goods Corp., 449 U.S. at 602, and undermines the long-standing rule that "the final responsibility for enforcement of Title VII is vested with the federal courts." Alexander, 415 U.S. at 44. This Court should reverse the district court's ruling on exhaustion and hold, consistent with Supreme Court precedent, that a private sector plaintiff who has satisfied the administrative requirements that Congress specified in Title VII is entitled to a de novo judicial determination of the merits of her discrimination claim regardless of whether the state agency and the EEOC decided to dismiss the charge before completing or even initiating any investigation. It is undisputed that, before filing her Title VII claims in court, Myers-Desco filed a timely charge with the EEOC and filed her Title VII claims in court well within ninety days of receiving notice that the EEOC had dismissed her charge. Consistent with Supreme Court precedent, the district court should have ruled that Myers-Desco was entitled to proceed with her Title VII lawsuit. CONCLUSION For all of the foregoing reasons, this Court should reverse the district court's erroneous dismissal of this case for failure to exhaust administrative remedies and remand the matter for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel /s/ Susan R. Oxford ______________________________ SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791; fax (202) 663-7090 susan.oxford@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed.R.App.P. 32(a)(7)(B). This brief contains 5,197 words and the typeface is Times New Roman 14 point. /s/ Susan R. Oxford _________________________________ SUSAN R. OXFORD Dated: October 11, 2011 CERTIFICATE OF SERVICE This is to certify that on October 11, 2011, I filed this brief with this Court using the Court's electronic case filing (ECF) system and served a copy of the foregoing brief on all counsel in this matter by use of the Court's ECF system. I hereby certify that upon notification from the Clerk's Office, I will file an original and seven copies of the within brief with the Clerk of the Court by United Parcel Service, postage prepaid, and will served two copies on all counsel in this matter by the same means at the following addresses: Sharon L. Nelson, Esq. Malani L. Kotchka, Esq. NELSON LAW LIONEL, SAWYER & COLLINS 401 North Buffalo 300 South 4th Street, Suite 1700 Las Vegas, NV 89145 Las Vegas, NV 89101 /s/ Susan R. Oxford SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791; fax (202) 663-7090 susan.oxford@eeoc.gov October 11, 2011 ********************************************************************************** <> <1> Courts of Appeals agreed with the EEOC in four cases: Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006); Zugay v. Progressive Care, 180 F.3d 901 (7th Cir. 1999); Long v. Ringling Bros.-Barnum & Bailey Combined Shows, Inc., 9 F.3d 340 (4th Cir. 1993); and Sedlacek v. Hach, 752 F.2d 333 (8th Cir. 1985). The Tenth Circuit rejected the EEOC's view in Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005). <2> The Commission takes no position on any other issue in this appeal. <3> Myers-Desco perfected her administrative charge with NERC on July 12, 2010. NERC cross-filed the perfected charge with the EEOC on July 13, 2010. R.9, Exh. C. <4> The district court had relied on Johnson v. Bergland, 614 F.2d 415 (5th Cir. 1980), which, as the Seventh Circuit pointed out, involved a complaint against a federal employer. See Zugay, 180 F.3d at 903 (comparing 42 U.S.C. § 2000e- 16(c) and related regulations, governing federal employees, with 42 U.S.C. § 2000e-5(b)-(f) and related regulations, governing private employees). <5> As the Seventh Circuit noted in Doe, 456 F.3d at 709-710, the Tenth Circuit reached a contrary conclusion in Shikles v. Sprint/United Mgmt. Co. The Tenth Circuit relied on cases involving federal sector employees in barring the plaintiff from litigating his age discrimination claim after the EEOC dismissed his ADEA charge for failure to cooperate in the EEOC's investigation (although the dismissal notice expressly indicated Shikles had a right-to-sue). Shikles, 426 F.3d at 1309- 1312. In the Commission's view, Shikles was wrongly decided. See, e.g., Doe, 456 F.3d at 709 (noting EEOC's disagreement with Shikles). Further, the Seventh Circuit noted that the charging party's noncooperation in Shikles was relatively straightforward: he refused to be interviewed and failed to provide requested documents. Id. at 710. The Seventh Circuit opined that any rule that made cooperation a general pre-suit requirement, however, might be very difficult to administer, as other situations might be less clear. For instance, the charging party might sit for an EEOC interview but refuse to answer questions, or the charging party might answer questions, but answer them cryptically, and so on, making it difficult to decide where to draw the line. Id. at 711.