Ruby G. Smith v. Center Ford, Inc. Hall Auto World, Inc. 00-1137 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________ No. 00-1137 _________________________ RUBY G. SMITH, Plaintiff-Appellee, v. CENTER FORD, INC.; HALL AUTO WORLD, INC., Defendants-Appellants. ______________________________________________________ On Appeal from the United States District Court for the Eastern District of Virginia ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE APPELLEE ______________________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUE 2 STATEMENT OF FACTS 2 SUMMARY OF ARGUMENT 6 ARGUMENT 7 CONCLUSION 21 REQUEST FOR ORAL ARGUMENT 21 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM Dew v. Nabisco, Inc., No.3:99cv353 (E.D. Va. Oct. 4, 1999) A EEOC v. Waste Management of Virginia, Inc., No. 99-1461-A (E.D. Va. Nov. 9, 1999) B LaFranca v. Wal-Mart Stores, Inc., No. 98-0372-R (W.D. Va. Aug. 31,1999) C TABLE OF AUTHORITIES CASES Barrett v. Applied Radiant Energy Corp., 70 F. Supp. 2d 644 (W.D. Va. 1999), appeal docketed, No. 99-2634 (4th Cir. Dec. 13, 1999) 17 Bolinsky v. Carter Mach. Co., 69 F. Supp. 2d 842 (W.D. Va. 1999) 17, 18 Capps v. City of Lynchburg & Lynchburg Sch. Bd., 67 F. Supp. 2d 589 (W.D. Va. 1999) 17 Carter v. Arlington Pub. Sch. Sys., 82 F. Supp. 2d 561 (E.D. Va. 2000) 17, 18, 19 Dodge v. Philip Morris, Inc., 175 F.3d 1014, 1999 WL 162955 (4th Cir. March 25, 1999)(unpublished) 15-16 Davis v. North Carolina Dep't of Corrections, 48 F.3d 134 (4th Cir. 1995) 13-14 Dew v. Nabisco, Inc., No.3:99cv353 (E.D. Va. Oct. 4, 1999) 9, 13, 17, 18 EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988) 8 EEOC v. Techalloy Maryland, Inc., 894 F.2d 676 (4th Cir. 1990) 9, 18 EEOC v. Waste Management of Virginia, Inc., No. 99-1461-A (E.D. Va. Nov. 9, 1999) 17, 18 Flippo v. American Home Products Corp., 59 F. Supp. 2d 572 (E.D. Va. 1999) 9, 16, 17, 20 Grimes v. Canadian American Transp. C.A.T. (U.S.), Inc., 72 F. Supp. 2d 629 (W.D. Va. 1999) 11, 17 Harris v. TJX Cos., Inc., 60 F. Supp. 2d 562 (W.D. Va. 1999) . 17 LaFranca v. Wal-Mart Stores, Inc., No. 98-0372-R (W.D. Va. Aug. 31, 1999) 17 McIntyre-Handy v. West Telemarketing Corp., 2000 WL 679978 (E.D. Va. May 19, 2000) 18 Morris v. Waste Management of Virginia, Inc., 71 F. Supp. 2d 537(E.D. Va. 1999) 17 Mueller v. Angelone, 181 F.3d 557 (4th Cir. 1999) 16 Nash v. D.S. Nash Constr. Co., 70 F. Supp. 2d 639 (W.D. Va. 1999) 17 Puryear v. County of Roanoke, 71 F. Supp. 2d 551 (W.D. Va.1999), appeal docketed, No. 99-2359 (4th Cir. Oct. 14, 1999) 17 Walker v. Electrolux Corp., 55 F. Supp. 2d 501, 504(W.D. Va. 1999) 17 STATUTES Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq. 1 § 706(c), 42 U.S.C. § 2000e-5(c) 7 § 705(g), 42 U.S.C. § 2000e-4(g)(1) 7 § 709(b), 42 U.S.C. § 2000e-8(b) 7 42 U.S.C. § 1292(b) 5 The Virginia Human Rights Act Va. Code Ann. 2.1-720(5) 7 Va. Code Ann. § 2.1-716 11 N.C. Gen. Stat. § 7A-759(b1) 14 REGULATIONS 29 C.F.R. § 1601.12(b) .10 22 Va. Admin. Code § 25-10-50 10 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________ No. 00-1137 _________________________ RUBY G. SMITH, Plaintiff-Appellee, v. CENTER FORD, INC.; HALL AUTO WORLD, INC., Defendants-Appellants. ______________________________________________________ On Appeal from the United States District Court for the Eastern District of Virginia ______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE APPELLEE ______________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the enforcement of the federal laws prohibiting discrimination in employment, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case involves the interpretation of the provision in § 706(c) that a complainant must institute proceedings under state law before a charge may be filed with the EEOC. Defendant argues that, notwithstanding the fact that plaintiff's charge was filed with the Virginia Council on Human Rights ("VCHR") through the operation of the worksharing agreement between EEOC and the VCHR, the plaintiff failed to comply with this provision merely because she did not mention state law in the charge she submitted to the EEOC and did not check a box affirmatively indicating her desire to have her charge filed with the appropriate state agency. If defendant's interpretation of the statute were accepted, it would needlessly complicate Title VII's administrative scheme and could render invalid a large number of charges filed with the EEOC. The Commission therefore offers its views to the Court. STATEMENT OF THE ISSUE Whether the district court correctly held that, in light of the worksharing agreement between the EEOC and the Virginia Council on Human Rights ("VCHR"), the plaintiff satisfied Title