EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER V. COMMERCIAL OFFICE PRODUCTS COMPANY No. 86-1696 In the Supreme Court of the United States October Term, 1986 Petition for A Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit The Solicitor General, on behalf of the Equal Employment Opportunity Commission, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit in this case. TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-20a) is reported at 803 F.2d 581. The order of the district court (App., infra, 23a) is not yet reported. JURISDICTION The judgment of the court of appeals (App., infra, 21a) was entered on October 15, 1986. A petition for rehearing was denied on December 23, 1986 (App., infra, 22a). By order dated March 16, 1987, Justice White extended the time for filing a petition for a writ of certiorari to and including April 22, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Section 706(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(c), provides in pertinent part: In the case of an alleged unlawful employment practice occurring in a State or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated * * * . Section 706(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(e), provides in pertinent part: A charge under this section shall be filed wi;hin one hundred and eighty days after the alleged unlawful employment practice occurred * * * except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice * * *. QUESTION PRESENTED Whether a state agency's routine decision to defer initial processing of a discrimination charge to the Equal Employment Opportunity Commission (EEOC), pursuant to a worksharing agreement, constitutes a "terminat(ion)" of state proceedings within the meaning of Section 706(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(c), so that the EEOC may immediately deem the charge as filed, rather than being required to wait until sixty days after the commencement of state proceedings. STATEMENT This case concerns the meaning of Section 706(c) and (e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(c) and (e), which establishes limitation periods for the filing of employment discrimination charges with the Equal Employment Opportunity Commission (EEOC). The court of appeals affirmed the district court's denial of the EEOC's petition to enforce an administrative subpoena issued to respondent, Commercial Office Products Company, in investigating a discrimination charge filed with the EEOC against Commerical Office Products. The court of appeals held that the EEOC could not process the charge because it had not been timely filed. 1. In Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, Congress attempted to coordinate federal and state efforts to resolve charges of employment discrimination over which both the EEOC (under Title VII) and a state or local fair employment practice agency (under state or local law) have jurisdiction. Under Section 706(e) of Title VII, 42 U.S.C. 2000e-5(e), a complainant must file charges with the EEOC within 180 days of the alleged discrimination, except that a complainant is allowed 300 days if he has "initially instituted proceedings with a State or local agency with authority to grant or seek relief." When the 300-day limitations period is applicable, however, Section 706(c), 42 U.S.C. 2000e-5(c), provides that a charge is not deemed to be "filed" with the EEOC "before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." Hence, when there is a state or local agency with concurrent jurisdiction, a charge will always be timely filed with the EEOC if, following its submission to the EEOC, state or local proceedings are commenced within 240 days of the discriminatory act, while a charge submitted after 240 days will be timely filed only if the state or local agency "terminate(s)" those proceedings by the 300th day. Congress also authorized the EEOC to cooperate with state and local agencies by entering into "written agreements" with those agencies in order to promote "effective enforcement" of Title VII. See 42 U.S.C. 2000e-8(b); see also 42 U.S.C. 2000e-4(g)(1). Accordingly, the EEOC has entered into "worksharing agreements" with approximately 80 of the state and local fair employment practice agencies that enforce state and local employment discrimination laws. These agreements typically provide that the state agency will initially process certain categories of charges and that the EEOC will initially process others, with the state waiving its right to the 60-day exclusive processing period in the latter instance. See 29 C.F.R. 1601.13(c). In either instance, the deferring agency normally reserves the right to review the initial processing agency's findings of fact, which are accorded "substantial weight," and, if appropriate, also to investigate a charge further after the initial processing agency has completed its proceeding. See 42 U.S.C. 2000e-5(b). 