Opinion
Civ. No. 99-834 (JMR/RLE).
November 20, 2000.
REPORT AND RECOMMENDATION
At Duluth, in the District of Minnesota, this 20th day of November, 2000.
I. Introduction
This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636 (b)(1)(B), upon the Defendants' Motion for Partial Summary Judgment. A Hearing on the Motion was conducted on May 11, 2000, at which time, the Plaintiff appeared by Jill Clark, Esq., and the Defendants appeared by Joseph J. Roby, Jr., Esq.
For reasons which follow, we recommend that the Defendants' Motion for Partial Summary Judgment be denied.
As envisioned by the last sentence of Rule 12(b), Federal Rules of Civil Procedure, when a Motion to Dismiss, for failing to state a claim upon which relief can be granted, is submitted to the Court together with materials outside the pleadings, and when, as here, the Court considers those materials, the Motion is to be treated as one for Summary Judgment under Rule 56, Federal Rules of Civil Procedure. See, Rule 12(b), Federal Rules of Civil Procedure; Deuser v. Vecera, 139 F.3d 1190, 1191 n. 3 (8th Cir. 1998); Chantal v. United States, 104 F.3d 207, 209 (8th Cir. 1997). Since we have considered the wealth of materials, that were submitted by the parties in support of, or in opposition to, the Motion under review, we necessarily construe the Defendants' Motion as one for Summary Judgment.
II. Factual and Procedural History
The Plaintiff is an employee of the Defendant USX Corporation, U.S. Steel Group, Minnesota Ore Operations ("USX"), who claims that she was sexually harassed, and treated in a disparate manner, while in that employ. Since the Plaintiff alleges that she was the recipient of a longstanding pattern of misconduct, over the course of time, she filed a number of Charges of Discrimination ("Charges") with the Equal Employment Opportunity Commission ("EEOC"), and with the Minnesota Department of Human Rights ("MDHR"), prior to filing her current lawsuit.
For the purposes of this Motion, the Defendants have summarized all of the charges that were filed by the Plaintiff, and the agency responses thereto, as follows:
Eventually, as a result of the alleged improper conduct that was purportedly perpetrated by USX, and by the Defendants Tom Asmus ("Asmus"), and Minnesota Ore Operations ("Minnesota Ore"), the Plaintiff filed a Complaint, on May 28, 1999, in which she raised thirteen Counts against the Defendants. See, Complaint. This Motion challenges four of the Complaint's thirteen Counts, including the following:
Count I: Disability discrimination, failure of accommodation, and reprisals under the Americans with Disabilities Act of 1990 ("ADA"). See, Title 42 U.S.C. § 12101-12213.
Count II: Disability discrimination, failure of accommodation, and reprisals under the Minnesota Human Rights Act ("MHRA"). See, Minnesota Statutes Chapter 363.
Count V: Sexual discrimination, sexual harassment, and reprisals under Title VII of the Civil Rights Act of 1964. See, Title 42 U.S.C. § 2000e-2000e-17.
Count VI: Sexual discrimination, sexual harassment, and reprisals under the MHRA. See, Minnesota Statutes Chapter 363.Id.
According to the Defendants, these Counts should be dismissed because the Plaintiff failed to sue within the time allowed by the applicable statute of limitations, and because she failed to exhaust her pre-suit administrative remedies. For reasons of clarity, we will examine the arguments involving each of the various Charges, and their related Counts, in turn.
In the Defendants' Memorandum, they appear to suggest that this Court may lack subject matter jurisdiction over certain of the Plaintiff's claims, because of her failure to exhaust her pre-suit administrative remedies. In contrast, the Plaintiff argues that a failure to exhaust is not a jurisdictional bar, but rather is merely a condition precedent to bringing an action in a Federal District Court. In support of this contention, the Plaintiff primarily relies on Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982), where the Supreme Court ruled that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court." [emphasis added]. Further, the Plaintiff notes that, in Zipes, the Court determined that requirements, such as the timely filing of a charge with the EEOC, are procedural, and are, therefore, subject to waiver, estoppel, and equitable tolling. Id. at 393.
We need not now decide, however, whether the Plaintiff's alleged failure to exhaust her pre-suit administrative remedies presents any jurisdictional, as opposed to procedural, obstacle to her current lawsuit. In their Reply Memorandum, the Defendants concede that their present Motion does not involve a purported failure, on the part of the Plaintiff, to file timely charges with the EEOC and, therefore, they do not presently contend that the Plaintiff's lawsuit must be dismissed for want of jurisdiction. See, Defendants' Reply Memorandum, at 5-6; Rule 12(h)(3), Federal Rules of Civil Procedure. Rather, the Defendants contend that their initial suggestion was intended only to illuminate the fact that "exhaustion implicates jurisdiction", and was not intended to categorically suggest that the exhaustion of EEOC administrative remedies is exclusively a jurisdictional issue. Defendants' Reply Memorandum, at 5 [emphasis added].
Since the Defendants have not raised a jurisdictional basis for the dismissal of the Plaintiff's lawsuit, and because the Plaintiff has not presented procedural issues, such as waiver, tolling, or estoppel, in connection with any of her EEOC filings, the proposed jurisdictional/procedural distinction, that has been noted by the parties, is irrelevant to the resolution of the present Motion, and we do not address the issue further.
