EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER V. COMMERCIAL OFFICE PRODUCTS COMPANY No. 86-1696 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit REPLY MEMORANDUM FOR THE PETITIONER In this case, the court of appeals held that Section 706(c) of Title VII, 42 U.S.C. 2000e-5(c), requires that the EEOC defer processing a Title VII employment discrimination charge even when the state fair employment practice agency has agreed that the EEOC should proceed immediately. We argued in our petition that the court of appeals' construction of Section 706(c) was not required by its text or its narrow legislative purpose, and frustrated Congress's clear intent "to encourage the prompt processing of all charges of employment discrimination" (Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980) (footnote omitted)). Respondent's defense of the court of appeals' ruling and, more importantly, respondent's contention that further review is not warranted is unpersuasive. 1. Respondent claims (Br. in Opp. 6-7) that this case presents merely a factbound application of this Court's decision in Mohasco. The decisions of both the court of appeals and the district court, however, turned on each court's erroneous legal ruling that a decision of a state fair employment practice agency not to process initially a charge does not constitute a "termina(tion)" of state proceedings, within the meaning of Section 706(c). Neither court disputed the uncontested fact that the Colorado Civil Rights Division declined to undertake the initial processing of the complainant's charge in this case with the expectation that the EEOC would then immediately process the charge. /1/ The court of appeals' ruling that the charge in this case was untimely therefore rested not on an issue of fact, as respondent suggests, but on a threshold holding of law, which is raised by our petition. Nor, contrary to respondent's claim (Br. in Opp. 6), does this Court's decision in Mohasco resolve the legal issue presented in this case. Mohasco concerned the distinct question whether a charge received initially by the EEOC, but subsequently forwarded to the state agency for the 60-day deferral period, could be deemed "filed" with the EEOC, within the meaning of Section 706(e), 42 U.S.C. 2000e-5(e), upon its initial receipt. In that case, this Court held that the charge was "filed" with the EEOC only upon completion of the 60-day deferral period or upon termination of the state proceedings, whichever occurred earlier. The Court did not address the wholly distinct issue, raised in this case, of when can a state proceeding be considered "terminated," within the meaning of Section 706(c). As described in our petition (at 7-10) we believe that the plain import of Section 706(c) is that a charge may be deemed "filed" with the EEOC when, as in this case, a state agency declines to process a charge initially in order to allow the EEOC to process that charge immediately. Contrary to the view shared by respondent and the court of appeals below, we believe that the imposition of a requirement that the state agency "completely surrender() its jurisdiction over a charge" (Pet. App. 9a) is not required by the statutory language of Section 706(c), is contrary to its legislative purpose, and is inconsistent with EEOC's reasonable construction of the law. 2. Respondent contends (Br. in Opp. 7-9) that there is no genuine conflict between the decision of the Tenth Circuit in this case and the decision of the First Circuit in Isaac v. Harvard University, 769 F.2d 817 (1985). Respondent's purported distinction of Isaac, however, is illusory. In both this case and in Isaac, the legal issue was the same: whether a state agency has "terminated" its proceedings when, as in both cases, it advises the EEOC to process a charge immediately, yet retains jurisdiction over the charge to act in the future. The Tenth Circuit in this case answered the question in the negative, while the First Circuit in Isaac answered it in the affirmative. That the transmittal form filled out by the state agency in Isaac differed slightly from that filled out by the state agency in this case does not, contrary to respondent's suggestion (Br. in Opp. 7-8), explain the different results. In neither case did the state agency indicate its intention, as the Tenth Circuit would require (Pet. App. 13a n.13 (emphasis in original)), to "completely relinquish its authority to act on the charge (initially) or in the future." Indeed, the state agency in Isaac subsequently exercised its jurisdiction, thus leaving no doubt that it had intended to retain jurisdiction during the EEOC's initial processing of the charge. /2/ Respondent's characterization of the First Circuit's holding in Isaac therefore