2. On March 26, 1984, the complainant, Suanne Leerssen, submitted a charge to the EEOC, alleging that on June 10, 1983 -- 290 days earlier -- respondent, Commercial Office Products Company, had discharged her because of her sex (App., infra, 2a, 25a). On March 30th, the EEOC transmitted a copy to the Colorado Civil Rights Division, which had concurrent jurisdiction over the charge, and which on April 4, 1984, declined to "initially process" the charge pursuant to a worksharing agreement between the EEOC and the state agency (id. at 2a, 26a-27a). On that same day, the state agency sent a letter to the complainant, which advised her that "(t)o avoid duplication of effort, the * * * Division will take no action on your charge until the (EEOC) terminates its proceedings" (id. at 2a, 28a-29a). The EEOC proceeded to investigate complainant's charge. Pursuant to its investigation, the EEOC, on September 20, 1984, issued a subpoena for production of information that respondent refused to provide to the EEOC (App., infra, 2a, 30a-32a). Respondent refused to comply with the subpoena, however, and the EEOC initiated this action for judicial enforcement of the subpoena (id. at 2a, 33a-37a). 3. The district court dismissed the EEOC's action on the ground that the complainant's charge was not timely filed (App., infra, 2a). According to the court, the Colorado Civil Rights Division's decision not to "initially process" the charge did not constitute a "terminat(ion)" of the state proceeding, within the meaning of Section 706(c) of Title VII, 42 U.S.C. 2000e-5(c), and therefore the charge was not "filed" with the EEOC until 60 days after its receipt, which was beyond the 300-day limitations period established by Section 706(e) of Title VII, 42 U.S.C. 2000e-5(e). App., infra, 2a-3a. /1/ 4. The court of appeals affirmed (App., infra, 1a-20a). The court first rejected the claim that the 300-day limitations period was inapplicable because the Colorado Civil Rights Division had never "initially instituted proceedings," within the meaning of Section 706(e). App., infra, 5a-6a. The court disagreed with the Fourth Circuit's decision in Dixon v. Westinghouse Electric Corp., 787 F.2d 943 (1986), petition for cert. pending, No. 86-181, and held that the state agency's deferral of a charge to the EEOC pursuant to a worksharing agreement "is an initial filing in the state agency sufficient to invoke the 300-day time limitation" (App., infra, 5a). The court of appeals ruled, however, that the complainant's charge was not filed within 300 days and therefore the EEOC lacked authority to issue the subpoena (App., infra, 7a-16a). According to the court of appeals, a state agency "terminates" its "proceedings," within the meaning of Title VII, only when it "completely surrenders its jurisdiction over a charge" (id. at 9a). Hence, the court concluded, where, as in this case, the state agency waived initial processing, yet retained jurisdiction over the charge and reserved the right to act after the EEOC terminated its proceedings, the state agency did not terminate its proceedings and therefore under Section 706(c) of Title VII the charge was not formally "filed" with the EEOC until 60 days after the charge was first filed with the state (App., infra, 12a-16a). The court stated that a contrary construction of Title VII would be inconsistent with congressional intention "that the state would act during its period of exclusive jurisdiction, and that the federal authorities would begin proceedings only if state proceedings failed to resolve the dispute" (App., infra, 9a-12a (emphasis omitted)). On that same ground, that court also questioned whether worksharing agreements could "substitute" for the deferral to state proceedings required by Title VII (id. at 12a-13a). It expressly disagreed with the First Circuit's decision in Isaac v. Harvard University, 769 F.2d 817 (1985), which had upheld the EEOC's view that a state agency's decision to waive initial processing constitutes a "terminat(ion)" of its "proceedings," within the meaning of Section 706(c). App., infra, 8a-9a & nn.6-7. Finally, the court found that the complainant's charge had not been timely filed with the EEOC in this case because the obligatory 60-day waiting period ended beyond the 300-day limitations period (App., infra, 14a-16a). For this same reason, the court concluded that the EEOC lacked authority to issue the subpoena (id. at 16a). /2/ Judge McKay dissented (App., infra, 17a-20a), contending that the meaning of "terminated" in Section 706(c) is ambiguous and the court should therefore defer to the EEOC's reasonable interpretation, which is consistent with congressional intent to resolve doubts in favor of claimants and which has been upheld by every other court (except one district court) that has addressed the issue, including the First Circuit. 