EEOC v. W.H. Braum, Inc., 10th Cir. Petition for Interlocutory Review Filed March 1, 2002 Case No. __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT __________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Petitioner, v. W.H. BRAUM, Inc. d/b/a BRAUM'S ICE CREAM AND DAIRY STORE, an Oklahoma Corporation, Defendant/Respondent. ________________________________________________________ On Appeal from the United States District Court For the Eastern District of Oklahoma, No. 01-215-P, The Honorable James H. Payne, Judge Presiding _________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION'S PETITION UNDER 42 U.S.C. § 1292(B) FOR INTERLOCUTORY REVIEW OF MOTION TO DISMISS _________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel EQUAL EMPLOYMENT CAROLYN L. WHEELER OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 1801 L Street, N.W., Room 7020 JOSEPH A. SEINER Washington, D.C. 20507 Attorney (202) 663-4772 TABLE OF CONTENTS Page TABLE OF CONTENTS ........................................... i TABLE OF AUTHORITIES......................................... iii INTRODUCTION ................................................. 1 STATEMENT OF FACTS AND PROCEDURAL HISTORY ................... 2 DISTRICT COURT CERTIFICATION AND QUESTION PRESENTED............................................... 5 RELIEF SOUGHT ................................................. 7 REASONS WHY APPEAL SHOULD BE ALLOWED........................... 8 I. THE CERTIFIED QUESTION OF LAW IS "CONTROLLING" ..................................... 9 A. The District Court's Decision Significantly Restricting Relief is Controlling............. 9 B. The District Court's Eliminating The Commission's Right to a Jury Trial is Controlling............. 11 II. THE QUESTIONS OF LAW CERTIFIED BY THE DISTRICT COURT PRESENT SUBSTANTIAL GROUNDS FOR A DIFFERENCE OF OPINION................... 13 A. Willis's Claim is Not Time Barred Under The ADA....................................... 14 B. The Principles of Res Judicata Do Not Preclude The Commission from Bringing this Lawsuit....... 18 III. THE QUESTION OF LAW CERTIFIED BY THE DISTRICT COURT WILL MATERIALLY ADVANCE THE LITIGATION ..................................... 21 CONCLUSION ................................................. 24 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Adams v. Cyprus Amax Minerals Co., 149 F.3d 1156 (10th Cir. 1998) . . . . . . . . . . . . . . . . . .11, 22 Ahrenholz v. Board of Trustees of the University of Ill., 219 F.3d 674 (7th Cir. 1999) . . . . . . . . . . . . . . . . . 8, 13 Baker & Getty Finance Service v. National Union Fire Insurance Co., 954 F.2d 1169 (6th Cir. 1992) . . . . . . . . . . . . . . . . . . .22 Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984) . . . . . . . . . . . . . . . . . . . . . . . .15 Cotten v. Witco Chemical Corp., 651 F.2d 274 (5th Cir. 1981) . . . . . . .12 Curtis v. Metropolitan Ambulance Serv., 982 F.2d 472 (11th Cir. 1993) . . . . . . . . . . . . . . . . .10, 23 Dole v. Local 427, International Union of Electrical, Radio & Machine Workers, 894 F.2d 607 (3d Cir. 1990) . . . . . . .16 EEOC v. North Gibson School Corp., 266 F.3d 607 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . 5 EEOC v. Waffle House, 122 S. Ct. 754 (2002) . . . . . . . . . . . . . . . . . .1, 5, 10, 20 Hiller v. State of Oklahoma, unpublished, No. CIV-00-2145-A (W.D. Okla. 2001), appeal pending No. 01-6402 . . . . . . 17 Homeland Stores, Inc. v. Resolution Trust Corp., 17 F.3d 1269 (10th Cir. 1994) . . . . . . . . . . . . . . . . . .8, 9 Houston v. Sidley & Austin, 185 F.3d 837 (7th Cir. 1999) . . . . . . . . . . . . . . . . . . .16 Johnson v. Burken, 930 F.2d 1202 (7th Cir. 1991) . . . . . . .10, 12, 22 King v. Union Oil Co., 117 F.3d 443 (10th Cir. 1997) . . . . . . . . . . . . . . . . . . .20 Lowell v. Philadelphia Electric Co., 878 F.2d 1271 (10th Cir. 1989) . . . . . . . . . . . . . . . .18, 20 McBride v. Citgo Petroleum Corp., – F.3d –, 2002 WL 244840, Case No. 01-5039, at *1 (10th Cir. Feb. 21, 2002) . . . . 15 Northern Natural Gas Co. v. Grounds, 931 F.2d 678 (10th Cir. 1991) . . . . . . . . . . . . . . . . . . .18 Occidental Life Insurance Co. v. EEOC, 432 U.S. 355 (1977) . . . . . . . . . . . . . . . . . . . . . . . .16 Postema v. National League of Prof'l Baseball Clubs, 998 F.2d 60 (2d Cir. 1993) . . . . . . . . . . . . . .10, 11, 22, 23 Ralph Oldsmobile v. General Motors Corp., Case No. 99 Civ. 4567, 2001 WL 55729 (S.D.N.Y. Jan. 23, 2001) . . . . . . . . 13 Runyon v. McCrary, 427 U.S. 160 (1976) . . . . . . . . . . . . . . . . . . . . . . . .17 SEC v. Rind, 991 F.2d 1486 (9th Cir. 1993) . . . . . . . . . . . . .11, 22 Satsky v. Paramount Communications, Inc., 7 F.3d 1464 (10th Cir. 1993) . . . . . . . . . . . . . . .18, 19, 20 Steinle v. Boeing Co., 24 F.3d 1250 (10th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . .10, 23 Utah v. Kennecott Corp., 14 F.3d 1489 (10th Cir. 1994) . . . . 8, 12, 22 White v. Nix, 43 F.3d 374 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . .13 Witt v. Roadway Express, 136 F.3d 1424 (10th Cir. 1998) . . . . . . . . . . . . . . . . . .15 Zillyette v. Capital One Finance Corp., 179 F.3d 1337 (11th Cir. 1999) . . . . . .15 STATE AND FEDERAL STATUTES 12 Okla. Stat. § 100 . . . . . . . . . . . . . . . . . . . . . 