ORAL ARGUMENT REQUESTED IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ____________________ No. 03-3326 ____________________ DAVIS L. SHIKLES, Plaintiff-Appellant, v. SPRINT/UNITED MANAGEMENT COMPANY, Defendant-Appellee. ______________________________________________ On Appeal from the United States District Court for the District of Kansas The Honorable Kathryn H. Vratil, Presiding _______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT ________________________________________________ ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 TABLE OF CONTENTS Pages TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings . . . . 3 2. Statement of Facts . . . . . . . . . . . . . . . . . 4 3. District Court's Decision. . . . . . . . . . . . . . 6 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .8 BECAUSE SHIKLES FULFILLED THE PROCEDURAL PREREQUISITES TO SUIT SPECIFIED IN THE ADEA, THE DISTRICT COURT ERRED IN DISMISSING HIS ADEA LAWSUIT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. . . . . . . . . . . . 8 A. The Employment Discrimination Laws Do Not Condition A Plaintiff's Right To File A Lawsuit Against His Employer On Cooperation With EEOC During The Administrative Process. . . . . . . . . . 8 B. McBride Erred In Reading An Additional Procedural Requirement Into The ADA.. . . . . . . . 13 C. The District Court Erred In Extending McBride To This Case.. . . . . . . . . . . . . . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 28 STATEMENT IN SUPPORT OF ORAL ARGUMENT. . . . . . . . . . . . . 29 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Adler v. Espy, 35 F.3d 263 (7th Cir. 1994) . . . . . . . . . . . . . 21-22 Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). . . . . . . . . . . . . . . . . . . 2. 9 Associated Dry Goods Corp. v. EEOC, 720 F.2d 804 (4th Cir. 1983). . . . . . . . . . . . . . . 18 Brown v. General Services Administration, 425 U.S. 820 (1976) . . . . . . . . . . . . . . . . . . . 26 EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981) . . . . . . . . . . . . . . . . . .2, 17 Edelman v. Lynchburg College, 535 U.S. 106 (2002) . . . . . . . . . . . . . . . . . . . 11 Francis-Sobel v. University of Maine, 597 F.2d 15 (1st Cir. 1979) . . . . . . . . . . . . . . . 18 Gibson v. Missouri Pacific Railroad Co., 579 F.2d 890 (5th Cir. 1978). . . . . . . . . . . . . . . 18 Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). . . . . . . . . . . . . . . . . . .9, 23 Green v. Heidelberg USA, 854 F. Supp. 511 (N.D. Ohio 1994) . . . . . . . . . . . . 24 Haggard v. Standard Register Co., No. 01-2513-CM, 2003 WL 22102133 (D. Kan. Aug. 1, 2003) (unpublished) . . 26 Harline v. Drug Enforcement Agency, 148 F.3d 1199 (10th Cir. 1998). . . . . . . . . . . . . . 13 Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) . . . . . . . . . . . . . . . . . . . 15 Julian v. City of Houston, 314 F.3d 721 (5th Cir. 2002). . . . . . . . . . . . . 9, 25 Khader v. Aspin, 1 F.3d 968 (10th Cir. 1993) . . . . . . . . . . . . . . . 25 Kozlowski v. Extendicare Health Services, No. 99-4338, 2000 WL 193502 (E.D. Pa. Feb. 17, 2000) (unpublished) . . 26 Long v. Ringling Brothers-Barnum & Bailey Combined Shows, 9 F.3d 340 (4th Cir. 1993). . . . . . . . . . .10, 20-21, 26 McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002). . . . . . . . . . . . passim McCarthy v. Madigan, 503 U.S. 140 (1992) . . . . . . . . . . . . . . . . . . . 14 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . .9, 10 McKart v. United States, 395 U.S. 185 (1969) . . . . . . . . . . . . . . . . . . . 13 McKennon v. Nashville Banner Public Co., 513 U.S. 352 (1995) . . . . . . . . . . . . . . . . . . . 2 Mohasco Corp. v. Silver, 447 U.S. 807 (1980) . . . . . . . . . . . . . . . . . .10-11 Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977) . . . . . . . . . . . . . . . . . . . 11 Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979) . . . . . . . . . . . . . . . .11, 26-27 Overgard v. Cambridge Book Co., 858 F.2d 371 (7th Cir. 1988). . . . . . . . . . . . . . . 9 Rann v. Chao, 154 F. Supp. 2d 61 (D.D.C. 2001), aff'd, 346 F.3d 192 (D.C. Cir. 2003). . . . . . . . . . . 26 Rann v. Chao, 346 F.3d 192 (D.C. Cir. 2003) . . . . . . . . . . . . . . 25 Scheerer v. Rose State College, 950 F.2d 661 (10th Cir. 1991) . . . . . . . . . . . . 18-19 Sedlacek v. Hach, 752 F.2d 333 (8th Cir. 1985). . . . . . . . . . . . . 10, 18 Seredinski v. Clifton Precision Products Co., 776 F.2d 56 (3d Cir. 1985). . . . . . . . . . . . . . . 9-10 Seymore v. Shawver & Sons, 111 F.3d 794 (10th Cir. 1997) . . . . . . . . . . . . . . 15 Smith v. Midland Brake, 180 F.3d 1154 (10th Cir. 1999). . . . . . . . . . . . . . 8 St. Anthony Hospital v. Department of Health & Human Services, 309 F.3d 680 (10th Cir. 2002) . . . . . . . . . . . . . . 18 Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994) . . . . . . . . . . . . . . . . . 17-18 Ward v. EEOC, 719 F.2d 311 (9th Cir. 1983). . . . . . . . . . . . . . . 18 Zipes v. TWA, 455 U.S. 385 (1982) . . . . . . . . . . . . . . . . . . . 15 STATUTES The Age Discrimination in Employment Act, 29 U.S.C. 621 et seq.. . . . . . . . . . . . . . . passim 29 U.S.C. 626(a)-(b). . . . . . . . . . . . . . . . . . 23 29 U.S.C. 626(d). . . . . . . . . . . . . . . . 