_______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _______________________________________________________ No. 08-1313 _______________________________________________________ PATRICIA RODRIGUEZ, Plaintiff-Appellant, v. WET INK LLC, d/b/a/ ALPHAGRAPHICS, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the District of Colorado _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL _______________________________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., Room 5NW22k Washington, D.C. 20507 (202) 663-4716 john.suhre@eeoc.gov TABLE OF CONTENTS STATEMENT OF INTEREST ............................................................ 1 ISSUE PRESENTED ................................................................ 2 STATEMENT OF THE CASE ........................................................... 2 1. Course of Proceedings ............................................... 2 2. Statement of Facts ................................................... 3 3. District Court's Decision ............................................ 6 ARGUMENT ......................................................................... 7 RODRIGUEZ'S TITLE VII COMPLAINT WAS TIMELY BECAUSE HER COMPLAINT WAS FILED WITHIN 90 DAYS OF HER RECEIPT OF THE RIGHT-TO-SUE NOTICE ISSUED BY THE EEOC DESPITE THE FACT THAT SHE DID NOT FILE IT WITHIN THE TIME LIMITS SET FORTH IN THE NOTICE OF RIGHT TO SUE ISSUED BY THE CCRD....................................... 7 CONCLUSION ...................................................................... 14 CERTIFICATE OF COMPLIANCE TABLE OF AUTHORITIES Cases Page(s) Albright v. City of Philadelphia, 399 F. Supp. 2d 575 (E.D. Pa. 2005) .......................................... 9, 11 EEOC v. Commercial Office Prods. Co., 486 U.S. 107 (1988) ....................... 10 Black v. Brown Univ., 555 F. Supp. 880 (D.R.I. 1983) ........................... 11 Buboltz v. Residential Advantages, Inc., 2006 WL 2943096 (D. Minn. 2006) ............................................... 10 Burgh v. Bor. Council of Bor. of Montrose, 251 F.3d 465 (3d Cir. 2001) .................................................... 10 Foreman v. General Motors Corp., 473 F. Supp. 166 (E.D. Mich. 1979) ............ 11 Gokay v. Pennridge School Dist., 2003 WL 21250656 (E.D. Pa. 2003) ............... 11 Hansen v. Aon Risk Services, 473 F. Supp. 2d 743 (S.D. Tex. 2007) ............... 10 Jones v. Grinnell Corp., 235 F.3d 972 (5th Cir. 2001) ....................... 10, 12 Muth v. Cobro Corp., 895 F. Supp. 254 (E.D. Mo. 1995) ........................... 11 Oliver v. New York Telephone Co., 1993 WL 173471 (W.D.N.Y. 1993) ................ 11 Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054 (11th Cir.1998) .................................................... 8 Perez Cordero v. Wal-Mart PR, Inc., 235 F. Supp. 2d 95 (D.P.R. 2002) ........ 11, 12 Resolution Trust Corp. v. Federal Sav. & Loan Ins. Corp., 25 F.3d 1493 (10th Cir. 1994) ................................................... 8 Shikles v. Sprint/United Management Co., 426 F.3d 1304 (10th Cir. 2005) .................................................. 10 Vielma v. Eureka Co., 218 F.3d 458 (5th Cir. 2000) .............................. 10 Statutes Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. ....... passim Section 706(f)(1), 42 U.S.C. § 2000e-5(f)(1) ..................................... 9 Part 3 of Article 34 of Title 24, C.R.S. (1988) .................................. 9 C.R.S. 24-34-306(15) .......................................................... 5, 9 § 24-34-402 C.R.S. ............................................................... 4 § 24-34-405 C.R.S. ............................................................... 4 Miscellaneous Fed. R. App. P. 29(a) ............................................................. 2 29 C.F.R. § 1601.28(a) ........................................................... 13 29 C.F.R. § 1601.28(c) ........................................................... 13 29 C.F.R. § 1601.28(d) ........................................................... 13 29 C.F.R. § 1601.28(e) ............................................................13 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ______________________ No. 08-1313 ______________________ PATRICIA RODRIGUEZ, Plaintiff-Appellant, v. WET INK LLC, d/b/a/ ALPHAGRAPHICS, Defendant-Appellee. _______________________________________________ On Appeal from the United States District Court for the District of Colorado _____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL ______________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This appeal presents an important issue regarding the EEOC's exclusive authority to issue a right-to-sue notice to an aggrieved person once the Commission has completed its administrative processing of a charge of discrimination. The district court held that plaintiff's civil action was untimely because it was not filed within 90 days of her receipt of a notice of right to sue from the Colorado Civil Rights Division, despite the undisputed fact