Flint v. State of Cal.

• Decision Date: 17 September 1984
• Docket Number: Civ. No. S-83-1407 LKK.
• Citation: 594 F. Supp. 443
• Parties: William T. FLINT, Plaintiff, v. STATE OF CALIFORNIA, California State Department of Consumer Affairs Board of Accountancy, Della Bousquet, Marie Shibuya-Snell, Donald Chang, Thomas E. Ilno, individually and in their official capacities, Defendants.
• Court: U.S. District Court — Eastern District of California

594 F. Supp. 443

William T. FLINT, Plaintiff, v. STATE OF CALIFORNIA, California State Department of Consumer Affairs Board of Accountancy, Della Bousquet, Marie Shibuya-Snell, Donald Chang, Thomas E. Ilno, individually and in their official capacities, Defendants.

Civ. No. S-83-1407 LKK.

United States District Court, E.D. California.

September 17, 1984.

Steven M. Kahn, Deputy Atty. Gen., Sacramento, Cal., for defendants.

Nageley, Tennant & Parshall, Walter K. Hurst, Sacramento, Cal., for plaintiff.

OPINION AND ORDER

KARLTON, Chief Judge.

Plaintiff is a former employee of the State of California Board of Accountancy. He sues the Board and the State of California (hereinafter collectively referred to as "the State"), alleging employment discrimination in violation of Title VII (42 U.S.C. §§ 2000e et seq.), 42 U.S.C. §§ 1983, and 1985.¹ The State challenges this court's subject matter jurisdiction over the Title VII claims on the basis that plaintiff never received a "right to sue" letter from the United States Attorney General.² See 42 U.S.C. § 2000e-5(f)(1). Although it concedes that plaintiff received a "right to sue" letter from the Equal Employment Opportunity Commission (EEOC), the State argues that receipt of such a letter from the Attorney General is a statutory and jurisdictional prerequisite to suit, since the defendant is a state governmental entity. The plaintiff concedes that the State is a governmental entity within the meaning of Title VII but argues that receipt of the "right to sue" letter from the EEOC is sufficient. See 29 C.F.R. § 1601.28(d) (1983). The question presented is a question of statutory interpretation, and thus a pure question of law. See Dumdeang v. Commissioner, 739 F.2d 452 (9th Cir.1984).

I THE STATUTORY SCHEME

A plaintiff bringing a Title VII employment discrimination action against his or her employer is required first to timely file a claim of discrimination with the EEOC. 42 U.S.C. § 2000e-5(b), (e); Lynn v. Western Gillette, Inc., 564 F.2d 1282, 1285 (9th Cir.1977). The initial duty of the EEOC, once the charge is filed, is to determine whether "reasonable cause" exists to believe the charge against the employer is true. Id. § 2000e-5(b). If the EEOC finds no reasonable cause to believe that the charge is true, it is directed to dismiss the charge, and to notify the plaintiff of its action. Id. On the other hand, if it finds reasonable cause to believe the charge is true, the EEOC must attempt to eliminate the unlawful employment practice(s) "by informal methods of conference, conciliation, and persuasion." Id.

If the EEOC determines that there is "reasonable cause" to believe the charge is true, and the attempted conciliation is not successful, the role of the EEOC becomes dependent upon whether the respondent employer is a private employer, or a governmental entity. The EEOC is authorized to institute a civil action against any private (non-governmental) defendant in federal district court on plaintiff's behalf. Id. § 2000e-5(f)(1). If the EEOC nonetheless declines to institute suit on behalf of the plaintiff, it is required to notify the plaintiff of its action (or decision not to act) within one hundred eighty (180) days from the filing of the charge. Id.

When the employer is a state government, state agency, or political subdivision, considerations of "federalism" are implicated. As a general rule, a state's "sovereign immunity" — an ancient doctrine which is said to have survived the adoption of the Constitution — prevents any citizen from suing any state in federal court without that state's consent. Employees v. Missouri Public Health Department, 411 U.S. 279, 280, 93 S.Ct. 1614, 1615, 36 L.Ed.2d 251 (1973). Congress, however, may abrogate a state's sovereign immunity if it chooses to do so under the authority granted to it by Section 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). Under this authority Congress has, in Title VII, abrogated the bar of a state's sovereign immunity by providing for private actions against a state as an "employer." 42 U.S.C. § 2000e(a), (b); Fitzpatrick, 427 U.S. at 452, 96 S.Ct. at 2669 (intent of Congress to authorize suit against a state as employer is "clearly present").