4 25 Okla. Stat. § 1301 . . . . . . . . . . . . . . . . . . . . . . . . . 3 28 U.S.C. § 1292(b) . . . . . . .1, 2, 5, 7, 8, 9, 11, 12, 21, 22, 24, 25 42 U.S.C. § 1981a(c)(1) . . . . . . . . . . . . . . . . . . . . . . . .11 42 U.S.C. § 2000e-5(f)(1) . . . . . . . . . . . . . . . . . . . . . 3, 15 Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq. 1, 3, 4, 5, 6, 7, 14-21 TREATISES 2A Fed. Proc., L. Ed. § 3:390-94 (1994) . . . . . . . . . . . . 9, 13, 23 Am. Jur. 2d Appellate Review § 125, 128 (1995) . . . . . . . . . . .10, 13 Am. Jur. 2d Judgments § 620 (1994) . . . . . . .19 16 Charles A. Wright et al., Federal Practice & Procedure Juris. 2d § 3930 . . . . . . . . . . . . . . . . . . 9, 21 Moore's Federal Practice 3d at § 131.30(1)(a) (1997) . . . . . . . . . .18 INTRODUCTION The Equal Employment Opportunity Commission ("EEOC" or "Commission") seeks immediate review, under 28 U.S.C. § 1292(b), of an order granting W.H. Braum Inc.'s ("Braum") motion to dismiss the EEOC's claims for individual relief in this action by the EEOC to enforce Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12111 et seq. The Commission seeks backpay, damages and appropriate injunctive relief to remedy and deter intentional discrimination by a company it alleges refused to hire a young woman because of a disfiguring facial scar. Although the Commission fully complied with all statutory prerequisites for filing such an action, the district court has concluded that the Commission is barred from obtaining any monetary or individual relief in this case because the charging party would be time barred from obtaining such relief on her own. The court's analysis rests on a number of erroneous premises about the applicable statute of limitations and the doctrine of res judicata as applied to a public law enforcement action by the EEOC. The district court's approach also subverts the fundamental tenet reiterated by the Supreme Court in EEOC v. Waffle House, 122 S. Ct. 754, 762 (2002), that "[t]he statute clearly makes the EEOC the master of its own case." On February 21, 2002, the district court (Payne, J.), acting sua sponte, certified for immediate appellate review pursuant to 28 U.S.C. § 1292(b) the question of law that arose in its order granting Braum's motion to dismiss the claims for monetary and other individual relief. Section 1292(b) permits interlocutory review of "a controlling question of law as to which there is substantial ground for difference of opinion" if immediate appeal "may materially advance the ultimate termination of the litigation." As explained further below, the issue certified by the district court presents just such a "controlling question" of law that is appropriate for immediate appellate review. STATEMENT OF FACTS AND PROCEDURAL HISTORY On December 1, 1997, Eva Willis, who was born with a cleft palate and cleft lip which has caused a cosmetic disfigurement and speech impediment, applied to work at Braum's (an ice cream and dairy store) in Madill, Oklahoma. Willis was provided with an application, but was informed that the company was not hiring at that time. On or about December 4, 1997, Willis and her mother went to eat at Braum's. A girl Willis knew, Jennifer Cox, was there to turn in her application for employment. Cox was interviewed and hired right on the spot in front of Willis. As a result of Braum's alleged discrimination against Willis on the basis of her disability, Willis has suffered severe emotional damages as made evident by her grades dropping, social withdrawal, and her decision to leave Oklahoma despite having been awarded a scholarship at a University within the state. On August 3, 1998, Willis filed a charge of discrimination with the Commission. On June 29, 1999, the EEOC issued a letter of determination finding cause on Willis's disability charge. Although she had not received a right-to-sue letter, on November 29, 1999, Willis filed a lawsuit in the United States District Court for the Eastern District of Oklahoma, alleging discrimination under the Americans With Disabilities Act and disability discrimination under the Oklahoma Anti-discrimination Act (25 Okla. § 1301), and intentional infliction of emotional distress. Because Willis had not received a right-to-sue letter from the Commission,<1> her federal lawsuit was premature, and on December 27, 1999, Willis filed a motion to dismiss her lawsuit without prejudice to refiling. This motion was granted by the district court on January 5, 2000. On February 10, 2000, the Commission issued a notice of failure to conciliate letter indicating that the conciliation efforts were unsuccessful in this case. On January 2, 2001, Willis refiled her state causes of action in an Oklahoma state court. On April 16, 2001, the Commission filed its lawsuit in the U.S. District Court for the Eastern District of Oklahoma, against Braum alleging that the company violated the ADA when it failed to hire Willis because of a perceived disability. On June 21, 2001, Braum sought removal of Willis's state court action to federal court, and on July 17, 2001, the federal court issued an order joining the two actions. On September 18, 2001, Braum filed a partial motion to dismiss in federal court alleging that Willis