Hiller v. Oklahoma ex rel. Used Motor Vehicle, No. 01-6402.

• Decision Date: 06 May 2003
• Docket Number: No. 01-6402.
• Citation: 327 F.3d 1247
• Parties: Willa D. HILLER, Plaintiff-Appellant, v. State of OKLAHOMA, ex rel., USED MOTOR VEHICLE AND PARTS COMMISSION, Defendant-Appellee. United States Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

327 F.3d 1247

Willa D. HILLER, Plaintiff-Appellant, v. State of OKLAHOMA, ex rel., USED MOTOR VEHICLE AND PARTS COMMISSION, Defendant-Appellee United States Equal Employment Opportunity Commission, Amicus Curiae.

No. 01-6402.

United States Court of Appeals, Tenth Circuit.

May 6, 2003.

Jeffrey A. Lee of Lee Freedman & Wells, P.C., Oklahoma City, OK, for Plaintiff-Appellant.

Anne Noel Occhialino, Attorney (Nicholas M. Inzeo, Acting Deputy General Counsel; Philip B. Sklover, Associate General Counsel; and Carolyn L. Wheeler, Assistant General Counsel, with her on the brief), United States Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae.

Scott D. Boughton, Assistant Attorney General, Office of the Attorney General, State of Oklahoma, Oklahoma City, OK, for Defendant-Appellee.

Before SEYMOUR and McCONNELL, Circuit Judges, and KRIEGER,^* District Judge.

SEYMOUR, Circuit Judge.

Willa Hiller currently finds herself in a catch-22 situation, caught between the requirements of Title VII and the federal regulations formalizing a work-sharing agreement between the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ). Ms. Hiller brought this action against the State of Oklahoma, contending her discharge by the Used Motor Vehicle & Parts Commission violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court granted the state's motion for summary judgment based on Ms. Hiller's failure to obtain a right-to-sue letter from the Attorney General of the United States. We reverse and remand.

I

In order to pursue her employment discrimination claim against the state, Ms. Hiller timely filed a charge of discrimination with the EEOC. The EEOC subsequently issued her a Dismissal and Notice of Rights letter which advised her it was dismissing her charge and that she had ninety days to file a lawsuit in federal district court.¹ There was no indication in this notice that a complainant must obtain a duplicate letter from the Attorney General, nor was there any indication that the ninety days would run from receipt of any other letter.

On December 29, 2000, Ms. Hiller timely filed this action against the State of Oklahoma under Title VII. On October 9, 2001, the State of Oklahoma filed a motion for summary judgment, contending Title VII requires Ms. Hiller to obtain a right-to-sue letter from the Attorney General before filing suit and that her failure to do so entitled the state to judgment as a matter of law. See 42 U.S.C. § 2000e-5(f)(1). In response, Ms. Hiller's counsel wrote to the EEOC requesting rescission of its letter in order that the Attorney General might issue the letter instead. On October 16, Ms. Hiller's counsel received a letter from the EEOC advising him that the EEOC's notice was properly issued pursuant to 29 C.F.R. § 1601.28(d), and declining to rescind its previous notice to Ms. Hiller. On October 17, Ms. Hiller's counsel wrote to the supervisor of the Right to Sue Unit of the DOJ, requesting issuance of a Notice of Right to Sue and enclosing the response he had received from the EEOC. Not surprisingly, due to events occurring at that time in Washington, D.C. in the aftermath of the airplane attack on the Pentagon, Ms. Hiller's counsel had not received a response to this letter by November 2, when the district court issued its order granting defendant's motion for summary judgment. We note, however, that counsel's letter to the DOJ was in the record before that order was issued.

The district court determined that under Thames v. Okla. Hist. Soc., 646 F.Supp. 13, 16 (W.D.Okla.1985), aff'd per curiam, 809 F.2d 699, 700 (10th Cir.1987), the receipt of notice of the right to sue from the Attorney General rather than the EEOC, while not a jurisdictional matter, was "expressly required by the statute." Id. The court declined to apply equitable principles to excuse Ms. Hiller's failure to comply with the statute and granted the state's motion for summary judgment.² Ms. Hiller appeals.