9, 22, 24 29 U.S.C. 626(d) (1977) . . . . . . . . . . . . . . .23-24 29 U.S.C. 626(e). . . . . . . . . . . . . . . . . . .9, 17 29 U.S.C. 633 . . . . . . . . . . . . . . . . . . 9, 25-26 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. . . . . . . . . . . . . . passim 42 U.S.C. 2000e-5(b) . . . . . . . . . . . . . . . . . 23 42 U.S.C. 2000e-5(c) . . . . . . . . . . . . . . . . . 9 42 U.S.C. 2000e-5(e) . . . . . . . . . . . . . . . . . 9 42 U.S.C. 2000e-5(f)(1) . . . . . . . . . . . . .9, 17, 24 42 U.S.C. 2000e-16 . . . . . . . . . . . . . . . . 25-26 Title I of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. . . . . . . . . . . . . . . . 1 42 U.S.C. 12117(a). . . . . . . . . . . . . . . . . . 8 REGULATIONS and RULES 29 C.F.R. 1601.1 . . . . . . . . . . . . . . . . . . . . . . 22 29 C.F.R. 1601.18(b) . . . . . . . . . 7, 15-18, 21, 22-23, 27 29 C.F.R. 1601.18(d) . . . . . . . . . . . . . . . . . . 20-21 29 C.F.R. 1601.28(e)(1). . . . . . . . . . . . . . . . . . . 17 29 C.F.R. 1614 . . . . . . . . . . . . . . . . . . . . . . . 26 29 C.F.R. 1625 . . . . . . . . . . . . . . . . . . . . . . . 22 29 C.F.R. 1626.18(c) . . . . . . . . . . . . . . . . . . . . 17 Federal Rule of Civil Procedure 56 . . . . . . . . . . . . . . 8 LEGISLATIVE HISTORY 124 Cong. Rec. H2272 (daily ed. March 21, 1978). . . . . . .23-24 S. Rep. No. 493, 95th Cong., 2d Sess. (1978), reprinted at 1978 U.S.C.C.A.N. 504. . . . . . . . . . 23-24 H. Conf. Rep. No. 950, 95th Cong., 2d Sess. (1978), reprinted at 1978 U.S.C.C.A.N. 528. . . . . . . . . . . . .23-24 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ____________________ No. 03-3326 ____________________ DAVIS L. SHIKLES, Plaintiff-Appellant, v. SPRINT/UNITED MANAGEMENT COMPANY, Defendant-Appellee. ___________________________________________ On Appeal from the United States District Court for the District of Kansas The Honorable Kathryn H. Vratil, Presiding ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _____________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret and enforce The Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621 et seq., as well as Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. 2000e et seq., and Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq. Effective enforcement of the ADEA, like Title VII and the ADA, depends on lawsuits brought by individuals like the plaintiff in this action who believe they have been injured by illegal discrimination. See McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 357-58 (1995) (ADEA); Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974) (Title VII). Although the Commission is empowered to bring enforcement actions, Congress also provided for a private right of action and "considered the charging party a 'private attorney general,' whose role in enforcing the ban on discrimination is parallel to that of the Commission itself." EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602 (1981). This appeal raises an important issue of first impression concerning the procedural prerequisites to filing suit under the ADEA and, indirectly, under Title VII and the ADA. The district court dismissed the suit for failure to exhaust administrative remedies, reasoning that plaintiff had failed adequately to cooperate with EEOC during the administrative process. In so doing, the court read into the statute a condition to the commencement of a private ADEA action that neither Congress nor the EEOC imposed. That condition has no basis in the statute or regulations, and the court's ruling is contrary to the EEOC's interpretation of the statute. If allowed to stand, the ruling will inevitably foreclose other plaintiffs from seeking redress in the courts for alleged employment discrimination. Any such result would diminish private enforcement of the statute and, so, undermine the EEOC's ability to process charges and enforce the ADEA. We therefore offer our views to the Court. STATEMENT OF THE ISSUE Whether a plaintiff who has satisfied the statutory prerequisites to suit under the ADEA may proceed with a claim against a private sector employer regardless of whether the EEOC dismissed his charge for failure to cooperate during the administrative process. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from a final judgment dismissing plaintiff's action in its entirety. Plaintiff alleges that his former employer violated the ADEA by terminating his employment during a reduction in force because of his age. District court docket number ("R")1. On October 28, 2003, the district court granted defendant's motion for summary judgment, dismissing all of plaintiff's claims. R87. Judgment against plaintiff was entered the same day. R88. Plaintiff filed a timely notice of appeal on November 3, 2003. R89. 2. Statement of Facts Davis Shikles started working in the billing department at Sprint/United Management Corp. in 1997. Appellant's Appendix, volume 2 ("2App.") 486-87 (Memorandum and Order). During his tenure, he was transferred into a number of other jobs and always received satisfactory performance evaluations. 