938 F.2d 807 (7th Cir. 1991), 90-2858, Marlowe v. Bottarelli

Docket Nº:90-2858.
Citation:938 F.2d 807
Party Name:Dee Bonnie MARLOWE, Plaintiff-Appellant, v. Bruno BOTTARELLI, et al., Defendants-Appellees.
Case Date:August 07, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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938 F.2d 807 (7th Cir. 1991)

Dee Bonnie MARLOWE, Plaintiff-Appellant,


Bruno BOTTARELLI, et al., Defendants-Appellees.

No. 90-2858.

United States Court of Appeals, Seventh Circuit

August 7, 1991

Argued May 15, 1991.

Rehearing and Rehearing In Banc

Denied Sept. 10, 1991.

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Scott A. Mayer, Arnold & Kadjan, Chicago, Ill., for plaintiff-appellant.

Stephen Novack, Kenneth S. Schlesinger, Novack & Macey, Chicago, Ill., for defendants-appellees.

Gwendolyn Young Reams, Vincent Blackwood, E.E.O.C., Donald R. Livingston, Paul D. Ramshaw, Jennifer S. Goldstein (argued), E.E.O.C., Washington, D.C., for amicus curiae.

Before BAUER, Chief Judge, and COFFEY and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This employment discrimination suit presents a unique question regarding the interpretation of a worksharing agreement between the Illinois Department of Human Resources (IDHR) and the Equal Opportunity Employment Commission (EEOC). Under the district court's interpretation of the agreement, plaintiff Marlowe's discrimination charge was untimely under federal law. Marlowe, the IDHR, and the EEOC take a different view; according to their reading, Marlowe's complaint was, in fact, timely. We agree with the latter view of the agreement and reverse. Further, we hold below that the workshare agreement between the two agencies is self-executing, resolving a question upon which we reserved judgment in Sofferin v. American Airlines Inc., 923 F.2d 552 (7th Cir.1991).


On March 28, 1986, Dee Bonnie Marlowe was discharged by her employer, Bruno Bottarelli. Two hundred and ninety-nine days later, on January 21, 1987, she filed

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employment discrimination charges with the IDHR against Bottarelli and his company, Marquette Properties, alleging that Bottarelli sexually harassed her, and that this harassment created a hostile work environment which led to her discharge. On the same day, Marlowe filed identical charges with the Equal Opportunity Employment Commission (EEOC). This dual filing, we shall see, created a good deal of confusion.

The confusion stems from the existence of a so-called "workshare agreement" between the IDHR and EEOC, which apportions initial jurisdiction over discrimination complaints between the two agencies. (We have extensively discussed the operation of the workshare agreement between the IDHR and EEOC in Hong v. Children's Memorial Hospital, 936 F.2d 967 (7th Cir.1991) and Sofferin, supra, and will presume the reader's familiarity with these opinions). Under the agreement, either the IDHR or the EEOC should have been vested with initial jurisdiction to review Marlowe's complaint. Nevertheless, both agencies proceeded to process her charges. Although untimely under state law (the state statute of limitations provides that discrimination charges must be filed within 180 days of the alleged discriminatory act, see ILL.ADMIN.CODE tit. 56, Sec. 2520.310), the IDHR began processing Marlowe's complaint and did not officially terminate it on grounds of untimeliness until May 29, 1987. The language of the workshare agreement seemingly supports the IDHR's decision to assume jurisdiction over Marlowe's charges. Paragraph 7(d) states that the IDHR shall have initial jurisdiction over complaints filed on the same day with both the state and the EEOC. If the IDHR was correct in assuming jurisdiction over Marlowe's complaint pursuant to the

workshare agreement, then it could not be deemed timely filed with the EEOC. Under Title VII, Marlowe could not file with the EEOC until she filed with the state and either (1) 60 days elapsed or (2) the state terminated its interest in her complaint, whichever came first. 1 See 42 U.S.C. Sec. 2000e-5(c). In her case, the 60 day period lapsed first on March 21, but by that time, the 300-day federal statute of limitations had already run. 2

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While all this was happening, the EEOC was acting upon Marlowe's complaint as well. The IDHR's designated agent in the EEOC, Renadar Curtis, was responsible for reviewing complaints received by the EEOC and determining whether the state wished to process the complaint or whether it chose to waive its initial processing rights and allow the EEOC to assume jurisdiction. Curtis determined that under the workshare agreement, Marlowe's complaint fell within the initial jurisdiction of the EEOC. She believed that according to the agreement, charges that were untimely under state law were deemed waived and terminated by the state and slated for processing by the EEOC. She thus proceeded to complete the paperwork that terminated the state's interest in Marlowe's complaint and initiated the EEOC's investigation into plaintiff's charges.