VII's requirement that she institute proceedings under state law by submitting a charge to the EEOC that alleged facts that state a violation of Virginia law. STATEMENT OF FACTS Ruby Smith was fired from her job as a car sales consultant for Center Ford, Inc., on September 19, 1995. Joint Appendix ("JA") 9, 30. On September 27, 1995, Smith submitted a charge to the Norfolk, Virginia, office of the EEOC, stating: During my employment, I was sexually harassed and subjected to a hostile work environment. . . .I believe that I was sexually harassed because of my sex, female[,] and discharged as an act of retaliation because I complained of sexual harassment, all in violation of Title VII of the Civl [sic] Right [sic] Act of 1964, as amended. JA 30. The citation to federal law was placed in the charge by the EEOC employee who took Smith's charge. JA 444-45 (Patterson Dep. at 59-60). Plaintiff's charge form contains a block of text that states: "I want this charge filed with both the EEOC and the State or local Agency, if any." JA 30. The box next to that text was not checked on plaintiff's charge. However, Smith's signature appears directly below this text. JA 30. Attached to Smith's charge form is an affidavit that includes the following factual allegations: I was sexually harassed by Alex Pauley, a male, through verbal harassment by constantly asking me out and through physical acts of touching. On or about May 25, 1995, I was asked by Pauley to go to dinner. I am uncomfortable going out with people I have just met, so I made an excuse. Pauley continued to ask me out on dates, and each time I would politely decline. . . . In early June, 1995, Pauley put his hands around my waist without my consent. . . . On June 24, 1995, I was standing at the front counter when Pauley approached me. I thought he was reaching over my left shoulder to pick up something on the counter, but instead he put his hand on my left shoulder and slid his hand down over my left breast. JA 30(a)-30(b). The affidavit also recounts detailed allegations of retaliation after defendant learned of the harassment. JA 30(c)-30(e). On September 28, 1995, the EEOC transmitted a copy of the charge to the VCHR. JA 31. The charge transmittal form indicates that the charge would be initially investigated by the EEOC pursuant to the worksharing agreement with the VCHR. JA 31. On October 18, 1995, the VCHR director signed the bottom of the transmittal form indicating receipt of Smith's charge and the VCHR's intention not to initially investigate the charge. JA 31. The EEOC issued Smith a right-to-sue letter on June 23, 1998. JA 32. The EEOC and the VCHR have entered into a worksharing agreement designed, by its terms, "to provide individuals with an efficient procedure for obtaining redress for their grievances under appropriate State or Federal laws." JA 34 at I.B. Under the agreement, each agency acts as an agent for the other "for the purpose of receiving . . . charges."<1> JA 34 at II.A. The VCHR also expressly waives its 60-day period of exclusive jurisdiction for charges filed with the EEOC to allow the EEOC to begin processing a claim immediately. JA 41 (amending III.A.1). EEOC staff commonly type up charge forms and affidavits detailing specific allegations for complainants after interviewing them about their charge during an intake process. JA 392-93(Patterson Dep. at 7-8); JA 440 (Patterson Dep. at 55). EEOC staff do not mention the existence of the Virginia Human Rights Act, the existence of the VCHR, or point out the box on the charge form that requests referral to the state agency to complainants. JA 448, 453, 454, 460-61 (Patterson Dep. at 63, 68, 69, 75-76). Charges are processed by the EEOC and transmitted to the VCHR without regard to whether the box requesting referral to the state agency is checked. JA 122, 135-37 (Norman Dep. at 14, 27-29); JA 446 (Patterson Dep. at 61); JA 464 (Patterson Dep. at 79). Smith filed this action on September 24, 1998, alleging sexual harassment and retaliation in violation of Title VII. JA 6-12. Defendant filed a motion to dismiss on the ground that plaintiff failed to exhaust her administrative remedies under state law as required by § 706(c) of Title VII, 42 U.S.C. § 2000e-5(c). R. 9.