III. Discussion
A. Standard of Review. Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light most favorable to the nonmoving party, and we have found no triable issue. Krentz v. Robertson, 228 F.3d 897, 902 (8th Cir. 2000); Curry v. Crist, 226 F.3d 974, 977 (8th Cir. 2000); Carter v. St. Louis Univ., 167 F.3d 398, 400 (8th Cir. 1999). For these purposes, a disputed fact is "material" if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is "genuine" if the evidence is such that a reasonable Jury could return a verdict for the nonmoving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Herring v. Canada Life Assurance, 207 F.3d 1026 (8th Cir. 2000); Liebe v. Norton, 157 F.3d 574, 578 (8th Cir. 1998); Dodd v. Runyon, 114 F.3d 726, 729 (8th Cir. 1997).As Rule 56(e) makes clear, once the moving party files a properly supported Motion, the burden shifts to the nonmoving party to demonstrate the existence of a genuine dispute. In sustaining that burden, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Federal Rules of Civil Procedure see also, Anderson v. Liberty Lobby, Inc., supra at 256; Allen v. Energy Corp., 181 F.3d 902, 904 (8th Cir. 1999);Jauregui v. Carter Manufacturing Co., 173 F.3d 1076, 1085 (8th Cir. 1999). Moreover, the movant is entitled to Summary Judgment where the nonmoving party has failed "to establish the existence of an element essential to that party's vase, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, supra at 322; see also, Hammond v. Northland Counseling Center, Inc., 218 F.3d 886, 891 (8th Cir. 2000); Greer v. Schoop, 141 F.3d 824, 826 (8th Cir. 1998). No genuine issue of fact exists in such a case because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra at 323; see also, Bell Lumber and Pole Co. v. United States Fire Ins. Co., 60 F.3d 437, 441 (8th Cir. 1995);McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir. 1995); Settle v. Ross, 992 F.2d 162, 163 (8th Cir. 1993).
B. Legal Analysis.
1. The Plaintiff's Count One.
a. Standard of Review. "The ADA was enacted as a statutory remedy for individuals with disabilities, who experience discrimination in employment, and in other contexts."McKenzie v. Lunds, Inc., 63 F. Supp.2d 986, 1000 (D. Minn. 1999), citing Title 42 U.S.C. § 12101(b)(1), and 12112(a). By its terms, the ADA incorporates several of the powers, remedies, and procedures, of Title VII of the Civil Rights Act of 1964, into its own regulatory scheme. Id. at 1000. First, "[i]n order to pursue a claim of discrimination under the ADA, a plaintiff must exhaust his administrative remedies." Id. citing Hayes v. Blue Cross Blue Shield of Minnesota, Inc., 21 F. Supp.2d 960, 969 (D. Minn. 1998); Tschida v. Ramsey County, 927 F. Supp. 337, 340 (D. Minn. 1996).
Specifically, a plaintiff may not assert a claim under Title VII unless she has filed a timely charge with the EEOC. See,Hanenburg v. Principal Mut. Life Ins. Co., 118 F.3d 570, 573 (8th Cir. 1997), citing Title 42 U.S.C. § 2000e-5(e)(1), 2000e-5(f)(1); see also, Greer v. Emerson Elec. Co., 185 F.3d 917, 922 (8th Cir. 1999) (noting that Title 42 U.S.C. § 12117(a) incorporates Title 42 U.S.C. § 2000e-5(e)(1) (1994), which requires, as a jurisdictional prerequisite, the filing of a Charge of Discrimination with the EEOC that states the date, place, and circumstances of the alleged unlawful employment practice); Briley v. Carlin, 172 F.3d 567, 571 (8th Cir. 1999). The failure of a plaintiff to timely file suit bars that plaintiff from obtaining a recovery. See, Winbush v. State of Iowa by Glenwood State Hosp., 66 F.3d 1471 1486 (8th Cir. 1995); see also, Anderson v. Unisys Corp., 47 F.3d 302, 309 (8th Cir. 1995); Hanenburg v. Principal Mut. Life Ins. Co., supra at 573;Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994); Mercer v. City of Cedar Rapids, Iowa, 79 F. Supp.2d 1055, 1061 (N.D. Iowa 1999).
As noted, subsequent to the filing of a charge with the EEOC, an aggrieved person must receive Notice of their right to sue, from the EEOC, prior to filing, a private lawsuit. See, See,Title 42 U.S.C. § 2000e-5(f)(1); Title 42 U.S.C. § 12117(a) . Lawsuits filed in violation of this requirement are barred, and subject to dismissal. See, Williams v. Little Rock Mun. Water Works, supra at 222; see also, Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8th Cir 1996), citing Title 42 U.S.C. § 2000e-5(b), (c), (e) ("To exhaust her remedies, a Title VII plaintiff must timely file her charges with the EEOC and receive, from the EEOC, a `right-to-sue' letter."). In addition, after receiving Notice of their right to sue from the EEOC, an aggrieved person must commence their lawsuit within 90 days. See, Title 42 U.S.C. § 2000e-5 (f)(1), 12117(a). Generally, the failure of a Plaintiff to commence their lawsuit within the 90-day period results in a dismissal of that plaintiff's cause of action. See, Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989); see also,Braxton v. Bi-State Development Agency, 728 F.2d 1105, 1108 (8th Cir. 1984), citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974); Shea v. City of St. Paul, 601 F.2d 345, 348 (8th Cir. 1979).