that suit was filed within 90 days of receipt of the EEOC's later- issued notice of right to sue on the same charge that was filed with both the EEOC and the state agency. This Court's resolution of this appeal will affect the ability of the Commission and private plaintiffs to enforce Title VII. Accordingly, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). ISSUE PRESENTED Whether the district court erred in concluding that the state agency's notice of right to sue issued to the plaintiff regarding her claims of discrimination under state law triggered the time period for filing a Title VII action. STATEMENT OF THE CASE 1. Course of Proceedings This is an appeal from a final judgment of the district court granting defendant's motion to dismiss as to all of the plaintiff's claims. The plaintiff initiated this action by filing a complaint on April 25, 2008, alleging, inter alia, that the defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. by discriminating against her on the basis of sex and national origin. Aplt. App. pp. 6-7. A final judgment was entered on July 30, 2008, dismissing all of the plaintiff's claims. Id. at p. 119-20. The plaintiff filed a notice of appeal on August 28, 2008. Id. at P. 121-22. 2. Statement of Facts Patricia Rodriguez worked for Wet Ink as a Bindery Specialist. Aplt. App. p. 9. Rodriguez claims that, during her employment, she was harassed on the basis of her sex and national origin by Tom Meltz, her supervisor and Wet Ink's Operations Manager. Id. at p. 9-11. In January 2006, Rodriguez submitted a seven-page complaint about Meltz's harassment to the company; however, Wet Ink took no corrective action. Id. at p. 11-12. On August 28, 2006, Rodriguez gave two weeks notice to Wet Ink indicating that she was being forced to resign due to Meltz's mistreatment. Id. at p. 12. On the same date, after receiving Rodriguez's notice, Wet Ink gave her a written warning regarding alleged performance deficiencies and discharged her. Id. When she commenced her employment, Rodriguez signed an "Arbitration Requirement" obligating her to arbitrate all claims regarding her employment, including any claim of harassment, according to the rules of the Judicial Arbiter Group, Inc. of Denver ("JAG"), as well as provisions contained in the employee handbook. Aplt. App. p. 79. The handbook's arbitration procedures state that the arbitrator's decision shall be based on Colorado law, which in the case of employment discrimination limits the remedy to reinstatement with back pay. Id. at p. 73; § 24-34-405 C.R.S. The arbitration agreement also states that Wet Ink shall pay any costs, fees or deposits required by JAG if the employee is still employed, but that the parties shall split any such costs equally if the employee has been "terminated." Aplt. App. p. 73. On November 29, 2006, Rodriguez filed a charge of discrimination with the Colorado Civil Rights Division ("CCRD") alleging sex and national origin discrimination. Aplt. App. p. 19-20. Her charge was dual-filed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") pursuant to the worksharing agreement between the two agencies. Id. at p. 54 & 19. Pursuant to the worksharing agreement, the charge was investigated by the CCRD because it was submitted to that agency. Id. at p. 55. On August 24, 2007, the CCRD issued a determination finding that Wet Ink had not violated § 24-34-402 C.R.S., the state statute prohibiting employment discrimination on the basis of national origin. Aplt. App. p. 45. However, the CCRD determined that Wet Ink had violated state law regarding Rodriguez's claim of harassment and discharge based on sex. Id. As required by state law, the CCRD ordered the parties to attempt to resolve her claim by compulsory mediation. Id. When the parties were unable to reach a settlement, Rodriguez requested a notice of right to sue from both the CCRD and the EEOC. The CCRD issued its notice on November 28, 2007, informing Rodriguez that under state law, if she did not file a civil action within 90 days from November 25, 2007, any such action would be barred. Id. at p. 48. In the notice, the CCRD stated that it was closing Rodriguez's file because she had "requested a Right To Sue letter from the [CCRD] and the [EEOC]" and more than 180 days had passed since the filing of her charge. Id. The notice stated that it was being issued pursuant to state law - "C.R.S. 24-34-306(15)." Id. Rodriguez did not file a lawsuit within the time limits designated in the CCRD's notice. On January 28, 2008, after completing its substantial weight review required by the worksharing agreement (Aplt. App. p. 57), the EEOC issued a notice of right to sue to Rodriguez informing her that she had 90 days from her receipt of the notice to file her lawsuit under Title VII. Aplt. App. at pp. 51-52. On February 23, 2008, Rodriguez sent Wet Ink a demand for arbitration as provided in the handbook's arbitration procedures. Id. at pp. 80-92. The company did not file either an answer or a counterclaim, as Wet Ink's procedure requires. Id. at