Opinion
Civ. No. JFM-98-2094.
August 28, 1998.
MEMORANDUM
Plaintiff, Victoria A. Lambert, has brought this action against defendant Lucent Technologies, Inc. ("Lucent") seeking relief for alleged sexual harassment discrimination. Lambert had filed a charge of discrimination with the Equal Employment Opportunity Commission on March 2, 1998. On May 15, 1998, approximately seventy-four days after the charge had been filed, the EEOC issued Lambert a "right-to-sue" letter. Lucent has filed a motion to dismiss because Lambert's early "right-to-sue" letter failed to comply with the administrative prerequisites of Title VII. The motion to dismiss will be denied.
I.
Lucent asserts that Lambert's claims are barred because she requested and received a right-to-sue notice from the EEOC within 180 days of the date she filed her charge. The relevant provision of Title VII states that:
If a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement . . ., the Commission . . . shall so notify the person aggrieved and within ninety days after giving of such notice a civil action may be brought against the respondent named in the charge42 U.S.C. § 2000e-5(f)(1). The EEOC has promulgated the following regulation to implement Title VII's provisions:
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 designated official] 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.29 C.F.R. § 1601.28(a)(2). Lucent asserts that this regulation is contrary to the express language of the statute, that it is therefore invalid, and that right-to-sue letters like Lambert's, issued prior to 180 days after the date a charge is filed with the EEOC, are likewise invalid.
Courts have been split over the validity of § 1601.28(a)(2) for many years. Compare Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1061-63 (11th Cir. 1994) (holding that the regulation is a valid exercise of agency power); Saulsbury v. Wismer and Becker, Inc., 644 F.2d 1251, 1257 (9th Cir. 1980) (same); Bryant v. California Brewers Ass'n, 585 F.2d 421, 425 (9th Cir.), vacated and remanded on other grounds, 444 U.S. 598 (1978) (same) with Moteles v. University of Pennsylvania, 730 F.2d 913, 917 (3d Cir. 1984) (suggesting, in dicta, that the regulation is invalid);Pearce v. Barry Sable Diamonds, 912 F. Supp. 149, 159 (E.D. Pa. 1996) (concluding, in dicta, that the regulation is invalid and certifying the issue for interlocutory appeal); Spencer v. Banco Real, S.A., 87 F.R.D. 739, 746 (S.D.N.Y. 1980) (invalidating the regulation). The Fourth Circuit has never addressed the issue. The district courts within the Fourth Circuit that have addressed the issue have reached contradictory results. Compare Hicks v. Maruchan Virginia, Inc., 1996 U.S. Dist LEXIS 13754 (E.D. Va. 1996) (upholding the regulation); Cortes v. McDonald's Corp., 955 F. Supp. 531, 533 (E.D.N.C. 1996) (same) with Dozier v. George Mason Bank, No. 97-1450-A (E.D. Va. Nov. 24, 1997) (finding regulation to be invalid for policy reasons); Meredith v. National Business College Corp., No. 9700031-R (W.D. Va. July 28, 1997) (same); Loney v. Carr-Lowrey Glass Co., 458 F. Supp. 1080, 1081 (D. Md. 1978) (same).
Courts must uphold regulations promulgated by the agency responsible for implementing legislation, provided that the regulations are not contrary to congressional intent and that they are reasonable. See EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115 (1988); Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984). Read literally, Title VII mandates that if the EEOC (1) dismisses a charge or (2) fails to resolve a charge within 180 days, then the EEOC must issue a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1). "[T]he statute on its face does not prohibit the Commission from issuing a right-to-sue letter before the 180 days have expired."Sims, 22 F.3d at 1062 (citing Saulsbury, 644 F.2d at 1257; Rolark v. University of Chicago Hosps., 688 F. Supp. 401, 404 (N.D. Ill. 1988); Cattell v. Bob Frensley Ford, Inc., 505 F. Supp. 617, 620 (M.D. Tenn. 1980)). I do not read § 2000e-5(f)(1) to provide the exclusive circumstances under which a right-to-sue letter may be issued. It simply enumerates two situations in which the EEOC is required to issue a right-to-sue letter, without deciding whether the EEOC could issue such a letter in other situations.
