Pearce v. Barry Sable Diamonds

• Decision Date: 09 January 1996
• Docket Number: No. 94-6856.,94-6856.
• Citation: 912 F. Supp. 149
• Parties: Kimberly C. PEARCE, et al. v. BARRY SABLE DIAMONDS, a trade name for U.S. Metal & Coin & Jewelry Co., Inc., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

912 F. Supp. 149

Kimberly C. PEARCE, et al. v. BARRY SABLE DIAMONDS, a trade name for U.S. Metal & Coin & Jewelry Co., Inc., et al.

No. 94-6856.

United States District Court, E.D. Pennsylvania.

January 5, 1996.

As Amended January 9, 1996.

Benjamin Folkman, Van Syoc Law Offices, Philadelphia, PA for plaintiffs.

Anthony B. Haller, Pepper, Hamilton & Scheetz, Philadelphia, PA for defendant.

MEMORANDUM

DALZELL, District Judge.

I. Introduction

Plaintiffs Kimberly Pearce, Susan Nitz, and Janice Phillips have charged Barry Sable Diamonds and its proprietor, Barry Sable (collectively "Sable"), with sex discrimination. Sable believes that plaintiffs deprived this Court of subject-matter jurisdiction when they sought right-to-sue letters a day after they first filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"). His summary judgment motion¹ calls into question the validity of a regulation that the EEOC issued in September of 1977. This regulation, 29 C.F.R. § 1601.28(a)(2), authorizes the "early" right-to-sue letter, i.e., a right-to-sue letter issued before the 180 days of 42 U.S.C. § 2000e-5(f)(1) expires. See Note, The Early Right-to-Sue Letter: Has the EEOC Exceeded its Authority?, 72 Wash. U.L.Q. 757 (1994).

Questions of the validity of the early right-to-sue letter have confounded district courts since enactment of the regulation in 1977.² Two courts of appeals have found no infirmity in section 1601.28(a)(2). Bryant v. California Brewers Assoc., 585 F.2d 421, 424 (9th Cir.1978), judgment vacated on other grounds, 444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980); Sims v. Trus Joist MacMillan, 22 F.3d 1059 (11th Cir.1994). The United States Court of Appeals for the Third Circuit has frowned on the regulation, albeit in dicta. Moteles v. University of Pennsylvania, 730 F.2d 913, 916-17 (3d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 179, 83 L.Ed.2d 114 (1984).

If we were writing on a blank slate, we would find that the EEOC exceeded its authority when it issued section 1601.28(a)(2) and that the EEOC has no power to authorize a plaintiff to file an employment discrimination claim before the 180 days of 42 U.S.C. § 2000e-5(f)(1) expires. We would therefore grant Sable's motion, place this case in our civil suspense docket, and remand plaintiffs' claims to the EEOC for investigation and attempted conciliation. That course would not lead to an appealable order, however, and would only increase the cacophony in the district courts. Moreover, practical considerations make conciliation an unlikely option for now.³ Instead, we shall certify three questions for appellate review, so that the Third Circuit may have an opportunity to address in a holding what it addressed eleven years ago in dicta.

II. Factual Background

We take the following facts from the documents that both sides have presented to us. We also will take as true the factual proffers that plaintiffs and their counsel have made in affidavits.⁴

On May 5, 1994, Kimberly Pearce and Susan Nitz walked into the EEOC's Philadelphia District Office and completed charges of discrimination against Sable, their former employer. Defs.' mot. exs. A-B (EEOC case logs); see also pls.' resp. exs. A-B, D-E (EEOC Intake Questionnaires and Charges of Discrimination). Another former employee, Janice Phillips, had begun corresponding with the EEOC in late March, 1994, and this correspondence led to a charge of discrimination on or about May 3, 1994. Defs' mot. ex C (EEOC case log); see also pls.' resp. exs. G-J (correspondence and Charge of Discrimination).

On May 6, 1994, plaintiffs' counsel called Joseph Danese, the EEOC investigator assigned to the Pearce and Nitz cases, and requested right-to-sue letters for Pearce, Nitz, and Phillips. Defs' mot. ex. D. On May 10, 1994, counsel sent a letter that memorialized his request. Id. ex. E (5/9/94 memorandum to file from Joseph Danese). Danese then spoke with Brenda Smith, the EEOC investigator assigned to the Phillips case, and asked her to reassign that case to him.⁵ Id. At the time of the request, Danese told Pearce that he had "thirty or forty" cases in front of hers. Pearce aff. ¶ 2.

