Doe v. Oberweis Dairy

Decision Date28 July 2006
Docket NumberNo. 05-3770.,No. 04-3680.,No. 05-1998.,04-3680.,05-1998.,05-3770.
Citation456 F.3d 704
PartiesJane DOE, Plaintiff-Appellant, and Jane Roe and Jane Roe 2, Proposed-Intervenors-Appellants, v. Oberweis DAIRY, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

H. Candace Gorman (argued), Gregory X. Gorman, Gorman & Gorman, (argued), Catherine Caporusso Chicago, IL, for Plaintiff-Appellant.

Anthony J. Crement (argued), Franczek Sullivan, Chicago, IL, for Defendant-Appellee.

Marissa M. Tirona, San Francisco, CA, for Amicus Curiae, National Employment Lawyers Association.,

Melissa Josephs, Chicago, IL, for Amicus Curiae, Women Employed.

Paula R. Bruner (argued), EEOC, Washington, DC, for Amicus Curiae, Equal Employment Opportunity Commission.

Lyn Schollett, Springfield, IL, for Amicus Curiae, Illinois Coalition Against Sexual Assault.

Before POSNER, KANNE, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff, who is being permitted to litigate her case under a pseudonym, was a high-school student hired as a part-time ice cream "scooper" at the defendant's store in Bartlett, Illinois. She sued under Title VII of the Civil Rights Act of 1964, with supplemental claims for battery, intentional infliction of emotional distress, and related common law wrongs, claiming that a shift supervisor at the store, Matt Nayman, had harassed her sexually, culminating in sexual intercourse, for which he was prosecuted, convicted, and imprisoned. For Doe was only 16 years old when they had sex, and the age of consent in Illinois is generally 17, 720 ILCS 5/12-16(d), rising to 18 if the accused holds "a position of trust, authority, or supervision in relation to the victim." 720 ILCS 5/12-16(f). We need not decide whether the Illinois courts would think Nayman held such a position in relation to the plaintiff.

The district judge rejected the Title VII claim on the basis of the defendant's motion for summary judgment. He reasoned that the plaintiff had failed to exhaust her administrative remedies and that in any event her claim had no merit because her relationship with Nayman, including their one incident of sexual intercourse, had been voluntary and had occurred outside the workplace and because Nayman's conduct within it had not been, the judge thought, sufficiently offensive to amount to sexual harassment. Having dismissed the plaintiff's federal claim before trial, the district judge then, as is routine, relinquished jurisdiction of the supplemental claims to the state courts.

The plaintiff's main appeal challenges the judgment; in a separate appeal she challenges the district court's award of costs to the defendant. The appeal by the plaintiff's mother and younger sister, the Roe appellants, is from the district judge's denial of their motion to intervene in the litigation. They sought intervention to contest the judge's grant of the defendant's motion for access to the records of the plaintiff's psychiatric therapy sessions, at some of which the mother and the sister were present. The plaintiff also objects. The records were not turned over; instead, when the plaintiff's objection was rejected, she trimmed her evidence of emotional distress.

The Administrative Procedure Act requires plaintiffs to exhaust their administrative remedies before seeking judicial review of agency action. 5 U.S.C. § 704; Darby v. Cisneros, 509 U.S. 137, 143-47, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993); Glisson v. U.S. Forest Service, 55 F.3d 1325, 1326 (7th Cir.1995). Doe's suit does not seek judicial review of the EEOC's handling of her discrimination charge, or of any other agency action, and so the APA is inapplicable. Riley v. American Family Mutual Ins. Co., 881 F.2d 368, 373 (7th Cir.1989); Flowers v. Laborers Int'l Union, 431 F.2d 205, 208 (7th Cir.1970); see also Roach v. Morse, 440 F.3d 53, 58 (2d Cir.2006); Idaho Watersheds Project v. Hahn, 307 F.3d 815, 824-25 (9th Cir.2002); Cleghorn v. Herrington, 813 F.2d 992, 994-95 (9th Cir.1987). Title VII has its own requirements as to what claimants must do before they can sue, but at least so far as the statutory text is concerned, those requirements are limited to (1) filing a charge with the Equal Employment Opportunity Commission within 180 days after the date of the complained-of employment action, in states that do not have an equal employment opportunity agency, and within 300 days in states like Illinois that do, in which event the complainant must file his complaint with that agency at least 60 days before filing with the EEOC, and (2) waiting to sue until receiving notification (the "right to sue" letter) from the Commission that the Commission does not intend to sue. The Commission must issue the letter within 180 days after receiving the charge. 42 U.S.C. §§ 2000e-5(c), (e), (f)(1); Martinez v. United Automobile, Aerospace & Agricultural Implement Workers, 772 F.2d 348, 350 (7th Cir.1985).

