No. 03-2009
            _________________________________________

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
            _________________________________________

VIRGEN PARILLA,

          Plaintiff-Appellee/Cross-Appellant,
                              
     v.

IAP WORLDWIDE SERVICES VI, INC.,
IAP WORLDWIDE SERVICES, INC.,
GENE LUDLOW and ROY VARNER,

          Defendants-Appellants/Cross-Appellees.
          ______________________________________________

        On Appeal from the United States District Court
          for the District Court of the Virgin Islands
                      Case No. 02-CV-00112
          ______________________________________________

   Brief of the U.S. Equal Employment Opportunity Commission
 as Amicus Curiae Supporting Plaintiff-Appellee/Cross-Appellant
         ______________________________________________

JAMES L. LEE                       U.S. EQUAL EMPLOYMENT 
Deputy General Counsel             OPPORTUNITY COMMISSION
                                   Office of General Counsel
CAROLYN L. WHEELER                 1801 L Street, NW, Room 7030
Acting Associate General Counsel   Washington, DC  20507
                                   (202) 663-4724
ANNE NOEL OCCHIALINO               
Attorney            


                       TABLE OF CONTENTS
                                
Table of Authorities . . . . . . . . . . . . . . . . . . . . .iii

Statement of Interest. . . . . . . . . . . . . . . . . . . . . .1

Statement of the Issue . . . . . . . . . . . . . . . . . . . . .2

Statement of the Case. . . . . . . . . . . . . . . . . . . . . .3

     A.   Nature of the Case and Court of Proceedings  . . . . .3

     B.   Statement of Facts . . . . . . . . . . . . . . . . . .3

     C.   District Court Decision  . . . . . . . . . . . . . . .5

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . .7

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

     THE PROVISION PROHIBITING THE RESOLUTION OF CLAIMS
     BEFORE AN ADMINISTRATIVE AGENCY IS UNENFORCEABLE
     AS A MATTER OF PUBLIC POLICY BECAUSE IT INTERFERES
     WITH THE COMMISSION'S INDEPENDENT STATUTORY
     AUTHORITY TO ENFORCE TITLE VII AND OTHER CIVIL
     RIGHTS STATUTES.

     A.   Because the provision could be interpreted as prohibiting 
          the filing of a charge of discrimination or assisting in an 
          EEOC investigation, it potentially interferes with the 
          Commission's law enforcement mission.. . . . . . . . 11

     B.   The prohibition on resolving claims before an administrative 
          agency violates public policy because it interferes with the     
          Commission's statutory obligation to seek compliance through     
          conciliation and litigation. . . . . . . . . . . . . 17

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Compliance. . . . . . . . . . . . . . . . . . . 22

Certificate of Service . . . . . . . . . . . . . . . . . . . . 23

                      TABLE OF AUTHORITIES
                                
                             Cases

EEOC v. Astra USA, Inc., 94 F.3d 738 (1st Cir. 1996) . . . 15, 16

EEOC v. Cosmair, Inc. L'Oreal Hair Care Div., 
      821 F.2d 1085 (5th Cir. 1987) . .. . . . . . 11, 13, 14, 15

EEOC v. Shell Oil Co., 466 U.S. 54 (1984)  . . . . . . 12, 13, 14

EEOC v. Waffle House, Inc. . . . . . . . . . . . . . . .8, 18, 19

General Tel. Co. v. EEOC, 446 U.S. 318 (1980) .. . . . 14, 18, 19

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) 8, 14

Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 
   460 U.S. 1 (1983) . . . . . . . . . . . . . . . . . . . . . 11

Occidental Life Ins. v. EEOC, 432 U.S. 355 (1977)  . . . . . . 12

Plaskett v. Bechtel Int'l, Inc., 243 F. Supp. 
   2d 334 (D.V.I. 2003) . . . . . . . . . . . . . . .  5, 6, 7, 8

