E.E.O.C. v. Commercial Office Products Co.

Decision Date15 October 1986
Docket NumberNo. 85-2224,85-2224
Citation803 F.2d 581
Parties42 Fair Empl.Prac.Cas. 50, 41 Empl. Prac. Dec. P 36,637, 55 USLW 2253 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner-Appellant, v. COMMERCIAL OFFICE PRODUCTS COMPANY, Respondent-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Warren Bo Duplinsky, Atty., E.E.O.C., Washington, D.C. (Johnny J. Butler, Acting Gen. Counsel, Gwendolyn Young Reams, Acting Associate Gen. Counsel, and Vella Fink, Asst. Gen. Counsel, with him on briefs), for petitioner-appellant.

James L. Stone of Fairfield & Woods, Denver, Colo. (Brent T. Johnson of Fairfield & Woods, Denver, Colo., with him on briefs), for respondent-appellee.

Before McKAY, SETH and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Petitioner Equal Employment Opportunity Commission (EEOC) appeals from the district court's denial of a petition to enforce an administrative subpoena issued to respondent Commercial Office Products (Commercial). The two issues presented by this case are whether the EEOC can challenge the scope of the subpoena enforcement proceeding and whether the charge in this case was filed timely under the 300-day filing requirement of Title VII of the Civil Rights Act of 1964. 42 U.S.C. Sec. 2000e-5. We hold that the EEOC cannot challenge the scope of the subpoena enforcement proceeding because it failed to raise that issue before the district court. We affirm the decision of the district court that the charge was not filed within the time limitation for filing Title VII charges with the EEOC.

Suann L. Leerssen was discharged by Commercial on June 10, 1983. She filed a charge with the EEOC on March 26, 1984--289 days after the discharge--alleging violations of Title VII of the Civil Rights Act of 1964. On March 30, 1984, the EEOC sent a copy of the charge and a charge transmittal form to the Colorado Civil Rights Division (CCRD). The form stated that the EEOC would initially process the charge pursuant to a worksharing agreement between it and the CCRD. The CCRD returned the charge transmittal form to the EEOC and indicated that the CCRD waived its right to initially process the charge. On April 4, 1984, the CCRD sent a form letter to Leerssen explaining that it had waived its right to initial processing but stating specifically that it still retained jurisdiction over her charge.

The EEOC began its investigation of the charge on March 26, 1984, the date that it initially received the charge. After Commercial refused to provide information relevant to the charge, the EEOC issued an administrative subpoena. Commercial refused to comply with the terms of the subpoena because it believed that Leerssen's charge was untimely filed and the EEOC therefore lacked jurisdiction over the charge. The EEOC filed this action seeking enforcement of the subpoena. The district court denied enforcement of the subpoena on the grounds that the filing of the Title VII charge was not timely.


The threshold issue that we address is whether the timeliness of the charge should have been determined in a subpoena enforcement proceeding. The district court relied on Klausner v. Southern Oil Company of New York, Inc., 533 F.Supp. 1335 (N.D.N.Y.1982) (holding that the waiver of initial processing of a Title VII charge by a state agency is not a "termination" within the meaning of Sec. 706(c) of Title VII) in denying enforcement of the subpoena. Reliance on Klausner indicates that the district court decided the timeliness issue in refusing to enforce the subpoena. The EEOC argues on appeal that an enforcement proceeding is not the appropriate stage for a determination of the timeliness of a Title VII charge. 1 We expressly decline to rule on the appropriate scope of the subpoena enforcement proceeding because the EEOC did not raise this argument in the district court. An appellate court generally will not consider an issue that a party has failed to raise below. See Neu v. Grant, 548 F.2d 281, 287 (10th Cir.1977). We find no exceptional circumstances justifying departure from this rule in this case. We therefore turn to the question of whether Leerssen's Title VII charge was timely filed within the limits specified in Sec. 706, 42 U.S.C. Sec. 2000e-5.