The purpose of these requirements is both to give the Commission a chance to investigate the charge and decide whether to sue, and to encourage the complainant and the employer, with or without the state agency's or EEOC's assistance, to resolve their dispute informally. Horton v. Jackson County Board of County Commissioners, 343 F.3d 897, 899-900 (7th Cir.2003); Chacko v. Patuxent Institution, 429 F.3d 505, 510 (4th Cir.2005); Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1195 (10th Cir.2004). Many disputes are resolved at this stage, reducing the burden on the courts of enforcing Title VII; last year the Commission received 55,976 Title VII charges, of which 10,286, or almost 20 percent, were resolved without any litigation (computed from the Commission's website, http://www.eeoc.gov/stats/vii.html, visited June 7, 2006). In addition, the charge filed with the Commission limits the claims that the complainant may raise in litigation.

If the dispute is not settled at the administrative stage, the complaining party has a right to sue (unless the Commission decides to sue, Kremer v. Chemical Construction Corp., 456 U.S. 461, 469-70, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Chandler v. Roudebush, 425 U.S. 840, 844-45, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976); EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir.1999)) even if the Commission has investigated and decided that the claim is groundless. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44-45, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Solimino v. Astoria Federal Savings & Loan Ass'n, 901 F.2d 1148, 1151-52 (2d Cir.1990). The Commission's exercise of the administrative equivalent of prosecutorial discretion does not bar a private suit.

To facilitate its investigation during the 180-day period, the Commission requires the complainant to cooperate, including by participating in a factfinding conference with Commission staff. 29 C.F.R § 1601.15(c). If the complainant fails to cooperate and the failure prevents the Commission from resolving the charge, the Commission can dismiss it. § 1601.18(b). Although neither the regulations nor Title VII makes cooperation a condition of the complainant's being able to sue, the Tenth Circuit has decided that failure to cooperate in good faith is a bar to suit. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir.2005). (Shikles was a suit under the Age Discrimination in Employment Act, but most of the court's discussion is of Title VII.) The Commission has expressed its disagreement with the Tenth Circuit's position in a series of amicus curiae briefs, one filed with us in this case. Because Jane Doe declined to be interviewed by Commission staff, the Commission dismissed her administrative complaint for failure to cooperate. But it still issued her a "right to sue" letter, and the defendant does not dispute that the Commission was required to do so.

Shikles is inconsistent with our decision in Zugay v. Progressive Care, S.C., 180 F.3d 901, 903 (7th Cir.1999). Remember that in states that have an equal employment opportunity agency, the Title VII complainant must file a charge with that agency and cannot proceed further for 60 days. Zugay duly filed, and the agency scheduled a factfinding conference. But before the conference was held, the 60 days expired and Zugay jumped to the next stage (filing with the EEOC). The defendant argued that Zugay had failed to exhaust her administrative remedies. We disagreed. The only statutory requirement was that the claimant file with the state agency and wait 60 days. The fact that had she been more patient the case might have been resolved on the basis of the factfinding conference that the agency had scheduled did not prevent her from abandoning the process on pain of not being allowed to sue. She did not cooperate, yet could sue anyway.

In Shikles, it is true, as in this case, the complainant stopped cooperating during rather than after the statutory period. But the point of Zugay, which is equally apposite to this case and Shikles, is that the statute does not impose a duty of cooperation, whether during or after the statutory period. The opinion in Zugay points out that the complainant had in fact cooperated with the agency for more than 60 days, 180 F.3d at 903, but adds not only that all she was required to do was to "allow ... the agency 60 days to act," but also that the state could if it wanted waive the 60-day requirement. Id. In other words, it could say forget about cooperation. That in effect is what the EEOC has done, and not just in its amicus curiae briefs. Walker v. United Parcel Service, Inc., 240 F.3d 1268, 1274-77 (10th Cir. 2001), upheld an EEOC regulation that authorizes the Commission to allow the complainant to sue before the end of the 180-day period that the statute gives the Commission to decide whether to sue on its own. If suit can thus be brought before...

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