Case No. 02-7046 __________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT __________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff/Appellant, v. W.H. BRAUM, Inc. d/b/a BRAUM'S ICE CREAM AND DAIRY STORE, an Oklahoma Corporation, Defendant/Appellee. ________________________________________________________ On Appeal from the United States District Court for the Eastern District of Oklahoma, No. 01-215-P, The Honorable James H. Payne, Presiding _________________________________________________________ REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _________________________________________________________ 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 TABLE OF CONTENTS Page TABLE OF CONTENTS........................................i TABLE OF AUTHORITIES................................... ii INTRODUCTION.............................................1 ARGUMENT.................................................2 I. Braum's Argument that the Statute of Limitations in ADA Cases Begins to Run 180 Days After a Charge is Filed and Imports the State Statute of Limitations Conflicts with the Plain Language of the Statute and With Federal Case Law................................. 2 Braum Fails to Respond to the Commission's Argument that Res Judicata is Inapplicable to this Case Because There is no Final Judgment in a Prior Suit.......... 12 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Brown v. Hartshorne Pub. Sch. Dist., 926 F.2d 959 (10th Cir. 1991) 7, 9 Burgh v. Borough Council, 251 F.3d 465 (3d Cir. 2001) 6-7, 10 Cleveland v. Plain Dealer Publishing Co., 839 F.2d 1147 (6th Cir. 1988) 5 Doukas v. Metro. Life Ins. Co., 882 F. Supp. 1197 (D.N.H. 1995) 11 Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1975) 8 EEOC v. Harris Chernin, Inc., 10 F.3d 1286 (7th Cir. 1993) 13 EEOC v. Kidder, Peabody & Co., Inc., 156 F.3d 298 (2d Cir. 1998) 13 EEOC v. North Gibson Sch. Corp., 266 F.3d 607 (7th Cir. 2001) 13 EEOC v. Waffle House, Inc., 122 S. Ct. 754 (2002) 12, 13 Holmes v. Tex. A&M Univ., 145 F.3d 681 (5th Cir. 1998) 11 Kirk v. Rockwell Int'l Corp., 578 F.2d 814 (9th Cir. 1978) 4, 8, 10 Lounsbury v. Jeffries, 25 F.3d 131 (2d Cir. 1994) 11 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) 3, 4, 8, 10 Perdue v. Roy Stone Transfer Corp., 690 F.2d 1091 (4th Cir. 1982) 5, 10 Runyon v. McCrary, 427 U.S. 160 (1976) 11 EEOC v. U.S. Steel Corp., 921 F.2d 489 (3d Cir. 1990) 13 Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (8th Cir. 1975), cert. denied, 423 U.S. 1052 (1976) 4 Zambuto v. AT&T, 544 F.2d 1333 (5th Cir. 1977) 4 FEDERAL STATUTES AND REGULATIONS 29 C.F.R. § 1601.28 4 42 U.S.C. § 1983 11 Title VII, 42 U.S.C. § 2000e-5 passim Title I of Americans With Disabilities Act, 42 U.S.C. § 12117(a) passim Title II of Americans With Disabilities Act, 42 U.S.C. § 12131 et seq. 10 Title III of Americans With Disabilities Act, 42 U.S.C. § 12181 et seq. 11 Rehabilitation Act of 1973 10 INTRODUCTION In its opening brief, the U.S. Equal Employment Opportunity Commission (EEOC or Commission) focused on the single issue certified for immediate interlocutory review by this Court: whether the district court erred in holding that the EEOC is precluded by res judicata from obtaining individual relief for a charging party under the Americans with Disabilities Act because the charging party failed to file and maintain an ADA lawsuit within the two year time period allowed for bringing a personal injury action under Oklahoma state law. In addressing this question, the EEOC argued that the court's holding was erroneous in two major respects, each of which independently warrants reversal. First, the court's adoption of the statute of limitations set forth under Oklahoma state injury law as the applicable statute of limitations for bringing federal disability discrimination lawsuits directly conflicts with the time period for filing ADA claims already set forth in the statute. Second, even assuming Willis's ADA claim were time-barred, res judicata is clearly inapplicable to this case because there has simply been no final judgment on Willis's ADA claim in a prior suit, both necessary elements to establishing res judicata. Braum, in response to the EEOC's opening brief, rests its argument on legal theories that are plainly incorrect. First, Braum argues, in contrast to the plain language of the statute and federal case law, that the statute of limitations in an ADA case in which the Commission has not issued a right-to-sue notice begins to run after 180 days. Second, Braum makes the novel assertion that the statutory time period for filing such an action is governed by Oklahoma personal injury law. Finally, Braum dismisses the Commission's res judicata argument as “esoteric and ultimately irrelevant,” but fails to address the fact that res judicata is clearly inapplicable here because there has been no final judgment in a prior suit. Def. Br. at 22. ARGUMENT I. BRAUM'S ARGUMENT THAT THE STATUTE OF LIMITATIONS IN ADA CASES BEGINS TO RUN 180 DAYS AFTER A CHARGE IS FILED AND IMPORTS THE STATE STATUTE OF LIMITATIONS CONFLICTS WITH THE PLAIN LANGUAGE OF THE STATUTE AND WITH FEDERAL CASE LAW. Braum incorrectly asserts that the statutory period for filing ADA claims begins to run 180 days after a charge is filed and ends at a time governed by the applicable state personal injury law. Def. Br. at 6-18. Braum's first argument that the statute of limitations in ADA cases begins to run 180 days after the charge is filed when no right-to-sue notice has been issued clearly conflicts with the plain language of the statute.