No. 05-98-01958-CV _________________________________ IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS _________________________________ GEORGIA ALLISON, Plaintiff-Appellee, v. TAYLOR PUBLISHING CO., Defendant-Appellant. __________________________________________________ On Appeal from the District Court of Dallas County, Texas 160th Judicial District __________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE __________________________________________________ C. GREGORY STEWART GAIL S. COLEMAN General Counsel Attorney (pro hac vice) PHILIP B. SKLOVER U.S. EQUAL EMPLOYMENT Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7034 Assistant General Counsel Washington, D.C. 20507 phone: (202) 663-4055 fax: (202) 663-7090 IDENTITY OF AMICUS CURIAE AND COUNSEL Amicus Curiae U.S. Equal Employment Opportunity Commission Attorneys for Amicus Curiae C. Gregory Stewart, General Counsel Philip B. Sklover, Associate General Counsel Carolyn L. Wheeler, Assistant General Counsel Gail S. Coleman, Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 TABLE OF CONTENTS INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . .3 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . .3 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .4 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 The district court properly held that Allison's TCHRA charges were timely filed.. . . . . . . . . . . . . . . . . . . . .5 A. Standard of Review . . . . . . . . . . . . . . . . . .5 B. Under the controlling worksharing agreements between the EEOC and the TCHR, the charges that Allison filed with the EEOC were automatically filed with the TCHR. . . .6 C. Even if Allison's charges were not automatically filed with the TCHR, equity demands that she not be penalized where she reasonably relied on the EEOC to satisfy the TCHRA's filing requirements on her behalf. . . . . . . . . . 10 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ADDENDUM A. Wallace Affidavit. . . . . . . . . . . . . . . . . .A-1 B. Worksharing Agreements for FY 1994, FY 1995. . . . .A-3 C. Allison's Charges of Discrimination. . . . . . . . A-17 CERTIFICATE OF SERVICE INDEX OF AUTHORITIES CASES Atwood v. Kleberg, 163 F.2d 108 (5th Cir. 1947) . . . . . . . . . . . . . . . . . 11 Blumberg v. HCA Management Co., 848 F.2d 642 (5th Cir. 1988) . . . . . . . . . . . . . . . . . .9 EEOC v. Green, 76 F.3d 19 (1st Cir. 1996) . . . . . . . . . . . . . . . . . . .9 Griffin v. City of Dallas, 26 F.3d 610 (5th Cir. 1994) . . . . . . . . . . . . . . . . .2,6 Love v. Pullman Co., 404 U.S. 522 (1972) . . . . . . . . . . . . . . . . . . . . . 11 McKee v. McDonnell Douglas Technical Servs. Co., 700 F.2d 260 (5th Cir. 1983) . . . . . . . . . . . . . . . . . 11 Price v. Philadelphia Am. Life Ins. Co., 934 S.W.2d 771 (Tex. App. - Houston 1996, writ requested) . . .6 Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483 (Tex. 1991) . . . . . . . . . . . . . . . . . . .7 Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490 (Tex. 1996) . . . . . . . . . . . . . . . . . . .7 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) . . . . . . . . . . . . . . . . . . .5 White v. Dallas Indep. Sch. Dist., 581 F.2d 556 (5th Cir. 1978) . . . . . . . . . . . . . . . . . 11 Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir.), cert. denied, 118 S. Ct. 299 (1997) .7,8 Worthington v. Union Pac. R.R., 948 F.2d 477 (8th Cir. 1991) . . . . . . . . . . . . . . . . . .9 STATUTES Texas Commission on Human Rights Act, Tex. Lab. Code Ann.  21.001(1) . . . . . . . . . . . . . . . . . . . . . . .7,9  21.201. . . . . . . . . . . . . . . . . . . . . . . . . .3  21.202. . . . . . . . . . . . . . . . . . . . . . . . . .3  21.252(d) . . . . . . . . . . . . . . . . . . . . . . . 10 Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e-5(c) . . . . . . . . . . . . . . . . . . . . 10 REGULATION 29 C.F.R.  1601.13(a)(3) . . . . . . . . . . . . . . . . . . 10 OTHER Brooks William Conover, III, Jurisdictional and Procedural Issues Under the Texas Commission on Human Rights Act, 47 BAYLOR L. REV. 683 (Summer 1995) . . . . . . . . . . . 7,8,10 No. 05-98-01958-CV _________________________________ IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS _________________________________ GEORGIA ALLISON, Plaintiff-Appellee, v. TAYLOR PUBLISHING CO., Defendant-Appellant. __________________________________________________ On Appeal from the District Court of Dallas County, Texas 160th Judicial District __________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE __________________________________________________ STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing federal anti-discrimination laws. Its state counterpart in Texas is the Texas Commission on Human Rights ("TCHR"), which enforces state anti-discrimination law. In light of their common jurisdiction and goals, the EEOC and the TCHR have entered into a worksharing agreement in which each designates the other as its agent for the purpose of receiving and drafting charges. See Addendum at A-4, A-11. At issue in this case is the proper construction of the EEOC-TCHR worksharing agreement. The U.S. Court