2App. 490-91. He also applied for a number of other vacancies, including fourteen after July 2001, but was not selected for any of these positions. Id. at 488-90. In early 2002, Sprint instituted a different appraisal system whereby employees were rated against one another. Under that system, Shikles received the lowest of the five relative ratings. Id. at 493-94. On March 13, 2002, when Shikles was age 60, Sprint terminated his employment as part of a reduction in force. Id. at 495. Shikles filed a charge with EEOC on May 21, 2002, alleging that he was terminated and had not been selected for other positions because of his age. 2App. 496-97; see also (Supp.) 1App. 2 (charge). On June 17, the EEOC investigator assigned to the case sent Shikles' attorney a letter stating that, in order to determine whether further investigation was appropriate, the investigator would need an in-depth interview with Shikles. 2App. 497. If the interview were not conducted within 30 days, the letter continued, the investigator would recommend dismissal of the charge. Id.; see also (Supp.) 1App. 7 (letter). On June 27, the EEOC investigator scheduled an interview with Shikles and his attorney for July 10. 2App.497; see also (Supp.) 1App. 3 (Investigator's Declaration). A follow-up letter from the investigator requested written information about each vacancy for which Shikles had applied. 2App. 497; see also (Supp.) 1App. 8 (letter). Shortly before the scheduled interview, however, Shikles had started a new job which required his attendance at a training session on July 10, so his attorney asked that the interview be rescheduled. 2App. 497; see also 2App. 413 (Shikles' Declaration  15). Shikles did not supply the information requested by the investigator. 2App. 497. The interview was rescheduled for July 19, but Shikles' attorney cancelled because he was required to attend to a family matter (2App. 497), and Shikles had been called out of town on business. 2App. 413 (Decl. 16). In late July and early August, the investigator sent Shikles' counsel another letter and left several phone messages warning that the case would be closed if Shikles were not interviewed by August 19. 2App. 497-98; (Supp.) 1App. 9 (letter). In response, the interview was rescheduled for August 16 (a Friday), but Shikles' attorney again cancelled at the last minute explaining that Shikles had again been called away on business. 2App. 498; see also 2App. 413 (Decl. 17). On August 20, 91 days after it was filed, Shikles' charge was dismissed. (Supp.) 1App. 11 (Dismissal and Notice of Rights). According to the box checked on the Dismissal and Notice of Rights, the reason for the dismissal was that "Having been given 30 days in which to respond, [Shikles] failed to provide information, failed to appear or be available for interviews/conferences, or otherwise failed to cooperate to the extent that it was not possible to resolve [his] charge." Id. The Notice also specified that Shikles "may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court . . . within 90 days." Id. 3. District Court's Decision The district court granted Sprint's motion for summary judgment. The court initially noted that, although a plaintiff "may not bring an ADEA claim unless it was part of a timely-filed administrative charge," he may file suit any time after 60 days and need not wait for a notice of right to sue. 2App. 500 & n.17. The court added, however, that "[e]xhaustion of administrative remedies is a jurisdictional prerequisite to an ADEA action," and, "[b]ecause failure to exhaust administrative remedies is a bar to subject matter jurisdiction, the burden is on plaintiff, as the party seeking federal jurisdiction, to show by competent evidence that he did exhaust." Id. Citing McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1105 (10th Cir. 2002), the court assumed without discussion that, to show he has exhausted administrative remedies, an ADEA plaintiff must establish that he cooperated with EEOC during the administrative process. The court stated that, while "EEOC has the authority to dismiss a charge for failure to cooperate under 29 C.F.R. 1601.18(b)," the court could "not defer to the EEOC or the complaint investigator's finding with respect to plaintiff's noncompliance." 2App. 501. Instead, the court explained, it must determine whether a "genuine issue of material fact exists regarding plaintiff's alleged failure to cooperate, and, if not, whether his failure to cooperate requires a finding that he failed to exhaust." Id. at 500-01. After reviewing the evidence, the court concluded that Shikles' ADEA claim should be dismissed for failure to exhaust administrative remedies since, the court opined, he had not proved that he cooperated with EEOC "at any time inside or outside of the 60 days of exclusive jurisdiction." 