<1> The statutory requirements mandate that a party who chooses to file a lawsuit must do so within ninety days after the EEOC issues a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1) (“within ninety days after the giving of such [right-to-sue] notice a civil action may be brought against the respondent”). Thus, under the unambiguous language of the ADA, the statute of limitations does not begin to run until a right-to-sue notice has been issued by the Commission. The Supreme Court and all federal appellate courts that have applied a statute of limitations under Title I of the ADA 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, regardless of the length of time between charge-filing and issuance of the notice. See Opening Br. at 11-12. Moreover, as the Supreme Court has recognized, the Title VII<2> administrative process is lengthy and may exceed 180 days. See Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 369-70 (1977) (noting that charging parties at that time often waited 18 to 24 months for action on their complaints). No appellate court has taken the position advocated by Braum, that a charging party's statute of limitations begins to run 180 days after charge-filing if the Commission has not issued a right-to-sue notice.<3> Rather, the 180-period merely marks the earliest time at which a private party can request a right-to-sue letter and bring a private action. See Occidental, 432 U.S. at 361 (a charging party “may elect to circumvent the EEOC procedures and seek relief through a private enforcement action in a district court. The 180-day limitation provides only that this private right of action does not arise until 180 days after a charge has been filed.”) (emphasis added); Kirk v. Rockwell Int'l Corp., 578 F.2d 814, 819 (9th Cir. 1978) (“[T]he Supreme Court in Occidental Life Insurance Co. . . . affirmed this court's holding that [the EEOC's administrative] processing was subject to no time limitations.”); Cleveland v. Plain Dealer Publishing Co., 839 F.2d 1147, 1149 (6th Cir. 1988) (en banc) (“[A] claimant may request a right-to-sue letter 180 days after filing of the charge . . . . This 180-day provision is not a statute of limitations.”). Moreover, in Perdue v. Roy Stone Transfer Corp., 690 F.2d 1091, 1094 (4th Cir. 1982), upon which Defendant relies heavily (Def. Br. at 7-9, 16-18), the Fourth Circuit specifically stated that it is the “issuance of a ‘right to sue' notice [that] initiates the running of the statute of limitations for private actions.” Thus, the Perdue court clearly acknowledged that a party's statute of limitations for filing a private action does not begin to run until the Commission has issued a right-to-sue notice. Indeed, Perdue and its progeny only reflect the principle that a plaintiff may file a lawsuit after 180 days if the EEOC has not issued a right-to-sue letter; there is nothing in those cases suggesting that a plaintiff must do so within a fixed period of time or forever be barred. Braum therefore asks this court to do what Perdue itself does not permit. Thus, the plain language of the ADA, as well as the case law interpreting that language, demonstrate the flawed reasoning behind Defendant's novel argument that the statute of limitations is triggered on the 180th day after a charge is filed. The statute and case law clearly state that the statute of limitations in an ADA action is only triggered by the issuance of a right-to-sue letter by the Commission. Braum's second argument, that the state personal injury statute of limitations should be incorporated into the ADA to cut off the suit filing period, is equally unpersuasive. The ninety day statute of limitations from the Commission's issuance of a right-to-sue letter is unambiguously set forth in the ADA. 42 U.S.C. § 2000e-5(f)(1).<4> Neither the Supreme Court, nor any appellate court, has imported a statute of limitations from state law or any other source into Title I of the statute. See Opening Br. at 11-12. In fact, this argument was recently considered by the Third Circuit and expressly rejected. In Burgh v. Borough Council, 251 F.3d 465 (3d Cir. 2001), the Court considered whether to import a state personal injury statute of limitations to limit a Title VII claim, and concluded: Title VII is not a statute without a limitations period. Congress did provide a statutory limitations period for employment discrimination claims; in fact, Congress provided two periods. First, a complainant has 180 days from the occurrence of the alleged unlawful employment practice within which to bring a discrimination charge before the