David L. Puckett v. West Publishing Corp. 4:99cv00575 GH IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION DAVID L. PUCKETT, ) ) Plaintiff, ) ) ) Case No. 4:99cv00575 GH ) WEST PUBLISHING CORP., ) ) Defendant. ) ______________________________) BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT _______________________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. This case involves a charge filed under both statutes. See R.7, Motion at Ex. A. Pursuant to its Priority Charge Handling Procedures, the EEOC classified David Puckett's charge as a "Category C" charge and dismissed it without any investigation beyond the initial intake interview. See id. at Ex. B. Puckett then filed suit against West Publishing, 96 days after the filing of his charge. See R.1, Complaint. West now moves to dismiss or for summary judgment. West argues that the EEOC has a statutory obligation to conduct a full investigation of all charges, and that a charging party may not file suit until either the EEOC has completed its investigation or 180 days have passed. See R.7, Motion at 2. Because the legitimacy of the EEOC's Priority Charge Handling Procedures is critical to effective enforcement of the federal anti-discrimination laws, the EEOC offers its views to the Court. ISSUE Was the adoption of the EEOC's Priority Charge Handling Procedures a legitimate exercise of the agency's enforcement discretion? BACKGROUND In 1995, the EEOC sought to address its growing backlog of cases by repealing its "full investigation" policy and establishing a charge prioritization system. Under that system, all charges are classified into one of three categories: Category A (charges that fall within the national or local enforcement plans, and charges in which it appears "more likely than not" that discrimination has occurred); Category B (charges where further evidence is required to determine whether it is more likely than not that a violation has occurred); and Category C (charges subject to immediate dismissal). Category A charges receive priority treatment; Category B charges are investigated as resources permit; and Category C charges are dismissed. See EEOC Priority Charge Handling Procedures, 8 Fair Empl. Prac. Man. (BNA) 405:7311, 405:7311-12 (June 20, 1995) [copy attached]. In adopting the Priority Charge Handling Procedures, the EEOC emphasized that "the investigation to be made in each case should be appropriate to the particular charge, taking into account the EEOC's resources." Id. at 405:7312, 405:7316. Thus, agency personnel must "avoid misapplying resources by over-investigating charges that could be resolved with less information, or by pursuing cases that are facially non-meritorious." Id. at 405:7316. The EEOC may place a charge into Category C when it has sufficient information to determine that further investigation is unlikely to result in a cause finding. See id. at 405:7313. Sufficient information may arise from the intake interview alone. See id. at 405:7314. Thus, for example, the EEOC may immediately classify a charge as Category C and dismiss it if the charge is nonjurisdictional or if it fails to state a claim. Other charges that initially fall into Category B may be downgraded to Category C and dismissed based upon further investigation. See id. at 405:7313. In this case, Puckett filed a charge of discrimination under the ADA and ADEA on May 12, 1999. See R.7, Motion at Ex. A. An EEOC intake officer interviewed Puckett that same day. The notes from that interview fill two entire pages with single-spaced type. They reflect that, at the end of the interview, the intake officer told Puckett that his charge might not be investigated. See id. at Ex. C. The EEOC dismissed Puckett's charge seven days later. See id. at Ex. B. On August 16, 1999, Puckett sued West. See R.1, Complaint. West has responded with the pending motion to dismiss or for summary judgment. See R.7, Motion. West argues that the district court lacks jurisdiction over Puckett's suit, as "jurisdiction still lies with the EEOC until a full investigation is conducted and/or the statutory 180 day time period expires." Id. at 2. In support of this conclusion, West challenges the EEOC's regulation allowing it to issue early right-to-sue notices at a charging party's request if the agency certifies that it will probably be unable to complete administrative processing of the charge within 180 days of filing. See R.8, West Br. at 2-8 (criticizing 29 C.F.R. § 1601.28(a)(2)).<1> Although this case does not involve an early right-to-sue notice, as the EEOC dismissed the charge on its own initiative, West stresses that the EEOC could not have conducted "a full investigation" as envisioned by the ADA within seven days.<2> See id. at 8. It therefore argues that the dismissal and notice of right to sue were invalid. See id. West adds that requiring the EEOC to hold all charges for 180 days "would further the purposes of the EEOC and streamline it and make it a more efficient body." Id. ARGUMENT The EEOC's Priority Charge Handling Procedures Properly Authorize Dismissal of Certain Charges After Only a Brief Investigation. Despite the language of West's brief, this case involves the EEOC's Priority Charge Handling Procedures and not an early notice of right to sue. West's critique of such early notices is, therefore, misplaced. Rather than issuing a requested early notice that would have permitted the EEOC to retain jurisdiction to pursue its investigation while permitting Puckett to pursue private remedies, see 29 C.F.R. § 1601.28(a)(3), the EEOC completed the investigation that it considered appropriate, closed Puckett's file, and dismissed his charge. See R.7, Motion at Ex. B, C; compare Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336, 1342 (D.C. Cir. 1999) (analyzing congressional intent regarding private lawsuit within 180 days where EEOC has not dismissed charge). Both the ADA and the ADEA authorize a charging party to file suit within 90 days after a charge is dismissed. See 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5(f)(1)) (ADA); 29 U.S.C. § 626(e) (ADEA). In arguing that the EEOC lacked authority to dismiss Puckett's charge without first completing a "full investigation," West Br. at 8, West misreads the relevant statutory language. The ADEA gives the EEOC discretion to terminate investigations of charges whenever it decides it is appropriate to do so. See 29 U.S.C. § 626(e). The ADA requires only that the EEOC "shall make an investigation" of charges. 