United States District Court, Northern District of Illinois, Eastern Division
December 1, 1999
ELISE NICOLE BERRY, PLAINTIFF,
DELTA AIR LINES, INC. AND ARGENBRIGHT SECURITY, INC., DEFENDANTS.
The opinion of the court was delivered by: Zagel, District Judge.
MEMORANDUM OPINION AND ORDER
Thanks to a regulation promulgated by the EEOC, Elise Berry did
not have to wait six months to sue her employer for
discrimination. Defendant Argenbright Security believes this
regulation violates Title VII's statutory scheme of
administrative enforcement and moves to dismiss the case. Because
the regulation is a reasonable interpretation of an ambiguous
statutory provision, it is not invalid and I deny the motion to
A plaintiff in an employment discrimination case, the "person
aggrieved," must satisfy certain procedural requirements in order
to get into federal court. First, the party must file a charge
with the Equal Employment Opportunity Commission (EEOC).
42 U.S.C. § 2000e-5(e)(1). At issue here is the following
If a charge filed with the Commission . . . is
dismissed by the Commission, or if within one
hundred and eighty days from the filing of the
charge . . . the Commission has not filed a civil
action . . . 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. . . . 42 U.S.C. § 2000e-5(f)(1)
Only after receiving this notice from the EEOC may the plaintiff
bring a private action (the "right-to-sue" letter). Id.
The EEOC sent Elise Berry her right-to-sue letter in 26 days,
well within 180 days. Acting pursuant to
29 C.F.R. § 1601.28(a)(2), the Commission issued the letter early because it
determined that it would be unable to complete the administrative
processing of the charge in less than 180 days. Defendant
Argenbright Security argues that Title VII requires the EEOC to
spend a minimum of 180 days investigating each charge of
employment discrimination before issuing a right-to-sue letter.
Therefore, Argenbright argues, this early-letter regulation
violates the statute and is invalid.
The Court of Appeals for the District of Columbia recently
adopted this view and mandated the dismissal of a complaint filed
before 180 days had elapsed. Martini v. Federal National
Mortgage Association, 178 F.3d 1336 (D.C.Cir. 1999).*fn1
Although the ruling is not binding here, Argenbright urges me to
follow its reasoning. In reviewing the EEOC's regulation, I must
employ the familiar Chevron two-step. First, if the intent of
Congress is clear, and the regulation is contrary to that clear
intent, the regulation is invalid. Chevron U.S.A., Inc. v.
Defense Council, 467 U.S. 837, 842-3, 104 S.Ct. 2778, 2781, 81
L.Ed.2d 694 (1984). If however, the intent of Congress is
ambiguous, the regulation is valid so long as it is reasonable;
i.e., the agency's regulation is entitled to substantial
deference. Chevron, 467 U.S. at 843, 104 S.Ct. at 2782;
Philbin v. General Electric Capital Auto Lease, Inc.,
929 F.2d 321, 324 (7th Cir. 1991) (applying Chevron deference to Title
VII EEOC regulation). In Martini, the court believed the
regulation failed at the first step of Chevron. Martini, 178
F.3d at 1342.
The Congressional intent is not as clear as Martini suggests.
The question is whether Congress unambiguously intended to set a
minimum waiting period of 180 days. As the Martini court noted,
"nothing in section 2000e-5(f)(1)'s language forecloses [the
plaintiff's] view that the 180-day provision is simply a maximum,
not minimum, waiting period for complainants seeking access to
federal court." Martini, 178 F.3d at 1344. The statute only
says that if the EEOC has not acted in 180 days, it must issue a
right-to-sue letter; it does not expressly make agency inaction
for six months a condition precedent to the issuance of all
right-to-sue letters. The text of the statute is ambiguous.
Contrary to Argenbright's suggestion, 42 U.S.C. § 2000e-5(b)
does not resolve this ambiguity. That provision requires the EEOC
to "make an investigation" whenever a charge is filed.
42 U.S.C. § 2000e-5(b). In Martini, the court held that this mandatory
duty to investigate is a clear expression of Congressional intent
that cannot be reconciled with an early termination of EEOC
proceedings. Martini, 178 F.3d at 1346. I disagree. While it is
clear that the EEOC must investigate, it is not clear that it
must spend at least 180 days to do so. That is the question here.
Nothing in 42 U.S.C. § 2000e-5(b) suggests that Congress wanted
to dictate the duration of every investigation to the EEOC.*fn2
The legislative history cited in Martini does not establish a
clear Congressional intent to establish a 180-day minimum
investigation period. Arguments made with rhetorical flair on the
Senate floor suggested that the statute would force complainants
"necessarily to sit around awaiting six months" and that it was a
"180-day private filing restriction." 118 Cong.Rec. 1069 (1972)
(Sen. Javits and Sen. Dominick) (quoted in Martini, 178 F.3d at
1347). These two isolated comments are not persuasively
attributed to the entire Congress. Other evidence, particularly
Congress's decision to use 180 days instead of 150 days, is also
ambiguous; this could have been a decision to increase the
maximum, not the minimum, amount of time allotted for an
investigation. See H.R.Rep. No. 92-899 (1972) (cited in
Martini, 178 F.3d at 1347); see also Martini, 178 F.3d at
1345 (finding other legislative history ambiguous).
Since the statute and legislative history do not unambiguously
express an intent to create a minimum 180-day investigation
period, which is "the precise question at issue," I must proceed
to step two under Chevron. Chevron, 467 U.S. at 843, 104 S.Ct.
at 2782. If the regulation is a permissible construction of the
statute, I will uphold it. The regulation conditions an early
right-to-sue letter on a determination by an appropriate
Commission official that it is probable that the EEOC will not
complete the administrative processing of the charge within 180
days. 29 C.F.R. § 1608.28(a)(2). This is equivalent to a finding
that a right-to-sue letter is likely to issue in any event. In
light of the duty to investigate and pursue informal resolution
codified in 42 U.S.C. § 2000e-5(b), this proviso is an important
one. The regulation does not allow the wholesale abandonment of
the EEOC's mandate; instead, it
requires the agency's expert determination that a right-to-sue
letter is probable. Where further investigation or conciliation
is unlikely to prevent a right-to-sue letter from being issued
(perhaps because the EEOC's workload prohibits many
investigations from being completed within 180 days), the
regulation allows the EEOC to move on to the next case. In light
of the EEOC's expertise in administering the statute, this is a
permissible interpretation of its obligations under Title VII.
The regulation is therefore valid.
Defendant's motion to dismiss is denied.