was time barred from bringing her state law claims because of an Oklahoma saving statute which permits the refiling of a voluntarily dismissed lawsuit within one year. See 12 Okla. Stat. §100. The defendant further asserted that this Oklahoma saving statute somehow precluded Willis from bringing her ADA claim, although Willis had never refiled this claim. Finally, defendant maintained that because Willis was time barred from bringing an ADA action on her own behalf, the EEOC was also barred from seeking any individual relief on her behalf. On December 31, 2001, the district court (Payne, J.) issued an order granting Braum's motion to dismiss, holding that Willis's state law claims were completely time barred. See District Court Order of December 31, 2001, attached, at 3-4. Although Willis had never refiled her federal ADA claim, the court further held that such a claim would be time-barred as well, because the Oklahoma saving statute has "no effect on federal claims and cannot serve as a basis for extending federal time deadlines within which a plaintiff must file." Id. at 3 n.1 Finally, the district court held that the EEOC could not seek any individual relief on Willis's behalf, because the Commission is "‘precluded from seeking monetary relief for individuals who themselves are barred from bringing the same suit because, in such circumstances, the EEOC's suit serves only a minimal public interest.'" See Order at 4, quoting EEOC v. North Gibson School Corp., 266 F.3d 607, 615 n.7 (7th Cir. 2001). The court's order left the EEOC as the only remaining plaintiff in the case, and restricted the Commission to seeking only injunctive relief. Id. On January 7, 2002, the Commission filed a motion asking the district court to reconsider its decision, and on January 21, 2002, the Commission filed a supplemental brief with the district court outlining the effect of the U.S. Supreme Court's decision in EEOC v. Waffle House, 122 S. Ct. 754 (2002) on the present lawsuit. DISTRICT COURT CERTIFICATION AND QUESTION PRESENTED On February 21, 2002, the district court granted in part and denied in part the Commission's motion to reconsider, and sua sponte certified the matter for immediate appellate review in accordance with 28 U.S.C. §1292(b). See Certification Order at 10, attached. The Court again held that Willis's ADA claim was time barred (despite the fact that such a claim has still never been reasserted by Willis), and that the EEOC is therefore precluded from seeking any individual relief on Willis's behalf. Id. at 2. In concluding that Willis's ADA claim would be time-barred, the court held that "because neither the Rehabilitation Act nor the ADA specified the limitation period for actions under their provisions, the court must look to the most analogous state statute of limitations." Id. at 5. The court then determined that the state statute of limitations under Oklahoma personal injury law should govern, and concluded that Willis had two years to file her ADA suit after the alleged discrimination had occurred. Id. at 6. Because Willis had asserted that Braum had discriminated against her on December 4, 1997, the court found that any ADA claim she might bring is time- barred. Applying principles of res judicata, the court further held that because Willis's ADA claim is time barred, the EEOC is precluded from seeking any "individual relief" on Willis's behalf, which encompasses "all monetary damages, including back pay, front pay, or the equitable remedy of reinstatement." Id. at 9. The court thus limited the Commission to seeking broad injunctive relief, which could be sought only in a non-jury trial. Id. at 10. Finally, the court recognized that its decision presented a controlling question of law as to which there is a substantial ground for difference of opinion. Id. The court acknowledged that if it had misconstrued the caselaw, the "court, as well as the parties, would be subjected to duplicative trials." Id. The court therefore stayed the case and certified the matter for immediate appellate review to this Court under 28 U.S.C. § 1292(b). Id. The question of law thus appropriate for immediate appellate review can be summarized as follows: Is the EEOC precluded by res judicata from obtaining individual relief for a charging party under the Americans with Disabilities Act where the charging party failed to file and maintain an ADA lawsuit within the time period allowed for bringing a personal injury action under state law? As demonstrated below, this question of law is appropriate for interlocutory review. RELIEF SOUGHT The Commission requests that this Court reverse the decision of the district court, which holds that the EEOC is precluded by res judicata from obtaining individual relief for Willis under the ADA because Willis herself failed to file an ADA lawsuit within two years of the date that the alleged discrimination occurred. The Commission therefore asks that it be permitted to try its ADA action to a jury and to recover all appropriate individual relief for the charging party, including all monetary and injunctive relief. REASONS WHY THE APPEAL SHOULD BE ALLOWED In determining whether to grant an interlocutory appeal under 28 U.S.C. § 1292(b), an appellate court should examine the