5. The EEOC filed a petition for rehearing and suggestion for rehearing en banc, which the court of appeals denied (App., infra, 22a). Judges McKay, Logan, and Seymour voted in favor of rehearing en banc. REASONS FOR GRANTING THE PETITION The decision of the court of appeals misconstrues a statutory provision intended to allow state and local agencies the opportunity of an exclusive period for processing charges of employment discrimination. Under the court of appeals' view, the EEOC must defer processing a discrimination charge even when the state or local agency has agreed that the EEOC should proceed immediately, and even when the charge will otherwise be barred by the applicable federal statute of limitations. That decision frustrates 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)), and needlessly prevents consideration of some charges. In addition to these concerns, the decision below squarely conflicts with a decision of the First Circuit, and it presents an issue of importance to the EEOC, which is responsible for implementation of Title VII's nondiscrimination mandate. Accordingly, this Court's review is warranted. 1. Section 706(c) of Title VII provides that an employment discrimination charge may not be "filed" with the EEOC before the expiration of 60 days after commencement of any state or local proceedings under state or local law concerning the same allegations, "unless such proceedings have been earlier terminated." The court of appeals ruled that state or local proceedings are "terminated," within the meaning of the federal statute, only when the state or local agency "completely surrenders its jurisdiction over a charge" and, hence, agency "proceedings" have not been "terminated" when an agency declines its right to initial processing, yet retains jurisdiction (App., infra, 9a, 15a). We disagree. Contrary to the court of appeals' decision (App., infra, 8a-9a), the meaning of neither "terminated" nor "proceedings" is unambiguous in this context. As noted by Judge McKay in dissent (id. at 17a-18a), the plain meaning of the word "terminated" is not to "completely surrender() * * * jurisdiction over a charge." "Terminated" may, of course, simply refer to a "cessation in time" and does not necessarily contemplate a cessation for all time. See Webster's Third New International Dictionary (Merriam-Webster ed. 1976) ("to bring to an ending or cessation in time, sequence, or continuity"). There is also no suggestion in the statutory language that Congress equated "proceedings" in this context with "jurisdiction" or that Congress otherwise unequivocally intended that state or local "jurisdiction" be forever abandoned. Instead, the term "proceedings," like the term "terminated," is ambiguous and its meaning depends upon its statutory context. Compare North Carolina Department of Transportation v. Crest Street Community Council, Inc., No. 85-767 (Nov. 4, 1986), slip op. 5-9 with New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 60-66 (1980). For this reason, further consideration of the purpose of the provision, including an examination of the relevant legislative history, is warranted in construing Section 706(c). The purpose of Section 706(c)'s deferral requirement, as reflected in the legislative history, supports the EEOC's view that a state or local agency has "terminated" its "proceedings" when it delcines initially to process a discrimination charge. The provision for deferral to state proceedings was inserted in the Civil Rights Act of 1964 largely to ensure that state and local agencies would have "every opportunity to employ their experience without premature interference by the Federal Government." 110 Cong. Rec. 12724-12725 (1964) (remarks of Sen. Humphrey); see also id. at 8193 (remarks of Sen. Dirksen). Contrary to the court of appeals' unsupported assertion, the legislative history reveals no "unmistakable intention of Congress * * * that the state would act during its period of exclusive jurisdiction" (App., infra, 11a-12a (emphasis omitted)). /3/ Instead, as described in decisions of this Court, the EEOC's sole statutory obligation is to ensure that the states have a "prior opportunity to consider discrimination complaints." Love v. Pullman Co., 404 U.S. 522, 526 (1972) (emphasis added); see EEOC v. Shell Oil Co., 466 U.S. 54, 63 n.12 (1984); Mohasco Corp. v. Silver, 447 U.S. at 810; New York Gaslight Club, Inc. v. Carey, 447 U.S. at 63; Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761 (1979). Hence, when, as in this case, the state agency has waived its right initially to process a discrimination charge so that the EEOC may immediately process the charge, /4/ the statutorily-required "opportunity" has been satisfied. There is no sound statutory purpose to be served in those circumstances by requiring the EEOC, as would