Finally, where an EEOC charge has been filed, a plaintiff must limit her allegations in a subsequent lawsuit to those that are "like or reasonably related to the administrative charges that were timely brought." McKenzie v. Lunds, Inc., supra at 997, citing, Boge v. Ringland-Johnson-Crowley Co., 976 F.2d 448, 451 (8th Cir. 1992); Anderson v. Block, 807 F.2d 145, 148 (8th Cir. 1986); Malarkey v. Texaco, Inc., 983 F.2d 1204, 1208 (2nd Cir. 1993); see also, Wentz v. Maryland Cas. Co., 869 F.2d 1153, 1154 (8th Cir. 1989) (Claim will not be considered unless it "grew out of the discrimination charge he filed with the EEOC"). As stated in Wallin v. Minnesota Dept. of Corrections, 153 F.3d 681, 688 (8th Cir. 1998), "[a]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumscribe the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge." Id., quoting Williams v. Little Rock Mun. Water Works, supra at 223; see also, Greer v. Emerson Elec. Co., supra at 922. As such, claims that are raised in a lawsuit in violation of this requirement are subject to dismissal. See, e.g., Williams v. Little Rock Mun. Water Works, supra at 223.
b. Legal Analysis. Count One of the Plaintiff's Complaint alleges disability discrimination, a failure of accommodation, and reprisals, against USX. See, Complaint, at 8. The Defendants contend that, to the extent Count One is based upon Charge No. 5, it should be dismissed, because the Plaintiff received her right- to-sue letter, from the EEOC, on May 21, 1999, which is the same date on which she filed Charge No. 5.
Specifically, because the Plaintiff filed her action several days after filing Charge No. 5 with the EEOC, the Defendants contend that, to the extent that Count One is based upon Charge No. 5, it violates the 180-day rule enunciated in Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336, 1347 (D.C. Cir. 1999). In Martini, the Court stated:
We conclude that the EEOC's power to authorize private suits within 180 days undermines its express statutory duty to investigate every charge file, as well as Congress's unambiguous policy of encouraging informal resolution of charges up to the 180th day. We thus hold that Title VII complainants must wait 180 days after filing charges with the EEOC before they may sue in federal court.Id. see also, Robinson v. Red Rose Communications, Inc., No. CIV.A. 97-CV-6497, 1998 WL 221028 (E.D. Pa. May 5, 1998); Montoya v. Valencia County, 872 F. Supp. 904 (D.N.M. 1994); Henschke v. New York Hosp.—Cornell Med. Ctr., 821 F. Supp. 166 (S.D.N Y 1993); New York v. Holiday Inns, Inc., 656 F. Supp. 675 (W.D.N Y 1984); Mills v. Jefferson Bank E., 559 F. Supp. 34 (D. Colo. 1983); Spencer v. Banco Real, S.A., 87 F.R.D. 739 (S.D.N Y 1980); Hiduchenko v. Minneapolis Med. and Diagnostic Ctr. Ltd., 467 F. Supp. 103 (D. Minn. 1979); Loney v. Carr-Lowrey Glass Co., 458 F. Supp. 1080 (D. Md. 1978) (all dismissing Title VII suits for failure to state a claim because the EEOC issued a right-to-sue notice prior to the expiration of the 180-day statutory period).
In effect, the Defendants are requesting that, in accordance withMartini, we should dismiss Count One of the Plaintiff's Complaint, to the extent that it is based upon Charge No. 5, but without prejudice, so that the EEOC can consider the Charge for the requisite 180-day period. See, Martini v. Federal Nat'l Mortgage Ass'n, supra at 1348 (remanding with instructions to dismiss the Plaintiff's Complaint without prejudice, and allowing the Plaintiff to re-file a new Complaint in District Court after the EEOC has attempted to resolve her charge for the remainder of the 180-day period).
Our Court of Appeals has yet to take a position on the authority of the EEOC to issue a right-to-sue letter prior to the expiration of the 180-day period, and the various Circuits, which have confronted the issue, have produced divergent opinions. Therefore, further analysis of the issue, which prompted the decision in Martini, is required.
1. The Statutory Reguirements. The Defendants seek the dismissal of Count One, and contend that we are without jurisdiction to address the Plaintiff's claim because the EEOC did not have the authority to issue a Notice of right-to-sue prior to the expiration of the 180-day statutory period. "Title VII provides that the EEOC has 180 days after the filing of a charge of discrimination to dismiss an aggrieved party's charge, institute a civil action on his behalf, or negotiate a conciliation agreement between the aggrieved party and his employer; if the EEOC has not achieved any of those dispositions of the charge at the expiration of the 180-day period, the EEOC must issue the aggrieved party a right-to-sue letter allowing him to bring an action in federal district court." Commodari v. Long Island University, 89 F. Supp.2d 353, 381-82 (E.D.N.Y. 2000), citing 42 U.S.C. § 2000e-5(f)(1) (1994); see also, e.g.University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 191 (1990); Page v. Arkansas Dept. of Correction, 222 F.3d 453, 455 (8th Cir. 2000); Spears v. Missouri Dept. of Corrections, 210 F.3d 850, 853 (8th Cir. 2000); Hall v. FlightSafety Intern., Inc., 106 F. Supp.2d 1171 (D. Kan. 2000) (publication page references unavailable); Parker v. Metropolitan Transp. Authority, 97 F. Supp .2d 437, 444 (S.D.N.Y. 2000); Hussein v. Pierre Hotel, 2000 WL 776920 *3 (S.D.N.Y. 2000). Primarily, this provision was enacted by Congress "to protect aggrieved individuals from undue delay." Hall v. FlightSafety Intern., Inc., supra.