On May 27, 1994 the EEOC issued right-to-sue letters in all three cases. Defs.' mot. exs. A-C. Johnny J. Butler, the EEOC District Director, certified in all three cases that although "fewer than 180 days have expired since the filing of this charge, ... I have determined that the Commission will be unable to complete its process within 180 days from the filing of the charge." Id. With that, the EEOC officially terminated its investigation of plaintiffs' charges. Id.

III. Statutory and Regulatory Framework, and Legal Analysis

A. Statutory and Regulatory Framework

The EEOC exists to attempt to prevent employment discrimination. 42 U.S.C. § 2000e-5(a); see also Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 357-59, 97 S.Ct. 2447, 2450-51, 53 L.Ed.2d 402 (1977); Moteles v. University of Pennsylvania, 730 F.2d 913, 917 (3d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 179, 83 L.Ed.2d 114 (1984). Congress established the EEOC on twin premises, to wit, that "administrative tribunals are better equipped to handle the complicated issues involved in employment discrimination cases" and that "the sorting out of the complexities surrounding employment discrimination can give rise to enormous expenditure of judicial resources in already heavily overburdened Federal district courts." Moteles, 730 F.2d at 917 (citing Title VII legislative history). The result of these goals is 42 U.S.C. § 2000e-5(b), which directs the EEOC to investigate charges of employment discrimination and "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion."

Administrative involvement can occasion administrative delay, however, and Congress settled on 180 days as the via media between the need for the former and the fear of the latter. 42 U.S.C. § 2000e-5(f)(1) establishes, in relevant part:

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 Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission ... 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 ... by the person claiming to be aggrieved....

Thus, if after 180 days the EEOC has not either resolved the charge of discrimination or filed a civil action of its own, then the employee need not await further administrative action.

In early interpretations of § 2000e-5(f)(1), some courts, including the Supreme Court, had suggested that the 180-day period was mandatory, and that an employee could not file suit before its expiration. See, e.g., Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 361, 97 S.Ct. 2447, 2452, 53 L.Ed.2d 402 (1977) ("The 180-day limitation provides ... that a private right of action under 42 U.S.C. § 2000e-5(f)(1) does not arise until 180 days after a charge has been filed.... A complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but ... he must wait 180 days before doing so."); id. at 366 ("An aggrieved person unwilling to await the conclusion of extended EEOC proceedings may institute a private lawsuit 180 days after a charge has been filed.").⁶

Two later events—one judicial, the other regulatory—undercut the strict 180-day rule. First, in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982), the Supreme Court held that the 180-day period is not jurisdictional, but, rather, is subject to the equitable considerations of estoppel, waiver, and laches. Significantly, Zipes made no mention of the language from Occidental Life that we have quoted above, thus confirming that language's status as dicta, not holding. Cases from this Circuit confirm that failure to adhere to § 2000e-5(f)(1) will not necessarily bar a plaintiff's suit.⁷

Second, in 1977 the EEOC published a regulation that allows it to issue right-to-sue letters before the expiration of 180 days. In its most recent iteration, this regulation instructs:

When a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued, ... the Commission may issue such notice as described in § 1601.28(e) with copies to all parties, at any time prior to the expiration of 180 days from the date of filing the charge with the Commission; provided, that the District Director or certain other EEOC officials has determined that it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge and has attached a written certificate to that effect.

29 C.F.R. § 1601.28 (1995) (emphasis added).⁸ The underlined text gives complete (and presumably unreviewable) discretion to EEOC District Directors⁹ to grant early right-to-sue letters, as long as the District Director believes that it is "probable" that the agency will not complete its administrative process within 180 days.

B. Legal Analysis

When it enacted Title VII, Congress granted the EEOC the power "to issue, amend, or rescind suitable procedural regulations to carry out the provisions of this subchapter." 42 U.S.C. § 2000e-12(a). Section 1601.28(a)(2) is such a regulation. These regulations are valid as long as they are reasonably related to the purposes of Title VII. EEOC v. Commercial Office Products Co., 486 U.S. 107, 115-16, 108 S.Ct. 1666, 1671, 100 L.Ed.2d 96 (1988).

Courts that have upheld the reasonableness of section 1601.28(a)(2) have invariably focused on the EEOC's justification for issuing it, i.e., "the legal principle that a party is not required to perform a useless act, i.e., wait...