as "dictum" plainly lacks merit. As the Tenth Circuit itself recognized (Pet. App. 8a-9a), the rulings of the two courts of appeals irreconcilably conflict. /3/ 3. Finally, respondent suggests (Br. in Opp. 10-12) that the Tenth Circuit ruling is both fair and consistent with the purposes of Title VII's deferral requirement. In particular, respondent claims (id. at 11) that the state agency can simply investigate the charges on its own in the first instance. Respondent, however, ignores the basic premise of this entire litigation, which is that the state agency has affirmatively stated that it does not want to process a charge initially and that it would instead like the EEOC to process the charge immediately. In our view, the belief, shared by respondent and the Tenth Circuit, that Congress intended in that circumstance to require either the EEOC to delay its own action for 60 days or for the state agency to completely and forever relinquish its jurisdiction over the charge, turns on its head the very purpose of Title VII's deferral requirement: deference to state fair employment practice agencies. Respondent may believe (Br. in Opp. 12) that worksharing agreements constitute a "sleight-of-hand, paper shuffling procedure" to evade the requirements of Title VII. We believe, however, that such agreements reflect precisely the sort of cooperative federalism Congress hoped to encourage in Title VII when it included Section 706(c)'s deferral requirement. /4/ For the foregoing reasons and the reasons stated in the petition, the petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General CHARLES A. SHANOR General Counsel Equal Employment Opportunity Commission Washington, D.C. 20507 JUNE 1987 /1/ Respondent suggests (Br. in Opp. 3) that the EEOC never received the charge transmittal form completed by the Colorado Civil Rights Division (see Pet. App. 27a). The EEOC disputed this same suggestion in the courts below. According to the EEOC, the state agency maintains that it sent the form to the EEOC, as is contemplated by Vol. 1 of the EEOC Compliance Manual, Section 5.3 (1987), and additionally contacted the EEOC by telephone to transmit the state agency's waiver orally. While the district court never made a formal factual finding on the issue, the court of appeals stated that the completed form had been sent back to the EEOC and the court no doubt presumed that the completed form had been received by the EEOC. See Pet. App. 2a ("The CCRD returned the charge transmittal form to the EEOC and indicated that the CCRD waived its right to initially process the charge."). In all events, neither court based its ruling on respondent's suggestion. /2/ In contrast, the state agency in this case subsequently indicated that it never had jurisdiction because the charge had been filed outside the applicable state statute of limitations. See Pet. 5 n.1. Respondent correctly points out (Br. in Opp. 5 n.2) a typographical error in the appendix to the petition (Pet. App. 55a), repeated in the petition itself (Pet. 5 n.1), regarding the date of the letter sent by the Colorado Civil Rights Division. The petition, which explicitly acknowledged that the letter was sent after the district court's decision (ibid.), in no manner relied on that typographical error. /3/ Respondent argues (Br. in Opp. 9) that we incorrectly rely on a conflict between the Tenth Circuit's decision in this case and the Fourth Circuit's decision in Dixon v. Westinghouse Electric Corp., 787 F.2d 943 (1986), petition for cert. pending, No. 86-181, on the distinct issue whether a state agency's decision, pursuant to a worksharing agreement with the EEOC, to allow the EEOC to process initially a charge renders inapplicable Title VII's 300-day limitations period for charges subject to overlapping federal and state jurisdiction. While such a conflict plainly does exist -- as the Tenth Circuit itself recognized (see Pet. App. 5a-6a) -- we do not seek review of that aspect of the decision below, which was favorable to the EEOC. /4/ Respondent's challenge (Br. in Opp. 12) to the terms of an EEOC procedural regulation, 29 C.F.R. 1601.13(a)(3), which provided that a charge is deemed "filed" with the EEOC upon its initial receipt when the charge is apparently untimely under the state statute of limitations, is misdirected. The Tenth Circuit rejected the regulation in this case (Pet. App. 6a-7a) and we do not rely on the regulation in our petition to support the timeliness of the filing of the charge with the EEOC in this case, which we maintain timely occurred at least when the agency formally declined to process initially the specific charge here at issue. The EEOC, moreover, has recently deleted the regulation. See 52 Fed. Reg. 10224-10225 (1987).