In 1977, the EEOC formulated a Regulation authorizing EEOC officials to issue a right-to-sue letter prior to the expiration of the 180-period, provided that "it is probable that the Commission will be unable to complete its administrative processing of the charge within [the 180 day period]."29 C.F.R. § 1601.28(a)(2); see also, EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 595 n. 6 (1981); Woelbling v. R.C. Wilson Co., 966 F. Supp. 858, 862 (E.D. Mo. 1997); Hussein v. Pierre Hotel, supra at *3; Commodari v. Long Island University, supra at 382; Parker v. Metropolitan Transp. Authority, supra at 445. The issuance of a Notice of the right-to-sue effectively terminates further EEOC processing of a plaintiff's Complaint, and allows the plaintiff to file an action in Federal Court. "Absent these circumstances, the EEOC is required to investigate the charge and determine if there is reasonable cause to believe that the complaint is true."Connor v. WTI, 67 F. Supp.2d 690, 693 (S.D. Tex. 1999). Further, Federal law requires that this decision be made as promptly as possible. See, Title 42 U.S.C. § 2000e-5(b) .
Our Court of Appeals has yet to address the question of whether the provisions of 29 C.F.R. § 1601.28(a)(2) are valid given the language contained in Section 2000e-5(f)(1) but, as noted, other Circuits have addressed the issue, with differing results.
a. The Supreme Court. In Occidental Life Insurance v. Equal Employment Opportunity Commission, 432 U.S. 355 (1977), the Supreme Court was presented with a first opportunity to examine the propriety of a premature right-to-sue letter. While the Court did not directly address the issue, it did observe as follows:
[A] natural reading of [Title 42 U.S.C. § 2000e-5 (f)(1)] can lead only to the conclusion that it simply provides that a complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that he must wait 180 days before doing so. After waiting for that period, the complainant may either file a private action within 90 days after the EEOC notification or continue to leave the ultimate resolution of his charge to the efforts of the EEOC.Id. at 361.
This language could be construed as further support for theMartini Court's decision to prohibit the filing of a lawsuit prior to the expiration of the 180-day period, were it not for the fact that the Supreme Court's opinion was issued prior to the promulgation of Section 1601.28(a)(2), which permitted suits premised on right-to-sue letters that are issued prior to the expiration of the 180-day period.
As the District Court for the Eastern District of Pennsylvania recently explained, the purpose behind the EEOC issuing Section 1601.28(a)(2) was partially to respond to the Supreme Court's statement, in Occidental, that the 180-day waiting period is "mandatory," Occidental Life Insurance v. Equal Employment Ooportunity Commission, supra at 361. See, Johnson v. Cook Composites and Polymers, Inc., No. CIV A. 99-1916, 2000 WL 249251 *4 (D.N.J. March 3, 2000), citing Seybert v. West Chester University, 83 F. Supp.2d 547, 549 (E.D. Pa. 2000) ("The rationale behind § 1601.28(a)(2) is `the legal principle that a party is not required to perform a useless act, i.e., wait for the passage of 180 days when the passage of such time will not accomplish any purpose.'"), quoting, in turn, Pearce v. Barry Sable Diamonds, 912 F. Supp. 149, 154 (E.D. Pa. 1996).
The Supreme Court was presented with another opportunity to address the propriety of Section 1601.28(a)(2) in EEOC v. Associated Dry Goods Corp., supra, but the Court declined to resolve the issue and, instead, merely cited the EEOC Regulation. Specifically, the Court stated:
Under Commission regulations, the employee may obtain a right-to-sue letter upon request once 180 days have passed from the filing of the charge, 29 C.F.R. § 1601.28(a)(1), but the Commission may issue a right-to-sue letter earlier if it finds that it cannot complete its consideration of a charge within 180 days of filing, § 1601.28(a)(2). The statute gives the employee 90 days from the Commission's notice of right to sue to file a private lawsuit. 42 U.S.C. § 2000e-5(f)(1).Id. at 595 n. 6.
Although the Supreme Court did not directly address the validity of Section 1601.28(a)(2), its opinion did intimate, implicitly, that the Court approved of the Regulation, by referencing it, without qualification, or disfavor. However, because no definitive ruling was provided, the Circuits were left to decide, on an individual basis, whether the early issuance of right-to- sue letters, by the EEOC, is permissible.
b. The Ninth and Eleventh Circuits. The Court of Appeals for the Ninth Circuit, in Bryant v. California Brewers Association, 585 F.2d 421 (9th Cir. 1978), vacated and remanded on other grounds, 444 U.S. 598 (1980), was presented with a scenario involving an EEOC right-to-sue letter, that was issued to a plaintiff in 80 days. The plaintiff subsequently filed suit some 12 days shy of the expiration of the 180-day statutory period. Id. at 425. The Ninth Circuit rejected the Defendants' argument that the EEOC's failure to observe the 180-day time period barred the Plaintiff's claim under Title VII, and reasoned that the 180-day period in Section 2000e-5(f)(1) is not mandatory, and that the practical realities of EEOC staffing made compliance with the 180-day period unreasonable. Specifically, the Court stated:
Section 2000e-5(f)(1) simply requires the EEOC to issue a notice of right-to-sue if it has failed to file suit or arrange a conciliation agreement within 180 days. Nowhere does the statute prohibit the EEOC from issuing such notice before the expiration of the 180-day period.
* * *
Furthermore, in 1973-1974 the undermanned EEOC staff faced a huge backlog of Title VII cases and, as a practical matter, was unable to handle [the Plaintiff's] charges within the 180-day period. Given this state of affairs, it would be a travesty to require the EEOC and [the Plaintiff] to mark time until 180 days were counted off.
Title VII "does not condition an individual's right to sue upon the EEOC's performance of its administrative duties." Jefferson v. Peerless Pumps, 456 F.2d 1359, 1361 (9th Cir. 1972).Id. at 425.