2App. 502, 504. In reaching this conclusion, the court analogized to McBride, which upheld the dismissal of an ADA claim for failure to exhaust administrative remedies on the ground that plaintiff had not cooperated with EEOC's investigation. Id. at 502. The court reasoned that "[a]llowing plaintiff to proceed with an ADEA claim after failing to cooperate with the EEOC would thwart the administrative process and turn the EEOC filing requirement into a mere formality," which, in the court's view, was not "Congress's intent in drafting the ADEA." Id. at 504-05. ARGUMENT Standard of Review This Court reviews the district court's grant of summary judgment de novo. Smith v. Midland Brake, 180 F.3d 1154, 1159 (10th Cir. 1999) (en banc). Summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). BECAUSE SHIKLES FULFILLED THE PROCEDURAL PREREQUISITES TO SUIT SPECIFIED IN THE ADEA, THE DISTRICT COURT ERRED IN DISMISSING HIS ADEA LAWSUIT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES. A. The Employment Discrimination Laws Do Not Condition A Plaintiff's Right To File A Lawsuit Against His Employer On Cooperation With EEOC During The Administrative Process. The district court dismissed Davis Shikles' ADEA suit on the ground that Shikles failed to exhaust his administrative remedies because he did not, in the court's view, adequately cooperate with EEOC during the administrative process. In so ruling, the court erroneously read into the ADEA an administrative requirement which is not included in the statute. The ADEA and Title VII (the provisions of which are incorporated into the ADA, 42 U.S.C. 12117(a)) specify "with precision" the administrative requirements that a private sector plaintiff such as Shikles must satisfy before bringing a discrimination lawsuit. See Gardner-Denver, 415 U.S. at 47 (discussing Title VII). Specifically, both statutes require a plaintiff challenging discrimination in a state like Kansas, which has a law prohibiting the discrimination, to file a charge with EEOC within 300 days of the alleged discriminatory conduct and to institute proceedings with the appropriate state agency. 29 U.S.C. 626(d) & 633(b) (ADEA); 42 U.S.C. 2000e-5(c) & (e) (Title VII). In addition, a plaintiff alleging a Title VII claim must obtain a notice of right to sue no less than 180 days after filing a charge and bring his lawsuit no more than 90 days thereafter. 42 U.S.C. 2000e-5(f)(1). In contrast, a plaintiff alleging an ADEA claim may institute a lawsuit any time from 60 days after filing his charge until 90 days after receiving notice from EEOC that it has terminated the processing of his charge. 29 U.S.C. 626(d)-(e). See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27 (1991) (ADEA claimant "must first file a charge with the EEOC and then wait at least 60 days"); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 797 (1973) (prerequisites to Title VII suit are filing a timely charge and receiving and acting upon a notice of right to sue). Neither Title VII nor the ADEA contains a requirement that a plaintiff cooperate with EEOC during the administrative process. The Supreme Court has repeatedly rejected attempts by the lower courts or defendants to read additional requirements, beyond those expressly provided by Congress, into the federal statutes prohibiting employment discrimination. In McDonnell Douglas, 411 U.S. at 798-99, for example, the Supreme Court rejected the argument that a plaintiff could not include a claim in a Title VII lawsuit unless EEOC had found reasonable cause on that claim. Noting that the "Act 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. Similarly, in Mohasco Corp. v. Silver, 447 U.S. 807 (1980), the Court noted its disapproval of a judicially-created requirement that a Title VII plaintiff initiate state proceedings within 180 days of the alleged discriminatory occurrence. The Court noted that Title VII contains no such "express" requirement, 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, "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. In this case, it is undisputed that Shikles satisfied the ADEA's express prerequisites to suit before instituting this action against his former employer. That is, he filed a timely charge with EEOC that was cross-filed with the Kansas agency and brought suit well within the requisite 90 days of receiving notice that EEOC had dismissed his charge. Consistent with Supreme Court precedent, therefore, the district court should have determined that Shikles' lawsuit under the ADEA was entitled to proceed. In holding instead that Shikles' suit was barred, the district court concluded that, despite his compliance with ADEA's express requirements, Shikles had not exhausted his administrative remedies because he failed adequately to cooperate with EEOC during the administrative process. Since the ADEA contains no such requirement, the court reached this conclusion only by engrafting an additional requirement cooperation with EEOC's administrative process onto the statute. This was error. As noted above, courts are not free to read in requirements that may inhibit judicial review of private sector discrimination claims or lead to uneven administration of the law. There can be no doubt that the new procedural requirement the court imposed in this case had precisely those effects. The district court did not ground its decision on any provision in the ADEA, but rather relied primarily on this Court's decision in McBride v. Citgo Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002). In McBride, this Court held that a private sector plaintiff whose ADA charge had been dismissed by EEOC for failure to cooperate had failed to exhaust her administrative remedies and, so, could not proceed with an ADA lawsuit against her employer. See id. at 1105- 07. The district court here simply assumed that the same exhaustion requirement would apply to the ADEA. As discussed below, however, that assumption was erroneous for two main reasons. First, contrary to the holding in McBride, there is no