same factors that the district court used in deciding to certify the issue. See Ahrenholz v. Bd. of Trustees of the Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 1999) (the interlocutory appeal "standard is the same for the district court and for us"). Thus this Court must determine whether the appeal involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. See Homeland Stores, Inc. v. Resolution Trust Corp., 17 F.3d 1269, 1271-1272 (10th Cir. 1994); Utah v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994). While this Court has the ultimate decision of whether to take the appeal, the district court's decision to certify the matter for review should not be taken lightly. See, e.g., S. Rep. No. 85-2434, at 5262 (1958) (in report by a Tenth Circuit committee on discretionary appeals, committee states that "[o]nly the trial court can be fully informed of the nature of the case and the peculiarities which make it appropriate to interlocutory review"). As outlined more fully below, the district court correctly certified the matter for immediate review, as the question of law satisfies the elements of section 1292(b). I. THE CERTIFIED QUESTION OF LAW IS "CONTROLLING." To warrant immediate review under section 1292(b), the certified issue must present a "controlling question of law." See Homeland Stores, Inc. v. Resolution Trust Corp., 17 F.3d 1269, 1271-1272 (10th Cir. 1994).<2> As properly found by the district court, the certified question of law here is "controlling." See Certification Order at 10. A. The District Court's Decision Significantly Restricting Relief is Controlling. An issue need not be dispositive of the litigation to be "controlling" within the meaning of section 1292(b). See, e.g., 2A Fed. Proc., L. Ed. § 3:390 (1994). The court's decision, however, is dispositive for all practical purposes. The decision limits the EEOC from recovering "any individual relief" for Willis, meaning that the Commission cannot recover "monetary damages, including back pay, front pay, or the equitable remedy of reinstatement" on behalf of Willis. See Certification Order at 9. The court's order, then, eliminates the primary relief sought by the Commission – monetary and/or injunctive relief on Willis's behalf. As the Supreme Court recently emphasized, this type of "victim-specific relief" is often central to the EEOC's exercise of its public law enforcement efforts to vindicate the public interest in eradicating discrimination. Waffle House, 122 S. Ct. at 765. By denying the Commission any individual relief, the district court has seriously and dramatically affected the conduct of the litigation, and the decision is therefore "controlling" to the outcome of this case. See Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991) (" ‘controlling' means serious to the conduct of the litigation, either practically or legally") (quoting Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974)). An order significantly affecting the relief available to a litigant is often reviewed by the courts on an interlocutory appeal, and should properly be reviewed here as well. See, e.g., Steinle v. Boeing Co., 24 F.3d 1250, 1250-51 (10th Cir. 1994) (considering issue on interlocutory review affecting damages and right to jury trial); Postema v. Nat'l League of Prof'l Baseball Clubs, 998 F.2d 60, 61-62 (2d Cir. 1993) (question of law affecting damages and right to jury trial considered on interlocutory review); Curtis v. Metro Ambulance Serv., 982 F.2d 472, 473 (11th Cir. 1993) (reviewing issue affecting right to jury trial and damages); 4 Am. Jur. 2d Appellate Review § 125 (1995) (noting that a question which has a significant impact on the amount of a litigant's potential recovery may be certified). B. The District Court's Decision Eliminating the Commission's Right to a Jury Trial is Controlling. Because the court's decision to limit the available remedies destroyed the predicate for the Commission's demand for a jury trial, see 42 U.S.C. § 1981a(c)(1), the district court's decision limiting the Commission to a non-jury trial in this case significantly impacts the conduct of the litigation as well. The district court recognized that if it has "misconstrued" the case law, "the court, as well as the parties, would be subjected to duplicative trials." See Certification Order at 10. The court further recognized that the goal of section 1292(b) is "the avoidance of unnecessary trials, and consideration of the time and expenses of the parties." Id. District court orders affecting a party's right to a jury trial clearly have a "controlling" effect on a case, and have been found appropriate for interlocutory review. See Adams v. Cyprus Amax Minerals Co., 149 F.3d 1156, 1157 (10th Cir. 1998) (reviewing question of law on interlocutory review affecting right to jury trial); Postema, 998 F.2d at 61-62 (question of law affecting damages and right to jury trial considered on interlocutory review); SEC v. Rind, 991 F.2d 1486, 1488 (9th Cir. 1993) (interlocutory review accepted on issue addressing statute of limitations and right to jury trial); Cotten v. Witco Chem. Corp., 651 F.2d 274, 275 (5th Cir. 1981) (district court's decision to strike jury demand properly certified pursuant to section 1292(b)). As the district