Several years later, the same Court reiterated its position inSaulsbury v. Wismer and Becker, Inc., 644 F.2d 1251, 1257 (9th Cir. 1980). In Saulsbury, the Court noted that, although the Supreme Court had vacated a portion of Bryant, the 180-day issue had not been among those considered by the Supreme Court. Id. at 1257. As such, the Court concluded that the reasoning of Bryant remained persuasive. The Court also clarified the issue somewhat, by explaining that, "[w]hether the EEOC has actually attempted to conciliate or investigate the case is irrelevant." Id. see also,Brown v. Puget Sound Elec. Apprenticeship Training Trust, 732 F.2d 726, 729 (9th Cir. 1984).
Subsequently, in 1994, the Court of Appeals for the Eleventh Circuit examined the 180-day issue in Sims v. Trus Joist MacMillan, 22 F.3d 1059 (11th Cir. 1994). In Sims, the Court concluded that, in enacting Title VII, Congress authorized the EEOC to enforce the statute, and bestowed it with the authority to issue suitable procedural Regulations to aid in that responsibility. Id. at 1062, citing Title 42 U.S.C. § 2000e-12 (a) . The Court further explained that the Regulations promulgated by the EEOC would be upheld "so long as [they are] `reasonably related to the purposes of the enabling legislation.'" Id., quoting Mourning v. Family Publications Service, Inc., 411 U.S. 356. 369 (1973). As such, the Court found that "the regulation codified at 29 C.F.R. § 1601.28(a)(2) is such a procedural regulation and is consistent with congressional intent." Id. at 1062.
Next, the Court examined the language of Section 2000e-5(f)(1), and determined that, "on its face," the Statute did not prohibit the EEOC from issuing a right-to-sue letter prior to the expiration of the 180-day period. Id. Further, the Court expressly adopted the reasoning of the District Court, for the Northern District of Illinois, as follows:
The 180-day period was intended to afford victims of employment discrimination a private cause of action where the EEOC does not act, or does not act in a timely fashion. The EEOC's regulation simply recognizes that the caseload will sometimes be so heavy that it can be determined early on that no action can be taken within 180 days and the issuance of an early right-to-sue letter is a reasonable implementation of the Act * * *, It is up to the EEOC to decide how to efficiently administer the Act, and unless its decisions contravene congressional intent we must afford them deference. Given the remedial aims of the Act and the specified purpose behind § 706(f)(1), we do not think Congress intended to force victims of discrimination to undergo further delay when the district director has determined such delay to be unnecessary.Id. at 1062, quoting Rolark v. University of Chicago Hospitals, 688 F. Supp. 401, 404 (N.D. Ill. 1988).
The Court supported this reasoning with an examination of the legislative history underlying the enactment of the Equal Employment Opportunity Act in 1972. According to the Court, the purpose of the 180-day time period was to encourage conciliation between employers and employees before proceeding to Court. Id. at 1063. This was based on Congress' belief that "settlement, rather than litigation, is the preferred mechanism for resolving these types of disputes." Id. However, the Court noted that Congress intended that complaints be handled expeditiously and, therefore, Congress instituted the 180-day time limitation in order to protect claimants from extended administrative proceedings. Id. at 1063. In the words of the Court:
Once the Commission determines that it will be unable to process the complainant's charge within the 180-day time period, no legitimate purpose is served by forcing delay. * * * Where the Commission has stated that it would not be unable to act on the charge, "a remand to the Commission would be an exercise in futility." Weise v. Syracuse University, 522 F.2d 397, 411 n. 27 (2nd Cir. 1975).
* * *
[Further], [i]t seems illogical to us that a complainant who receives a right-to-sue letter from the EEOC stating that it is unable to investigate the complainant's charge within the prescribed time must sit idly by until the 180-day period expires. Id.
These considerations led the Court to uphold the EEOC's authority to issue right-to-sue letters prior to the expiration of the 180- day period.
c. The D.C. Court of Appeals. In Martini, the Court of Appeals for the District of Columbia rejected the rationale of the Ninth and Eleventh Circuits by explicitly holding that Title VII complainants must wait 180 days before proceeding with an action in Federal Court. There, the plaintiff had filed a sexual harassment, and retaliatory discharge claim, with the EEOC. Id. at 1339. Twenty-one days after filing the Complaint, and at the Plaintiff's request, the EEOC issued its right-to-sue letter. Id. Thereafter, the Plaintiff waited for approximately one hundred additional days before suing her employer in Federal Court. Id.
In ruling in favor of the plaintiff's employer, the Court held that the EEOC's issuance of a right-to-sue letter, prior to the expiration of the 180-day period, was invalid. Id. at 1348. As a consequence, the Court remanded the Plaintiff's claims to the EEOC for an additional 159 days of investigation. After thoroughly reviewing the arguments that had been advanced by the defendants, the Court first noted that "neither section 2000e-5(f)(1)'s language nor the legislative history cited by [the Defendants] reveals `the unambiguously expressed intent of Congress' on `the precise question' at issue in this case." Id. at 1345. Therefore, the Court turned to an examination of the language of Section 2000e-5(b) in order to guide its further analysis. Id. at 1346. According to the Court:
Section 2000e-5(b) prescribes the EEOC's duties once a charge is filed. It says that the Commission "shall" investigate the charge and "shall" make a reasonable cause determination "as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge." 42 U.S.C. § 2000e-5(b). Thus, although the statute allows some flexibility in the timing of reasonable cause determinations, the Commission's duty to investigate is both mandatory and unqualified. Yet an early right-to-sue notice typically terminates EEOC investigation of the charge, see 29 C.F.R. § 1601.28(a)(3) * * *. We cannot square this early termination of the process or the regulation authorizing it, see 29 C.F.R. § 1601.28(a)(3), with section 2000e-5(b)'s express direction to the Commission that it investigate all charges.Id. at 1346.