Despite abrogation of a state's sovereign immunity, Congress has modified the procedural rules described above in at least one significant respect when the employer is a state, state agency, or political subdivision ("governmental entity"). In such cases the EEOC is expressly precluded from bringing suit against governmental entities under Title VII. 42 U.S.C. § 2000e-5(f)(1). Instead, if the EEOC has found reasonable cause to believe the charge is true, but has been unable to reach a conciliation agreement with the governmental entity, it must refer the case to the Attorney General of the United States. Id. Thereupon, the Attorney General may bring suit if he chooses to do so. Id. If the Attorney General declines to bring an action (notwithstanding the finding of "reasonable cause" to believe the charge is true), and has been unable to obtain a conciliation agreement, the statute directs him to so notify the aggrieved person so that he or she may bring suit. Id.

As defendants point out, this is a Title VII action against the State of California, and one of its departments,³ and thus is subject to the modified rules applicable to Title VII actions against governmental entities.

II FAILURE OF THE ATTORNEY GENERAL TO NOTIFY PLAINTIFF OF HIS RIGHT TO SUE

The State points out that plaintiff received no notification from the Attorney General. It reads 42 U.S.C. § 2000e-5(f)(1) as requiring the Attorney General, in every case involving a governmental defendant, to notify the plaintiff of whatever action the federal government takes.

I begin this discussion of statutory interpretation by recognizing that the language of 42 U.S.C. § 2000e-5(f)(1) is inherently ambiguous. In a situation (as here) where the EEOC has determined that there is no reasonable cause to believe that plaintiff's charges of discrimination are true, the relevant language of the statute requires that "the Commission, or the Attorney General in a case involving a government ... shall so notify the person aggrieved⁴ ...." 42 U.S.C. § 2000e-5(f)(1). The ambiguity in the statute arises from the uncertain nature of the "or" which connects "the Commission" with "the Attorney General." If the "or" is inclusive, then the section is properly read to authorize either the Commission or the Attorney General to notify the person aggrieved when the case involves a governmental entity. On the other hand, if the "or" is exclusive, then the section is properly read to authorize the Commission to notify the person aggrieved unless the case involves a governmental agency. If the case involves a governmental entity, under this reading, the statute only authorizes the Attorney General to notify the person aggrieved.

Thus far, the published opinions which have addressed or noted this section of the statute have concluded that only the Attorney General is authorized to notify the person aggrieved when the case involves a governmental entity. See Fouche v. Jeckyll Island-State Park Authority, 713 F.2d 1518, 1524 (11th Cir.1983); Woods v. Department of Mental Health, 581 F.Supp. 437, 441-43 (W.D.Mo.1984); Lugo v. Charlotte, 577 F.Supp. 988, 989-90 (W.D.N.C.1984); English v. Department of Family and Children Services, 546 F.Supp. 689, 691 (S.D.Ga.1982).

If this interpretation is correct, it necessarily follows that when the EEOC determines that no reasonable cause exists to believe the charges against the governmental entity are true, then both the EEOC and the Attorney General are required to give notice to the plaintiff that his or her case is being dismissed by the EEOC. Under 42 U.S.C. § 2000e-5(b), the EEOC is required to notify the plaintiff of its action, and under § 2000e-5(f)(1) (under this interpretation) the Attorney General is required to give the very same notification. While the uniformity of published opinion is initially impressive, an examination of the reasoning in support of the result, resting as it does on a now abandoned administrative practice, significantly diminishes its impact.

It appears that the published cases are primarily a remnant of the EEOC's former procedure for handling complaints. Prior to 1980, the EEOC regulations provided that in suits against a governmental entity, only the Attorney General was authorized to notify the plaintiff of his or her right to sue. See Schlei & Grossman, Employment Discrimination Law 1178 n. 10 (2d Ed.1983). This "right to sue" letter was a notice separate and apart from the notification received by the plaintiff from the EEOC which simply notified the plaintiff that the EEOC had found no reasonable cause to believe the charges were true. See Lynn v. Western Gillette, Inc., 564 F.2d at 1285-86. Thus, under the earlier EEOC procedure, the plaintiff first received notification that the EEOC had dismissed the complaint, and thereupon (upon request of the plaintiff), the EEOC or the Attorney General would send the "right to sue" notice, which notified plaintiff that he or she had ninety days within which to bring a civil action. This "two letter" problem apparently inspired the EEOC to modify its procedures, and permit the notification to be sent by the EEOC, rather than the Attorney General, when it had found no reasonable cause to believe the charges against the governmental entity were true. See Schlei & Grossman at 1178 n. 10.

This earlier procedure apparently has had a profound effect on courts subsequently called upon to interpret the statute. Quite unanimously, the courts have interpreted the statute to require the procedure previously adopted, but since abandoned by the EEOC in favor of a more efficient one. See 29 C.F.R. § 1601.28(d) (1983) (EEOC may issue...