EEOC, see 42 U.S.C. § 2000e-5(e)(1) . . . Second, a complainant has 90 days from receipt of the right-to-sue letter to bring an action in court . . . These two periods together represent the congressional determination of the relevant and proper time limitations under Title VII. The imposition of an additional limitations period is inconsistent, and indeed in direct conflict, with the plain language of the federal statute. There is no gap to fill and thus no need to import a state limitations period as a gap-filler. The statute by its terms establishes the two appropriate time requirements that a complainant must satisfy in order to bring a timely claim. Id. at 472. This Court has also recognized that, because there is a federal statute of limitations in Title VII, it is inappropriate to import state law. See Brown v. Hartshorne Pub. Sch. Dist., 926 F.2d 959, 961 (10th Cir. 1991) (“When Congress has provided a federal statute of limitation for a federal claim, however, [Oklahoma] state tolling and saving provisions are not applicable.”).<5> Other appellate courts addressing the issue have uniformly recognized that Title VII contains its own limitations provisions, obviating the need to borrow from other statutes.<6> See Kirk, 578 F.2d 814, 819 (“Title VII does not borrow state statutes of limitations because the time limits for filing a charge and giving notice to the employer are a Congressionally established statute of limitations”); Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 522 (6th Cir. 1975) (“the attorney for the Company suggested that this suit might be barred by Tennessee's one-year statute of limitations . . . . We reject this contention. Title VII provides specific time periods for the filing of a charge with the EEOC and for commencing a civil action after receipt of the right-to-sue letter. 42 U.S.C. § 2000e-5(e, f). Title VII establishes its own statute of limitations, and state law is irrelevant in determining whether a private individual has lost his right of action under Title VII through the passage of time.”). Braum thus asks this Court to be the first circuit to apply a statute of limitations to claims brought under Title I of the ADA different from that already provided in the ADA itself, thereby creating a split in the circuits and going against the overwhelming weight of existing authority in this circuit and others. The Commission submits that there is no reason to create such a circuit split, and that the reasoning in the cases cited above is unassailable. In this case, Braum simply ignores the fact that a statute of limitations already exists in ADA claims – a plaintiff's statute of limitations begins to run ninety days after receiving a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). See Brown, 926 F.2d at 961 (“When Congress has provided a federal statute of limitation for a federal claim, however, state tolling and saving provisions are not applicable.”). Braum's argument that allowing the EEOC to follow the statutory enforcement scheme will cause undue delay (Def. Br. at 17-18) was considered and rejected by the Supreme Court in holding that the EEOC is not subject to state statutes of limitations in bringing enforcement actions: The absence of inflexible time limitations on the bringing of lawsuits will not . . . deprive defendants in Title VII civil actions of fundamental fairness or subject them to the surprise and prejudice that can result from the prosecution of stale claims. Unlike the litigant in a private action who may first learn of the cause against him upon service of the complaint, the Title VII defendant is alerted to the possibility of an enforcement suit within 10 days after a charge has been filed. This prompt notice serves, as Congress intended, to give him an opportunity to gather and preserve evidence in anticipation of a court action. Occidental, 432 U.S. 355, 372.<7> Other courts have also recognized that Title VII's enforcement scheme provides fair notice to the parties. See Burgh, 251 F.3d at 473-74 (notice requirement of Title VII “gives the defendant the opportunity to gather and preserve evidence in anticipation of court action”); Perdue, 690 F.2d at 1094 (“Three policies appear to shape the notice requirement of the statute. First, by forestalling litigation until EEOC has had time to explore the possibility of conciliation, the notice requirement reflects Title VII's emphasis on private dispute-resolution. Second, the notice requirement serves to prevent concurrent proceedings in the EEOC and the courts . . . . Third, the issuance of a ‘right to sue' notice initiates the running of the statute of limitations for private actions.”); Kirk, 578 F.2d at 826 (Hufstedler, J., concurring) (“[O]ur interpretation of Title VII does not thwart state policy against the prosecution of stale claims and the use of stale evidence. Title VII requires timely filing and notice before the institution of administrative proceedings.”). The cases relied upon by Braum (Def. Br. at 12-13) are not to the contrary. These cases all arose pursuant to the Rehabilitation Act, Title II