II

The EEOC is required to investigate charges of discrimination filed against governmental entities. 42 U.S.C. § 2000e-5(b); see also id. § 2000e(a) ("person" includes governmental employers). The obscurely written statute at issue here provides the following regarding the EEOC's authority subsequent to its investigation:

If within thirty days after a charge is filed with the Commission ..., the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, government agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the commission pursuant to subsection (b) of this section 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 Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, 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 change alleges was aggrieved by the alleged unlawful employment practice.

42 U.S.C. § 2000e-5(f)(1) (emphasis added).

In 1980, with the backing of the DOJ, the EEOC interpreted the statute to authorize the EEOC in cases involving a governmental respondent to send the right-to-sue notice to the claimant whenever it determines there is no reasonable cause to believe the Act was violated. See 29 C.F.R. § 1601.28(d); 45 Fed.Reg. 48614, 48616. It did so with the object of eliminating unnecessary paperwork and duplication of effort between the DOJ and the EEOC, as well as promoting prompt resolution of complaints against governmental entities and clarifying when the filing period begins. See 45 Fed.Reg. at 48616. In the event the EEOC finds reasonable cause to believe a violation has occurred in such cases, it refers the matter to the Attorney General. Id.; 29 C.F.R. § 1601.28(d).

The courts have recognized two possible interpretations of the relevant portion of this statute. In Dougherty v. Barry, 869 F.2d 605, 611 (D.C.Cir.1989), the court referred to the statute as "dense" and held that "the statutory language and structure contemplate that the Commission will issue right to sue notices in cases involving a governmental unit when it does not find probable cause." See also Flint v. California, 594 F.Supp. 443, 445 (E.D.Cal.1984). Other courts have determined the statute is unambiguous in cases involving a governmental entity, expressly requiring the Attorney General, not the EEOC, to issue the notice in all cases involving a governmental respondent. See, e.g., Hendrix v. Memorial Hosp., 776 F.2d 1255, 1256-57 (5th Cir.1985); Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1524 (11th Cir.1983).

Although the EEOC as amicus curiae contends Dougherty and Flint are better reasoned than Fouche or Hendrix, we are bound by our interpretation of the statutory language in Thames, which is in accord with the latter two cases. We recognize that the interpretation in Thames is somewhat at odds with some statements made in a more recent case, Stewart v. Oklahoma, 292 F.3d 1257, 1259-60 (10th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 867, 154 L.Ed.2d 773 (2003). Stewart states that "[t]he text of Title VII takes no position on the source of a plaintiff's right-to-sue letter." Id. To the extent that Thames and Stewart are in conflict, however, we are obligated to follow the earlier panel decision over the later one. See, e.g., In re Smith, 10 F.3d 723, 724 (10th Cir.1993) (per curiam). Accordingly, because Ms. Hiller does not have a letter from the Attorney General, she has not complied with the statute.

III

Ms. Hiller alternatively argues that equitable considerations support permitting her to go forward with her lawsuit despite her inability to obtain a letter from the Attorney General. Notwithstanding the unusual circumstances beyond Ms. Hiller's control, the district court denied her request for equitable relief. While the court did point out Ms. Hiller's failure to show that the DOJ had actually refused to issue the letter (which she could not do at that point in time),³ the court also made clear it would decline to grant an equitable modification regardless of such a refusal:

Considerations of federalism dictate dismissal in any event. As noted by defendant, the requirement was added to Title VII when the statute was amended to permit suits against state governments. In making this change, Congress directed that investigations and suits against governmental agencies should be conducted by the Attorney General, not a federal agency. Even if the Attorney General neglects or refuses his duty, a federal court should not permit the statute to be ignored and a state government to...