such exhaustion requirement in the ADA (which, as noted above, incorporates Title VII's procedural requirements), any more than in the ADEA. Second, even if McBride could be defended on its facts, key legal and factual differences between the cases dictate that the rule in McBride should not be extended to this case. B. McBride Erred In Reading An Additional Procedural Requirement Into The ADA. The McBride Court held that, to exhaust administrative remedies, a private sector ADA plaintiff must persuade the district court that she adequately cooperated with the EEOC during the processing of her charge. There is, however, no sound legal basis for that rule. Initially, we note that it is something of a misnomer to refer to the procedural requirements in the ADEA or Title VII as "administrative exhaustion requirements." That term traditionally applies to prerequisites that courts require a plaintiff to satisfy before seeking judicial review of an agency decision. As this Court explained in Harline v. DEA, 148 F.3d 1199, 1203 (10th Cir. 1998), an "exhaustion requirement generally prevents premature interference with agency processes, allowing agencies an opportunity to (1) correct their own errors, (2) afford the parties before them and reviewing courts the benefit of their experience and expertise, and (3) compile a record which is adequate for judicial review." See also McKart v. United States, 395 U.S. 185, 192-94 (1969) (it is "more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages"). This traditional concept of exhaustion is ill-suited to the administrative requirements of Title VII and the ADEA where the individual is seeking a de novo determination on the merits of his claim, rather than review of an EEOC decision; indeed, EEOC has no adjudicative authority with respect to private sector discrimination claims and its decisions do not bind the parties. Moreover, exhaustion is typically not required where as here the agency does not have the power to grant the plaintiff effective relief. See McCarthy v. Madigan, 503 U.S. 140, 147-48 (1992) ("doubt as to whether the agency was empowered to grant effective relief" is key circumstance weighing "heavily" against requiring administrative exhaustion). Accordingly, the term "exhaustion" is misleading when referring to the requirements a plaintiff must meet before bringing suit under the discrimination statutes. Whatever term is used, however, as explained above, a plaintiff is required only to satisfy the administrative prerequisites set out by Congress in those statutes, and neither the ADEA nor Title VII expressly requires cooperation as a prerequisite to suit. In McBride, the Court based its holding that cooperation is required not on the statute, but on an EEOC regulation. McBride, 281 F.3d at 1105 (citing 29 C.F.R. 1601.18(b)). Section 1601.18(b) provides: Where the person claiming to be aggrieved fails to provide requested necessary information, fails or refuses to appear or to be available for interviews or conferences as necessary, fails or refuses to provide information requested by the Commission pursuant to 1601.15(b), or otherwise refuses to cooperate to the extent that the Commission is unable to resolve the charge, and after due notice, the charging party has had 30 days in which to respond, the Commission may dismiss the charge. 29 C.F.R. 1601.18(b). The Court construed this regulation as imposing a mandatory "regulatory" duty on private sector charging parties to cooperate with EEOC in the administrative process, adding that if the district court determined that the plaintiff did not adequately cooperate, it should dismiss the suit for failure to exhaust administrative remedies. McBride, 281 F.3d at 1105-06. McBride's reliance on 1601.18(b) is misplaced. Initially, we note that the Court's construction of the regulation finds no support in the plain language of the provision. On its face, 1601.18(b) simply alerts a charging party that he risks dismissal of his charge by the EEOC if he "fails to provide requested necessary information, fails or refuses to appear or to be available for interviews or conferences . . . or otherwise refuses to cooperate to the extent that the Commission is unable to resolve the charge." 29 C.F.R. 1601.18(b)). As such, the regulation serves to notify the charging party that he may lose EEOC's assistance in the resolution of his claim. The regulation cannot fairly be read to suggest that, if the Commission is dissatisfied with the charging party's level of cooperation, he may also lose his right to go to court. McBride's construction of 1601.18(b) is also contrary to EEOC's interpretation of the provision. The regulation is written as it is because EEOC does not agree that a charging party's failure to cooperate during the administrative process precludes him from later proceeding against his employer in court. Rather, the Commission takes the position that, regardless of the agency's reason for dismissing his charge, if the charging party has satisfied the express prerequisites to suit, he has the right to sue his employer, based on the charge, and have a court determine the merits of his discrimination claim. EEOC's reading of the regulation is clear, for example, from the Dismissal and Notice of Rights form Shikles received. See (Supp.) 1App. 11 ("You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this Notice; otherwise your right to sue . . . will be lost."). EEOC's other regulations also confirm this view. See 29 C.F.R. 1626.18(c) ("[t]he right of an aggrieved person to file suit expires 90 days after receipt of the Notice of Dismissal or Termination . . ."); 1601.28(e)(1) (notice of right to sue "shall include [a]uthorization to the aggrieved person to bring a civil action under title VII or the ADA . . . within 90 days"). The Commission's interpretation of its own regulation is entitled to great deference. See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (court "must defer to [agency's] interpretation [of its own regulation] unless an alternative reading is compelled by the regulation's plain language or by other indications of [agency's] intent at the time of the regulation's promulgation"); accord St. Anthony Hosp. v. Department of HHS, 309 F.3d 680, 691-92 (10th Cir. 2002). Further, the rule in McBride runs counter to the well- established principle that EEOC's conduct during the administrative process does not affect the charging party's right to a de novo judicial determination of the merits of his complaint. In an unbroken line of cases, courts have long held that EEOC cannot be sued for alleged deficiencies in the agency's processing of a charge or cause determination, reasoning that the charging party has a statutory right to sue the employer regardless of what transpires during the administrative process. See, e.g., 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 charging party). In contrast, under McBride and the district court's decision in this case, the Commission's decision to dismiss a charge for failure to cooperate, rather than take some other action, could significantly affect a charging party's rights since it may foreclose the charging party's private right of action. Although McBride states that the district court must make a de novo determination whether a plaintiff's non-cooperation constitutes a failure to exhaust, there is no way this determination can be made without giving some effect to the EEOC's handling of the charge. For example, in this case, Shikles' charge was dismissed after he cancelled three interviews and failed to submit information relating to promotions he was denied. If the investigator had given Shikles one more chance to come in for an interview, he might well have provided all of the information the investigator needed to proceed with the investigation, and the issue of exhaustion would not have arisen. Similarly, the charge in McBride was dismissed for failure to cooperate when the charging party was slow to sign a "perfected charge" that did not contain changes to the allegations that she had requested but that the investigator believed "would be self- defeating." See 281 F.3d at 1106-07. Had the investigator instead simply dismissed the charge for failure to state a claim, the plaintiff could have tested the validity of her allegations de novo in court. In determining how to use its limited resources effectively, EEOC needs the flexibility to resolve particular charges as it deems best within the context of its overall enforcement program. McBride, however, restricts that flexibility. Given the adverse consequences that McBride indicates EEOC's decisions may have on charging parties' substantive rights, investigators may feel constrained to retain charges like Shikles' or McBride's even though that means devoting less time to charges that, in the investigator's judgment, would otherwise warrant more extensive treatment. Thus, if applied broadly, McBride could actually hamper EEOC's ability to carry out its statutory obligations. The Fourth Circuit addressed an analogous issue in Long v. Ringling Bros-Barnum & Bailey Combined Shows, 9 F.3d 340 (4th Cir. 1993). There, the district court had granted summary judgment after EEOC dismissed the plaintiff's Title VII charge pursuant to subsection (d) of 29 C.F.R. 1601.18, for refusing to accept a settlement offer that, in EEOC's view, constituted full relief. That provision parallels subsection (b), at issue here, but the Fourth Circuit did not construe it as a "regulatory" exhaustion requirement. Rather, the Court noted that the "only" administrative prerequisites to suit are the filing of a timely charge and institution of a lawsuit within 90 days of receiving a notice of right to sue. 9 F.3d at 342. Since the plaintiff had satisfied those requirements, despite EEOC's dismissal of her charge under 1601.18(d), the Court concluded that her lawsuit could proceed. See id. at 343. In light of the similarity between the two regulatory sections and notwithstanding McBride, a private sector lawsuit such as this one should likewise be permitted to proceed even if EEOC has dismissed the underlying charge pursuant to 1601.18(b). We recognize that the validity of the McBride decision is not before this Court, and this panel is not empowered to overrule it even if so inclined. As the Seventh Circuit noted in a related context, however, "The principal ground for [imposing an exhaustion requirement] is that agencies shouldn't be put to the bother of conducting administrative proceedings from which the complainant can decamp at any time without consequence. That