<2> In denying the motion to dismiss, the district court held that plaintiff satisfied the requirements of § 706(c) by filing her charge with the EEOC, even though the charge refers only to federal law and she failed to check the box affirmatively indicating her desire that the charge be filed with the VCHR. JA 28. The district court certified the issue for interlocutory appeal, and the court of appeals granted defendant's petition to appeal under 42 U.S.C. § 1292(b). R. 23. SUMMARY OF ARGUMENT The district court correctly held that the plaintiff satisfied Title VII's requirement that she commence proceedings under state law when she submitted her charge to the EEOC. As the district court recognized, the EEOC received the charge not only on its own behalf, but also as the agent of the VCHR, pursuant to the worksharing agreement between the EEOC and the VCHR. Because the allegations in the charge were sufficient to state a violation of the state law enforced by the VCHR, this served to commence proceedings under state law. The court properly rejected the defendant's contention that the charge was inadequate to commence state law proceedings because it did not explicitly cite to state law and because the box requesting that the charge be filed with the VCHR was not checked. There is nothing in the Virginia statute or in the VCHR's regulations to suggest that a complaint must cite to the law allegedly violated, and the VCHR has indicated that it determines whether a charge alleges a violation of state law based on the factual allegations in the charge. In this case, the plaintiff's charge manifestly alleged facts which would constitute a violation of Virginia law. By operation of the worksharing agreement, the EEOC transmits charges to the VCHR regardless of whether or not the charging party affirmatively requests that the charge be filed with the VCHR by checking the box on the charge form. The worksharing agreement does not require that complainants check the box to effect dual filing. Accordingly, the district court correctly held that the plaintiff commenced proceedings under state law when she submitted her charge to the EEOC acting as the agent of the VCHR. ARGUMENT THE PLAINTIFF COMPLIED WITH TITLE VII'S REQUIREMENT THAT SHE COMMENCE PROCEEDINGS UNDER STATE LAW WHEN SHE SUBMITTED A CHARGE TO THE EEOC ALLEGING FACTS THAT STATE A CLAIM UNDER VIRGINIA LAW. The district court correctly held that Ruby Smith satisfied the requirement of § 706(c) of Title VII that she commence proceedings under state law before filing a charge with the EEOC. Section 706(c) provides that, in a state which has a law prohibiting the practice alleged in a charge of discrimination and an agency authorized to seek relief for violations of the law, a charge may not be filed with the EEOC until 60 days after "proceedings have been commenced under the State . . . law, unless such proceedings have been earlier terminated." 42 U.S.C. § 2000e-5(c). The district court correctly held that Smith's actions prior to filing suit satisfied this requirement. Smith submitted a charge to the EEOC alleging that her employer, Center Ford, Inc., had discriminated against her on the basis of her sex and in retaliation for her complaints about sexual harassment. The EEOC has entered into a worksharing agreement with the VCHR which provides that each agency acts as the agent of the other "for the purpose of receiving . . . charges."<3> JA 34 at II.A. Thus when Smith filed her charge with the EEOC, the EEOC received the charge on its own behalf and in its capacity as an agent for the VCHR. The effect of the worksharing agreement was to commence proceedings with the VCHR under state law upon the EEOC's receipt of Smith's charge. See JA 409 (Patterson Dep. at 24). Consequently, when Smith submitted her charge to the EEOC, she satisfied the requirement of § 706(c) that she commence proceedings under state law. The worksharing agreement also provides that, for charges submitted to the EEOC, the VCHR waives the 60-day period of exclusive jurisdiction provided by § 706(c). JA 41 at III.A.1. A state agency's waiver of the 60-day deferral period constitutes a "termination" of its proceedings so as to permit the charge to be filed with the EEOC. Commercial Office Products, 486 U.S. at 117. Where, as here, the state agency prospectively waives its exclusive jurisdiction over a category of charges, the waiver is self-executing and is not contingent upon confirmation of the waiver by the state agency in a particular case. EEOC v. Techalloy Maryland, Inc., 894 F.2d 676, 679 (4th Cir. 1990). Pursuant to this provision, the VCHR terminated its proceeding when Smith submitted her charge to the EEOC and the charge was "filed" under Title VII at that time. Defendant argues that Smith did not commence proceedings under state law within the meaning of § 706(c) because her charge does not explicitly refer to state law, and she did not affirmatively request that her charge be filed with the applicable state agency by checking the box on the charge form. Def.'s Br. at 7-8. There is no question, however, that the