Town of Newton v. Rumery, 480 U.S. 386 (1987)  . . . . . . . . 10


                    Statutes and Regulations

29 U.S.C.  216(c) . . . . . . . . . . . . . . . . . . . . . . 18

29 U.S.C.  217  . . . . . . . . . . . . . . . . . . . . . . . 18

29 U.S.C.  626(a)(1). . . . . . . . . . . . . . . . . . . . . 13

29 U.S.C.  626(b) . . . . . . . . . . . . . . . . . . . . . . 17

29 U.S.C.  626(f)(4). . . . . . . . . . . . . . . . . . . 15, 16

29 C.F.R.  1620.30(a) . . . . . . . . . . . . . . . . . . . . 13

29 C.F.R.  1620.30(b) . . . . . . . . . . . . . . . . . . . . 13

42 U.S.C.  12117(a) . . . . . . . . . . . . . . . . . . . 12, 17

42 U.S.C.  2000e et seq.  . . . . . . . . . . . . . . . . . . .1

42 U.S.C  2000e-5(b)  . . . . . . . . . . . . . . . . 10, 12, 17

42 U.S.C.  2000e-5(f)(1)  . . . . . . . . . . . . . . . . 10, 17
                                
                         Miscellaneous
                                
B. Lindemann & P. Grossman, 
      Employment Discrimination Law (3rd ed. 1996)  . . . . .  13

EEOC Compliance Manual Notice 915.002, "EEOC Enforcement 
     Guidance on non-waivable employee rights under [ ] (EEOC) 
     enforced statutes," (April 10, 1997), 
     www.eeoc.gov/docs/waiver.html, . . . . . . . . . . . . .  16


                           No. 03-2009
            _________________________________________

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
            _________________________________________

VIRGEN PARILLA,

          Plaintiff-Appellee/Cross-Appellant,
                              
     v.

IAP WORLDWIDE SERVICES VI, INC.,
IAP WORLDWIDE SERVICES, INC.,
GENE LUDLOW and ROY VARNER,

          Defendants-Appellants/Cross-Appellees.

          ______________________________________________

        On Appeal from the United States District Court
          for the District Court of the Virgin Islands
          ______________________________________________

   Brief of the U.S. Equal Employment Opportunity Commission
 as Amicus Curiae Supporting Plaintiff-Appellee/Cross-Appellant
         ______________________________________________
                                
                     STATEMENT OF INTEREST

     The United States Equal Employment Opportunity Commission is charged
with enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et
seq. ("Title VII") and other civil rights statutes.  To carry out its enforcement
mission, the Commission relies on employees' charges of discrimination to alert
the Commission to potential violations of the statute.  Under Title VII, and other
statutes, the filing of a charge of discrimination triggers the Commission's
obligation to investigate the charge and, if appropriate, to conciliate it.  If 
conciliation is unsuccessful, the Commission may choose to enforce compliance
by filing a civil action against the employer.
     The district court's decision in this case raises an important issue
concerning the enforceability of arbitration agreements prohibiting employees
from resolving claims before administrative agencies, which would include the
Commission.  Because of the importance of this issue to the Commission's
enforcement mission, the Commission offers its views to the Court as a United
States agency under Federal Rules of Appellate Procedure 29(a).

                     STATEMENT OF THE ISSUE

     Whether the district court erred in finding that a provision of an arbitration
agreement prohibiting an employee from resolving claims before an administrative
agency is enforceable where enforcement would interfere with the Commission's
independent statutory authority to vindicate the public interest under Title VII and
other civil rights statutes.<1>

                      STATEMENT OF THE CASE

     A.        Nature of the Case and Course of Proceedings
     On August 21, 2002, Plaintiff-Appellee/Cross-Appellant Virgen Parilla filed
this lawsuit against Defendants-Appellants/Cross-Appellees IAP Worldwide
Services VI, Inc., IAP Worldwide Services, Inc., Gene Ludlow, and Roy Varner
("IAP") under Title VII and Virgin Island law alleging, among other things, that
she had been sexually harassed and terminated in retaliation for complaining about
the harassment.  A29-34 (compl.); A2 (docket).<2>  On September 16, 2003, IAP
filed a Motion to Compel Arbitration.  A35 (motion).  In a Memorandum Opinion
and separate Order, the district court denied the motion.  A6 (memo.); A4 (order). 
On April 2, 2003, IAP Defendants filed a notice of appeal.  A3 (docket).  On May
6, 2003, Parilla also filed a notice of appeal from the district court's order, which
is styled case No. 03-2308.<3>