the court of appeals in this case, to delay its processing for 60 additional days. To the contrary, the court of appeals' decision frustrates Congress's clear intent "to encourage the prompt processing of all charges of employment discrimination." Mohasco Corp. v. Silver, 447 U.S. at 825; see S. Rep. 92-415, 92nd Cong., 1st Sess. 24 (1971); see also Love v. Pullman Co., 404 U.S. at 526. The harm caused by such a requirement is not confined, moreover, to needless delay. As illustrated by the circumstances of this case, the court of appeals' decision may render untimely discrimination charges received by the EEOC within the 300-day limitations period established by Title VII. The EEOC, the state agency, and the individual complainant may all want the EEOC to begin processing the charge immediately, but, according to the court of appeals, the EEOC may not do so even though any further delay will place the charge outside the limitations period. A charge submitted to the EEOC is therefore too early until it is too late, notwithstanding the state agency's desire for immediate EEOC processing. We cannot suppose that Congress intended such a purposeless and perverse result, "particularly * * * in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process" (Love v. Pullman Co., 404 U.S. at 527). 2. As the court of appeals acknowledged (App., infra, 8a-9a), its decision squarely conflicts with the First Circuit's decision in Isaac v. Harvard University, 769 F.2d 817, 820-828 (1985). Indeed, with one exception, every district court that has previously addressed the issue has upheld the EEOC's view. See Hamel v. Prudential Insurance Co., 640 F. Supp. 103, 107 n.2 (D. Mass. 1986); EEOC v. Ocean City Police Dep't, 617 F. Supp. 1133, 1140-1141 (D. Md. 1985), aff'd on other grounds, 787 F.2d 955, reh'g granted, 795 F.2d 368 (4th Cir. 1986); Hatzopoulou v. American Steel Foundries, 39 Fair Empl. Prac. Cas. (BNA) 372 (N.D. Ill. 1985); Thompson v. International Ass'n of Machinists, 580 F.Supp. 622, 665-667 (D.D.C. 1984); Yeung v. Lockheed Missiles and Space Co., 504 F.Supp. 422, 424 (N.D. Cal. 1980); Cattel v. Bob Frensley Ford, Inc., 505 F. Supp. 617, 619 (M.D. Tenn. 1980); Lombardi v. Margolis Wines & Spirits, Inc., 465 F. Supp. 99, 101-102 (E.D. Pa. 1979); see also Stiessberger v. Rockwell International Corp., 29 Fair Empl. Prac. Cas. (BNA) 1273, 1274 (E.D. Wash. 1982); Morgan v. Sharon Pennsylvania Bd. of Education, 445 F. Supp. 142, 145 (W.D. Pa. 1978); Greenlow v. California Dep't of Benefit Payments, 413 F. Supp. 420, 424 (E.D. Cal. 1976); EEOC v. Rinella & Rinella, 401 F. Supp. 175, 184 (N.D. Ill. 1975); but see Klausner v. Southern Oil Co., 533 F. Supp. 1335 (N.D.N.Y. 1982). /5/ Unlike the Tenth Circuit in this case, the First Circuit in Isaac held that "when a state agency * * * suspend(s) the processing of a claim and look(s) to the EEOC for further action(,) the state agency has 'terminated' its 'proceedings' within the meaning of section 706(c)" (769 F.2d at 825). The court found ambiguity in the meaning of both "terminated" and "proceedings" and further concluded that "each (was) capable of bearing an interpretation of some cessation short of an ultimate and final disposition" (769 F.2d at 820-822). The court then examined the relevant legislative history, and, unlike the Tenth Circuit, found that the legislative history clearly established "that Congress did not intend section 706(c) to bar EEOC jurisdiction once a state has waived its exclusive claim to a case" (769 F.2d at 823). See id. at 824 ("once a state agency declines the full sixty days of deferral, the legislative history suggests that section 706(c) no longer has a purpose"). Finally, the First Circuit, unlike the Tenth Circuit, flatly rejected the notion "that the only way for a state agency to reduce the 60-day deferral period is to completely relinquish a case" (769 F.2d at 825). Such a requirement, the court stressed, "would serve no purpose," "would undermine (the) express goal of Title VII * * * (that) 'cases (be) processed promptly'" and "would seem to detract from, rather than further, the states' rights approach Congress sought to implement." Ibid. (quoting S. Rep. 92-415, 92nd Cong., 1st Sess. 24 (1971)). 