court properly recognized, if the court's decision here is reversed after the bench trial is completed, the court, as well as the parties, will be subjected to two costly and time-consuming trials. See Certification Order at 10. The avoidance of unnecessary trials with the attendant wasted time and expense is one of the primary purposes for permitting section 1292(b) appeals. See Utah v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994) (citing, with approval, article for proposition that "avoidance of wasted trial court time is sole purpose of § 1292(b)") (citation omitted); Johnson, 930 F.2d at 1206 ("Therefore ‘a growing number of decisions have accepted the rule that a question is controlling, even though its decision might not lead to reversal on appeal, if interlocutory reversal might save time for the district court, and time and expense for the litigants.'" (quoting 16 Wright et. al, § 3930, at 159-160)). Because the district court's decision in this matter has a significant effect on the damages available to the Commission, and restricts the Commission's right to a jury trial, the court's order clearly involves controlling questions. By permitting interlocutory review of the district court's decision, then, this Court could help both the district court and the parties avoid the unnecessary time and expense associated with two trials. II. THE QUESTIONS OF LAW CERTIFIED BY THE DISTRICT COURT PRESENT SUBSTANTIAL GROUNDS FOR A DIFFERENCE OF OPINION. As properly recognized by the district court, the questions of law here present substantial grounds for a difference of opinion. See Certification Order at 10. A question can present a substantial ground for a difference of opinion where it is contestable. See Ahrenholz v. Bd. of Trustees of the Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000). Moreover, there is a substantial ground for a difference of opinion where the district court's decision conflicts with the rulings of the federal appellate courts. See, e.g., White v. Nix, 43 F.3d 374, 378 (8th Cir. 1994) ("identification of ‘a sufficient number of conflicting and contradictory opinions' would provide substantial ground for disagreement") (citation omitted); Fed. Proc., L.Ed. § 3:393 (1994); 4 Am. Jur. 2d Appellate Review § 128 (1995). There can also be a substantial ground for a difference of opinion where there is "substantial doubt" as to the whether the district court's decision was correct. See Ralph Oldsmobile v. General Motors Corp., Case No. 99 Civ. 4567, 2001 WL 55729 (S.D.N.Y. Jan. 23, 2001) (attached) (noting that "‘[t]he legislative history indicates that to satisfy this prerequisite there must be ‘substantial doubt' that the district court's order was correct'") (citation omitted). In this case, there is "substantial doubt" as to whether the district court's decision was correct, as that decision directly conflicts with well-established case law concerning the statute of limitations in ADA actions as well as long- recognized principles of res judicata. In its orders, the district court answered the question now before this Court in the affirmative: whether the EEOC is precluded by res judicata from obtaining individual relief for a charging party under the Americans with Disabilities Act where the charging party failed to file and maintain an ADA lawsuit within the time period allowed for bringing a personal injury action under state law. See District Court Order of December 31, 2001, at 3- 4; Certification Order at 9-10. There is substantial doubt whether this holding of the district court is correct. A. Willis's Claim is Not Time Barred Under the ADA By holding that Willis's ADA claim would be time barred because she failed to file and maintain an ADA action within two years of the time of the alleged discrimination (the time permitted for personal injury actions under Oklahoma law), the district court's decision conflicts with the statutory time period for filing ADA claims set forth by Congress, as well as settled case law acknowledging this statutory time frame.<3> Under the Americans With Disabilities Act, 42 U.S.C. § 12117(a), Congress incorporated the filing requirements of Title VII, 42 U.S.C. § 2000e-5(f)(1). Those requirements mandate that a party must file a lawsuit within ninety days after the EEOC issues a right-to-sue letter. Id. All courts discussing the time limitations of the ADA or Title VII, including the United States Supreme Court, have acknowledged that a lawsuit is timely filed if brought within ninety days of the issuance of a right-to-sue letter by the Commission. See, e.g., Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149 (1984) (in Title VII action suit must be filed within 90 days of issuance of right-to-sue letter); McBride v. Citgo Petroleum Corp., – F.3d –, 2002 WL 244840, Case No. 01-5039, at *1 (10th Cir. Feb. 21, 2002) (noting that EEOC gave charging party "the right to bring a disability discrimination suit in a federal court within ninety days"); Witt v. Roadway Express, 136 F.3d 1424, 1429 (10th Cir. 1998) (under Title VII, "a complainant has ninety days in which to file suit after receipt of an EEOC right-to-sue letter"); Zillyette v. Capital One Fin. Corp., 179 F.3d 1337, 1339 (11th Cir. 1999) (in ADA claim, plaintiff must bring lawsuit within 90 days of receiving right-to-sue letter); Houston v. Sidley & Austin, 185 F.3d 837, 838-839 (7th Cir. 1999) ("Under the ADA, ADEA, and Title VII, a plaintiff must file her suit within 90 days from the date the EEOC gives notice"). As set forth by the cases above, the only statute of limitations applicable to a litigant's ADA claim is that the complainant must file suit within ninety days of the issuance of a right-to-sue letter. The Commission has not yet issued a right-to-sue letter to Willis, and thus Willis's ADA action (if she were to refile one) cannot be time barred. In turn, the Commission cannot be prevented from bringing a lawsuit seeking full relief on Willis's discrimination claim.