     B.   Statement of Facts
     On June 6, 2000, IAP Worldwide Service VI, Inc. ("IAP VI") hired Parilla
as an administrative assistant.  A6 (Slip op. at 1).  Upon being hired, Parilla
entered into an Hourly Employment Agreement ("Agreement") with IAP VI that
states in relevant part, "[a]ny controversy or claim arising out of or relating in any
way to . . . Employee's employment with Employer, or to the suspension or
termination of Employee's employment with Employer . . . shall be resolved by
arbitration and not in a court or before an administrative agency."  A44,  16
(Agreement).  The Agreement further provides that "[a]rbitrable matters include,
but are not limited to . . . claims for wrongful or retaliatory discharge or wrongful
treatment under . . . Federal law, including, . . . the Civil Rights Acts . . . , Title
VII, the Equal Employment Opportunity Act, the Equal Pay Act . . . the Age
Discrimination in Employment Act, the Americans with Disabilities Act . . . [and]
claims for employment discrimination under . . . Federal law."  A44-45,  17
(Agreement).  
     The Agreement also states that the parties will pay their own attorney's fees
regardless of the outcome of the arbitration, that the arbitrator may order the
losing party to pay the entire cost of the arbitration, that the arbitrator cannot come
from the Virgin Islands or Puerto Rico, that IAP must be notified of any claim
within thirty days, and, through incorporation of the American Arbitration
Association rules, that the names of the parties will be kept confidential unless a
party expressly permitts its name to be made public.  A45-45B.
     In approximately July 2002, IAP terminated Parilla's employment.  A31, 
19-20 (compl.).  On August 21, 2002, Parilla filed suit against IAP.  A28 (compl.);
A2 (docket).<4>

     C.   District Court Decision
     On March 26, 2003, the district court issued a short opinion and order
denying IAP's motion to compel arbitration.  A6 (memo.); A4 (order).  The court
concluded that the Agreement was in all material respects identical to another
arbitration agreement at issue in Plaskett v. Bechtel Int'l, Inc., 243 F. Supp. 2d 334
(D.V.I. 2003).<5>  A7 (slip op. at 2).  The court went on to state that for the reasons
set forth in Plaskett, the motion to compel arbitration would be denied.  Id.  The
district court's only substantive discussion concerned its rejection of IAP's
argument that the court should reconsider its holding in Plaskett that the waiver of
attorney's fees is unconscionable under Title VII.  A8 (slip op. at 3).  Thus, the
court's decision in this case rests on the reasoning of Plaskett.
     In Plaskett, the court concluded that the arbitration provisions at issue in the
plaintiff's Hourly Employment Agreement contained multiple unconscionable
terms that permeated the arbitration provisions and could not be severed from
them, although the court concluded that the rest of the agreement (not relating to
the arbitration provisions) was enforceable.  See Plaskett, 243 F. Supp. 2d at 340-
46.  The court began its analysis by concluding that the parties formed an
agreement to arbitrate.  Id. at 338.  The court went on to apply general contract
principles of territorial law to determine whether the arbitration agreement at issue
was enforceable, which, the court stated, depended on whether the agreement was
unconscionable.  See id. at 339.  
     The court concluded that three provisions of the agreement were
unconscionable: 1) the provision requiring each party to bear its own attorney's
fees, which the court found to be unconscionable since awards of attorney's fees
should ordinarily be made to prevailing parties under Title VII (although not under
Virgin Island law); 2) the provision requiring the employee to notify the employer
of any claim within thirty days; and 3) the provision, incorporated by reference to
the American Arbitration Association Rules, that the names of the parties to any
arbitration award be kept confidential unless a party expressly permitted its name
to be made public.  See id. at 340-43.  
     The Plaskett court determined, however, that the provision stating, "[a]ny
controversy or claim . . . shall be resolved by arbitration and not . . . before an
administrative agency'" was not unconscionable.  Id. at 343-44.  In the court's
view, the provision simply barred either party from seeking "a judgment by an
administrative agency."  Id. at 343.  Since the EEOC brings suit in its own name,
not that of an employee, the court reasoned that "the EEOC does not have the
authority to enter any judgment resolving any controversy or claim between the
parties."  Id. at 344.  Because the plaintiff could not "waive a right that he has
never had," the court determined that this provision was not unconscionable.  Id.
     Finally, the court concluded that the unconscionable terms permeated the
arbitration provisions, making severance of the offending terms inappropriate. 
See id. at 345.  Therefore, the court denied the defendant's motion to compel
arbitration, although it enforced the remainder of the Hourly Employment
Agreement.  For the same reasons, the court in this case denied IAP's motion to
compel arbitration but enforced the remainder of the Agreement.


