No IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

No. 15-3452 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Equal Employment Opportunity Commission, Petitioner-Appellee, v. Union Pacific Railroad Company, Respondent-Appellant. Appeal From the United States District Court For the Eastern District of Wisconsin Case No. 2:14-mc-00052-LA The Honorable Lynn Adelman BRIEF OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL AS AMICUS CURIAE IN SUPPORT OF RESPONDENT-APPELLANT AND IN SUPPORT OF REVERSAL Rae T. Vann Counsel of Record Michael P. Bracken NT LAKIS, LLP 1501 M Street, N.W., Suite 400 Washington, DC 20005 (202) 629-5600 rvann@ntlakis.com Attorneys for Amicus Curiae Equal Employment Advisory Council

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT Appellate Court No: 15-3452 Short Caption: Equal Employment Opportunity Commission v. Union Pacific Railroad Company To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a nongovernmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1. The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. [ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3): EQUAL EMPLOYMENT ADVISORY COUNCIL, Amicus Curiae (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: NT LAKIS, LLP (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any; and None. ii) list any publicly held company that owns 10% or more of the party s or amicus stock: None. Attorney's Signature: s/rae T. Vann Date: 09/23/2016 Attorney's Printed Name: Rae T. Vann Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes X No Address: NT LAKIS, LLP; 1501 M Street, N.W., Suite 400; Washington, DC 20005 Phone Number: (202) 629-5600 Fax Number: (202) 629-5601 E-Mail Address: rvann@ntlakis.com rev. 01/08 AK

TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTEREST OF THE AMICUS CURIAE... 1 STATEMENT OF THE CASE... 3 SUMMARY OF ARGUMENT... 5 ARGUMENT... 6 I. THE DISTRICT COURT ERRED WHEN IT ENFORCED THE EEOC S SUBPOENA AFTER A RIGHT-TO-SUE NOTICE WAS ISSUED AND THE ENSUING LAWSUIT FULLY ADJUDICATED... 6 A. Title VII Provides For An Integrated, Multistep Enforcement Procedure That Intentionally Limits The EEOC s Investigative Authority... 6 B. Title VII Does Not Authorize The EEOC To Continue To Investigate A Charge After It Has Issued A Right-To-Sue Notice And A Private Action Has Commenced... 8 1. EEOC s Regulation Purporting To Grant Itself The Right To Continue An Investigation After A Right-To-Sue Is Issued Is Not Entitled To Deference... 10 2. The Fifth Circuit s Rationale In EEOC v. Hearst Corp. Is Instructive... 13 C. After Adjudication, There Is No Valid Charge On Which To Base An Investigation... 15 II. REQUIRING EMPLOYERS TO CONTINUE TO DEFEND CHARGES AFTER THE EEOC HAS RELINQUISHED ITS JURISDICTION AND CLAIMS HAVE BEEN ADJUDICATED WOULD IMPOSE SIGNIFICANT BURDENS ON EMPLOYERS WITHOUT ADVANCING TITLE VII S PURPOSES... 17 CONCLUSION... 18 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE i

TABLE OF AUTHORITIES CASES Ameritech Benefit Plan Committee v. Communications Workers of America, 220 F.3d 814 (7th Cir. 2000)... 2 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)... 11 EEOC v. Federal Express Corp., 558 F.3d 842 (9th Cir. 2009)... 13, 14 EEOC v. Frank s Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999)... 13, 14 EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997)... 5, 8, 13, 14 EEOC v. Mach Mining, L.L.C., 738 F.3d 171 (7th Cir. 2013), vacated, U.S., 135 S. Ct. 1645 (2015)... 3 EEOC v. Shell Oil Co., 466 U.S. 54 (1985)... 6, 7, 8 EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002)... 7, 16, 17 Kyles v. J.K. Guardian Security Services, 222 F.3d 289 (7th Cir. 2000)... 2 McReynolds v. Merrill Lynch & Co., 694 F.3d 873 (7th Cir. 2012)... 3 Moranski v. General Motors Corp., 433 F.3d 537 (7th Cir. 2005)... 2, 3 Ryan v. CFTC, 125 F.3d 1062 (7th Cir. 1997)... 2 United States v. Mead Corp., 533 U.S. 218 (2001)... 11 STATUTES Age Discrimination in Employment Act, 29 U.S.C. 621 et seq.... 1 Americans with Disabilities Act, 42 U.S.C. 12101 et seq.... 1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.... passim ii