The statutory scheme adopted by Congress in Sec. 706 of Title VII, 42 U.S.C. Sec. 2000e-5, displays an intent to apply different time limitations depending upon whether or not a state has an approved state civil rights enforcement agency. The statute mandates a process of preliminary deferral to the state agency in those states where such agencies exist. States are referred to as deferral or nondeferral states on the basis of whether or not a state has a civil rights enforcement agency. In nondeferral states a charge must be filed within 180 days after the alleged unlawful employment practice occurred. 42 U.S.C. Sec. 2000e-5(e). An exception to this 180-day limit applies in deferral states. Section 706(e) reads:

[I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier....

42 U.S.C. Sec. 2000e-5(e). Section 706(e) must be read together with part of Sec. 706(c):

In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice ... no charge may be filed ... before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated....

42 U.S.C. Sec. 2000e-5(c).

The combination of these two subsections establishes a statutory scheme pursuant to which a claimant in a deferral state has 300 days to file a charge with the EEOC, but no such charge can be filed with the EEOC until the state agency has had up to sixty days to act on the charge. This scheme now governs in the forty-five states and nearly sixty local and territorial jurisdictions that have civil rights agencies approved under Sec. 706. 2 29 C.F.R. Sec. 1601.74 (1985). Thus, the exception has become the rule.

The federal courts have continued to struggle with the time limitations for filing a Title VII charge in deferral states. The frequency with which the courts confront this issue implies that complainants in deferral states who have failed to file a charge within 180 days after the alleged unlawful employment practice occurred are confused with respect to the applicable time limitations. The confusion experienced by many complainants defeats two important congressional goals: (1) the ease of filing civil rights charges by lay complainants and (2) the timely resolution of civil rights charges. See Love v. Pullman, Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). The subversion of these goals invites legislative action. See Comment, The Procedural Filing Requirements of Title VII in Deferral States: The Need for Legislative Action, 43 Ohio St.L.J. 675 (1982). Lacking that, however, we turn to an analysis of this case based on the text of the statute, the legislative history, and the relevant judicial interpretation.

A. The Requirements for an Initial Filing with the State Agency

The first issue that we address is whether Leerssen must have filed first with the CCRD rather than with the EEOC in order to have taken advantage of the 300-day exception to the 180-day time limitation. We have interpreted the Supreme Court decision in Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), to mean that when a complainant files a charge with the EEOC, the deferral of that charge by the EEOC is an initial filing in the state agency sufficient to invoke the 300-day time limitation. Smith v. Oral Roberts Evangelistic Ass'n. Inc., 731 F.2d 684 (10th Cir.1984). But see Dixon v. Westinghouse Electric Corp., 787 F.2d 943 (4th Cir.1986). As the Supreme Court said in Love: "Nothing in the Act [Title VII of the Civil Rights Act of 1964] suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself...." 404 U.S. at 525, 92 S.Ct. at 618 (footnote omitted). In this case the EEOC initiated the charge with the CCRD on behalf of Leerssen in the charge transmittal form that the EEOC sent to the state agency on March 30, 1984--the 292nd day. 3 Accordingly, Leerssen's charge was "initially instituted" with the CCRD pursuant to the requirements of Sec. 706(e) and the 300-day limitation applies.

B. The Meaning of "Filed" in Sec. 706(e)

Leerssen's charge is timely under Sec. 706(e) only if it was "filed" with the EEOC within 300 days after the alleged unlawful employment practice occurred. An EEOC Procedural Regulation, 29 C.F.R. Sec. 1601.13(a)(3), provides that a charge arising in a jurisdiction having a 706 agency that is apparently untimely under the applicable state or local statute of limitations is "filed" with the EEOC upon receipt by the EEOC. According to this view, a charge could be "filed" with the EEOC even though the state agency had exclusive jurisdiction to act on the charge. This regulation, however, ignores the clear requirement of the statute that either sixty days must elapse after initial institution of proceedings in the state or the state agency must have both commenced and terminated proceedings before the...

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