EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER V. OCEAN CITY POLICE DEPARTMENT No. 87-476 In the Supreme Court of the United States October Term, 1987 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 Fourth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statutory and regulatory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The opinion of the court of appeals sitting en banc (App., infra, 1a-13a) is reported at 820 F.2d 1378. The panel opinion of the court of appeals (App., infra, 14a-19a) is reported at 787 F.2d 955. The district court's opinion (App., infra, 20a-39a) is reported at 617 F. Supp. 1133. JURISDICTION The judgment of the court of appeals (App., infra, 41a) was entered on June 24, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND REGULATORY PROVISIONS INVOLVED 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 within 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 * * * . 29 C.F.R. 1601.13(a)(5)(ii)(A) (see 52 Fed. Reg. 10224 (1987)) provides: Where the document on its face constitutes a charge within a category of charges over which the (state or local fair employment practice) (a)gency has waived its rights to the period of exclusive processing referred to in paragraph (a)(4)(iii) of this section, the charge is deemed to be filed with the Commission upon receipt of the document. Such filing is timely if the charge is received within 300 days from the date of the alleged violation. QUESTION PRESENTED Whether the 300-day charge-filing period, made applicable by Section 706(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(e), when the complainant "initially institute(s) proceedings" with a state or local agency, applies where the Equal Employment Opportunity Commission (EEOC) and the state or local agency have entered into a worksharing agreement determining that the EEOC rather than the state or local agency will initially process the complainant's charge. STATEMENT This Title VII subpoena enforcement action presents the timeliness issue raised in Dixon v. Westinghouse Electric Corp., 787 F.2d 943 (4th Cir. 1986), petition for cert. pending, No. 86-181. Specifically, it concerns the limitations periods for filing charges that are set forth in Section 706(e) of Title VII, 42 U.S.C. 2000e-5(e), and their relationship to the worksharing agreements entered into by the EEOC, pursuant to Section 709(b), 42 U.S.C. 2000e-8(b), with state and local agencies that are administering their own employment discrimination laws. In this case, the Fourth Circuit, sitting en banc, reversed the district court's enforcement of an EEOC subpoena issued in connection with a charge of race discrimination. The court of appeals ruled that enforcement of the subpoena should have been denied because the charge in this case was untimely under Dixon. 1. On April 14, 1981, respondent Ocean City Police Department discharged the complainant from his employment as a police officer with the Department (App., infra, 2a). On November 19, 1981 (219 days later), the complainant visited the EEOC's Baltimore office and completed EEOC Form 283, entitled "Intake Questionnaire," in which he alleged that he had been harassed and terminated from employment on account of his race (App., infra, 21a; C.A. App. 9, 12). On December 16, 1981 (246 days after termination), the complainant executed a formal "Charge of Discrimination" and mailed it to the EEOC, which received it on December 21, 1981 (App., infra, 21a; C.A. App. 9, 13). The EEOC is party to a worksharing agreement with the State of Maryland Commission on Human Rights (MCHR) /1/ which contains, inter alia, a waiver by the MCHR of its right under Title VII (see 42 U.S.C. 2000e-5(c)) to an initial period of exclusive processing of charges (C.A. App. 111-118). The waiver encompasses, with some exceptions, charges originally received by the EEOC (id. at 113-114). /2/ Pursuant to the worksharing agreement, the EEOC transmitted a copy of the complainant's charge to the MCHR on December 22, 1981, along with EEOC Transmittal Form 212-A indicating that the EEOC would initially process the charge (id. at 148, 150). On January 19, 1982, the MCHR mailed Form 212-A back to the EEOC with an acknowledgment of receipt (id. at 151). /3/ The EEOC's District Office began to investigate the complainant's charge and issued a subpoena seeking documents from respondent relating to the allegations of employment discrimination (App., infra, 2a). Respondent opposed enforcement of the subpoena on the ground that the underlying charge was untimely (ibid.). The EEOC brought this enforcement action when respondent refused to comply with the subpoena, even after the Commission denied its administrative appeal (ibid.). 2. Following a non-evidentiary hearing, the district court granted the EEOC's application for enforcement (App., infra, 40a). According to the district court (id. at 39a), the complainant's charge was timely because it had been received within 300 days of the alleged discriminatory act. The court rejected (id. at 37a-38a & n.5) respondent's argument that the extended 300-day limitations period did not apply because the waiver by the MCHR of its right to an exclusive charge processing period meant that proceedings were never "initially instituted" with the state agency as is necessary to trigger the longer limitations period under Section 706(e). 