<4> Finally, the district court's application of the statute of limitations found in the Oklahoma statute governing personal injuries conflicts with the prior cited authority, which clearly provides that the only statute of limitations applicable to an ADA lawsuit is that the litigant file within 90 days of issuance of a right-to-sue letter.<5> As the Supreme Court has clearly explained, where a federal statute clearly provides a statute of limitations, that "end[s] the matter" and courts have no reason to look elsewhere for a limitations period. Runyon v. McCrary, 427 U.S. 160, 180 (1976). The district court's decision to apply the Oklahoma personal injury statute to an ADA claim was first announced in the court's order certifying this matter for interlocutory review, and was not raised in the court's prior order or in the briefs of either of the parties. The district court cites no authority that would permit the application of a personal injury statute to an ADA claim, and the Commission is not aware of any such authority. The district court's decision conflicts with the plain language of the statute and the well-established case law setting forth the statute of limitations governing ADA actions. There is thus "substantial doubt" as to whether the district court's decision is correct, and, as recognized by the district court, there is a substantial ground for a difference of opinion here. B. The Principles of Res Judicata Do Not Preclude the Commission from Bringing this Lawsuit. The district court held that because it believed Willis's ADA claim to be time-barred, the Commission is barred by res judicata from seeking any individual relief on Willis's behalf. See Certification Order at 10. There is "substantial doubt" as to whether this decision is correct, however, as it conflicts with well- settled principles of res judicata. To demonstrate that a claim is barred by res judicata, a litigant must prove three elements: "(1) a final judgment on the merits in the prior suit; (2) the prior suit involved identical claims as the claims in the present suit; and (3) the prior suit involved the same parties or their privies." Satsky v. Paramount Communications, Inc., 7 F.3d 1464, 1467 (10th Cir. 1993). See also Northern Natural Gas Co. v. Grounds, 931 F.2d 678, 681 (10th Cir. 1991) ("Under res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action"). Res Judicata is clearly inapplicable to this case because there is simply no final judgment in a prior suit. See Lowell v. Philadelphia Electric Co., 878 F.2d 1271, 1274 (10th Cir. 1989) (requiring final judgment for application of res judicata); Moore's Federal Practice 3d at § 131.30(1)(a) (1997) ("Only a valid judgment can be the basis for application of the claim preclusion doctrine"). In fact, there has never been any type of judgment on Willis's ADA claim. Willis filed an ADA lawsuit in federal court which was premature because she had not received a right-to-sue letter, and later voluntarily dismissed that suit, without prejudice. Willis has never refiled this ADA claim in any forum. Such a voluntary dismissal of her lawsuit cannot constitute a judgment on the claims asserted, and thus has no res judicata effect on this case. See Satsky v. Paramount Communications, Inc., 7 F.3d 1464, 1468 (10th Cir. 1993) ("Plaintiffs are correct that a dismissal without prejudice ‘is a dismissal that does not ‘operat[e] as an adjudication upon the merits... and thus does not have a res judicata effect'") (citation omitted); 46 Am. Jur. 2d Judgments § 620 (1994) ("A single voluntary dismissal, nonsuit, or discontinuance of an action is generally regarded as a mere withdrawal of the plaintiff's claim, which does not have the effect of an adjudication on the merits and does not bar the plaintiff from maintaining another action on the same cause of action"). Moreover, the district court's Certification Order appears to rely on its prior December 31, 2001 order (holding that Willis's ADA claim would be time barred) as the final judgment for res judicata purposes. See Certification Order at 7 ("this court held in its December 31, 2001 Order, any attempt by Willis to file an ADA claim would now be time barred. Further, this court held the EEOC cannot recover individual relief on behalf of Willis, because Willis is time-barred from seeking the same relief herself"). However, the December 31, 2001 order cannot act as a final judgment for two reasons: (1) it is not a judgment in a prior suit; rather, it is a judgment in this ongoing action; and (2) it is not a judgment on the merits, as Willis has never reasserted her ADA claim in federal court. Without a final judgment on Willis's ADA claim, then, res judicata cannot bar the Commission from bringing suit to obtain relief for Willis's claims of discrimination. See Waffle House, 122 S. Ct. at 765-66 (noting that courts may preclude double recovery in a Commission suit only if a charging party has "accepted a monetary settlement" or is perhaps barred by res judicata); King v. Union Oil Co., 117 F.3d 443, 445 (10th Cir. 1997); Satsky, 7 F.3d at 1467; Lowell, 878 F.2d at 1274. In sum, Willis prematurely brought an ADA lawsuit in federal court and later voluntarily dismissed that lawsuit without prejudice. There has never been a final judgment on her ADA claim in any forum. As there has never been a final judgment on Willis's ADA claim, res judicata is inapplicable, and the EEOC cannot be barred from bringing an ADA claim, or from seeking individual relief on her behalf.<6> Because the district court's decision to apply res judicata to the Commission conflicts with the well-established case law in this area, then, there is a substantial ground for difference of opinion on this issue, and this Court should grant interlocutory review. III. THE QUESTION OF LAW CERTIFIED BY THE DISTRICT COURT WILL MATERIALLY ADVANCE THE LITIGATION As properly recognized by the district court, the resolution of the question of law here could help avoid an unnecessary trial, and save the court, as well as the parties, both time and expense. See Certification Order at 10. Thus, this Court will materially advance this case by resolving the question of whether the EEOC is precluded by res judicata from obtaining individual relief for the charging party where the charging party did not file and maintain an ADA lawsuit within the time period allowed for bringing a personal injury action under Oklahoma law. As discussed earlier, the question presented here is controlling because it is determinative of whether the Commission will be entitled to a jury trial and whether the Commission can seek individual relief. For these same reasons, resolution of this question of law will materially advance the litigation.<7> By determining whether the Commission is entitled to a jury trial, this Court may prevent the district court and parties from being subjected to an "unnecessary trial[]." Certification Order at 10. If the Commission were to prevail on appeal after a bench trial, the Commission would be entitled to relitigate the case before a jury. Such a result would be costly in terms of wasted time and expense to both the district court and parties.<8> By resolving this issue now, this Court can eliminate the possibility of multiple trials, and thereby materially advance the litigation. See, e.g. Baker & Getty Fin. Serv. v. National Union Fire Ins. Co., 954 F.2d 1169, 1172 (6th Cir. 1992) (holding that court would materially advance the litigation where resolution of issue would eliminate possibility of separate jury trials in the bankruptcy court and district court). Courts have often reviewed questions on interlocutory appeal that affect a party's right to a jury trial, and that question would properly be reviewed here as well. See, e.g., Adams v. Cyprus Amax Minerals Co., 149 F.3d 1156, 1157 (10th Cir. 1998) (reviewing question of law on interlocutory review affecting right to jury trial); Postema, 998 F.2d at 61-62; SEC, 991 F.2d at 1488. In addition, by resolving this question now, the Court can determine whether the Commission is entitled to seek individual relief on behalf of Willis. By resolving this critical question of available relief, this Court would materially advance this case by avoiding the possibility that the damages issue would have to be relitigated, after the close of a bench trial, to include individual relief. See 2A Fed. Proc., L. Ed. § 3:394 (1994) (noting that appeal may materially advance litigation where district court's order is determinative of the issue of monetary damages).<9> The appellate courts have often accepted interlocutory review of questions that affected a party's right to relief. See, e.g., Steinle v. Boeing Co., 24 F.3d 1250, 1250-51 (10th Cir. 1994) (considering issue on interlocutory review affecting damages and right to jury trial); Postema, 998 F.2d at 61-62; Curtis, 982 F.2d at 473. Thus, by reviewing this controlling question of law now, this Court will materially advance the ultimate termination of the litigation. The immediate resolution of this legal question will avoid the possibility of multiple trials, prevent the issue of damages from being re-litigated, and eliminate the possibility that the parties and the district court will waste both time and expense. As resolution of this controlling question will materially advance the litigation, this legal question satisfies all of the elements of section 1292(b), and the Commission urges this Court to grant interlocutory review. CONCLUSION The issues of law certified by the district court are appropriate for interlocutory review, as they are controlling questions of law as to which there is a substantial ground for difference of opinion, and resolution of the issues will materially advance the ultimate termination of the