charge Smith submitted to the EEOC was sufficient to initiate proceedings under Virginia law. The VCHR considers a charge sufficient to institute proceedings under Virginia law if it contains "a brief factual statement disclosing the type of discrimination alleged and identifying the employer." See Flippo v. American Home Products Corp., 59 F. Supp. 2d 572, 576 (E.D. Va. 1999) (citing affidavit of VCHR official Sandra Norman). VCHR staff make a determination whether a violation of the Virginia Human Rights Act, Virginia's anti-discrimination law, is alleged in the factual allegations of discrimination related in the charge filed with the EEOC. See id.; see also Dew v. Nabisco, Inc., No.3:99cv353, slip op. at 17-18 (E.D. Va. Oct. 4, 1999); JA 138-39 (Norman Dep. at 30-31). This assessment is not based on whether or not a complainant cites to state law. JA 143 (Norman Dep. at 35) ("We would look for the number of employees and the cause of discrimination . . . . [U]nder the Virginia Human Rights Act, we know that we can take it under sex . . . ."). Nothing in Virginia law requires complainants to allege violations of the Virginia Human Rights Act when filing an administrative charge. The Virginia Administrative Code directs that a complaint "should contain" information identifying the complainant and the person against whom the complaint is made, a clear and concise statement of the facts, information about whether and when the complaint was filed with another agency, and any documentation that might support the claim. 22 Va. Admin. Code § 25-10-50(A). All that a complaint must contain to be legally sufficient, however, is "a written statement which identifies the parties and describes generally the action or practices complained of." Id. at § 25-10-50(B).<4> The statements in the documents Smith submitted were sufficient to apprise the VCHR of any claims Smith may have had under the Virginia Human Rights Act. The defendant does not dispute that the charge and attached affidavit contain allegations of sexual harassment and retaliation which would constitute violations of state law if true. Smith's charge was therefore adequate to commence state proceedings. Given that the charge was sufficient to commence state proceedings and that the worksharing agreement provides that EEOC's receipt of a charge commences proceedings with the VCHR, the defendant's argument amounts to a contention that, simply because the charge refers to provisions of federal law, but not state law, the Court should infer that Smith intended only to commence proceedings with the VCHR under federal law. This argument fails for several reasons. First, Smith's references to Title VII constitute allegations of a violation of state law because the Virginia Human Rights Act essentially makes a violation of federal law a violation of Virginia law. See Va. Code Ann. § 2.1-716 ("Conduct which violates any Virginia or federal statute or regulation governing discrimination on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status or disability shall be an 'unlawful discriminatory practice' for purposes of this chapter."). See also Grimes v. Canadian American Transp. C.A.T. (U.S.), Inc., 72 F. Supp. 2d 629, 634 (W.D. Va. 1999) ("[B]y setting forth facts that would establish a possible Title VII claim, [plaintiff] has also set forth facts which indicate a possible violation of the VHRA . . . ."). Furthermore, the inference the defendant asks the Court to draw is completely unreasonable under the circumstances of this case. If the VCHR proceedings commenced by Smith's charge were exclusively under federal law and not state law, then the Title VII charge which Smith presented to the EEOC could never be filed because the requirement to commence proceedings under state law would never be met. Thus, the defendant would glean from the wording of Smith's charge the perverse intent on her part to sabotage the Title VII charge that she went to the trouble of filing with the EEOC. Smith's failure to specify expressly provisions of state law in her charge is too thin a reed to support this result. Defendant's contention that Smith failed to initiate proceedings under state law because she did not affirmatively request that her charge be filed with the appropriate state agency by checking the box on the charge form is similarly ill-conceived. First, checking or not checking the box has no effect on whether a charge of discrimination will actually be forwarded to the VCHR. JA 122, 135-37 (Norman Dep. at 14, 27-29); JA 446 (Patterson Dep. at 61)("Regardless of whether the box is checked or not, the Worksharing Agreement is what allows us to be able to pursue the charge