Employee Relations. Howard S. Lavin and Elizabeth E. DiMichele

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1 VOL. 34, NO. 4 SPRING 2009 Employee Relations L A W J O U R N A L Split Circuits Does Charging Party s Receipt of a Right-to-Sue Letter and Commencement of a Lawsuit Divest the EEOC of its Investigative Authority Over That Charge? Howard S. Lavin and Elizabeth E. DiMichele Does the subpoena power of the Equal Employment Opportunity Commission (EEOC) cease when the EEOC issues a right-to-sue letter and the charging party initiates litigation based upon that charge? The circuits that have weighed in on this issue are split, with the Ninth Circuit recently ruling in EEOC v. Federal Express Corp., that even though the EEOC normally terminates the processing of the charge when it issues the right-to-sue notice, it can, under limited circumstances, continue to investigate the allegations in the charge, which includes the authority to subpoena information relevant to that charge. 1 The Ninth Circuit ruling is in line with the position of the EEOC. In contrast, the Fifth Circuit has taken the opposite position, holding in EEOC v. Hearst Corp., that the EEOC may not continue an administrative investigation based upon an individual s charge once the charging party has been issued a right-to-sue letter and has initiated litigation based upon that charge. 2 Background: Title VII In drafting Title VII of the Civil Rights Act of 1964 (Title VII), Congress established a multi-tiered, alternative enforcement procedure. Howard S. Lavin is a partner and Elizabeth E. DiMichele a special counsel in the Employment Law Practice Group of Stroock & Stroock & Lavan LLP, concentrating in employment law counseling and litigation. The authors can be reached at and respectively.

2 After a charge of discrimination is filed, the EEOC is required to commence an investigation of the allegations to determine whether there is cause to believe that a violation of Title VII has occurred. 3 At any time after the charge is filed whether before or after making a cause determination the EEOC may attempt informal conciliation to settle the charge. However, if the EEOC determines after investigation that there is reasonable cause to believe that the charge is true, then the EEOC must attempt to eliminate the alleged unlawful discrimination through conciliation. In instances where conciliation does not result in settlement of the charge, the EEOC may file a lawsuit against the employer a lawsuit in which the charging party may intervene as a matter of right. 4 Although the EEOC may bring suit directly against the employer, in most cases, it does not do so. Rather, the EEOC issues the charging party a right-to-sue letter whether or not it finds reasonable cause to believe that a violation occurred and the charging party may, within 90 days after such notice is issued, commence a lawsuit against the employer. 5 The right-to-sue notice also may be issued to the charging party upon request. When the EEOC issues a right-to-sue notice, it almost always signifies the end of the EEOC involvement. However, under its regulations, the EEOC may further process the charge after the right-to-sue letter has been issued if it determines that such further processing would effectuate the purposes of Title VII. 6 The EEOC has interpreted that exception as permitting further investigation when the charge involves persons in addition to the charging party or involves a policy or pattern of discrimination affecting others. 7 The Fifth Circuit s Hearst Decision In December 1994, two employees at the Houston Chronicle, a newspaper division of the Hearst Corporation (Hearst), filed separate charges with the EEOC, claiming sexual harassment by the Vice- President of Sales and Marketing. The employees provided the EEOC with affidavits setting forth the initial incidents of harassment and identified individuals who had told them of other females being harassed by the same individual, and about the newspaper s handling of their claims. 8 Based on the affidavits, the EEOC sent Hearst a written information request in February 1995, seeking the employees personnel files and Hearst s internal investigation documentation. The EEOC also sought permission to conduct an on-site investigation. Hearst provided only the personnel files, refusing all other requests. In April 1995, the EEOC issued two subpoenas to obtain the requested information. In response, Hearst petitioned the EEOC to revoke the subpoenas. 9 Vol. 34, No. 4, Spring Employee Relations Law Journal