p. 74. Rather, Wet Ink informed Rodriguez that, if she wished to pursue arbitration, she would have "to pay all costs of arbitration." Id. at p. 94. Wet Ink stated that the arbitration provisions required it to pay one-half of the costs of arbitration only where an employee had been terminated; because Rodriguez had resigned, the company asserted, she was required to pay all costs. Rodriguez then withdrew her demand for arbitration. Id. at p. 105. On April 25, 2008, 88 days after the notice of right to sue was issued, Rodriguez filed a complaint in federal court alleging that Wet Ink violated Title VII by discriminating against her based on her sex and national origin. Aplt. App. p. 6 et seq. Rodriguez's complaint contains no discrimination claims under state law. Id. Wet Ink filed two motions to dismiss. Aplt. App. p. 1, doc. nos. 7 & 8. The company first argued that Rodriguez's complaint was untimely because it was not filed within 90 days of the notice of right to sue issued by the CCRD (id. at p. 1, doc. no. 8), and second, it argued that the court did not have subject-matter jurisdiction over her complaint because Rodriguez is bound by the arbitration agreement and cannot bring an action in court. Id. doc. no. 7. 3. District Court's Decision At the hearing on the motions, the district court expressly declined to consider Wet Ink's argument that Rodriguez's complaint should be dismissed based on the existence of an arbitration agreement, stating that it did not "care" about that issue. Aplt. App. p. 116. Rather, the court considered only the issue of whether her complaint was time-barred. Id. The court rejected Rodriguez's argument that she had no obligation to bring her Title VII action until after she received the EEOC's notice. Id. Rather, the court concluded, she should have brought her action "within 90 days from the CCRD letter." Id. Consequently, on July 30, 2008, the court entered an order dismissing Rodriguez's complaint, stating that "[t]his action should have been filed within 90 days from the CCRD notice" and that "the EEOC notice has no legal significance in the matter." Id. at p. 119- 20. ARGUMENT RODRIGUEZ'S TITLE VII COMPLAINT WAS TIMELY BECAUSE HER COMPLAINT WAS FILED WITHIN 90 DAYS OF HER RECEIPT OF THE RIGHT-TO-SUE NOTICE ISSUED BY THE EEOC DESPITE THE FACT THAT SHE DID NOT FILE IT WITHIN THE TIME LIMITS SET FORTH IN THE NOTICE OF RIGHT TO SUE ISSUED BY THE CCRD. The district court concluded that Rodriguez's Title VII complaint was untimely because she did not file it within the time limits set forth in the notice of right to sue issued by the CCRD, despite the fact that her complaint was filed within 90 days of her receipt of the right-to-sue notice issued by the EEOC. The court's conclusion that the notice issued by the CCRD started the time period for filing a Title VII claim is based on a misreading of the CCRD'S letter. Furthermore, even if the CCRD notice did purport to apply to Rodriguez's Title VII claims, the CCRD has no authority to issue a notice of the right-to bring suit based on federal law.<1> In dismissing Rodriguez's complaint, the district court relied on the language in the notice issued by the CCRD which states that she had requested a notice of right to sue from the EEOC as well as the CCRD. Aplt. App. p. 115-16. The court erred in concluding that this solitary reference to the EEOC constituted the CCRD's issuance of a notice of right to sue as to Rodriguez's Title VII claims. A better reading of the CCRD's notice is that it relates only to Rodriguez's claims under state law, not under Title VII. First, the notice simply states that the CCRD was closing Rodriguez's charge because she had requested a notice of right to sue from the CCRD and the EEOC. Aplt. App. p. 48. There is nothing in that statement stating or even suggesting that the CCRD is issuing the notice on behalf of the EEOC. Rather, that language is simply an introductory sentence noting that Rodriguez had asked for a notice of right to sue from both agencies. In fact, the CCRD explains in the next sentence that it is issuing the notice because it is required to do so by state statute where a claimant's request is made after 180 days from the filing of a charge. Aplt. App. p. 48. The statute referred to, "C.R.S. 24-34-306(15)," states that the notice of right to sue constitutes final agency "action and exhaustion of administrative remedies and proceedings pursuant to Part 3 of Article 34 of Title 24, C.R.S. (1988)" - i.e., Colorado state law. The notice issued by the CCRD makes no mention of final agency action by the EEOC or of filing a claim under federal law. See Albright v. City of Philadelphia, 399 F. Supp. 2d 575, 583 n.13 (E.D. Pa. 2005) (noting that the notice of right to sue issued by the state agency in that case "include[s] no mention of making claims under federal law"). Accordingly, viewing the notice in its entirety, it is clear that the district court erred in concluding that the CCRD's notice commenced the time period for filing an action under Title VII. In any event, the CCRD has no authority to issue a notice of right to sue that initiates the time period for filing a lawsuit under Title VII. Section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1), provides that, when certain conditions are met, "the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the Respondent named in the charge." Consequently, as this Court has recognized, a prerequisite for a suit under Title VII is "a right to sue letter from the EEOC." Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1310 (10th Cir. 2005); accord Vielma v. Eureka Co., 218 F.3d 458, 466 (5th Cir. 2000) (relying on the language in § 706(f)(1), to determine that "[r]eceipt of the federal letter appears to be the exclusive mechanism for commencing the federal filing period"). Moreover, the Supreme Court has concluded that the limitations periods for federal and state anti-discrimination claims are independent. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 123(1988) (holding "state time limits for filing discrimination claims do not determine the applicable federal time limit"). Further, every court to have addressed the issue has concluded that receipt of a notice of right to sue from a state agency cannot trigger the filing period provided for federal claims and vice versa. See Vielma, 218 F.3d at 466; Burgh v. Bor. Council of Bor. of Montrose, 251 F.3d 465, 470-71, 474-76 (3d Cir. 2001) (issuance of EEOC notice did not start the two-year state statute of limitations where state agency never sent separate notice that it was closing the case); Jones v. Grinnell Corp., 235 F.3d 972, 975 (5th Cir. 2001) (concluding that an EEOC notice of right to sue is not "interchangeable with a [state agency] right-to-sue letter for purposes of filing a civil action"); Hansen v. Aon Risk Servs., 473 F. Supp. 2d 743, 748 (S.D. Tex. 2007) (EEOC's notice of right to sue could not trigger the state agency's 60-day filing period); Buboltz v. Residential Advantages, Inc., 2006 WL 2943096 (D. Minn. 2006) (stating "a right-to-sue letter by a state agency does not trigger the ninety-day limitation period for federal claims . . .[;] only a right-to-sue letter from the EEOC triggers the limitation period"); Gokay v. Pennridge Sch. Dist., 2003 WL 21250656 (E.D. Pa. 2003) (rejecting defendant's argument that letter from state agency closing plaintiff's case "was sufficient to function as a right-to-sue letter in her federal action"); Perez Cordero v. Wal-Mart PR, Inc., 235 F. Supp. 2d 95, 105 (D.P.R. 2002) (notice of right to sue from state agency cannot exhaust administrative remedies of the EEOC); Albright, 399 F. Supp. 2d at 583 n.13 (notice that the state agency sent to plaintiff "do[es] not constitute final agency action by the EEOC"); Oliver v. New York Tel. Co., 1993 WL 173471 *3 (W.D.N.Y. 1993) (EEOC notice addresses plaintiff's right to pursue claim under federal law only and is unnecessary and irrelevant to filing of state law claim); Muth v. Cobro Corp., 895 F. Supp. 254, 256 (E.D. Mo. 1995) (state notice of right to sue did not trigger 90-day federal time period); Black v. Brown Univ., 555 F. Supp. 880, 884 (D.R.I. 1983) (rejecting plaintiff's argument that notice from state agency "is equivalent to the EEOC right-to-sue letter"); Foreman v. General Motors Corp., 473 F. Supp. 166, 177 (E.D.Mich. 1979) (plaintiffs failed to satisfy prerequisites for a Title VII suit because they only received a notice of right to sue from the state agency, not the EEOC). In district court, Wet Ink noted that the EEOC has a worksharing agreement with the CCRD pursuant to which Rodriguez's charge was dual-filed with both agencies. Doc. no. 21 at p. 5-6, Wet Ink's Reply in Support of Motion to Dismiss Claims as Time Barred. Wet Ink argued below that issuance of the CCRD's notice of right to sue fulfills the requirements to bring a Title VII action because "the CCRD investigates and issues determinations jointly with the EEOC." Id. at 6. Wet Ink materially misrepresents the terms of the work sharing agreement. The provision on which Wet Ink relies simply states that the EEOC and the CCRD "each designate the other as its agent for the purpose of receiving and drafting charges." Aplt. App. at p. 54 (II A) (emphasis added). Nowhere in that provision or, indeed in the entire worksharing agreement, does the EEOC authorize the CCRD to issue a right-to-sue notice on behalf of the EEOC. In fact, the worksharing agreement expressly provides that the "delegation of authority to receive charges does not include the right of one Agency to determine the jurisdiction of the other Agency over a charge." See Jones, 235 F.3d at 975 (relying on identical language in a worksharing agreement in holding that an EEOC notice of right to sue cannot substitute for a state-agency right to sue letter); accord Perez Cordero, 235 F. Supp. 2d at 104 (worksharing agreement "extends to the filing and receipt, the initial handling and the investigation of a charge," not to the issuance of a right-to-sue notice). Consequently, Wet Ink's