42 U.S.C. 2000e-2(a)(1)... 6 42 U.S.C. 2000e-3(a)... 6 42 U.S.C. 2000e-5(b)... 7, 8, 12, 15 42 U.S.C. 2000e-5(f)(1)... passim 42 U.S.C. 2000e-12(a)... 11 REGULATIONS 29 C.F.R. 1601.12(a)(3)... 7 29 C.F.R. 1601.28... 8 29 C.F.R. 1601.28(a)... 10, 11 29 C.F.R. 1602.14... 16, 18 LEGISLATIVE HISTORY Equal Employment Opportunity Act of 1972, H.R. Rep. No. 92-238 (1971), as reprinted in 1972 U.S.C.C.A.N. 2137... 13 OTHER AUTHORITIES EEOC, Filing Before the Investigation is Completed (last visited 9/23/2016)... 15 iii

The Equal Employment Advisory Council respectfully submits this brief amicus curiae contingent upon granting of the accompanying unopposed motion for leave to file. 1 INTEREST OF THE AMICUS CURIAE The Equal Employment Advisory Council (EEAC) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership includes over 250 major U.S. corporations, collectively providing employment to millions of workers. All of EEAC s members are employers subject to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq., the Americans with Disabilities Act, 42 U.S.C. 12101 et seq., and other antidiscrimination laws. EEAC s member companies, many of which conduct business nationwide, are strongly committed to equal employment opportunity and seek to establish and enforce internal policies that are consistent with federal employment nondiscrimination laws. As employers, and as potential targets of EEOC discrimination charge investigations and lawsuits, EEAC s members have a direct and ongoing interest in the issues presented in this appeal regarding the authority of the EEOC to investigate charges and compel the production of evidence after a 1 Counsel for amicus curiae authored this brief in its entirety. No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae, its members, or its counsel made a monetary contribution to its preparation or submission.

right-to-sue notice has been served and the ensuing lawsuit has been fully adjudicated. As a national representative of large employers, EEAC has perspective and experience that can help the Court assess issues of law and public policy that have been raised in this case, beyond the help that the lawyers for the parties can provide. Cf. Ryan v. CFTC, 125 F.3d 1062, 1063 (7th Cir. 1997). Accordingly, EEAC seeks to bring these countervailing policy considerations to the Court s attention and assist the Court in putting the arguments of the Respondent-Appellant into proper perspective. Mindful of this Court s admonitions in Ryan, EEAC s amicus brief does not rehash legal arguments addressed in the parties briefs. Rather, it offers observations and perspectives on the issues, based on the collective experience of EEAC s member companies. For example, EEAC s brief explains the significant practical burdens that employers likely would face if the EEOC were permitted to continue investigating after providing the charging party with notice of the right to sue and even after the claims on which the charge is based have been dismissed on the merits. The resulting obligation on employers to retain and preserve, indefinitely, voluminous employment records and documentation, even after final disposition of the claims to which the documents relate, is evidence enough of why such a rule should be rejected. Since 1976, EEAC has participated as amicus curiae in over 600 cases before the U.S. Supreme Court, this Court, 2 and other federal courts of appeals, many of 2 See, e.g., Ameritech Benefit Plan Comm. v. Commun. Workers of Am., 220 F.3d 814 (7th Cir. 2000); Kyles v. J.K. Guardian Sec. Servs., 222 F.3d 289 (7th Cir. 2000); Moranski v. 2