of Appeals for the Fifth Circuit has already held that a charge which is initially filed with the EEOC is automatically dual filed with the TCHR. See Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir. 1994). This Court, however, has not had occasion to interpret the automatic dual filing provision. Because proper construction of the worksharing agreement is crucial to effective enforcement of the federal anti-discrimination laws, the EEOC offers its views to the Court. STATEMENT OF THE CASE This is an appeal from a final judgment of the district court finding Taylor Publishing Co. ("Taylor") liable under the Texas Commission on Human Rights Act ("TCHRA") for discrimination against Georgia Allison. Allison filed this action on July 13, 1995, alleging sex discrimination, sexual harassment, and retaliation in violation of the TCHRA. (CR 13-16.) Her claims were tried to a jury, which found for Allison and awarded substantial damages. On August 31, 1998, the district court reduced the amount of damages to comply with the statutory cap and entered judgment for Allison. (CR 692-94.) ISSUE PRESENTED Does the worksharing agreement between the EEOC and the TCHR cause a charge that is initially filed with one agency to be concurrently dual filed with the other agency? STATEMENT OF FACTS A plaintiff may not sue under the TCHRA without first filing a charge of discrimination with the TCHR. See Tex. Lab. Code Ann.  21.201. In order to be timely, a TCHR charge must be filed within 180 days of the alleged discrimination. See id.  21.202. Allison filed three charges between November 1993 and January 1995, all within 180 days of the alleged discrimination. She did not file any of the charges directly with the TCHR; instead, she filed all three with the EEOC. See Addendum at A-17 to -19. Allison named both the EEOC and the TCHR as recipients of the charges, but she neglected to check the box stating that she wanted the charges cross filed with both agencies. She was given EEOC charge numbers but not TCHR charge numbers. See id. There is no evidence in the record whether the EEOC physically transmitted a copy of the charges to the TCHR. Pursuant to a worksharing agreement between the EEOC and the TCHR, each agency "designate[s] the other as its agent for the purpose of receiving and drafting charges." Id. at A-4, A-11. Jim Wallace, enforcement manager in the EEOC's Dallas District Office, stated under oath that both agencies deem a charge filed with either agency to be concurrently dual filed with the other. See id. at A-1. He also stated that "in accordance with the [worksharing] agreements . . . and in keeping with the customs and practices of both the EEOC and TCHR, the claims made by Georgia D. Allison are deemed to be dually filed with both agencies." Id. Taylor argues that Allison's EEOC charges did not satisfy her charge-filing requirement under the TCHRA. It emphasizes her failure to check the box requesting cross filing, and it points to the lack of evidence that the EEOC actually mailed her charges to the TCHR. See Taylor's Appellant Br. at 9-12. SUMMARY OF ARGUMENT Allison's charges were timely filed with the TCHR because the EEOC received them on behalf of the state agency. Under the controlling worksharing agreements, the TCHR designated the EEOC as its limited agent for the purpose of receiving charges. The Fifth Circuit has already held that this language in the worksharing agreements means that a charge which is filed with the EEOC is automatically, simultaneously filed with the TCHR. In keeping with the TCHRA's purpose of correlating state and federal laws against discrimination, this Court should interpret the worksharing agreement in the same way that the Fifth Circuit did. Even if Allison's charges were not automatically dual filed, the EEOC had a legal obligation to send copies to the TCHR. The Supreme Court has held that mailing by the EEOC satisfies state filing requirements. In the absence of evidence to the contrary, this Court must presume that the EEOC fulfilled its duty of mailing Allison's charges to the TCHR. Even if the EEOC failed to mail the charges, Allison was entitled to assume that it would do so and she should not be penalized for relying on a federal agency to comply with its legal obligations. ARGUMENT The district court properly held that Allison's TCHRA charges were timely filed. A. Standard of Review Whether Allison's TCHRA charges were timely filed is a question of law. Questions of law are reviewed de novo. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). B. Under the controlling worksharing agreements between the EEOC and the TCHR, the charges that Allison filed with the EEOC were automatically filed with the TCHR. The EEOC-TCHR worksharing agreement "is designed to provide individuals with an efficient procedure for obtaining redress for their grievances under appropriate State of Texas or Federal laws." Addendum at A-3 to -4, A-10. In keeping with this purpose, the EEOC and the TCHR "each designate the other as its agent for the purpose of receiving and drafting charges." Id. at A-4, A-11. The Fifth Circuit has already interpreted this language to mean that a charge which is initially filed with the EEOC is automatically dual filed with the TCHR, whether or not that charge is physically transmitted to the state agency. See Griffin, 26 F.3d at 612-13. Notably, Taylor does not cite this precedent. See Taylor's Appellant Br. at 9-12. In practice, both the EEOC and the TCHR have long treated a charge filed with one agency as automatically dual filed with the other. See Wallace Aff., Addendum at A-1 ("in keeping with the customs and practices of both the EEOC and the TCHR, the claims made by Georgia D. Allison are deemed to be dually filed with both agencies"); Brooks William Conover, III (General Counsel of TCHR), Jurisdictional and Procedural Issues Under the Texas Commission on Human Rights Act, 47 BAYLOR L. REV. 683, 688 (Summer 1995) [hereinafter "Conover, Jurisdictional and Procedural Issues"] ("Complaints are dual-filed as a matter of law at the time they are received by either agency. Thus, a complainant need not file a separate charge with the EEOC after having filed a charge with the [TCHR], and vice versa."). The Fifth Circuit's holding in Griffin comports with the agencies' understanding. If this Court rejects the Fifth Circuit's interpretation and holds that the EEOC- TCHR worksharing agreement does not authorize automatic dual filing, it will undermine the agencies' stated goal of making the charge-filing process more efficient. See Addendum at A-3 to -4, A-10. Rejecting the Fifth Circuit's holding would also violate a fundamental purpose of the TCHRA: the "correlation of state law with federal law in the area of discrimination in employment." Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991); see also Tex. Lab. Code Ann.  21.001(1); Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996). Recognizing, perhaps, that its argument against automatic dual filing is unpersuasive, Taylor makes much of Allison's failure to check the box stating that she wanted her charges to be cross filed with the TCHR. Even if some charges can be automatically dual filed, Taylor says, Allison's cannot. See Taylor's Appellant Br. at 10-11. This Court should reject Taylor's hyper-technical rule. See Conover, Jurisdictional and Procedural Issues, 77 BAYLOR L. REV. at 687 ("The broad remedial purposes of the TCHRA necessitate a reading of the statute which does not elevate form over substance."). While it is true that Allison failed to check the appropriate box on her charges, she did address all three charges to the TCHR as well as to the EEOC. In light of the EEOC's status as the TCHR's agent for the purpose of receiving charges, the EEOC would have done nothing differently even if Allison had checked the appropriate box. Where the federal and state agencies have agreed to automatic dual filing, and where the charging party identifies both agencies as the recipients of her charge, no purpose would be served by conditioning her substantive rights on her ability to fill out a form perfectly. In this case, "good enough" should be just that. See Worthington v. Union Pac. R.R., 948 F.2d 477, 480 (8th Cir. 1991) (charge was automatically dual filed even though charging party did not check box requesting dual filing); cf. EEOC v. Green, 76 F.3d 19, 23 (1st Cir. 1996) (EEOC produced evidence that it sent copy of charge to state agency even though charging party did not check box requesting dual filing). But see Blumberg v. HCA Management Co., 848 F.2d 642, 646 (5th Cir. 1988) (naming TCHR as charge recipient is not enough to show that charging party asked EEOC to transmit charge; court does not mention worksharing agreement or discuss possibility of automatic dual filing). Taylor makes two final arguments -- both flawed -- against the application of automatic dual filing in this case. First, it says, it never received notice that Allison was bringing any TCHRA charges against it. See Taylor's Appellant Br. at 9. However, because the TCHRA is coextensive with Title VII, see Tex. Lab. Code Ann.  21.001(1), notice of Allison's Title VII charges necessarily incorporated notice of her TCHRA charges. Second, Taylor says, the TCHR never investigated any of Allison's charges and did not issue a notice of right to sue until after she had already initiated her lawsuit. See Taylor's Appellant Br. at 9-10. This argument ignores the TCHR's voluntary decision to let the EEOC initially process dual-filed charges that are first brought to the federal agency. See Addendum at A-5, A-12. The TCHRA does not require the TCHR to investigate a dual-filed charge after the EEOC has already reviewed it. See Conover, Jurisdictional and Procedural Issues, 47 BAYLOR L. REV. at 698 ("[A] complaint originally filed with the EEOC will generally be investigated by the EEOC. Such an arrangement avoids duplicative state and federal investigations."). Moreover, the TCHR's failure to issue a notice of right to sue does not bar a charging party from filing an action under the TCHRA. See Tex. Lab. Code Ann.  21.252(d). C. Even if Allison's charges were not automatically filed with the TCHR, equity demands that she not be penalized