litigation. By examining these issues now, this Court can save the litigants substantial time and expense, as well as preventing the district court and parties from being subjected to an unnecessary trial. The Commission therefore respectfully requests that this court grant interlocutory review of these issues under 28 U.S.C. § 1292(b). Respectfully submitted, Nicholas M. Inzeo Acting Deputy General Counsel Philip B. Sklover Associate General Counsel Carolyn L. Wheeler Assistant General Counsel ___________________________ JOSEPH A. SEINER Attorney Equal Employment Opportunity Commission Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains 5776 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes. See Fed R. App. P. 32(a)(5). _____________________ Joseph A. Seiner March 1, 2002 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on this 1st day of March, 2002, two copies of the attached brief were sent via federal express to: Jim T. Priest Rob Norman McKinney & Stringer 101 North Robinson Suite 1300 Oklahoma City, Oklahoma Dan Little, Esq. Dana Little, Esq. Little, Little, Little, Windel, Coppedge, Oliver & Gallagher, PLLC P.O. Box 618 Madill, OK 73446 __________________________ Joseph A. Seiner EEOC / Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 March 1, 2002 *********************************************************************** <> <1> In fact, because the Commission chose to purse a federal action based on Willis’s claim, the Commission never did issue Willis a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1) (notice of right-to-sue issues only if the Commission does not file a civil action), incorporated into the ADA by 42 U.S.C. § 12117(a). <2> In practice, the courts have often “blended” the requirement that a question be “controlling” with the requirement that it materially advance the litigation. Thus, the factors here that demonstrate that the question of law is controlling may further be used to demonstrate that the decision will materially advance the litigation. See, e.g., 16 Charles A. Wright et al., Federal Practice & Procedure Juris. 2d § 3930 (“[t]he requirement that there be a ‘controlling’ question of ‘law’ has created difficulties that in part blend with the questions raised by the requirement that an appeal might materially advance the ultimate termination of the litigation”). <3> The district court’s decision is also unusual in that it asserts that “Willis’ federal claim filed under the ADA is time-barred.” Certification Order at 2. Willis filed an ADA claim on November 29, 1999, and voluntarily dismissed that claim (which was prematurely filed as she had not received a right-to-sue letter) on December 27, 1999. Willis has never reasserted that ADA claim. <4> Moreover, there is no statute of limitations restricting the time within which the Commission may bring suit. See, e.g., Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 366 (1977); Dole v. Local 427, Int’l Union of Electrical, Radio & Machine Workers, 894 F.2d 607, 613-14 (3d Cir. 1990). Rather the time constraints on EEOC enforcement actions are “directed entirely to the initial filing of a charge with the EEOC and prompt notification thereafter to the alleged violator.” Occidental, 432 U.S. at 371. <5> Interestingly, the district court’s holding that the entitlement to a right-to-sue letter, rather than actual receipt of the letter, is sufficient to bring suit in federal court under the ADA (see Certification Order at 3-4) directly conflicts with a recent decision in the Western District of Oklahoma, which held that a plantiff needs a right-to-sue letter from the proper agency before filing suit, and equitable modifications will not save the plaintiff’s claim. See Hiller v. State of Oklahoma, unpublished, No. CIV-00-2145-A (W.D. Okla. 2001), appeal pending No. 01-6402, (attached) (concluding that a case against a state agency employer may proceed only if the right-to-sue notice is provided by the U.S. Attorney General rather than the EEOC). <6> Because there has been no final judgment on Willis’s ADA claim, the EEOC’s action on Willis’s behalf also is not barred by the principle of mootness, as suggested by the district court. See Certification Order at 10. <7> As noted previously, in section 1292(b) appeals, the courts have often blended the requirement that the question of law be “controlling” with the requirement that resolving the question will materially advance the litigation. Thus, the factors that demonstrated that the question of law was controlling may further be used to show that resolution of this question will materially advance the case. See, e.g., 16 Charles A. Wright et al., Federal Practice & Procedure Juris. 2d § 3930. <8> The avoidance of unnecessary trials, time and expense is the major purpose of section 1292(b) appeals. See, e.g., Utah v. Kennecott Corp., 14 F.3d at 1495 (citing, with approval, article for proposition that “avoidance of wasted trial court time is sole purpose of § 1292(b)”) (citation omitted); Johnson, 930 F.2d at 1206. <9> Moreover, the nature of the damages at issue could potentially affect the manner in which a bench trial would be conducted, as any evidence relating solely to individual damages could arguably be prohibited by the district court.