The Court went on to opine that, while Congress understood that the EEOC's limited resources would preclude it from investigating every claim within 180 days, it nonetheless "hoped that recourse to the private lawsuit w[ould] be the exception and not the rule." Id. at 1346 (citations omitted).
Next, the Court examined the legislative history of Section 2000e-5(f)(1). The Court reasoned that, although the House version of Section 2000e-5(f)(1) authorized private suits after 180 days, the Senate version of the bill contained a 150-day time limitation. Id. at 1347. As explained, by the Court:
[B]y choosing 180 days instead of 150 days, Congress indicated its belief that informal resolution of charges, even as late as the 180th day, would be preferable to allowing complainants to sue earlier. * * * Allowing private suits within 180 days eases the pressure on the EEOC to resolve charges informally, thus defeating the explicit congressional policy favoring EEOC-facilitated resolution up to the 180th day.
* * *
In sum * * * the EEOC's power to authorize private suits within 180 days undermines its express statutory duty to investigate every charge filed, as well as Congress's unambiguous policy of encouraging informal resolution of charges up to the 180th day.Id. at 1347.
While we recognize the widely variant results reached by the Courts which have examined this same issue, including within our own District, we respectfully disagree with the reasoning inMartini and, therefore, decline to dismiss Count One of the Plaintiff's Complaint based upon the 180-day time limitation. As was recently explained by one Court, contrary to the views expressed in Martini, "nothing in § 2000e-5(b) indicates an intent by Congress to require litigants to wait merely for the sake of waiting." See, Horne v. Schult Homes Corp., 1999 WL 195131 at *5 (N.D. Ind. Sept. 10, 1999).
Under Chevron v. Natural Resources Defense Counsel, 467 U.S. 837 (1984), when reviewing an Administrative Agency's construction of a Statute, Court's are obligated to employed a two-tiered analysis:
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. Chevron v. Natural Resources Defense Counsel, 467 U.S. 837, 842-43 (1984). Both the statutory language and the legislative history should be examined. "[T]he particular statutory language," as well as "the language and design of the statute as a whole" are to be considered. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). If the intent of Congress is unclear or is ambiguous, deference should be given to the agency's interpretation so long as it is reasonable. See, Chevron, 467 U.S. at 844 ("a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.").Seybert v. West Chester University, supra at 551.
Here, the ultimate question is whether, as Martini suggests, Section 2000e-5(f)(1)'s language clearly eliminates the possibility that the 180-day waiting period simply provides a cap on the maximum period of delay, that a claimant must endure, before gaining access to the Federal Court system.
Specifically, the language of Section 2000e-5(f)(1) provides that an aggrieved party may file suit in Federal Court, under Title VII, if the EEOC either dismisses their charge, or if the EEOC neither sues the respondent, nor facilitates conciliation between the parties, within 180 days after the original filing of the charge. There is nothing, however, contained in the language of Section 2000e-5(f)(1) which mandates that the EEOC wait 180 days as a condition precedent to the issuance of its right-to-sue letter. See, Seybert v. West Chester University, supra at 551, citing Berry v. Delta Airlines, Inc., 75 F. Supp.2d 890, 891 (N.D. Ill. 1999) (180-day period can just as easily be read to be a maximum waiting period, as it can be a minimum); see also,Horne v. Schult Homes Corp., supra at *5 (nothing requires the EEOC to hold a meritless charge for 180 days before allowing the claimant to proceed to Court); Connor v. WTI, supra at 696 ("In fact, there is no evidence that Congress intended to prohibit right-to-sue dismissals within 180 days"). Rather, Section 2000e-5(f)(1) merely makes plain that, if the EEOC has not acted in 180-days, then it must issue a right-to-sue letter.
Moreover, in contrast to the Court's analysis in Martini, Section 2000e-5(b) does not resolve the ambiguity created by Section 2000e-5(f)(1). Section 2000e-5(b) directs the EEOC to investigate a claimant's charge "as promptly as possible," and by no later than 120 days after the filing of the charge. Even though the EEOC is required to conduct an investigation, there is no language in Section 2000e-5(b) which evinces a Congressional intent to dictate the duration of the EEOC's investigation. See,Maple v. Publications Intern., Ltd., 2000 WL 85951 *2 (N.D. Ill. Jan. 19, 2000), citing Berry v. Delta Airlines, Inc., supra at 892. As a result of this plain reading of the Statute, we disagree with the holding, in Martini, that the mandatory duty to investigate requires an investigation of not less than 180 days. See, Martini v. Federal Nat'l Mortgage Assoc., supra at 1346.
As several Courts have observed, the legislative history of these Statutes does little to resolve the ambiguities presented by the language Congress employed. For instance, "[a]rguments made with rhetorical flair on the Senate floor suggested that the statute would force complainants `necessarily to sit around awaiting six months' and that it was a `180-day private filing restriction.'" See, Berry v. Delta Airlines, Inc., supra at 892, citing 118 Cong.Rec. 1069 (1972). It is quite plausible that Congress envisioned this waiting period as a means to increase the potential that "administrative processing would lead to conciliation," because "[a]dministrative tribunals are better equipped to handle the complicated issues involved in employment discrimination cases". Seybert v. West Chester University, supra at 551, quoting 118 Cong.Rec. 1069 (1972); H.R. Rep. No. 92-238 (1971). On the other hand:
[I]t was stated in the House that "[t]he primary concern must be protection of the aggrieved person's option to seek a prompt remedy in the best manner available." H.R. Rep. No. 92-238, (1971), reprinted in 1972 USCCAN 2137, 2148. The 180-day provision was "designed to make sure that the person aggrieved does not have to endure lengthy delays if the [EEOC] * * * does not act with due diligence and speed." Id. It "allow[s] the person aggrieved to elect to pursue his or her own remedy under this title where there is agency inaction, dalliance or dismissal of the charge, or unsatisfactory resolution." Id.Seybert v. West Chester University, supra at 552.