which have involved Title VII enforcement issues. Because of its experience in these matters, EEAC is well-situated to brief the Court on the relevant concerns of the business community and the significance of this case to employers generally. STATEMENT OF THE CASE Former employees Frank Burks and Cornelius Jones worked for Union Pacific as Signal Helpers. Doc. 3-4 at 3. Both were subject to a 90-day probationary period. Id. After completing their probationary periods, both Burks and Jones became eligible for promotion to Assistant Signal Person, subject to submitting an online application and taking and passing a selection test (the Assistant Signal Person test). Id. at 7. Jones applied to take the Assistant Signal Person test in June 2011, and after receiving no response, reapplied in September 2011. Id. Burks applied to take the test in October 2011. Id. In October 2011, the company eliminated the Signal Helper job, and both Burks and Jones were laid off. Id. at 9. Neither applied to take the Assistant Signal Person selection test again or applied for any other positions at the company. Id. at 8-9. Soon thereafter, they filed separate charges with the U.S. Equal Employment Opportunity Commission (EEOC) alleging race discrimination and retaliation. Id. at 13. Among other things, they claimed that they were denied an opportunity to take the Assistant Signal Person test in retaliation for lodging prior discrimination complaints with the company. Id. General Motors Corp., 433 F.3d 537 (7th Cir. 2005); McReynolds v. Merrill Lynch & Co., 694 F.3d 873 (7th Cir. 2012); EEOC v. Mach Mining, L.L.C., 738 F.3d 171 (7th Cir. 2013), vacated, U.S., 135 S. Ct. 1645 (2015). 3

The EEOC issued right-to-sue notices as to both charges in July 2012, and Burks and Jones subsequently filed suit against Union Pacific in the U.S. District Court for the Northern District of Illinois. Doc. 4-7 at 19-33. The EEOC did not intervene in that action. Nearly two years later, the EEOC asked Union Pacific to submit additional information in connection with the Burks and Jones discrimination charges. Id. at 4-7. The company refused, and the agency issued a subpoena seeking extensive, companywide information about the selection test, including the names and test results of those who took it. App. 15 at a-h. On July 7, 2014, the discrimination lawsuit was dismissed on the merits and judgment entered in Union s Pacific s favor. Burks v. Union Pac. R.R. Co., 2014 WL 3056529 (N.D. Ill. 2014). Burks and Jones appealed to the Seventh Circuit, which affirmed the trial court s decision. Burks v. Union Pac. R.R. Co., 793 F.3d 694 (7th Cir. 2015). The following month, the EEOC filed an action in the U.S. District Court for the Eastern District of Wisconsin to enforce its administrative subpoena. EEOC v. Union Pac. R.R. Co., No. 2:14-mc-00052-LA (E.D. Wis. Aug. 25, 2014). Union Pacific moved to dismiss, arguing among other things that the EEOC relinquished its authority to investigate when (1) it issued right-to-sue notices, and (2) Burks and Jones s subsequent lawsuit was dismissed on the merits. EEOC v. Union Pac. R.R. Co., No. 2:14-mc-00052-LA (E.D. Wis. Sept. 15, 2014). For its part, the EEOC contended that it is the master of its own case and has jurisdiction, pursuant to its own procedural regulation, to continue an investigation even after a right-to-sue has been issued and the ensuing lawsuit is 4

