IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT __________________ No. 03-1247 __________________ CAROLYN E. O'CONNOR, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Massachusetts _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _________________________________________________________ NICOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 TABLE OF CONTENTS STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Nature of the Case and Proceedings Below . . . . . . . . . . . 2 2. District Court's Decision . . . . . . . . . . . . . . . . . . 4 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 THE DISTRICT COURT CORRECTLY DISMISSED PLAINTIFF'S COMPLAINT SEEKING AN ALTERATION OF STATUTORY TIME LIMITS . . . . . . . . . . . . . . . . . . . . . 6 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Certificate of Compliance With Rule 32(a) Addendum TABLE OF AUTHORITIES Cases Page(s) Bradshaw v. Correctional Medical Services, Inc., 2001 WL 391497 (1st Cir., April 12, 2001) . . . . . . . . . . . . 5 Quarles v. St. Clair, 711 F.2d 691 (5th Cir. 1983) . . . . . . . .7 Sullivan v. C.I.A., 992 F.2d 1249 (1st Cir. 1993) . . . . . . . .6 United States v. Figueroa, 818 F.2d 1020 (1st Cir.1987) . . . . .7 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1915(e) . . . . . . . . . . . . . . . . 3, 4, 5 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . . . . . . . . . . . . . 2 42 U.S.C. § 2000e-5(e)(1) . . . . . . . . . . . . . . .4, 7 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT __________________ No. 03-1247 __________________ CAROLYN E. O'CONNOR, Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION , Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Massachusetts _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE _________________________________________________________ STATEMENT OF JURISDICTION The district court did not have jurisdiction over this action because there is no statutory or constitutional basis for plaintiff's claims against the Equal Employment Opportunity Commission, an agency of the federal government. Final judgment was entered against the plaintiff on January 24, 2003. Addendum ("Add.") at 2 (doc. no. 8)<1> The plaintiff filed a timely notice of appeal on January 30, 2003. Id. (doc. no. 9) This Court has jurisdiction over the appeal under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court properly dismissed plaintiff's claim challenging the time limits for filing a charge of discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. STATEMENT OF THE CASE 1. Nature of the Case and Proceedings Below. This is an appeal from a decision of the district court dismissing this suit (02-11160). On June 5, 2002, Carolyn E. O'Connor filed in the district court an application to proceed without prepayment of fees and a complaint alleging that the time limits for filing a charge of discrimination provided in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and applied by the defendant Equal Employment Opportunity Commission are too short.<2> Add. at 1 (doc. no.1) & 4-7. On December 18, 2002, the district court entered an order conditionally granting plaintiff's application, but stating that her complaint would be dismissed pursuant to 28 U.S.C. § 1915(e) if she did not show good cause in writing why her case should not be dismissed within 35 days. Add. at 2 (doc. no. 3) & 11. On January 8, 2003, plaintiff submitted to the court a document entitled "Reason to Unhold [sic] Lawsuit." Add. at 12. On January 24, 2003, the district court dismissed plaintiff's complaint with prejudice, stating that "[t]he new papers do not provide any reason for forestalling the dismissal of the complaint conditionally ordered by the earlier action of the Court." Add. at 13. On January 30, 2003, O'Connor filed a timely notice of appeal. Id. at 2 (doc. no. 9). O'Connor alleges in her complaint that "it is the practice that a claim involving the allegation of discrimination be brought to the attention of the [EEOC] within the timeframe of 300 days or less (sometimes 180 days)." Add. at 5, ¶ 13. O'Connor alleges that this "minuscule time frame" is against public policy and requests the district court to "rule" that the time within which to file discrimination complaints be the same as the Statute of Limitations for "personal injury in the host State." Id. at ¶¶ 18 & 20. 2. District Court's Decision. The district court, relying on 28 U.S.C. § 1915(e)(2), ordered that O'Connor's claim would be dismissed if she did not show "good cause" within 35 days why it should not be dismissed. Add. at 11. The court noted that Title VII provides that "a formal charge must be filed with the EEOC within 180 days of the discriminatory conduct, or where the plaintiff first files with a state or local equal employment agency, within 300 days of the violation." Id. at 10 (citing 42 U.S.C. § 2000e-5(e)(1)). The court noted that failure to file a timely charge, "‘if unexcused, bars the courthouse door, as courts long have recognized that Title VII's charge-filing requirement is a prerequisite to the commencement of a suit.'" Id. at 10-11 (quoting Bonilla v. Muebles J. J. Alvarez, 194 F.3d 275, 278 (1st Cir. 1999)). The court noted that "it is unclear whether plaintiff seeks to challenge only the statutory time bar or whether she also seeks recovery for an alleged Title VII claim." Add. at 11. In any event, the court noted, "plaintiff's complaint does not seek recovery for an alleged