with regard to dual filing with the Virginia Council on Human Rights."). EEOC intake staff do not discuss the box with complainants. JA 453 (Patterson Dep. at 68). There is no need to do so, as the worksharing agreement does not require that complainants check the box and dictates that charges are automatically forwarded, making the check-mark irrelevant for purposes of EEOC claims filed within Virginia. Second, it is manifestly unreasonable to infer from the mere failure to check a box on the part of the EEOC staff person typing up the form that the complainant intended to sabotage her Title VII claim. See Dew, No. 3:99cv353, slip op. at 17 (finding it unwarranted to infer that by not checking the box a complainant affirmatively has renounced state law relief). Contrary to defendant's argument, this Court's decision in Davis v. North Carolina Dep't of Corrections, 48 F.3d 134 (4th Cir. 1995), does not control this case. The principal question in Davis was whether the district court had removal jurisdiction, and the principal holding was that the district court lacked removal jurisdiction because the EEOC had never issued Davis a right-to-sue letter. 48 F.3d at 138. That holding is irrelevant here, as Smith was issued a right-to-sue letter. See JA 30. The Court went on to hold that the plaintiff had not complied with § 706(c) because although a state proceeding had been instituted, it was not a proceeding "under state law" as required by § 706(c). 48 F.3d at 139. That holding turned on two unusual facts that are not present in this case. First, the conclusion that Davis did not commence state proceedings was not based merely on an inference from his failure to cite state law. Rather, Davis "insist[ed]" and "steadfastly maintain[ed]" that he wanted the conduct viewed as a violation of only federal law and not state law. 48 F.3d at 139, 141. In addition, the state agency had actually investigated Davis's charge and had "unequivocally" treated the conduct as a violation of only federal law and not state law. The Davis court recognized that the situation it was addressing was "something of an aberration" and accordingly emphasized that its holding that Davis's Title VII charge was invalid should not necessarily be extended beyond those unusual facts.<5> Id. at 139. In this case, by contrast, Smith did not take any action disavowing an intent to claim a violation of state law, and the VCHR did not take any action indicating that it viewed the charge as alleging only a violation of federal law. This Court should not extend Davis beyond its unusual facts for two reasons. First, cases like Smith's do not present the danger that the Davis court feared: that plaintiffs would pursue litigation in federal court without having first complied in good faith with the § 706(c) requirement to institute a state proceeding under state law. Id. at 141. In this case, the plaintiff, the EEOC and the VCHR each attempted to comply with § 706(c), and there is nothing to suggest that Smith was attempting to evade the § 706(c) requirements. Secondly, extending Davis to cases like Smith's could have serious consequences for the enforcement of the federal laws prohibiting employment discrimination. Very few charges filed with the EEOC identify the state law allegedly violated. See JA 177 (Norman Dep. at 69) (VCHR official with ten years experience testified that she had never seen a charge reference a specific state law that was violated). Extending Davis to invalidate all charges that do not name the state law purportedly violated or have the box checked requesting deferral could call into question numerous charges filed with the EEOC in deferral states - without giving any consideration to the merits of the substantive allegations of unlawful activity contained in those charges. In addition, the Court should not follow its unpublished decision in Dodge v. Philip Morris, 175 F.3d 1014, 1999 WL 162955 (4th Cir. March 25, 1999).<6> In Dodge, the plaintiff filed a charge with the EEOC which named various federal laws that were allegedly violated, but did not mention any Virginia statute. Like Smith, the plaintiff had not checked the box on the charge form indicating that she wished proceedings initiated with a state agency. Believing that Dodge's charge had not been referred to the VCHR, the district court held that Dodge had not instituted proceedings "under state law," because she had not requested referral to the state agency by checking the box and had not named any state law that had allegedly been violated. This Court affirmed, holding that "[b]ecause Dodge never pursued her claims under state law, her charges were never properly pending before