dismissed. The district court denied Union Pacific s motion to dismiss, EEOC v. Union Pac. R.R. Co., 102 F. Supp. 3d 1037 (E.D. Wis. 2015), and ordered compliance with the subpoena. This appeal ensued. SUMMARY OF ARGUMENT The issue of whether the EEOC can continue an investigation based on a charge that was the subject of a right-to-sue notice and/or has been dismissed on the merits is one of great practical significance to employers. Neither Title VII s text, regulations, or legislative history nor any reasonable policy argument justifies permitting the EEOC to continue investigating claims that have been fully adjudicated in court. As the Fifth Circuit concluded in EEOC v. Hearst Corp., the EEOC may not continue to investigate under those circumstances, because once formal litigation is commenced, the underlying purpose and aims of the administrative investigation no longer are served. 103 F.3d 462 (5th Cir. 1997). Indeed, the statutory text, U.S. Supreme Court interpretations, due process considerations, and even the EEOC s own procedural regulations all caution strongly against endorsing the notion that the agency can investigate charges that no longer are valid, in other words, that do not contain allegations of statutory violations brought by an aggrieved person. As a policy matter, allowing the EEOC to expand its investigative authority in such a manner would drag out discrimination claim resolution, contrary to Title VII s goal of prompt and informal charge resolution. As a practical matter, it would force employers to retain employment records perpetually, just in case the EEOC 5

decides to resume investigation of a released charge requiring them to defend against claims they already may have defeated on the merits. It also would allow the agency to use a dead charge as a springboard to search for other, unasserted potential violations. ARGUMENT I. THE DISTRICT COURT ERRED WHEN IT ENFORCED THE EEOC S SUBPOENA AFTER A RIGHT-TO-SUE NOTICE WAS ISSUED AND THE ENSUING LAWSUIT FULLY ADJUDICATED A. Title VII Provides For An Integrated, Multistep Enforcement Procedure That Intentionally Limits The EEOC s Investigative Authority The U.S. Equal Employment Opportunity Commission (EEOC) was created by Congress in Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq., as amended, which prohibits discrimination against a covered individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s race, color, religion, sex, or national origin, 42 U.S.C. 2000e-2(a)(1), or because he or she has complained of alleged workplace discrimination in violation of the Act. 42 U.S.C. 2000e-3(a). Title VII sets forth an integrated, multistep enforcement procedure that... begins with the filing of a charge with the EEOC alleging that a given employer has engaged in an unlawful employment practice. EEOC v. Shell Oil Co., 466 U.S. 54, 62 (1985) (quoting Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977)) (footnote omitted). A discrimination charge may be filed with the EEOC by any individual claiming to be aggrieved or by a member of the Commission itself where he or she 6

has reason to believe unlawful discrimination has occurred but for which an individual charge alleging the specific type of discrimination has not been filed. Id. Such a charge must be in writing, 42 U.S.C. 2000e-5(b), and contain [a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices. 29 C.F.R. 1601.12(a)(3). Upon receipt of a valid discrimination charge, the EEOC must conduct an investigation to determine whether there is reasonable cause to believe that discrimination occurred. 42 U.S.C. 2000e-5(b). In EEOC v. Shell Oil, the Supreme Court observed that unlike other federal agencies that possess plenary authority to demand to see records relevant to matters within their jurisdiction, the EEOC is entitled to access only evidence relevant to the charge under investigation. 466 U.S. at 64 (emphasis added) (citation and footnote omitted). In other words, the authority of the EEOC to investigate is grounded in the charge of discrimination. EEOC v. United Air Lines, Inc., 287 F.3d 643, 650 (7th Cir. 2002). In this respect, the EEOC s investigatory power is significantly narrower than that of [other agencies that] are authorized to conduct investigations, inspect records, and issue subpoenas, whether or not there has been any complaint of wrongdoing. Shell Oil, 466 U.S. at 64-65 (citation omitted). Accordingly, courts must strive to give effect to Congress purpose in establishing a linkage between the Commission s investigatory power and charges of discrimination [intended to] prevent the Commission from exercising unconstrained investigative authority. Id. at 65. 7