Although I believe the statutory language is clear, the fact that some courts have held to the contrary would seem to indicate that § 2000e-5(f)(1) could be considered ambiguous or unclear. If so, then the EEOC's interpretation of Title VII will be given deference only if reasonable. See Commercial Office Prods., 486 U.S. at 115. Three arguments support my conclusion that the interpretation manifested in 29 C.F.R. § 1601.28(a)(2) is reasonable.
First, the legislative history of § 706(f)(1) reveals that one of its purposes is to protect aggrieved parties from excessive and undue delay, given the EEOC's backlog of cases. See Sims, 22 F.3d at 1063 ("[T]he primary concern must be protection of the aggrieved person's option to seek a prompt remedy in the best manner possible.") (quoting H.R. Rep. No. 92-238 (1972), reprinted in 1972 U.S.C.C.A.N. 2137, 2148). Allowing the EEOC to issue right-to-sue letters earlier than 180 days after a charge is filed, in cases where the EEOC has determined that it cannot complete its administrative processing within 180 days, promotes this purpose.
Second, it would be pointless to insist that parties wait out the 180 day period when the EEOC knows and has stated that it will be unable to investigate and process the claim within that time.See Sims, 22 F.3d at 1063. Claims must be filed with the EEOC in order to encourage conciliation of charges before litigation and to give an agency with expertise an opportunity to resolve the charges administratively and quickly. See Cattell, 505 F. Supp. at 621. If the EEOC knows it will not be able to complete its work on a charge within 180 days, however, conciliation will not be furthered by requiring the charge to linger. Conciliation is likely to come only at the EEOC's initiative, after it has investigated the claim. Similarly, the EEOC's expertise is irrelevant if it will not be able to apply that expertise before the 180 day limit is reached. Requiring a grievant to wait out the 180 days, even when the EEOC will not have a chance to work on her claim, only increases the time it will take resolve the case.
Third, Title VII does not restrict or condition a plaintiff's cause of action on the EEOC's performance of its duties. See Sims, 22 F.3d at 1063 (citing Jefferson v. Peerless Pumps Hydrodynamic, Div. of FMC Corp., 456 F.2d 1359, 1361 (9th Cir. 1972)).
Although some of the courts which have held § 1601.28(a)(2) to be invalid did so because they read § 706(f)(1) to provide the exclusive circumstances under which a right-to-sue letter may be issued, see, e.g., Montoya v. Valencia Co., 872 F. Supp. 904, 905 (D.N.M. 1994), others have relied upon policy arguments based on legislative history. First, a plaintiff will be in no worse position after 180 days if the EEOC is unable to resolve the dispute. See Pearce, 912 F. Supp. at 154. Second, allowing the EEOC to issue early right-to-sue letters may decrease the agency's efficiency because grievants will pressure the agency for early right-to-sue letters rather than for action on their claims. See Spencer, 87 F.R.D. at 746. Third, allowing early right-to-sue letters gives the EEOC unreviewable discretionary power, and, "over time, the . . . decision to issue early right-to-sue letters will come to depend less on the probability of a charge's completion and more on unrelated factors." Pearce, 912 F. Supp. at 155. Fourth, the regulation permits the EEOC to expand federal jurisdiction when grievants want to bypass administrative review and "the cases in greatest need of informal conciliation [will be] precisely the cases that the agency will pass over." Id. at 156.
While these policy arguments may be valid, none of them definitively prove that the EEOC's interpretation of § 706(f)(1), manifested in 29 C.F.R. § 1601.28(a)(2), is unreasonable. The EEOC's policy arguments are equally as well taken, and, so long as an agency's perspective is reasonable, courts should defer to it.See Chevron, 467 U.S. at 843. As a result, I find that 29 C.F.R. § 1601.28(a)(2) is valid, and that Lambert's claims should not be dismissed due to the EEOC's issuance of her right-to-sue letter prior to the expiration of the 180 day period.
For the foregoing reasons, defendant Lucent's motion to dismiss is denied. A separate motion to that effect is being entered herewith.
ORDER
For the reasons stated in the memorandum entered herewith, it is, this 28th day of August, 1998
ORDERED
Defendant Lucent Technologies, Inc.'s motion to dismiss is denied.