the EEOC." 1999 WL 162955, at *2. The panel assumed that the case was governed by Davis, and did not discuss the significant factual and procedural differences between the two cases. The court did not have before it the deposition testimony or affidavits of EEOC and VCHR officials who have described in detail how the worksharing agreement between the EEOC and the VCHR actually operates. See Flippo, 59 F. Supp. 2d at 577 ("[T]he two agencies whose participation and cooperation Section 706(c) was drafted to ensure consider Plaintiff's charge of discrimination sufficient to commence proceedings under state law."); Dew, No. 3:99cv353, slip op. at 16-18. A number of district courts in Virginia have recently considered this issue, and all but one have concluded that complainants are not required to cite to specific state law provisions in their charges. See Dew, No. 3:99cv353, slip op. at 13; Carter v. Arlington Pub. Sch. Sys., 82 F. Supp. 2d 561, 567 (E.D. Va. 2000); Morris v. Waste Management of Virginia, Inc., 71 F. Supp. 2d 537, 543 (E.D. Va. 1999); Barrett v. Applied Radiant Energy Corp., 70 F. Supp. 2d 644, 651 (W.D. Va. 1999), appeal docketed, No. 99-2634 (4th Cir. Dec. 13, 1999); EEOC v. Waste Management of Virginia, Inc., No. 99-1461-A, slip op. at 8 (E.D. Va. Nov. 9, 1999); Bolinsky v. Carter Mach. Co., 69 F. Supp. 2d 842, 847-48 (W.D. Va. 1999); Nash v. D.S. Nash Constr. Co., 70 F. Supp. 2d 639, 644 (W.D. Va. 1999); Puryear v. County of Roanoke, 71 F. Supp. 2d 551, 554 (W.D. Va. 1999), appeal docketed, No. 99-2359 (4th Cir. Oct. 14, 1999); LaFranca v. Wal-Mart Stores, Inc., No. 98-0372-R, slip op. at 4(W.D. Va. Aug. 31, 1999); Capps v. City of Lynchburg & Lynchburg Sch. Bd., 67 F. Supp. 2d 589, 593 (W.D. Va. 1999); Flippo, 59 F. Supp. 2d at 578; Grimes, 72 F. Supp. 2d at 635; Harris v. TJX Cos., Inc., 60 F. Supp. 2d 562, 565 (W.D. Va. 1999). But see Walker v. Electrolux Corp., 55 F. Supp. 2d 501, 504(W.D. Va. 1999) (holding that the court lacked subject matter jurisdiction because plaintiff failed to allege a state law claim in her amended complaint, but failing to discuss pleading requirements to set forth charge of discrimination). Similarly, in cases where the box on the charge form requesting deferral was not checked, district courts have held that failure to check the box was irrelevant and did not divest the court of its ability to hear Title VII claims. Carter, 82 F. Supp. 2d at 566; EEOC v. Waste Management, No. 99-1461-A, slip op. at 8; Bolinsky, 69 F. Supp. 2d at 847; Nash, 70 F. Supp. 2d at 643; Dew, No. 3:99cv353, slip op. at 16-17. See also McIntyre-Handy v. West Telemarketing Corp., 2000 WL 679978 at, *7 (E.D. Va. May 19, 2000) (neither failure to check the box on the charge form nor failure to prove the claim was actually referred to the VCHR divests a federal court of jurisdiction). To ignore the reasoning in the above decisions and follow Dodge would both defeat the purpose of the worksharing agreement and be fundamentally unfair to complainants pursuing discrimination claims. Worksharing agreements avoid duplication of effort and reduce bureaucracy; they are designed "to minimize red tape and to expeditiously process discrimination charges." Techalloy, 894 F.2d at 679. The VCHR and the EEOC have overlapping jurisdictions in enforcing anti-discrimination laws in Virginia, as both are authorized to investigate and conciliate charges of employment discrimination based on race, color, religion, national origin, sex, age, and disability. Neither state agencies nor the EEOC have the resources to process and investigate every charge filed, and it would be a pointless waste of time and money for both to investigate the same claims. Worksharing agreements allow complainants to file discrimination charges with either the EEOC or the state or local agency using one form that results in automatic dual filing with the other agency. This cooperation reduces the burden on employers as well, who need only respond in one forum. Additionally, to dismiss potentially meritorious claims on procedural technicalities of which the lay person would not be aware would elevate form over substance and be unjust. Title VII is a remedial statute designed to be accessible to unrepresented complainants seeking redress for discrimination. In holding that § 706(c)'s deferral requirement had been met where an unrepresented complainant neither cited state law nor checked the box requesting deferral, one court reasoned that "[g]iven the complexity of the laws in this area, it is unrealistic to expect claimants to cite specific state statutes in their complaints, to check certain boxes, or to go to a particular state agency. A