Thus, under Shell Oil, the reviewing court has a responsibility to satisfy itself that the charge is valid and that the material requested is relevant to the charge before the subpoena is enforced. Id. at 72 n.26. If a charge is not being brought on behalf of an aggrieved person or is otherwise not valid, then it will not constitute a charge over which the EEOC has authority to investigate. If after investigating the EEOC determines that reasonable cause exists to believe the charge has merit, then it must attempt to eliminate the unlawful practice by informal methods of conference, conciliation, and persuasion. 42 U.S.C. 2000e-5(b). If the charge cannot be resolved through conciliation, then the EEOC may either bring its own civil action or notify the charging party in writing, of the right to sue in federal court. 42 U.S.C. 2000e-5(f)(1); see also 29 C.F.R. 1601.28. Once served with a right-to-sue notice, the charging party then has 90 days to file a lawsuit and the EEOC has the opportunity to intervene in that lawsuit upon a showing that the case is of general public importance. Id. B. Title VII Does Not Authorize The EEOC To Continue To Investigate A Charge After It Has Issued A Right-To-Sue Notice And A Private Action Has Commenced Once a charging party obtains a right-to-sue notice from the EEOC and acts upon that notice, the agency s authority to investigate ends, because the main purposes of the investigation to determine if there is reasonable cause to believe that discrimination occurred and, if so, to resolve the claim through conciliation are no longer served. EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997). Here, right-to-sue notices were issued, and the charging parties lawsuit filed, almost two 8

years before the EEOC served its investigative subpoena. Nothing in Title VII permits the EEOC to continue (or in this case, resume) its investigation of the underlying charge under those circumstances. Accordingly, the decision below should be reversed. Title VII provides, in relevant part: 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 to which the person aggrieved is a party, the Commission shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice. Upon timely application, the court may, in its discretion, permit the Commission to intervene in such civil action upon certification that the case is of general public importance. 42 U.S.C. 2000e-5(f)(1). This provision contains no language authorizing the EEOC to continue its administrative investigative activities after notifying a charging party of his or her right to sue. To the contrary, by granting courts the discretion to permit the EEOC to intervene in subsequently-filed civil actions, Congress plainly intended for the issuance of a notice of right-to-sue to terminate the EEOC s administrative processing of the charge. Had Congress intended this provision to confer upon the EEOC independent, post-right-to-sue investigative authority through which it presumably would retain the right to litigate in the public interest after finding reasonable cause and engaging in good faith (but unsuccessful) conciliation efforts it would have said so 9

explicitly, rather than simply outlining the circumstances under which the agency would be permitted to intervene in a private action. Indeed, the statute strongly suggests that once the EEOC issues a right-to-sue notice and a private lawsuit is filed, it no longer has any right to act upon the underlying charge, but may be permitted, in a court s discretion, to intervene in the pending litigation upon showing the matter is of general public importance. 42 U.S.C. 2000e-5(f)(1). Such a construction comports with the purpose of an EEOC investigation and the limits on the agency s authority to sue. 1. EEOC s Regulation Purporting To Grant Itself The Right To Continue An Investigation After A Right-To-Sue Is Issued Is Not Entitled To Deference To the extent that the EEOC has promulgated an administrative regulation purporting to authorize the agency to continue an investigation after notifying the charging party of his or her right to sue, it is contrary to the statute s plain text and therefore is invalid and not entitled to judicial deference. Section 1601.28 of the EEOC s Title VII procedural regulations provides: When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued the Commission shall promptly issue such notice as described in Sec. 1601.28(e) to all parties. Issuance of a notice of right to sue shall terminate further proceeding of any charge that is not a Commissioner charge unless the District Director; Field Director; Area Director; Local Director; Director of the Office of Field Programs or upon delegation, the Director of Field Management Programs; or the General Counsel, [sic] determines at that time or at a later time that it would effectuate the purpose of title VII, the ADA, or GINA to further process the charge. 29 C.F.R. 1601.28(a) (emphasis added). The trial court relied on the regulation in ruling that the EEOC has the authority to continue its investigation of a charge 10