3. Review is also warranted because the decision of the court of appeals frustrates important congressional policies and threatens to impede the EEOC's efficient operation. As discussed above, Congress desired efficient and prompt processing of Title VII employment discrimination charges and intended to ensure EEOC cooperation with its counterparts in the states. In furtherance of those ends, the EEOC has entered into worksharing agreements with 43 states, the District of Columbia, Puerto Rico, and the Virgin Islands, and approximately 35 municipal agencies. These agreements typically provide (see, eg., App., infra, 47a-49a) that the state agency waives its right to an exclusive period of processing for certain charges initially received by the EEOC, without completely relinquishing jurisdiction. /6/ Unless overturned, the court of appeals' decision means that the EEOC will have to delay, for no purpose, its investigation of discrimination charges or the agreements will have to be revised to provide that the state agency relinquishes completely its jurisdiction over certain charges. Either option frustrates important congressional policies. The former defeats the congressional goal of efficient processing of employment discrimination charges. The latter, ironically, results in precisely the sort of unnecessary intrusion on state jurisdiction that Congress intended to avoid by enacting Section 706(c). Finally, the decision of the court of appeals threatens to render untimely approximately 219 Title VII employment discrimination charges now pending within the Tenth Circuit that were received by the EEOC more than 240 days after the alleged discriminatory act, as well as the numerous charges that will similarly be received by the EEOC beyond 240 days in the future. There are also likely thousands of pending discrimination charges nationwide, the timeliness of which has been placed in doubt by the decision in this case. /7/ CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General DONALD B. AYER Deputy Solicitor General RICHARD J. LAZARUS Assistant to the Solicitor General CHARLES A. SHANOR General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel VELLA M. FINK Assistant General Counsel DONNA J. BRUSOSKI Attorney Equal Employment Opportunity Commission APRIL 1987 /1/ On June 14, 1984, following the district court's decision, the Colorado Civil Rights Division wrote the complainant a letter stating that the Division had never had jurisdiction over her charge because it had not been filed with the Division within the limitations period provided by state law (180 days) (App., infra, 55a-56a). /2/ The court also rejected (App., infra, 15a n.14) the notion that the Colorado Civil Rights Division had terminated its proceedings prior to the 300th day because, as stated in its June 14th letter to the complainant (see note 1, supra), the charge was filed after the state limitations period had run and therefore the agency "at no time had jurisdiction over (the) charge." The court found that the state limitations period was not self-executing and therefore the Colorado agency did possess jurisdiction at least until it wrote the letter to the complainant on June 14th, which was after the federal limitations period had run. /3/ Nor, as discussed at page 13, infra, do worksharing agreements "subvert the statutory scheme requiring deferral" or "circumvent() the clear statutory framework" by providing that the EEOC will generally undertake the initial processing of certain categories of charges (App., infra, 12a, 13a). These agreements, such as the worksharing agreement entered into by the Colorado Civil Rights Division and the EEOC (id. at 45a-54a), express a state agency's voluntary decision to waive its statutory right to an exclusive period of processing for certain charges. In Title VII, Congress intended to ensure that the EEOC would cooperate with state agencies and that discrimination charges would be promptly and efficiently resolved. Worksharing agreements serve both those purposes. /4/ See App., infra, 49a ("In order to avoid delay * * *, CCRC hereby waives its exclusive right to process those charges for 60 days * * * so that EEOC can take immediate action on such charges."). /5/ As acknowledged by the Tenth Circuit (App., infra, 5a-6a), its decision also squarely conflicts with the decision of the Fourth Circuit in Dixon v. Westinghouse Electric Corp., 787 F.2d 943 (1986), petition for cert. pending, No. 86-181, involving the related issue whether the 300-day limitations period applies where the EEOC and the state or local agency have entered into a worksharing agreement that provides that the EEOC rather than the state or local agency will initially process the complainant's charge. The Fourth Circuit in Dixon held that the 300-day limitations period was inapplicable, while the Tenth Circuit in this case held that the 300-day limitations period was applicable. We filed a brief in support of the petition in Dixon. /6/ For instance, within the Tenth Circuit, none of the worksharing agreements entered into between the EEOC and the respective state fair employment practice agencies, with the possible exception of Oklahoma, appears to contemplate a complete relinquishment of agency jurisdiction upon waiver of the right to a period of exclusive processing. /7/ For example, between October 1, 1985 and May 16, 1986, the EEOC received approximately 2,052 Title VII employment discrimination charges beyond 240 days. APPENDIX