3 In July 1995, the EEOC issued right-to-sue letters to the two employees, thereby enabling them to amend their state law complaints they had already filed state tort claims to add sexual harassment claims and to join Hearst as a defendant. 10 Two days after issuing the right-tosue letters, the EEOC denied Hearst s petition to revoke the subpoenas. 11 When Hearst continued to take the position that it would not comply with the EEOC s administrative subpoenas, the EEOC filed an action in United States District Court for the Southern District of Texas in November 1995, seeking to compel Hearst to comply. In January 1996, the district court ordered Hearst to comply with the EEOC subpoenas. 12 Hearst appealed to the United States Court of Appeals for the Fifth Circuit. On appeal, Hearst raised several arguments, including that Title VII s enforcement procedure consisted of distinct stages and that once the charge entered into formal litigation, the EEOC ceased to have the authority to investigate. 13 The Fifth Circuit agreed, finding that the enforcement procedure established by Title VII consists of four separate and distinct, but not overlapping, stages: 1. Charge filing and notice; 2. Investigation; 3. Conference and conciliation; and 4. Enforcement. 14 According to the Fifth Circuit, once an action is brought based upon a charge, the time for investigation has passed, and thus, the EEOC is divested of subpoena authority. 15 The court explained that once formal litigation is commenced, the purposes of Title VII are no longer furthered by the EEOC s continued investigation of the charge: Congress granted the EEOC broad investigatory authority so that the agency promptly and effectively could determine whether Title VII had been violated, and to assist the agency in its efforts to resolve disputes without formal litigation. These purposes are no longer served once formal litigation is commenced. Instead, if the EEOC has any further interest it may intervene [in the plaintiff s lawsuit] and pursue discovery through the courts; or if its interest extends beyond the private party charge upon which it is acting, it may file a Commissioner s charge. 16 Therefore, in a case where the charging party has requested and received a right-to-sue notice and is engaged in a civil action that is Employee Relations Law Journal 3 Vol. 34, No. 4, Spring 2009

4 based upon the conduct alleged in the charge filed with the EEOC, that charge no longer provides a basis for EEOC investigation. 17 The Ninth Circuit s Federal Express Decision In November 2004, an employee at Federal Express (FedEx) filed a charge of discrimination with the EEOC, on behalf of himself and similarly situated employees, alleging that FedEx s Basic Skills Test, which employees were required to pass to be eligible for promotion, had a statically significant adverse impact on African American and Latino employees. In October 2005, the EEOC at the charging party s request issued a right-to-sue letter; however, the notice stated that the EEOC would continue to process the charge. 18 Following receipt of the right-to-sue letter, the charging party joined a pending class action against FedEx, which included only employees working in FedEx s Western Region. Since employees outside of the 11 states in FedEx s Western Region were ineligible to join the class action as parties, the EEOC continued to process the charge after issuing the right-to-sue letter. 19 To this end, the EEOC issued an administrative subpoena in February 2006, requesting FedEx to identify basic information about its computer files, including information related to applicants, hiring, promotions, testing, discipline, job analyses and evaluations, performance evaluations, demotions, employment history, amounts of pay, adjustments to pay, work assignments, adjustments to work assignments, training, transfers, terminations, and job status. 20 When FedEx refused to comply, the EEOC filed an action in Federal District Court for the District of Arizona. The district court granted the EEOC s application to enforce the subpoena, finding that the EEOC had jurisdiction over the investigation. 21 The Ninth Circuit agreed with the district court, finding that the subpoena was valid and enforceable. At the outset, the Ninth Circuit determined that scope of judicial inquiry into an EEOC subpoena enforcement proceeding is narrow, limited to determining whether: 1. Congress has granted the authority to investigate; 2. Procedural requirements have been followed; and 3. The evidence is relevant and material to the investigation. 22 The Ninth Circuit found that the EEOC had a plausible basis for jurisdiction to issue an administrative subpoena even after issuing a rightto-sue letter that is, Title VII provides for the EEOC to continue to investigate under limited circumstances when doing so would effectuate the purposes of Title VII. 23 Vol. 34, No. 4, Spring Employee Relations Law Journal

