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Dismissing Actions Due To the Early Issuance of EEOC Right-To-Sue Notices

The EEOC is in trouble. When it was faced with a backlog of more than 100,000 cases, the Commission decided it would surrender its jurisdiction upon demand by issuing a right-to-sue notice whenever a charging party asked for one. The backlog fell quickly as charging parties filed their EEOC charges, demanded and received early right-to-sue notices from a cooperative Commission, and marched off to court. The EEOC institutionalized this practice by promulgating a regulation, 29 C.F.R. Sec. 1601(a)(2), authorizing itself to issue a right-to-sue notice “at any time” provided the Commission also determined that it would probably not be able to complete processing a charge within 180 days of its filing. Like Will Rogers, the Commission never met a request for an early right-to-sue notice that it didn’t like.

There was only one problem with the Commission’s “easy-out” practice. Congress expected the EEOC to do its job. Title VII states that the right-to-sue notice which must precede any private civil action must be preceded by one of three Commission actions: (1) the Commission can file its own action within 180 days of the filing of the charge, in which case the charging party can only intervene in that action and can no longer bring his/her own lawsuit; (2) the Commission can dismiss the charge, in which case the charging party can go directly to court; and (3) the Commission can fail to enter into a conciliation agreement with the charging party within 180 days after the charge is filed. That is all. There is no statutory authorization for the issuance of right-to-sue notices under any other circumstances, including upon demand by the charging party before 180 days pass.

This issue moved to center stage on June 18, 1999, when the District of Columbia Court of Appeals held that a Title VII lawsuit begun following the early issuance of a right-to-sue notice must be dismissed. Martini v. Federal National Mortgage Association, 1999 U.S. App. LEXIS 13639, D.C. Cir. The appeals court’s unanimous ruling, reversing the district court, also vacated a $903,500 jury verdict against the employer and a $230,560 attorneys’ fee award. The trial lasted eleven days.

The dismissal was without prejudice to Ms. Martini starting all over again before the Commission after waiting an additional 159 days. The Commission issued the original right-to-sue notice on May 1, 1995, upon Ms. Martini’s request. That was only 21 days after she filed her charge. The appeals court order requires her to exhaust her administrative remedy by returning to the Commission. While the order is without prejudice to her Title VII claim, provided she (and the Commission) wait another 159 days before obtaining a new right-to-sue notice, the passage of over four years has likely caused the limitations periods for her other causes of action to expire. Approximately half of her damages, for example, were awarded under the District of Columbia Human Rights Law which has a one-year statute of limitations. Many state and local FEP laws have three-year or shorter limitations periods. Ms. Martini’s original July 1995 court complaint also included claims of intentional distress, negligent infliction of emotional distress and negligent supervision. Those claims frequently have relatively short limitations periods under state and local laws.

The District of Columbia Circuit is the first appeals court to hold that Title VII lawsuits premised upon early right-to-sue notices must be dismissed. Both the Ninth and Eleventh Circuits have ruled to the contrary, finding nothing wrong with the EEOC’s regulation permitting premature notices. Brown v. Puget Sound Apprenticeship and Training Trust, 732 F.2d 726 (9th Cir. 1984); Sims v. Trus Joist Macmillan, 22 F.3d 1059 (11th Cir. 1994). The other nine circuit courts, including the First (Boston) and Second (New York City), have not addressed this specific issue to date.

The EEOC filed an unsuccessful friend-of-the-court brief in Martini. The Court rejected the Commission’s effort to save its own regulation. It pointed to another statutory section (Sec. 2000e-5b) which states the Commission “shall” investigate a charge and “shall” make a reasonable cause determination as promptly as possible. The Court held the Commission’s “duty to investigate is both mandatory and unqualified” and is not satisfied even if the Commission were to pass a new regulation saying it cannot fully process any charges within 180 days. Although the 180-day waiting period is not a jurisdictional prerequisite to a court suit, charging parties would be hard pressed to present equitable considerations that might warrant an exceptional early right-to-sue notice. After all, the Commission retains the full right to bring its own lawsuit seeking injunctive and declaratory relief within that 180-day period. Ms. Martini did not even argue her 21-day right-to-sue notice was supported by equitable tolling considerations.

The employer in this case moved to dismiss on the ground that the early issuance of the right-to-sue notice meant the court lacked jurisdiction to hear Ms. Martini’s Title VII claim since she failed to exhaust her administrative remedies. They made this motion unsuccessfully both before and after trial. They also included the point in their appeal where it was ultimately successful.

The statutory language does not support the Commission’s desire to relinquish its jurisdiction on demand. By taking the position that it can issue early right-to-sue notices and by issuing thousands, the Commission has put thousands of charging parties in potential jeopardy of being required to return to the starting gate and begin all over again. If a contrary jury verdict can be set aside, settlement agreements awaiting court approval may face the same procedural hurdle if one party wants to raise this objection. Conceivably, a plaintiff could raise this issue too although that attorney’s NELA membership would likely be revoked very quickly.

The district court in Martini basically felt sorry for her. She relied on the EEOC’s regulation allowing early right-to-sue notices. The district court said it saw no reason to penalize Ms. Martini when she had only “followed the dictates of the administrative scheme of the very agency charged with implementing [the] statute.” 977 F. Supp. 464, 472 (D.D.C. 1997). Yet, the overburdened federal courts do not appreciate what the EEOC is doing. The issuance of early right-to-sue notices, in the words of a district judge who agreed with the Martini result, “in effect permits the agency to expand federal jurisdiction whenever an aggrieved claimant is impatient with the normal waiting period . . . [and] early notices will mean more cases filed in federal court.” Spencer v. Banco Real, 87 FRD 739 (S.D.N.Y. 1980) (Judge Sofaer). The EEOC was also an unsuccessful amicus in Spencer.

Several district courts have agreed with the Martini rationale and have similarly dismissed or stayed prematurely-filed Title VII actions. In New York v. Holiday Inns, 656 F. Supp. 675 (W.D.N.Y. 1984) (Judge Elfvin), the court remanded the case to the EEOC with directions that the Commission reassert jurisdiction for an additional 82 days. In Spencer and in Henschke v. New York Hospital, 821 F. Supp. 166 (S.D.N.Y. 1993) (Judge Preska), the courts put the case on their suspense calendar pending the plaintiff’s resubmission of the original charges to the EEOC for additional periods of 80 (Spencer) and 149 (Henschke) days. Actually, there is dicta in a 1975 Second Circuit opinion (“absent the dismissal of a charge by the EEOC, the notice should not issue until the charge has been before the Commission for at least 180 days”) that supports the Martini result. Weise v. Syracuse University, 522 F.2d 397, 412 (2d Cir. 1975).

There must be a lot of hand-wringing at the EEOC. If the Martini result is followed by other courts, the Commission will be the culprit. It will have been the Commission’s regulation specifically allowing itself to issue early right-to-sue notices and encouraging charging parties to seek those notices that, like the Pied Piper, led thousands of charging parties over the judicial cliff.

Copyright) 1999 Nixon Peabody LLP. All rights reserved.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require and further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative.
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