assertion that the worksharing agreement authorizes the CCRD to issue a notice of right to sue that is binding on the EEOC is simply wrong. Additionally, the Commission's regulations make clear that a state agency cannot issue a notice of right to sue on behalf of the EEOC. The regulations provide that where, as here, a charging party requests a notice more than 180 days after the charge was filed, "the Commission" shall issue the notice as described in 29 C.F.R. § 1601.28(d). See 29 C.F.R. § 1601.28(a). The Commission has delegated the authority to issue such a notice to certain EEOC officials; it has not delegated that authority to state agencies, however. See 29 C.F.R. § 1601.28(c) (authority delegated to "District Directors, Local Directors, the Director of the Office of Field Programs, or Director of Field Management or their designees"). Additionally, the notice issued by the CCRD does not comport with the requirements of the Commission's regulations regarding the content of an EEOC notice of right to sue. The regulations provide that a notice of right to sue must include, inter alia, "[a]uthorization to the aggrieved person to bring a civil action under Title VII" or one of the other statues the EEOC enforces; a "copy of the charge;" and the Commission's "decision, determination, or dismissal, as appropriate." 29 C.F.R. § 1601.28(e) (emphasis added). The notice issued by the CCRD contains none of these items. Further, notices of right to sue issued by the EEOC, including the one issued in this case, make clear that they relate only to suits filed under federal law, not state law. The notice of right to sue, after stating that the party has 90 days from its receipt to file an action, informs the recipient that "[t]he time limit for filing suit based on a state claim may be different." Aplt. App. p. 51. Additionally, the EEOC's right to sue notice provides information regarding filing suit under the laws enforced by the EEOC which contains the following admonition: "This information relates to filing suit in Federal or State court under Federal law. If you also plan to sue claiming violations of State law, please be aware that time limits and other provisions of State law may be shorter or more limited than those described below." Aplt. App. p. 52 (original emphasis). CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel JOHN F. SUHRE Attorney Equal Employment Opportunity Commission Office of General Counsel 131 M Street, N.E., Room 5NW22k Washington, D.C. 20507 (202) 663-4716 john.suhre@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 3,428 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 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 it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. John F. Suhre Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., Room 5NW22k Washington, D.C. 20507 (202) 663-4716 john.suhre@eeoc.gov Dated: February 10, 2009 CERTIFICATE OF SERVICE I hereby certify that I caused to be mailed, first class, one copy of the foregoing brief this 10th day of February, 2009, to each of the following: Susan R. Hahn, Esq. 5765 South Curtice Street Littleton, CO. 80120 Attorney for Plaintiff-Appellant Colin Moriarity, Esq. Underhill & Underhill, P.C. 5340 South Quebec Street # 306 North Greenwood Village, CO 80111 Attorney for Defendant-Appellee John F. Suhre Attorney Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7026 Washington, D.C. 20507 (202) 663-4716 john.suhre@eeoc.gov *********************************************************************** <> <1> The district court declined to rule on Wet Ink's argument that the district court did not have subject-matter jurisdiction over Rodriguez's complaint because she had signed an arbitration agreement. Aplt. App. p. 116. Because there are two potential problems with Wet Ink's reliance on the arbitration agreement which should be addressed by the district court in the first instance, we urge this Court not to reach the arbitration issue should Wet Ink raise it as an alternative basis for affirmance. First, there is evidence in the record which could potentially support a finding that Wet Ink breached the agreement by refusing Rodriguez's request to arbitrate unless she paid all costs, contrary to the terms of the agreement. Aplt. App. p. 94. See Resolution Trust Corp. v. Federal Sav. & Loan Ins. Corp., 25 F.3d 1493, 1501 (10th Cir. 1994) ("A material failure of performance constitutes a breach that discharges the injured party from performance."). Secondly, the arbitration procedures require the arbitrator to apply Colorado law, which limits damages for employment discrimination to reinstatement with back pay. Section 24-34-405 C.R.S. Because this provision would seriously curtail damages available under Title VII, the district court may find it unenforceable with respect to Rodriguez's Title VII claims. See, e.g., Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir.1998) (holding an arbitration agreement unenforceable because it circumscribed an arbitral award of Title VII damages).