where she reasonably relied on the EEOC to satisfy the TCHR's filing requirements on her behalf. By filing Title VII charges with the EEOC, Allison legally obligated the EEOC to transmit a copy of her charges to the TCHR. Title VII grants the TCHR the exclusive right to process allegations of discrimination occurring within Texas for a period of sixty days. See 42 U.S.C.  2000e-5(c). In order to comply with this statutory mandate, the EEOC has undertaken through regulations the duty to transmit a copy of all Texas Title VII charges to the TCHR. See 29 C.F.R.  1601.13(a)(3). The EEOC is required to send copies of charges to the TCHR even when, as here, the TCHR has waived its right to the period of exclusive processing. See id.  1601.13(a)(3)(iii); see also Addendum at A-5, A-12 (TCHR waives right to initial processing of Title VII charges that are first filed with the EEOC). Because the Supreme Court has held that the EEOC may initiate state proceedings on behalf of the complainant, see Love v. Pullman Co., 404 U.S. 522, 525 (1972), a charging party who files with the EEOC need not take any further action to ensure that her charges will be dual filed with the TCHR. No evidence exists that the EEOC failed to transmit Allison's charges. In the absence of such evidence, this Court must presume that the EEOC fulfilled its legal obligation. See Atwood v. Kleberg, 163 F.2d 108, 113 (5th Cir. 1947) ("it will be presumed that persons charged with the performance of a duty have discharged it fairly and in accordance with their commission until evidence is introduced which overthrows this presumption"). Even if the EEOC erred, however, its alleged mistake should not prejudice Allison, who filed her charges with enough time for the EEOC to accomplish a timely state filing. See McKee v. McDonnell Douglas Technical Servs. Co., 700 F.2d 260, 264 (5th Cir. 1983) ("'The complainant is not to be prejudiced by the EEOC's failure to fulfill its duty.'") (quoting Williams v. Owens- Illinois, Inc., 665 F.2d 918, 923 n.2 (9th Cir. 1982)); White v. Dallas Indep. Sch. Dist., 581 F.2d 556, 562-63 (5th Cir. 1978) (en banc) ("Confronted with a charging party who has not engaged in dilatory tactics and who has been substantially misled by the EEOC's mistake of law, we are unwilling to bar her action in district court."). PRAYER Pursuant to the controlling worksharing agreements, Allison's EEOC charges were automatically dual filed with the TCHR when the EEOC received them as the TCHR's limited agent. Even if the charges were not automatically dual filed, Allison was entitled to rely on the EEOC's carrying out its legal obligation to transmit the charges to the TCHR. For the reasons stated above, this Court should affirm the district court's holding that Allison's TCHRA charges were timely filed. Respectfully submitted, ______________________________ C. GREGORY STEWART GAIL S. COLEMAN General Counsel Attorney (pro hac vice) PHILIP B. SKLOVER U.S. EQUAL EMPLOYMENT Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7034 Assistant General Counsel Washington, D.C. 20507 phone: (202) 663-4055 fax: (202) 663-7090 May 13, 1999 ADDENDUM CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I served one copy of the foregoing brief this 13th day of May, 1999, by first-class mail, postage pre-paid, to the following counsel of record: Counsel for Georgia Allison, Plaintiff-Appellee: R. Rogge Dunn Jennifer L. Gabel Gregory M. Clift MATTHEWS, CARLTON, STEIN, SHIELS, PIERCE, DUNN & KNOTT, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, TX 75251 Counsel for Taylor Publishing Co., Defendant-Appellant: John F. McCarthy, Jr. M. Scott McDonald LITTLER MENDELSON, A Professional Corporation 2001 Ross Avenue, Suite 2600, L.B. 116 Dallas, TX 75201 _____________________________ GAIL S. COLEMAN Attorney (pro hac vice) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 phone: (202) 66304955 fax: (202) 663-7090 __________________________ 1 Pursuant to Rule 11 of the Texas Rules of Appellate Procedure, the EEOC states that this brief has been prepared by a salaried employee and that no additional fee has been or will be paid for its preparation. 2 The EEOC takes no position on any other issue in this case. 3 One Texas court has misread Griffin to require physical transmittal of a charge. See Price v. Philadelphia Am. Life Ins. Co., 934 S.W.2d 771, 773 (Tex. App. - Houston 1996, writ requested). However, there was evidence in Price that the EEOC had sent the charge to the TCHR, and therefore the question of automatic dual filing never arose. This Court should not defer to Price's misunderstanding of Griffin, but should, instead, let Griffin speak for itself. 4 One Texas court has misread Griffin to require physical transmittal of a charge. See Price v. Philadelphia Am. Life Ins. Co., 934 S.W.2d 771, 773 (Tex. App. - Houston 1996, writ requested). However, there was evidence in Price that the EEOC had sent the charge to the TCHR, and therefore the question of automatic dual filing never arose. This Court should not defer to Price's misunderstanding of Griffin, but should, instead, let Griffin speak for itself.