Eeoc Procedures Regarding Timely Issuance of Notices of Right to Sue

• Publication year: 2000
• Pages: 17

29 Colo.Law. 17 Colorado Lawyer 2000.

2000, October, Pg. 17. EEOC Procedures Regarding Timely Issuance of Notices of Right to Sue

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Vol. 29, No. 10, Pg. 17

The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 17]

Hot Topics In Employment Law

EEOC Procedures Regarding Timely Issuance of Notices of Right to Sue
by Kristina James, Todd J. McNamara

In the case of Martini v. Federal National Mortgage Association,1 the Washington, D.C. Circuit Court ruled2 that an Equal Employment Opportunity Commission ("EEOC") regulation ("Regulation") is invalid as contrary to Title VII,3 thus rattling plaintiffs’ employment attorneys (and doubtlessly delighting defense attorneys) Before Martini, the Regulation [29 C.F.R. § 1601.28(a)] allowed claimants to request notices of right to sue "at any time," as long as the EEOC certified it would not complete its investigation within 180 days

The Martini decision marked the first "split" in the federal circuits on the issue. This article examines the validity of the Regulation and considers whether the effect of Martini is truly a "corporate elixir" or an "employee hangover."

Background

Before Martini, the prevailing case law out of the circuit courts held that "nowhere does [Title VII ] prohibit the EEOC from issuing such notice [of right to sue] before the expiration of the 180 day period."4 In confidently expressing "nowhere," the courts generally relied only on § 706(f)(1) of Title VII,5 which specifies the procedures for proceeding to litigation on dismissal of the charge or on the expiration of 180 days without action by the EEOC.6 In any event, the rationale behind the circuits’ holdings can be explained as follows

29 C.F.R. § 1601.28(a) (the Regulation at issue) does not prohibit the EEOC from issuing an early right-to- sue notice prior to the expiration of a 180-day period;

the purpose of the 180-day period is to protect the aggrieved party from extended administrative proceedings or bureaucratic backlog; and

where the EEOC determines, due to its huge backlog, that it cannot investigate an aggrieved party’s charge within the 180-day period and notifies the aggrieved party that it is terminating its investigative efforts, it is pointless for the aggrieved party to stand by and mark time until the 180-day period expires.7

With this in mind, many plaintiffs’ attorneys routinely requested right-to-sue letters well before the expiration of the 180 days.

In Martini,8 however, the D.C. Circuit Court held that a plaintiff’s Title VII claim, for which she had secured a nearly $7 million jury verdict (reduced to $900,000 by the trial judge), would be dismissed and the charge remanded to the EEOC for completion of its investigation and conciliation efforts during the remainder of the "mandatory" 180-day statutory period. The plaintiff had requested and received her notice of right to sue from the EEOC within twenty-one days of filing.9

Kristina James is an associate for, and Todd J. McNamara is the owner of, Todd J. McNamara, P.C. Their practice encompasses all aspects of employment law, with a concentration on multi-plaintiff and class actions.

In essence, the Martini court held that the early termination of the EEOC’s investigatory process and the Regulation authorizing it10 directly contradict Title VII’s express direction to the EEOC to investigate all charges.11 The court found that the EEOC’s duty to investigate all charges12 is "both mandatory and unqualified."13 Thus, the court concluded, "greater compliance with the mandatory duties that Congress expressly prescribed for the EEOC . . . will occur when all complainants must wait 180 days before filing suit than when the Commission may authorize them to sue earlier."14

The Martini court recognized that its "conclusion runs counter to that reached by our sister circuits." Despite the split, however, the petition for certiorari filed in Martini to the Supreme Court was dismissed.15 Thus, in circuits outside those that have ruled on the issue, including the Tenth Circuit, the issue remains unresolved.

Validity of the Regulation Allowing "Early" Notices

Title VII authorizes the EEOC to promulgate "suitable procedural regulations to carry out the provisions of this subchapter" of the Civil Rights Act.16 In response, the EEOC has provided certain procedures for issuing notices of right to sue, including those for "early" requests:

When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued . . . , the Commission may issue such notice . . . at any time prior to the expiration of 180 days from the date of filing the charge with the Commission; provided that [a named director or officer] has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect.17 (Emphasis added.)

Thus, according to the EEOC, as long as it determines that it will be unable to process a charge within the statutory 180 days, a claimant may request a notice of right to sue "at any time" that will permit the claimant to proceed with litigation.

However, for as many as twenty years, district courts have both validated and invalidated the Regulation using the familiar Chevron analysis.18 Under Chevron, an analysis of the statute begins with a determination of whether Congress has directly spoken to the precise question at issue; if so, and the Regulation is contrary to Congress’s clear intent, then the Regulation is invalid.19 If the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s Regulation is based on a permissible construction of the statute.20

Courts finding the Regulation valid have claimed that it is not contrary to Title VII because (1) the statute does not address the precise question at issue, and (2) the Regulation is reasonable in that it "simply recognizes that the caseload will sometimes be so heavy that it can be determined early on that no action...