after a right-to-sue has been issued. However, such an interpretation cannot be squared with Title VII s text, which limits the EEOC s involvement in a matter after issuance of a right-to-sue notice to intervening in the ensuing litigation upon showing that the matter is of general public importance. 42 U.S.C. 2000e-5(f)(1). Therefore, the trial court erred in relying on 29 C.F.R. 1601.28(a) to justify the EEOC s actions in this case. In enacting Title VII, Congress conferred upon the EEOC the authority from time to time to issue, amend, or rescind suitable procedural regulations for the administration of the Act. 42 U.S.C. 2000e-12(a). While considerable weight should be accorded to an executive department s construction of a statutory scheme it is entrusted to administer, as the Supreme Court repeatedly has said, [t]he fair measure of deference to an agency administering its own statute has been understood to vary with circumstances. United States v. Mead Corp., 533 U.S. 218, 227-28 (2001) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)). If Congress has spoken to the precise question at issue, the agency may not attempt to impose its own interpretation of the matter, and must give effect to the unambiguously expressed intent of Congress. Chevron, 467 U.S. at 842-43 (footnote omitted). Title VII outlines two circumstances under which the EEOC may issue a right-to-sue notice both of which contemplate a termination of the agency s administrative investigation: (1) when the agency dismisses the charge, and 2) within 180 days of the filing of the charge if the agency has not pursued the charges 11

in a civil action or entered into a conciliation agreement to which the person aggrieved is a party. 42 U.S.C. 2000e-5(f)(1). At that point, the EEOC may remain directly involved in the matter by successfully moving to intervene in the subsequent litigation. Contrary to Title VII s plain text, Section 1601.28 purports to allow the agency to continue an investigation even after it has issued a right-to-sue notice. Because Section 1601.28 directly conflicts with Title VII, it is invalid, not entitled to deference, and thus cannot be used to justify expansion of the EEOC s post-notice investigative authority. It is difficult to believe that Congress would have directed the EEOC to promptly notify a charging party of his or her right to pursue a private cause of action, 42 U.S.C. 2000e-5(b) and in the same provision specify the circumstances under which the EEOC would be permitted to intervene in such litigation while simultaneously allowing the agency to continue, indefinitely, its investigation of the underlying charge. 3 Indeed, the right-to-sue notice signals that the charging party has satisfied his or her duty to exhaust administrative remedies; allowing the EEOC to resume an investigation of a charge that was the subject of a right-to-sue notice would call into question whether administrative remedies were, in fact exhausted. It also would give the EEOC the means through which to initiate separate litigation based on the same set of facts and allegations, contrary to the administrative scheme contemplated by Congress. In fact, when Congress amended 3 Here, the EEOC had the opportunity, but declined, to intervene in the charging parties lawsuit, instead waiting for almost two years while the lawsuit progressed before serving its investigative subpoena. 12

Title VII to give the EEOC authority to sue in federal court, it expressed concern about the interrelationship between the newly created cease and desist enforcement powers of the Commission and the existing right of private action concluding that duplication of proceedings should be avoided. Equal Employment Opportunity Act of 1972, H.R. Rep. No. 92-238 (1971), as reprinted in 1972 U.S.C.C.A.N. 2137, 2148. It explained: The bill, therefore, contains a provision for termination of Commission jurisdiction once a private action has been filed (except for the power of the Commission to intervene in the private actions). It contains as well a provision for termination of the right of private action once the Commission issues a complaint or enters into a conciliation or settlement agreement which is satisfactory to the Commission and to the person aggrieved. If such an agreement is not acceptable to the aggrieved party, his [or her] private right of action is preserved. Id. Accordingly, Congress ultimately created an alternative enforcement procedure allowing employees to pursue private actions once the 180-day period of exclusive EEOC jurisdiction terminates. EEOC v. Frank s Nursery & Crafts, Inc., 177 F.3d 448, 457 (6th Cir. 1999) (citation omitted) (emphasis added). 2. The Fifth Circuit s Rationale In EEOC v. Hearst Corp. Is Instructive In EEOC v. Hearst Corp., the Fifth Circuit held that the EEOC cannot continue to investigate charges of discrimination after the agency issues a right-tosue notice and the charging parties file their own Title VII lawsuit. 103 F.3d 462, 469-70 (5th Cir. 1997); contra EEOC v. Federal Express Corp., 558 F.3d 842 (9th Cir. 2009). In concluding that the original charge no longer provides a basis for an 13