Shortly after filing with the EEOC, Marlowe received a right-to-sue letter from the agency. She filed suit in district court, but the district court dismissed her suit on defendants' motion for summary judgment on the ground that her EEOC complaint was untimely. The court read paragraph 7(d) of the workshare agreement to vest jurisdiction over Marlowe's complaint with the IDHR, not the EEOC. 3 Under this reading, the IDHR did not terminate Marlowe's complaint until May 1987. And, of course, the 60-day state deferral period did not run until late March 1987. Either way, Marlowe was not authorized under Title VII to file charges with the Commission until long after the 300-day federal limitations period had expired on January 22, 1987. Her EEOC complaint, the court ruled, was therefore untimely. The fact that the IDHR agent at the EEOC read the agreement differently was of little moment, concluded the court, because that reading contravened the agreement's plain language.

Marlowe then filed a motion for reconsideration. With her motion, she submitted the declarations of Jeffrey Drager, manager of the Charge Processing Division of the IDHR, and Marietta Morgan, State and Local Coordinator for the EEOC's Chicago District Office. Both participated in the negotiations that led to the execution of the workshare agreement and were responsible for supervising the administration of the agreement in their respective agencies. The two officials averred that the parties to the agreement did not intend charges untimely under state law to be reserved to the IDHR for initial processing; rather, Morgan and Drager explained, they intended such charges to be the sole province of the EEOC. In support of their position, the declarants referenced an EEOC regulation in force at the time of the signing of the agreement. See 29 C.F.R. Sec. 1601.13(a)(3) (1986). The regulation provided that complaints untimely under state law need not be filed first with the state; according to the regulation, such complaints were deemed timely filed with the EEOC upon receipt, without any other action on the part of the state to terminate its interest in the charges. Morgan and Drager both testified that the two agencies executed the workshare agreement with the EEOC regulation in mind; it was understood that the workshare agreement was to be read and applied consistently with the regulation. Drager conceded that the IDHR's continued processing of Marlowe's untimely complaint conflicted with this understanding, but contended that the state's actions were the result of a clerical error and should be given no legal effect. After examining the declarations, the district court granted Marlowe's motion for reconsideration, stating that the declarations constituted "strong evidence of [the parties' ] intention[s] as to how the agreement is to operate," and that the interests of justice thus required reconsideration of

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its decision to grant the defendants summary judgment. See Memorandum Opinion, October 6, 1989, at 8.

In a subsequent memorandum opinion following defendant's second motion for summary judgment, the district court again held plaintiff's complaint untimely under federal law, for essentially the same reasons that it had set out in its first opinion. The court observed that while the intent of the parties appeared to be what Drager and Morgan said it was, the better course was to give legal effect to the plain language of the agreement. It therefore dismissed plaintiff's complaint as untimely. Marlowe now appeals. She contends--as does the Commission in an amicus brief--that we ought to give effect to the intent of the state and the EEOC in executing the agreement and hold that her complaint was timely filed with the EEOC because the Commission properly had jurisdiction under the workshare agreement to process charges that were untimely under Illinois' shorter limitations period. We agree with Marlowe and the Commission.


Paragraph 7(d) of the workshare agreement states that charges filed on the same day with both the IDHR and the EEOC are to be processed initially by the state. The question before us is whether, as Marlowe, the state, and the EEOC contend, the agreement should be read to effectuate the apparent intent of the contracting parties; that is, whether it should be read to include what amounts to an unwritten clause providing that the state waives initial jurisdiction over all charges untimely under state law. 4 In a nutshell, Marlowe and Bottarelli have presented us with two paradigmatic interpretive arguments, one championing the drafters' intent and the other heralding the text's "plain language."

The EEOC also presents us with a third option. It argues that rather than conclusively interpret the workshare agreement ourselves, we should simply "defer" to its interpretation of the agreement. The courts, the Commission urges, "should show great deference to an agency's interpretation of its own internal directives." Brief at 13 (citing EEOC v. Techalloy Maryland Inc., 894 F.2d 676, 678-79 (4th Cir.1990)). While we agree with the EEOC's proposed result, and while we agree in the abstract with its proposition regarding the nature and...

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