Since neither the statutory language, nor the Statute's legislative history, provides a clear demonstration of Congressional intent, Chevron dictates that we ascertain whether the EEOC's interpretation of the applicable statutory provision, as that interpretation has been codified in 29 C.F.R. § 1601.28(a)(2), "is based on a permissible construction of the statute." Chevron v. Natural Resources Defense Counsel, supra at 843.
Under the EEOC's current guidelines, a right-to-sue letter will not be issued unless a Commission official determines that the agency will not be able to complete its investigation within 180 days. However, "the regulation `does not allow wholesale abandonment of the EEOC's mandate' to resolve employment disputes." Maple v. Publications Intern., Ltd., supra at *2, quoting Berry v. Delta Airlines, Inc., supra at 892. Rather, "the EEOC must still evaluate whether issuance of a right-to-sue letter is probable." Id. quoting Berry v. Delta Airlines, Inc., supra. Therefore, under 29 C.F.R. § 1601.28(a)(2), the EEOC is fulfilling its duty to investigate a claimant' s charges, as mandated by Section 20005-e(b), while adhering to the practical reality that "the caseload will sometimes be so heavy that it can be determined early on that no action can be taken within 180 days." Rolark v. University of Chicago Hosps., supra at 404.
Moreover, the practical realities of processing claims within the EEOC support that Agency's decision to issue right-to-sue letters, if appropriate, prior to the expiration of 180 days. As one Court recently observed:
The notion that invalidating early right-to-sue letters will spur the EEOC to action ignores the realities of the EEOC's caseload and the level to which it has been funded in recent years. Congress has simply not funded the EEOC at a level necessary for it to pursue conciliation efforts on the extraordinary and ever-growing number of charges filed with it. The EEOC cannot be cajoled into doing what it does not have the capacity to do. Thus, the result of such decisions will not be that the EEOC begins to play a more active role in addressing employment discrimination through administrative conciliation efforts. Instead, unless the agency's budget is significantly increased, in jurisdictions adhering to. the Martini court's approach, the EEOC will simply adopt a practice of holding charges for the requisite 180 days, taking no action during that time, and then issuing a right-to-sue letter at the expiration of the period. The practical result will only be to delay the commencement of litigation that is inevitable. I do not believe that Congress intended to impose such an unnecessary and fruitless delay on an aggrieved employee under Title VII. See, e.g., Sims v. Trus Joist MacMillan, 22 F.3d at 1061 (noting the EEOC's "huge backlog" and concluding that "it is pointless for the aggrieved party to stand by and mark time until the 180-day period expires"). But see, Martini v. Federal Nat'l Mortgage Assoc., 178 F.3d at 1347-48 (citing statements by the bill's sponsors that arguably suggest otherwise).
* * *
If the EEOC will not, or cannot because of insufficient staffing or funding, undertake the investigation and conciliation efforts contemplated by Congress, the aggrieved employee and his employer should not be forced to undergo needless delay in what will inevitably a judicial resolution of their dispute.Commodari v. Lone Island University, supra 382-83.
We find this reasoning persuasive and, because we conclude that a strict 180-day exhaustion requirement serves no practical purpose in those cases where the investigation cannot be completed in that time, we decline to adopt the holding in Martini, and join those Court's who have rejected such a categorical approach. Therefore, the Defendants' Motion to Dismiss Counts One and Five, which is predicated on the Plaintiff's failure to wait 180-days after the filing of her Charge, to commence this action, should be denied.
2. Counts Two and Six. According to the Defendants, Counts Two and Six of the Plaintiff's Complaint should be dismissed because they relate, in part, to Charge No. 5, which remained pending with the Minnesota Department of Human Rights ("MDHR"), at the time that the Plaintiff filed this lawsuit.
Unlike the Federal statutory scheme we have addressed to this point — which mandates the filing of an Agency Charge as a prerequisite to a Court action — the Minnesota Human Rights Act ("MHRA") permits an aggrieved person "to bring a discrimination charge directly to district court without any intervention by the Department." Special Sch. Dist. No. 1 v. Dunham, 498 N.W.2d 441, 443, n. 1 (Minn. 1993); Minnesota Statutes Section 363.14, Subdivision 1(a). If, however, the aggrieved person chooses first to "file a verified charge with the commissioner," Minnesota Statutes Section 363.06, Subdivision 1, then he or she must follow certain mandatory administrative procedures that have been established by the MHRA, prior to proceeding to Court.
Specifically, for "an unresolved case in which the Department has taken no action," Special Sch. Dist. No. 1 v. Dunham, supra at 443, the aggrieved person must wait until "45 days from the filing of a charge" before commencing the Court action. Minnesota Statutes Section 363.14, Subdivision 1(a)(3) see also, McKenzie v. Lunds, Inc., supra at 1002, citing Klinghagen v. Setterberg, 1998 WL 249028 *1 (Minn.App. May 19, 1998), rev, denied (Minn., July 16, 1998); Ochs v. Streater, Inc., 568 N.W.2d 858, 859 (Minn.App. 1997); Breen v. Norwest Bank Minnesota, 865 F. Supp. 547, 580 (D. Minn. 1994). Therefore, according to the Defendants, because the Plaintiff's Complaint was filed only seven days after the initiation of Charge No. 5, she has failed to give the MDHR the minimum 45-day time allowance in which to process the Charge.