is a weighty consideration . . . . [but one] designed for the benefit of the agencies, not of the judges, and if the agencies don't want it there is no reason for [courts] to give it great weight." Adler v. Espy, 35 F.3d 263, 265 (7th Cir. 1994) (discussing ADEA federal sector regulation). In this case, the agency EEOC does not "want" the exhaustion requirement McBride created; it is inconsistent with settled legal principles and, at best, unnecessary to EEOC's administrative process. We therefore strongly urge the Court to limit McBride to its facts. In addition, should the opportunity arise, we urge the Court to hold, consistent with the Supreme Court, that a private sector plaintiff who has satisfied the administrative requirements that Congress specified in Title VII and the ADEA is entitled to a de novo judicial determination of the merits of his discrimination claim whether or not the underlying charge was dismissed for failure to cooperate. C. The District Court Erred In Extending McBride To This Case. Even assuming the McBride rule remains the law in some cases in this Circuit, the district court erred in applying the rule to this case. There are three key distinctions between this case and McBride, any one of which would justify a contrary result in this case. First, as noted above, McBride grounds its exhaustion requirement on an EEOC regulation, 29 C.F.R. 1601.18(b). By its terms, however, that regulation applies only to charges under Title VII and the ADA. See 29 C.F.R. 1601.1 (regulations in Part 1601 relate to charges under Title VII and the ADA). While the Commission clearly needs no specific regulation in order to dismiss a charge for failure to cooperate (or any other reason), there is in fact no comparable regulation authorizing such dismissals under the ADEA. See generally 29 C.F.R. 1625 (ADEA regulations). Since Shikles' claim arises under the ADEA, the legal analysis and rationale of McBride are inapplicable to his case. Second, the ADEA's charge-filing requirements differ significantly from those in Title VII. In contrast to the latter statutes, the filing and resolution of a charge are not central to the ADEA's enforcement scheme. The EEOC does not need a charge or cause finding to investigate and/or bring an enforcement action under the ADEA; the agency may do so on its own authority. Compare 29 U.S.C. 626(a)-(b) (ADEA) with 42 U.S.C. 2000e-5(b) (Title VII). Nor does EEOC's receipt of an ADEA charge trigger a duty to investigate the complaint. Instead, the statute states that the agency must simply notify the "prospective defendants" and "seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference and persuasion." Compare 29 U.S.C. 626(d) (ADEA) with 42 U.S.C. 2000e-5(b) (Title VII); see Gilmer, 500 U.S. at 28. Since EEOC is not dependent on a charge, investigation and cause finding to carry out its statutory mandate, a charging party's cooperation during the administrative process is arguably less important under the ADEA than under Title VII. Third, the rule in McBride should not apply when, as was true for Shikles, the charging party is already entitled to go to court by the time the EEOC dismisses his charge. As noted above, an ADEA plaintiff may file suit, even without a notice of right to sue, any time after 60 days from the date he filed his charge. 29 U.S.C. 626(d); cf. 42 U.S.C. 2000e-5(f)(1) (Title VII plaintiff may file suit after 180 days if he first obtains a notice of right to sue). Holding that his judicial remedy is barred by EEOC's subsequent dismissal of his charge actually penalizes a charging party like Shikles who remains within the system instead of going directly into court. EEOC dismissed Shikles' charge 91 days after it was filed; the 60-day waiting period had expired one month earlier, on about July 20. Compare McBride, 281 F.3d at 1106 (EEOC dismissed McBride's charge after only 55 days, long before ADA's 180-day period had elapsed). Had Shikles opted to sue when the 60 days were up rather than attempt to reschedule his interview in August, he would unquestionably have "exhausted his administrative remedies" because, by suing after the 60-day post-charge-filing period, Shikles would have satisfied the ADEA's only express prerequisites to filing his suit. See, e.g., Julian v. City of Houston, 314 F.3d 721, 726 (5th Cir. 2002) ("claimant's independent right to sue arises automatically upon the expiration of sixty days after filing of the charge with the EEOC"). The result should be the same regardless of which option he selected. Otherwise, individuals will have an incentive to leave the system as soon as they are statutorily entitled to file suit since, by avoiding EEOC's disposition of the charge, they avoid the risk of forfeiting their right to sue in the event that EEOC becomes dissatisfied with their participation in the administrative process. As it did below, Sprint may cite to cases such as Rann v. Chao, 346 F.3d 192 (D.C. Cir. 2003), and Khader v. Aspin, 1 F.3d 968 (10th Cir. 1993), which affirmed dismissal of discrimination suits for failure to exhaust administrative remedies after plaintiffs failed to cooperate with an agency investigator during the administrative process. Such cases are inapposite, however, since they were brought by federal sector plaintiffs