result different from the one reached here would essentially mean that claimants likely would not satisfy Title VII's exhaustion requirements unless they were either lawyers or lucky." Carter, 82 F. Supp. 2d at 567. After concluding that plaintiff successfully commenced state proceedings under state law when she provided the EEOC a written statement of relevant facts and asked that the charge of discrimination be forwarded to the VCHR, another district court pointed out: "To hold otherwise would transform the laudatory effort to achieve state and federal cooperation in resolving claims of discrimination into a jurisdictional minefield for unwary and unrepresented complainants." Flippo, 59 F. Supp. 2d at 578. The purpose of Title VII is to afford a federal remedy to victims of discrimination. The purpose of worksharing agreements is to facilitate that remedy. Requiring precise pleading requirements where lay persons must cite to a particular state statute or are required to check a box on a charge form cannot be reconciled with these goals. CONCLUSION For the reasons stated above, the Commission urges the Court to affirm the district court's decision denying defendant's motion to dismiss. REQUEST FOR ORAL ARGUMENT The Commission requests oral argument and submits that it would be of assistance to the Court. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ___________________________________ JULIE L. GANTZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4718 June 8, 2000 CERTIFICATE OF COMPLIANCE Pursuant to FRAP 32(a)(7)(C), I certify that this brief has been prepared in monospaced (nonproportionally spaced) typeface using Corel Word Perfect 8, Courier New 12-point font, and the textual portion contains 4754 words. I understand that a material misrepresentation in completing this certificate can result in the Court's striking the brief and imposing sanctions. If the Court so directs, I will provide an electronic version of the brief and/or a copy of the word or line print-out. _________________________ Julie L. GantzCERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief have been mailed first class, postage prepaid, to the following counsel of record: COUNSEL FOR PLAINTIFF-APPELLEE RUBY G. SMITH Jay J. Levit LEVIT, MANN & HALLIGAN 1301 North Hamilton Place Suite 100 Richmond, VA 23230 COUNSEL FOR DEFENDANTS-APPELLANTS CENTER FORD, INC.; HALL AUTO WORLD, INC. F. Bradford Stillman Brian N. Casey TAYLOR & WALKER, P.C. 1300 First Virginia Tower 555 Main Street Norfolk, VA 23514 ____________________________ Julie L. Gantz, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 June 8, 2000 ADDENDUM 1 Later versions of the worksharing agreement explicitly provide that "EEOC's receipt of charges on the FEPA's behalf will automatically initiate the proceedings of both EEOC and the FEPA for the purposes of Section 706(c) and (e)(1) of Title VII." 1998 Worksharing Agreement II.A, Joint Exh. B to Deposition of Roxie Raines Kornegay. 2 Citations to the record proper are abbreviated "R." and refer to the district court docket sheet number. 3 Title VII authorizes the EEOC to enter into cooperation agreements with state and local agencies which administer fair employment practices laws. See 42 U.S.C. §§ 2000e-4(g)(1) & 2000e-8(b); see also EEOC v. Commercial Office Products Co., 486 U.S. 107, 122 (1988). The EEOC has entered into worksharing agreements with most such agencies. The Virginia Human Rights Act likewise authorizes the VCHR to enter into worksharing agreements with "federal agencies or local commissions, including the deferral of complaints of discrimination to federal agencies. . . ." Va. Code Ann. 2.1-720(5). 4 The same is true at the federal level. All that is necessary for a legally sufficient Title VII charge is "a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." 29 C.F.R. § 1601.12(b). There is no requirement that the charging party identify the federal law allegedly violated. 5 Such a scenario is unlikely to recur. Following Davis, the North Carolina legislature amended state law to clarify the North Carolina Office of Administrative Hearing's ("OAH") role as a deferral agency. The relevant statute now provides that a deferred charge - a charge filed by a state employee alleging an unlawful employment practice prohibited by state law — may be filed with either OAH or the EEOC and that the date of filing "is considered to be a commencement of proceedings under State law for purposes of 42 U.S.C. § 2000e-5(c)." N.C. Gen. Stat. § 7A-759(b1) (1988). 6 Unpublished decisions are not binding precedent in this Court. See Mueller v. Angelone, 181 F.3d 557, 579 n. 15 (4th Cir. 1999) (citing Local Rule 36(c)).