of the ADA, Title III of the ADA, or 42 U.S.C. § 1983. None of the statutory provisions discussed in these cases contains a statute of limitations for filing a lawsuit. See Holmes v. Tex. A&M Univ., 145 F.3d 681, 683 (5th Cir. 1998) (“Neither Title II of the ADA nor the Rehabilitation Act specify a statute of limitations.”); Lounsbury v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994) (“Congress did not enact a statute of limitations governing actions brought under § 1983 . . . .”); Doukas v. Metro. Life Ins. Co., 882 F. Supp. 1197, 1199 (D.N.H. 1995) (“Title III of the ADA does not contain a specific limitations period.”). However, Title I of the ADA, which governs this case, clearly provides such a statutory period. See 42 U.S.C. § 2000e-5(f)(1), incorporated into ADA by 42 U.S.C. § 12117(a). 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). Thus, the plain language of the ADA and the case law demonstrate that Braum's argument that the state personal injury statute of limitations should be incorporated into the ADA is clearly incorrect. BRAUM FAILS TO RESPOND TO THE COMMISSION'S ARGUMENT THAT RES JUDICATA IS INAPPLICABLE TO THIS CASE BECAUSE THERE IS NO FINAL JUDGMENT IN A PRIOR SUIT. The EEOC argued in its opening brief, as an additional independent ground for reversal, that the district court erred in holding that the Commission is precluded by res judicata from obtaining individual relief for Willis. Braum dismisses the Commission's argument as “esoteric and ultimately irrelevant,” (Def. Br. at 22), even though the district court's rationale for barring the Commission from obtaining monetary relief for Willis rested on preclusion principles. This is therefore a critical point to which Braum has no meaningful answer. Braum simply does not address the fact that res judicata is clearly inapplicable to this case because there has been no final judgment in a prior suit.<8> Willis brought an ADA lawsuit in federal court and later voluntarily dismissed that lawsuit without prejudice. Thus there has never been a final judgment on Willis's ADA claim in a prior suit. Res judicata is therefore inapplicable, and the EEOC cannot be barred from bringing an ADA claim, or from seeking victim specific relief. See Opening Br. at 15-18. Far from contradicting the Commission's position, the cases principally relied upon by the defendant (Def. Br. at 21-22), U.S. Steel and Harris Chernin, further confirm the Commission's argument. In both cases, the courts required that the defendants satisfy the elements of res judicata, and in both cases, there was a final judgment in a prior suit.<9> See EEOC v. U.S. Steel Corp., 921 F.2d 489, 493 (3d Cir. 1990) (setting forth elements of res judicata and noting that “the Commission does not dispute that the first two elements of claim preclusion are present”); EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1290 (7th Cir. 1993) (noting that Commission had waived its right to challenge the final judgment element of res judicata).<10> Thus, Braum simply makes no attempt to demonstrate why res judicata should be applicable to this case. Because there is clearly no final judgment in a prior suit here, the district court plainly erred in applying res judicata to this matter. CONCLUSION Braum asks this Court to be the first circuit to apply a statute of limitations to an ADA claim different from that already provided in the ADA itself. Braum also asks this Court to limit the EEOC's remedial powers even though the elements of res judicata have not been satisfied. The Commission submits that Braum's arguments on these points are erroneous and unsupported by any authority. For the reasons set forth above and in the EEOC's opening brief, this Court should reverse the district court's decision and permit the Commission to seek full relief in its ADA action. 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 Fed. R. App. P. 32(a)(7)(B). This brief contains 3682 words. The brief was prepared using the WordPerfect 9 word-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 September 18, 2002 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on this 18th day of September, 2002, I caused copies of the attached brief to be sent via First-Class mail, postage prepaid, to the following: Patrick Fisher, Clerk of Court United States Court of Appeals for the Tenth Circuit Byron White United States Courthouse 1823 Stout Street Denver, CO 80257 Jim T. Priest, Esq. Rob Norman, Esq. McKinney & Stringer 101 North Robinson Suite 1300 Oklahoma City, Oklahoma 73102 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 September 18, 2002 1 The district court held that the limitations period governing Braum's claim began to run on the date of the alleged discrimination, December 4, 1997, not 180 days after she filed a charge. Braum does not attempt to defend this untenable proposition. 