whose administrative obligations are significantly different and more extensive than those of private sector plaintiffs such as Shikles (and McBride). See generally 42 U.S.C. 2000e-16 (Title VII); 29 U.S.C. 633a (ADEA); 29 C.F.R. 1614. See also Brown v. General Servs. Admin., 425 U.S. 820, 833 (1976) (recognizing that Title VII imposes "rigorous administrative exhaustion requirements" on federal employees wishing to pursue discrimination claims in federal court); Long, 9 F.3d at 343 (distinguishing factually analogous federal sector case). The cases therefore do not support the district court's decision. Moreover, while there are some supportive district court decisions, we are aware of no other circuit that has adopted a rule like McBride for private sector cases. The district court stated that its decision was supported by policy considerations because allowing Shikles "to proceed with an ADEA claim after failing to cooperate with the EEOC would thwart the administrative process and turn the EEOC filing requirement into a mere formality." 2App. 504-05. The Supreme Court rejected a similar policy argument in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 763-64 (1979), in holding that the requirement that charging parties "commence" state proceedings before filing suit under the ADEA did not require that the state complaint be filed within the applicable state limitations period. Petitioners argued that unless timely filing were required, prospective ADEA plaintiffs would "avoid state intervention by waiting until the state statute of limitations . . . expired and then filing a federal suit, thus frustrating the intent of Congress that federal litigation be used as a last resort." Id. The Supreme Court disagreed, stating: "No reason suggests itself . . . why an employee would wish to forgo an available state remedy" since "prior resort to the state remedy would not impair the availability of the federal remedy," a claimant "would save no time by bypassing the state remedy," and there is some possibility that complaints might be settled to the grievant's satisfaction in the state proceedings. See id. Similarly here, no reason suggests itself why a plaintiff normally would wish to forgo EEOC's administrative process since it does not impair the availability of a federal remedy or permit the individual to go to court significantly sooner, and there is some real possibility the complaint may be settled to his satisfaction in the EEOC proceeding. Furthermore, even without the McBride rule, charging parties cannot with impunity refuse to cooperate during the administrative process. Rather, as 1601.18(b) warns, EEOC may dismiss a charge if it determines that the charging party was uncooperative, and the individual thereby loses the opportunity to have EEOC assist in the resolution of his complaint. This sanction is sufficient to ensure appropriate cooperation from the vast majority of charging parties, most of whom, unlike Shikles and McBride, are unrepresented by counsel and, so, must depend on EEOC to resolve their claims. The district court's policy rationale should therefore be rejected. Accordingly, because the district court's ruling dismissing Shikles' suit for failure to exhaust is based on no sound legal or policy grounds and may inhibit judicial review of potentially meritorious discrimination suits, the ruling should be reversed. Instead, we urge the Court to hold that, having satisfied the applicable administrative prerequisites to suit specified in the statute, Shikles is entitled to a de novo determination by the court of his allegation that Sprint violated the ADEA by discharging him because of his age. CONCLUSION For the foregoing reasons, the Commission respectfully asks this Court to reverse the district court's ruling dismissing Shikles' ADEA suit for failure to exhaust administrative remedies. STATEMENT IN SUPPORT OF ORAL ARGUMENT The Commission believes that oral argument would be helpful because the issue of first impression presented here is of great importance to the enforcement of the ADEA and other federal anti- discrimination laws. The district court improperly extended Tenth Circuit precedent, thereby depriving plaintiff and others, if the decision were upheld of the opportunity to vindicate federal statutory rights. This would seriously impact the Commission's ability to process charges and enforce the federal employment discrimination laws. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel _______________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32, I certify that this brief was prepared with Courier New (monospaced) typeface, 12 point font, and contains 6916 words, from the Statement of Interest through the Statement In Support of Oral Argument, as determined by the Word Perfect 9 word counting program. ____________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I certify that two copies of the Equal Employment Opportunity Commission's Brief as Amicus Curiae were sent this 12th day of March, 2004, by express mail, postage prepaid, to: Dennis E. Egan THE POPHAM LAW FIRM, P.C. 323 West 8th Street, Suite 200 Kansas City, MO 64105 David M. Eisenberg BAKER STERCHI COWDEN & RICE, LLC 2400 Pershing Road, Suite 500 Kansas City, MO 64108 __________________________ Barbara L. Sloan