EEOC investigation, it observed that Congress granted the EEOC broad investigatory authority for two reasons: 1) to help the agency promptly and effectively determine whether Title VII had been violated; and 2) to help the agency resolve the dispute without formal litigation. Hearst, 103 F.3d at 469. These two objectives are no longer served, the court concluded, once formal litigation is commenced. Id. Pointing to Title VII s text, the Fifth Circuit further found that once a charging party receives and acts upon a right-to-sue notice, the EEOC s only recourse is to move to intervene in the private suit or, if the agency s interest extends beyond the private party charge upon which it is acting, id., to file a Commissioner charge or wait to investigate a different charge raising the same issues. The EEOC urged the lower court to reject the Fifth Circuit s reasoning and instead adopt the Ninth Circuit s rationale in Federal Express. Amicus respectfully submits that by permitting the EEOC to continue its investigation after issuing a right-to-sue notice and a private action has been commenced, the Ninth Circuit disregarded Title VII s text and gave undue deference to the EEOC s unsound procedural regulations. In sum, once a charging party invokes his or her right to sue, the EEOC s period of exclusive jurisdiction terminates. Frank s Nursery, 177 F.3d at 457. Even the EEOC s own guidance to charging parties on Filing a Lawsuit confirms the understanding that a right-to-sue notice is intended to terminate administrative processing of the subject charge: Once you have been given a 14

Notice of the Right-to-Sue, we will close the case and take no further action. So if you want EEOC to continue investigating your charge, don't request the Notice of Right-to-Sue. 4 Indeed, the guidance is entirely consistent with the EEOC s regular practice of closing an administrative charge investigation after issuing a right-tosue notice. Because the plain language of Title VII does not confer upon the EEOC the authority to continue to investigate a charge of discrimination after it has issued a right-to-sue notice and private litigation has been initiated, the agency s administrative subpoena in this case should not have been enforced. C. After Adjudication, There Is No Valid Charge On Which To Base An Investigation After a right-to-sue notice is issued and the subsequently filed lawsuit is dismissed on the merits, there is no longer any valid charge upon which to base an investigation. Title VII s statutory text, this Court s and the Supreme Court s interpretations, as well as the EEOC s own procedural regulations, all caution strongly against endorsing the notion that the agency can investigate charges that no longer are valid, in other words, that do not contain allegations of statutory violations brought by an aggrieved person and upon which the charging party has no possibility of prevailing. Title VII provides that for a charge to be valid, it must be filed by an aggrieved party and must allege that an employer has engaged (or is engaging) in an unlawful employment practice. 42 U.S.C. 2000e-5(b). In addition, this Court has 4 See EEOC, Filing Before the Investigation is Completed, available at https://www.eeoc.gov/employees/lawsuit.cfm (last visited 9/23/2016). 15

held that where a charging party has no possibility of prevailing on his or her complaint, the underlying charge on which it is based is invalid and the EEOC cannot justify further investigation of that charge. In EEOC v. United Air Lines, the Court determined that the EEOC s subpoena was overly broad but instructed that on remand, the lower court should first determine whether the charging party had any possibility of prevailing on the claims, because if not, no additional scrutiny of the subpoena was necessary as the EEOC had no grounds to issue it. 287 F.3d 643, 655 (7th Cir. 2002) ( it is incumbent on the district court first to resolve whether there is any possibility that [the charging party] might prevail on her complaint. If [not], we see no reason for the district court to undertake any additional scrutiny of the subpoena because the EEOC would have no ground upon which to justify its issuance ). This Court s reasoning applies with even more force where, as here, the plaintiff s discrimination claims have been dismissed on the merits and that decision has been fully affirmed on appeal. Even the EEOC s own regulations acknowledge that a charge is no longer active or valid once a resulting litigation is adjudicated. See 29 C.F.R. 1602.14 (the date of final disposition of the charge or action is the date on which [resulting] litigation is terminated ). If the EEOC believes that further investigation of a discrimination claim raised in an adjudicated lawsuit is warranted, it is free to bring a Commissioner charge. But it cannot use that charge as a springboard to fish for other potential 16