2 When it enacted the Americans with Disabilities Act, Congress incorporated the filing requirements of Title VII. See 42 U.S.C. § 12117(a) (incorporating Title VII procedures, including the section that specifies the procedures governing the filing of a civil action, 42 U.S.C. § 2000e-5(f)(1)). Thus, cases discussing the limitations period under Title VII are directly applicable here. 3 Braum argues that the EEOC is required to issue a right-to-sue letter within 180 days after the filing of a charge. Def. Br. at 15. This argument directly contradicts the federal regulations, which permit the issuance of a right-to-sue notice at any time after 180 days. See 29 C.F.R. § 1601.28(a)(1) (“the Commission shall promptly issue such [right-to-sue] notice as described in § 1601.28(e) to all parties, at any time after the expiration of one hundred eighty (180) days from the date of filing of the charge with the Commission”) (emphasis added). The Commission is required to issue a right-to-sue letter upon the written request of the charging party. See id. Willis has never made such a written request here. See also Tuft v. McDonnell Douglas Corp., 517 F.2d 1301, 1307 (8th Cir. 1975) (“We believe that the language of the statute and its legislative history support the conclusion that administrative enforcement of Title VII does not cease at the end of 180 days, and thus, the 180-day provision does not serve as a time deadline for the Commission to issue any notice to the complaining party.”), cert. denied, 423 U.S. 1052 (1976); Zambuto v. AT&T, 544 F.2d 1333, 1334 n.5 (5th Cir. 1977) (noting that “[t]his circuit and most others” have permitted EEOC to issue right-to-sue notices after 180 days). 4 The practical difficulties inherent in Braum's proposed approach are manifest, because importation of a state statute of limitations “would conflict with the timetables established in Title VII.” Burgh v. Borough Council, 251 F.3d 465, 472 (3d Cir. 2001). Thus, “[f]or example, in the most basic case, if a complainant requests and receives a right-to-sue letter exactly 180 days after he files his EEOC charge, the statute gives him 90 days to bring his action in court . . . while the borrowed state limitations would give him two full years (640 additional days) to file his action. To complicate matters further, a complainant would have no guidance as to which limitations controlled.” Id. The federal statutory limitations period cannot thus be nullified by the application of a state limitations period. 5 Indeed, Braum relies upon the Tenth Circuit's decision in Brown for the proposition that “Oklahoma's ‘savings' statute would not apply to have allowed Ms. Willis to refile her federal employment discrimination claims within one year of her dismissal and avoid the effect [of] a statute of limitations.” Def. Br. at 14. Braum cannot have it both ways; just as the Oklahoma state savings statute cannot be imported into a Title VII action, neither can a state statute of limitations for personal injury. 6 Indeed, with respect to EEOC enforcement actions – for which there is no statute of limitations set forth in Title VII – the Supreme Court has held that “absorption of state limitations would be inconsistent with the congressional intent,” and it would hardly be reasonable to “consign [the EEOC's] federal lawsuits to the vagaries of diverse state limitations statutes.” Occidental, 432 U.S. at 369-71. Thus, in private actions, where a federal statute of limitations already exists, it would be even more inappropriate to import a state statute of limitations. 7Indeed, the Supreme Court also recognized that laches is available to a defendant who believes that he was prejudiced by unjust delay in an enforcement action. 432 U.S. at 373. Thus, the EEOC does not have “unbridled discretion” in its proceedings as suggested by Braum. Def. Br. at 17. The defendant cannot and has not asserted any prejudice occurred in this case, and has not raised a laches defense. 8 Braum incorrectly asserts that the Supreme Court's decision in EEOC v. Waffle House, Inc., 122 S. Ct. 754 (2002), “essentially vindicated the trial court's decision” in applying res judicata. Def. Br. at 19. In fact, the Supreme Court, in dicta, left open the issue of how, if at all, res judicata would apply against the EEOC in situations comparable to this. See id. at 766. In its decision, the Court merely indicated that the “ordinary principles of res judicata . . . may apply,” id., which is the same position that the Commission takes here. 9 The other cases cited by Braum (Def. Br. at 20-21) are equally inapposite. In EEOC v. North Gibson School Corp., 266 F.3d 607, 616 (7th Cir. 2001), the court noted that while the lawsuit was barred, the doctrine of res judicata was inapplicable because there was no prior suit. EEOC v. Kidder, Peabody and Co., Inc., 156 F.3d 298 (2d Cir. 1998), also relied upon by Braum, was overruled by the Supreme Court's decision in EEOC v. Waffle House, Inc., 122 S. Ct. 754, 759 (2002). 10 The Commission further notes that all of the cases cited by Braum (U.S. Steel, Harris Chernin, Kidder, and North Gibson) involve ADEA claims. The ADEA has a different enforcement mechanism from the ADA, and the application of res judicata to cases involving ADEA claims would therefore involve a different analysis.