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5(b)). It does not say that the EEOC's investigation must be a "full" one. Likewise, it does not say that all investigations must be alike. The EEOC has relied upon the flexible language of the anti-discrimination laws to prioritize its investigations. Thus, the agency has determined that an investigation must be "appropriate to the particular charge, factoring in resource considerations." 8 Fair Empl. Prac. Man. (BNA) at 405:7312, 405:7316. Category C charges, which are dismissed immediately, may not need any investigation beyond an initial intake interview. See id. at 405:7314. Indeed, the EEOC has cautioned its intake officers to "avoid misapplying resources by over-investigating charges that could be resolved with less information, or by pursuing cases that are facially non-meritorious." See id. at 405:7316. The EEOC's decision to prioritize its charges, and to investigate different categories of charges differently, is an unreviewable exercise of agency enforcement discretion. See Heckler v. Chaney, 470 U.S. 821, 831-32 (1985). It is entirely reasonable for the EEOC to conclude that an intake interview, conducted by an agency official familiar with federal anti-discrimination law, can sometimes provide sufficient information to justify dismissal. As the Supreme Court has recognized: "[A]n agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing." Id. at 831. The Eighth Circuit has recognized the necessity of allowing agencies freedom to establish enforcement priorities. In DuBois v. Thomas, 820 F.2d 943 (8th Cir. 1987), the plaintiffs sought an order compelling the Environmental Protection Agency ("EPA") to take investigatory and enforcement action against a city regarding a contaminated creek running through their property. The district court held that the Federal Water Pollution Control Act imposed mandatory investigatory and enforcement duties on the EPA. See id. at 944. The Eighth Circuit disagreed. Noting that mandatory investigations of all complaints would cause EPA "great difficulty" in achieving the statutory objective of restoring and maintaining the nation's waters, the Court said, "EPA could be compelled to expend its limited resources investigating multitudinous complaints, irrespective of the magnitude of their environmental significance. As a result, EPA would be unable to investigate efficiently and effectively those complaints that EPA, in its expertise, considers to be the most egregious violations of the [statute]. Only if the Administrator has discretion to allocate its own resources can a rational enforcement approach be achieved." Id. at 947-48. The same considerations apply to the EEOC. A requirement that the EEOC "fully investigate" all charges, regardless of their merit, would paralyze the agency and prevent it from fulfilling its statutory obligation to prevent and remedy unlawful discrimination. Neither the ADA nor the ADEA requires such a result. Ironically, West argues that forcing the EEOC to retain all charges for 180 days "would further the purposes of the EEOC and streamline it and make it a more efficient body." R.8, West Br. at 8. Such streamlining is precisely what the EEOC has achieved with its Priority Charge Handling Procedures. By establishing enforcement priorities, classifying charges accordingly, and tailoring investigations to each individual charge, the EEOC has successfully reduced its backlog while focusing its resources on the most egregious cases of discrimination. See "New Policies Result In Decreased EEOC Charge Inventory," EEOC Compl. Man. (CCH), Featured Developments No. 139, at 1-2 (Nov. 25, 1996). It has simultaneously permitted individual charging parties to pursue their own remedies without having to wait when the agency has determined that it will take no further action on their charges. These results are consistent with the statutory language and with congressional intent "to make sure that the person aggrieved does not have to endure lengthy delays if the Commission . . . does not act with due diligence and speed." Subcommittee on Labor of the Committee on Labor and Public Welfare, U.S. Senate, Legislative History of the Equal Employment Opportunity Act of 1972 (H.R. 1746, P.L. 92-261) at 1847 (Nov. 1972) (Conference Report, Section-By-Section Analysis). CONCLUSION The EEOC's Priority Charge Handling Procedures are a legitimate exercise of its enforcement discretion. The ADEA contains no specific mandate regarding EEOC investigations, and the ADA requires only that the agency "investigate," not that it conduct a "full investigation." A detailed interview with an EEOC intake officer can, in some cases, satisfy that statutory requirement. Accordingly, the agency acts properly when it dismisses Category C charges based solely upon an intake interview and before the expiration of 180 days. For the reasons stated above, the EEOC respectfully asks this Court to deny West's motion to dismiss or for summary judgment. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel _______________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 March __, 2000CERTIFICATE OF SERVICE I hereby declare that I served two copies of the foregoing brief this ____ day of March, 2000, by first-class mail, postage pre-paid, to the following counsel of record: John R. Myers, Esq. 2725 Cantrell Road, Suite 100 Little Rock, Arkansas 72202 Charles W. Reynolds, Esq. Jesse J. Gibson, Esq. Dover & Dixon, P.A. 425 West Capitol Avenue, Suite 3700 Little Rock, Arkansas 72201 ______________________________ Gail S. Coleman, Esq. U.S. Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663 1 This regulation applies only to charges under the ADA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See 29 C.F.R. § 1601.1. 2 West actually refers to Title VII, not to the ADA. See R.8, West Br. at 8. The EEOC presumes that West intended to discuss the ADA, as this case involves that statute and not Title VII, but that it erroneously cited Title VII because the ADA incorporates Title VII's enforcement provisions. See 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5(f)(1)).