3. The court of appeals initially affirmed (App., infra, 14a-19a) without reaching the timeliness issue. The court held (id. at 17a-18a) that the subpoena was properly enforced because the timeliness issue was not properly before the court in a subpoena enforcement proceeding. The court noted (id. at 17a n.4), however, that it had that same day decided the timeliness issue in another case, Dixon v. Westinghouse Electric Corp., 787 F.2d 943 (4th Cir. 1986), petition for cert. pending, No. 86-181, in a manner favorable to respondent. /4/ The court stated (App., infra, 17a n.4) that Dixon would "control" in this case "should (the complainant's) charge result in a Title VII suit." /5/ 4. The court of appeals, sitting en banc, reversed (App., infra, 1a-13a). The court concluded (id. at 3a-10a) that the timeliness issue could be raised in a subpoena enforcement proceeding. The court declined (id. at 4a n.3) the EEOC's invitation to reconsider the court's resolution of the timeliness issue in Dixon and held that the EEOC's subpoena was unenforceable because, relying on Dixon, the underlying charge was untimely. REASONS FOR GRANTING THE PETITION The question presented in this case is the same as that presented in Dixon v. Westinghouse Electric Corp., petition for cert. pending, No. 86-181. In Dixon, the court of appeals held that the 300-day limitations period available under Section 706(c), 42 U.S.C. 2000e-5(c), when a charge is "initially instituted" with a state or local agency with jurisdiction concurrent to the EEOC, does not apply when a state agency has, pursuant to a worksharing agreement with the EEOC, waived its right to an initial exclusive period for processing a charge. The court of appeals' en banc decision in this case expressly relies on Dixon in ruling that the complainant's charge is untimely as a matter of law. The relevant facts of the two cases are nearly identical. In both cases, the charge was received by the EEOC in Maryland between 180 and 300 days after the alleged discriminatory act and was within a category of charges over which the MCHR had waived its initial exclusive processing rights. In both cases, the EEOC transmitted the charge and Form 212-A to the MCHR with a statement that, pursuant to the worksharing agreement, it intended to process the charge, and the MCHR returned the form to the EEOC with no indication that it wished to make an exception to the general provisions of the agreement and intially process the charge itself. On September 4, 1986, we filed a brief as amici curiae in support of the petition for a writ of certiorari in Dixon. In that submission, we contended that the decision of the court of appeals in Dixon is incorrect, is inconsistent with decisions of this Court and of other courts of appeals, and presents an important issue warranting this Court's review. Accordingly, we recommended that the Court grant review in Dixon. We did, however, also advise the Court that it might want to postpone disposition of the petition in Dixon because the Fourth Circuit had (then) recently granted rehearing en banc in this case, which offered an opportunity for the court to reconsider its Dixon ruling. Now that the court of appeals in this case has reaffirmed the vitality of Dixon, there is no reason to delay any further this Court's disposition of the petition in Dixon. /7/ CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the disposition of the certiorari petition or the decision in Dixon v. Westinghouse Electric Corp., No. 86-181. Respectfully submitted. CHARLES FRIED Solicitor General CHARLES A. SHANOR General Counsel Equal Employment Opportunity Commission SEPTEMBER 1987 /1/ The EEOC has entered into worksharing agreements, pursuant to Section 709(b) of Title VII, 42 U.S.C. 2000e-8(b), with approximately 81 of the 109 state and local fair employment practice agencies that enforce state and local employment discrimination laws. Under these agreements, certain categories of discrimination charges are processed by state or local authorities; with respect to other categories, the state or local agency often waives its right under the statute to process the charge, and EEOC processes the charge from the outset. /2/ The waiver does not extend to charges originally received by the EEOC if (1) the charges are against certain respondents, as agreed to in writing by the EEOC and MCHR; (2) the charges allege at least one basis of discrimination which is outside the EEOC's jurisdiction; or (3) the charges are filed by the MCHR or one of its commissioners (C.A. App. 113). In addition, under the agreement the MCHR and the EEOC both retain the right to express an interest in pursuing any specific charge, even if primary responsibility for its processing is assigned by the agreement to the other agency, and the other agency will "wherever possible" defer to that request (id. at 115). /3/ While the bottom half of Form 212-A included boxes to be checked off indicating the MCHR's intentions regarding the processing of the Wright charge, the MCHR inadvertently did not complete these boxes (C.A. App. 151). /4/ In Dixon, the panel held that where the MCHR had, pursuant to a worksharing agreement, waived its right to an initial exclusive period for processing a charge, state proceedings were never "initially instituted," within the meaning of Section 706(e) of Title VII and, therefore, the extended 300-day charge-filing period available under that provision in that circumstances did not apply. /5/ Judge Widener, who wrote the Dixon decision, dissented on the ground that Title VII did not confer on the EEOC investigative authority over an untimely charge (App., infra, 19a). /6/ In Dixon, the MCHR checked the box on the form indicating that it would not initially process the charge. In this case, the MCHR returned the form without (inadvertently) checking any box. For this reason, Dixon more neatly presents the timeliness issue. /7/ We recently filed a motion to file a supplemental memorandum as amici curiae in Dixon along with a proposed supplemental memorandum. In that submission, we advised the Court of the court of appeals' decision in this case not to revisit its prior decision in Dixon. We also advised the Court of the possible relationship between the timeliness issue raised in both this case and in Dixon with the issue raised in EEOC v. Commercial Office Products Co., cert. granted, No. 86-1696 (June 15, 1987). We recommended that the Court grant Dixon now and not postpone disposition of the petition pending its decision in Commercial Office Products because we perceived no fair possibility that the legally distinct Dixon issue would be addressed in the Court's opinion in Commercial Office Products. However, should the Court decide to postpone disposition of Dixon pending Commercial Office Products, the Court should similarly postpone disposition of the petition in this case. We have provided to respondent in this case copies of our brief and our motion to file a supplemental memorandum and proposed supplemental memorandum in Dixon.