Title VII claim and has not provided any reason to justify her apparent noncompliance with the applicable time limitations." Id. Accordingly, the court ruled that plaintiff's complaint would be dismissed "for failure to state a claim upon which relief" after 35 days unless plaintiff showed "good cause, in writing, why the complaint should not be dismissed for the reasons stated above." Id. On January 23, 2003, the district court entered an order dismissing O'Connor's complaint with prejudice. Add. at 2 (doc. no. 7). The court stated that O'Connor had filed a other documents, but that they "do not provide any reason for forestalling the dismissal of the complaint conditionally ordered by the earlier action of the Court." Add. at 13. SUMMARY OF ARGUMENT Plaintiff alleges in this action that the time limit provided in Title VII for filing a charge of discrimination with the EEOC is too short. The district court correctly ruled that this allegation fails to state a claim upon which relief may be granted. Plaintiff's quarrel is with Congress which provided the time limits which she criticizes. Both the EEOC and the courts are required to apply the laws as they are written. Accordingly, plaintiff may not obtain the relief she seeks by means of a lawsuit against the EEOC. ARGUMENT THE DISTRICT COURT CORRECTLY DISMISSED PLAINTIFF'S COMPLAINT SEEKING AN ALTERATION OF STATUTORY TIME LIMITS. This Court reviews de novo a dismissal for failure to state a claim on which relief may be granted. under 28 U.S.C. § 1915(e)(2)(B). Bradshaw v. Correctional Medical Services, Inc., 2001 WL 391497, **1 (1st Cir., April 12, 2001) (unpublished). The district court correctly ruled that the O'Connor's complaint in this action fails to state a claim upon which relief can be granted. O'Connor has sued the EEOC complaining that "it is the practice that a claim involving the allegation of discrimination be brought to the attention of the [EEOC] within the timeframe of 300 days or less (sometimes 180 days)." Add. at 5, ¶ 13. The complaint alleges that this filing period is too short and asks the district court to "rule that . . . the Statute of Limitations within which to file discrimination complaints"is the same as the "Statute of Limitations for personal injury of the host State." Add. at 5, ¶ 13 & at 6, ¶¶ 18 & 20. However, as O'Connor acknowledges, the filing period she complains of is not one imposed by the EEOC, but is prescribed by Congress in Title VII. See Plaintiff's Brief at 8 ("The Defendant-Appellee requires by U.S.C. 42 § 2000e-5, No. 261 [sic], and any other Statute or Code, for discrimination claims to be reported within the timeframe of 180 or 300 days."). O'Connor's contention that Congress imposed too short a deadline for filing charges, even if true, could not form the basis for a legal claim against an agency that is enforcing the law as written. As this Court has observed, the role of a court is not to redraft acts of Congress, "but simply to apply the law as Congress wrote it." Sullivan v. C.I.A., 992 F.2d 1249, 1256 (1st Cir. 1993). Accordingly, the district court correctly ruled that O'Connor failed to state a claim upon which relief may be granted. O'Connor also argues on appeal that the 90-day limit for filing a Title VII action after receipt of a notice of right to sue should be similarly extended. Pl's Br. at 8. However, the complaint contains no allegation regarding the suit-filing period. Because this contention was not made in the district court, it cannot serve as a basis for reversing the judgment below. See United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987) ("[A]n issue not presented to the trial court cannot be raised for the first time on appeal."). In any event, a challenge to the suit filing period would fail for the same reason as O'Connor's challenge to the charge-filing period. O'Connor characterizes the 90-day time limit as "dictated by [EEOC]." Br. at 8. However, the 90-day time limit was established by Congress in Title VII. See 42 U.S.C. § 2000e-5(f)(1) ("within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved"). The EEOC, like the courts, is required to apply the time limits Congress set. Quarles v. St. Clair, 711 F.2d 691, 708 n. 60 (5th Cir. 1983) (federal agencies are no "more authorized than are the courts to rewrite acts of Congress"). CONCLUSION For the foregoing reasons, the district court's order dismissing this complaint should be affirmed. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 Certificate of Compliance With Rule 32(a) 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 1550 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Wordperfect 9 in size 14 Times New Roman. Attorney for Equal Employment Opportunity Commission, Defendant-Appellee Dated: CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were mailed, first class, on May 30, 2003, to the following: Carolyn E. O'Connor 24 Norman Street, Unit 210 Salem, MA 01970 John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7040 Washington, D.C. 20507 (202) 663-4716 ********************************************************************************** <> <1> The docket sheet and other material from the record in this case is contained in an Addendum at the end of this brief. <2> The district court’s opinion states that O’Connor filed her application to proceed without prepayment of fees on June 6, 2002. However, according to the docket sheet her application was filed on June 5, 2002.