violations. United Air Lines, 287 F.3d at 653 (the charge requirement itself is designed to cabin the EEOC s authority and prevent fishing expedition[s] ). II. REQUIRING EMPLOYERS TO CONTINUE TO DEFEND EEOC CHARGES AFTER THE EEOC RELINQUISHES ITS JURISDICTION AND CLAIMS HAVE BEEN ADJUDICATED WOULD IMPOSE SIGNIFICANT BURDENS ON EMPLOYERS WITHOUT ADVANCING TITLE VII S PURPOSES Allowing the EEOC to continue investigating after a right-to-sue notice has been issued and the subsequent lawsuit has been dismissed on the merits would impose significant burdens on employers with no justifiable countervailing benefits. When faced with notice of an EEOC charge of discrimination, most employers devote significant time and resources to manage the ensuing charge investigation and defend themselves before the agency. Employers also expend significant time and resources defending discrimination lawsuits, even those that are meritless. If the EEOC were permitted to continue to investigate after the charging party has received and acted upon a right-to-sue notice, the practical implications would be significant. Companies would be forced to simultaneously defend the same claims in two different fora at significant cost, making the same witnesses and evidence available to the court and to the EEOC which in private sector cases ultimately has no adjudicative authority in any event. Also, because Title VII does not authorize the EEOC to continue an investigation of a dead charge, and thus offers no mechanism for notifying an employer of the EEOC s intention to do so, employers will not know of the EEOC s intention to reopen an investigation until they are served with a dilatory information request without proper notice. 17

Depending on the length of the EEOC s delay, employers likely will have failed to preserve relevant evidence, thus leaving them in a profoundly disadvantageous position. To avoid that outcome, employers would be forced to maintain litigation holds and preserve employment records indefinitely, even after final disposition of a lawsuit, even in the absence of any legal obligation to do so. To the contrary the EEOC requires that employers preserve all personnel records relevant to the charge until final disposition of the charge, 29 C.F.R. 1602.14, meaning either 90 days after a right-to-sue notice is issued if the charging does not bring a lawsuit, or if a lawsuit is filed, the date on which such litigation is terminated. Id. CONCLUSION For the foregoing reasons, amicus curiae EEAC respectfully urges the Court to reverse the decision below. Respectfully submitted, s/ Rae T. Vann Rae T. Vann Counsel of Record Michael P. Bracken NT Lakis, LLP 1501 M St., N.W., Suite 400 Washington, DC 20005 rvann@ntlakis.com (202) 629-5600 Attorneys for Amicus Curiae Equal Employment Advisory Council 18

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE REQUIREMENTS 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: X this brief contains 4,795 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or this brief uses a monospaced typeface and contains [state the number of ] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: X this brief has been prepared in a proportionally spaced typeface using MS WORD 2010 in Century Schoolbook 12 pt., or this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style]. (s) Rae T. Vann, Attorney for Equal Employment Advisory Council, amicus curiae Dated: September 23, 2016

CERTIFICATE OF SERVICE Certificate of Service When All Case Participants Are CM/ECF Participants September 23, 2016 I hereby certify that on, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. s/ Rae T. Vann CERTIFICATE OF SERVICE Certificate of Service When Not All Case Participants Are CM/ECF Participants I hereby certify that on, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third-party commercial carrier for delivery within 3 calendar days, to the following non-cm/ecf participants: counsel / party: address: s/