5 Here, the charge filed involved a possible policy or pattern of discrimination, not limited to the charging party. Therefore, the Ninth Circuit agreed with the EEOC that it had the authority to continue to investigate the charge, particularly since the class action was limited to a particular region of employees, but the allegations alleged discriminatory practice by FedEx generally. Significantly, the Ninth Circuit rejected the fundamental tenet supporting the Fifth Circuit s decision in Hearst : the division of Title VII s enforcement procedure into four separate and distinct stages. In sharp contrast, the Ninth Circuit concluded that the enforcement procedure is an integrated process. 24 Simply put, the Ninth Circuit held that merely because one stage is ongoing does not mean that another stage has permanently ended. Thus, the beginning of another stage does not necessarily terminate the preceding stage, and Title VII confers upon the EEOC investigatory authority during each stage. 25 The Ninth Circuit also rejected the Hearst court s conclusion that the filing of a lawsuit by charging party divests the EEOC of its investigative authority. To the contrary, the Ninth Circuit found the EEOC controls the charge regardless of what the charging party decides to do. 26 In support of its position, the Ninth Circuit relied in large part on the Supreme Court s decision in EEOC v. Waffle House, Inc. 27 In Waffle House, the issue before the Court was whether an agreement between an employer and an employee to arbitrate employment-related disputes barred the EEOC from seeking victim-specific judicial relief, such as backpay, reinstatement, and damages, in an enforcement action. The Supreme Court concluded that the arbitration agreement did not impact the EEOC s ability to prosecute the charge, reasoning that: [ T]he EEOC takes the position that it may pursue a claim on the employee s behalf even after the employee has disavowed any desire to seek relief. The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake. Absent textual support for a contrary view, it is the public agency s province not that of the court to determine whether public resources should be committed to the recovery of victim-specific relief. And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum. 28 Echoing the Supreme Court in Waffle House, the Ninth Circuit opined that absent statutory support to the contrary it is within the EEOC s province to determine if public resources should be committed to continuing an investigation of alleged systematic discrimination, regardless of whether charging party has filed suit. 29 Employee Relations Law Journal 5 Vol. 34, No. 4, Spring 2009

6 Looking Ahead As of the writing of this Split Circuit s column, FedEx has not filed a petition for certiorari to resolve the split between the Fifth and Ninth Circuits. Plainly, employers in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) must comply with the court s decision in FedEx. Employers in the Fifth Circuit (Louisiana, Mississippi, and Texas) may continue to follow the Hearst decision, unless and until the Supreme Court addresses the issue or the Fifth Circuit overrules Hearst. It is anyone s guess whether the Supreme Court or other courts would follow FedEx or Hearst or strike a middle ground. Suffice to say, employers should anticipate that the EEOC now armed with appellate court authority for its longstanding position may continue, at least in certain instances, to investigate charges, including by issuing subpoenas, even after the charging party receives a right-to-sue letter and commences an action. Notes WL , *6 (9th Cir. Sept. 10, 2008) F.3d 462, 463 (5th Cir. 1997) WL at *5 (quoting Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977)); 42 U.S.C. 2000e-5(b) U.S.C. 2000e-5(b) C.F.R (a) C.F.R (a)(3). 7. EEOC Compliance Manual 6.4 (June 2006), available at 2006 WL F.3d at Id. 10. Id. 11. Id. at Id. 13. Id. 14. Id. at 465, Id. at Id. 17. Id. at WL at * Id. Vol. 34, No. 4, Spring Employee Relations Law Journal

7 20. Id. at * Id. 22. Id. at * Id. at * Id. at * Id. 26. Id U.S. 279 (2002) WL at *8, (quoting EEOC v. Waffle House, Inc., 534 U.S. at ). 29. Id. Reprinted from Employee Relations Law Journal Spring 2009, Volume 34, Number 4, pages 80-86, with permission from Aspen Publishers, Inc., Wolters Kluwer Law & Business, New York, NY, , Employee Relations Law Journal 7 Vol. 34, No. 4, Spring 2009

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