In response this contention, the Plaintiff avers that she never filed Charge No. 5 with the MDHR. Instead, when she filed the Charge with the EEOC, the Plaintiff alleges that she specifically advised that she did not want the Charge to be cross-filed with the MDHR. See, Plaintiff's Memorandum, at 2-3. However, despite the Plaintiff's request, the EEOC ignored her directive and, citing an Intra-agency Agreement, it filed the Charge with the MDHR, against her will. Consequently, the Plaintiff immediately notified the MDHR that the filing was against her will, and that she was proceeding immediately to litigation.
Under Minnesota law:
A charge filed with the EEOC or HUD may be referred to the [MDHR]. The charge is considered filed on the date the department receives from the federal agency sufficient material for a charge to be considered filed under part 5000.0400.Minnesota Rule 5000.0400, subd. 2a.
This provision fails to resolve whether a "charge [that] is considered filed" is also considered a "verified charge," that was filed by the aggrieved party under Minnesota Statutes Section 363.06, Subdivision 1. However, this issue need not detain us, for, since more than 45 days have now passed since Charge No. 5 was filed with the MDHR, the issue is moot. No practical purpose would be served by dismissing Counts Two and Six of the Plaintiff's Complaint, without prejudice, only to have her subsequently seek leave to amend her Complaint, so as to reintroduce those claims into this action. Moreover, the dictates of Rule 1, Federal Rules of Civil Procedure, that every action be resolved through a "just, speedy, and inexpensive determination of every action," would be frustrated by requiring the Plaintiff to file a separate lawsuit, in order to seek redress for the allegations contained within Counts Two and Six. Therefore, we recommend that the Motion to Dismiss Counts Two and Six of the Plaintiff's Complaint be denied.
In sum, having found no basis upon which to dismiss the Counts of the Complaint which are challenged by the Defendants, we recommend that the Defendants' Motion for Partial Summary Judgment be denied in its entirety.
That the Defendants' Motion for Partial Summary Judgment and Dismissal [Docket No. 26] be denied.
NOTICE
Pursuant to Rule 6(a), Federal Rules of Civil Procedure, D. Minn. LR1.1(f), and D. Minn. LR72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court, and by serving upon all parties by no later than December 7, 2000, a writing which specifically identifies those portions of the Report to which objections are made and the bases of those objections. Failure to comply with this procedure shall operate as a forfeiture of the objecting party's right to seek review in the Court of Appeals.
If the consideration of the objections requires a review of a transcript of a Hearing, then the party making the objections shall timely order and file a complete transcript of that Hearing by no later than December 7, 2000, unless all interested parties stipulate that the District Court is not required by Title 28 U.S.C. § 636 to review the transcript in order to resolve all of the objections made.
Charge Respondent Allegations Outcome No. 1 USX Minntac Sex Discrimin- EEOC "Right-To EEOC ation, Disability Sue" Letter: MDHR Discrimination 09/25/97 05/30/97 MDHR Dismissal Letter: 12/12/97 No. 2 US Steel — Sex Harrassment, EEOC "Right-To EEOC USX Minntac Reprisals Sue" Letter: MDHR 05/25/99 03/19/98 MDHR "No- Probable-Cause" Order: 04/14/99 No. 3 Tom Asmus Reprisals MDHR "No MDHR Probable-Cause" 03/19/98 Order: 04/14/99 No. 4 US Steel — Reprisals EEOC Pending EEOC USX Minntac MDHR Pending MDHR 10/16/98 No. 5 US Steel, Sex Discrimin- EEOC "Right-To EEOC US Steel Group, ation, Sex Sue" Letter: MDHR MN Ore Ops. Harassment, 05/21/99 05/21/99 Disability MDHR Dismissal Discrimination, Letter: 07/13/99 Reprisals In the Defendants' Memorandum, they appear to suggest that this Court may lack subject matter jurisdiction over certain of the Plaintiff's claims, because of her failure to exhaust her pre-suit administrative remedies. In contrast, the Plaintiff argues that a failure to exhaust is not a jurisdictional bar, but rather is merely a condition precedent to bringing an action in a Federal District Court. In support of this contention, the Plaintiff primarily relies on Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982), where the Supreme Court ruled that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court." [emphasis added]. Further, the Plaintiff notes that, in Zipes, the Court determined that requirements, such as the timely filing of a charge with the EEOC, are procedural, and are, therefore, subject to waiver, estoppel, and equitable tolling. Id. at 393.
We need not now decide, however, whether the Plaintiff's alleged failure to exhaust her pre-suit administrative remedies presents any jurisdictional, as opposed to procedural, obstacle to her current lawsuit. In their Reply Memorandum, the Defendants concede that their present Motion does not involve a purported failure, on the part of the Plaintiff, to file timely charges with the EEOC and, therefore, they do not presently contend that the Plaintiff's lawsuit must be dismissed for want of jurisdiction. See, Defendants' Reply Memorandum, at 5-6; Rule 12(h)(3), Federal Rules of Civil Procedure. Rather, the Defendants contend that their initial suggestion was intended only to illuminate the fact that "exhaustion implicates jurisdiction", and was not intended to categorically suggest that the exhaustion of EEOC administrative remedies is exclusively a jurisdictional issue. Defendants' Reply Memorandum, at 5 [emphasis added].
Since the Defendants have not raised a jurisdictional basis for the dismissal of the Plaintiff's lawsuit, and because the Plaintiff has not presented procedural issues, such as waiver, tolling, or estoppel, in connection with any of her EEOC filings, the proposed jurisdictional/procedural distinction, that has been noted by the parties, is irrelevant to the resolution of the present Motion, and we do not address the issue further.