                    SUMMARY OF ARGUMENT

     If it reaches the issue, this Court should find that the district court erred in
concluding that the provision of the arbitration agreement prohibiting Parilla from
resolving any claims before an administrative agency is enforceable.  Enforcement
of the provision would substantially interfere with the Commission's independent
statutory authority to vindicate the public interest by enforcing Title VII and other
civil rights employment statutes.  Therefore, this Court should conclude that the
provision violates public policy and, consequently, is unenforceable.
     Although Parilla filed a charge of discrimination, the prohibition on
resolving claims before an administrative agency could be interpreted as
prohibiting her from doing so.  Since the Commission's authority to investigate
discrimination under Title VII and the Americans with Disabilities Act ("ADA")
is derived solely from the filing of a charge, and because the vast majority of
charges are filed by employees, enforcement of provisions such as this one could
potentially deprive the Commission of the opportunity to learn of alleged Title VII
and ADA violations and could also impede the Commission's opportunity to
investigate potential violations of the Equal Pay Act ("EPA") and the Age
Discrimination in Employment Act ("ADEA").  Because a charge not only
informs the Commission of alleged discrimination against the employee filing the
charge but may also alert the Commission to other unlawful discrimination by the
employer, enforcement of the provision could also impact the Commission's
ability to learn of systemic discrimination. 
     Enforcement of the provision would also directly conflict with Congress's
mandate that the Commission seek compliance through conciliation and litigation
where the Commission's investigation has led it to believe that a statutory
violation has occurred.  In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,
28 (1991), the Supreme Court held that ADEA claims are arbitrable but stated that
arbitration agreements would not prevent the Commission from seeking class-
wide or equitable relief.  More recently, in EEOC v. Waffle House, Inc. 534 U.S.
279 (2002), the Court held that even where an employee has signed a pre-
employment arbitration agreement, the Commission may seek victim-specific
relief for that employee.  Thus, enforcement of the Agreement's prohibition on
resolving claims before an administrative agency contravenes Supreme Court
precedent affirming that employees' agreements to arbitrate their claims does not
vitiate the Commission's statutory authority to vindicate the public interest by
resolving employment discrimination claims.

                             ARGUMENT

THE PROVISION PROHIBITING THE RESOLUTION OF CLAIMS
BEFORE AN ADMINISTRATIVE AGENCY IS UNENFORCEABLE AS A
MATTER OF PUBLIC POLICY BECAUSE IT INTERFERES WITH THE
COMMISSION'S INDEPENDENT STATUTORY AUTHORITY TO
ENFORCE TITLE VII AND OTHER CIVIL RIGHTS STATUTES.

     The district court erred in concluding that the provision of the Agreement
prohibiting any claims from being resolved before an administrative agency is
enforceable.  The court reached this erroneous conclusion by reasoning that "the
EEOC does not have the authority to enter any judgment resolving any
controversy or claim between the parties" and therefore that Parilla "cannot waive
a right that [s]he has never had."  Plaskett, 243 F. Supp. 2d at 344.  This reasoning
reflects a fundamental misunderstanding about the Commission's statutory
authority and utilizes an overly restrictive definition of "resolve."  The
Commission may "resolve" a charge of discrimination in several ways.<6>  First, the
Commission may resolve a charge when it fulfills its statutory mandate "to
eliminate any . . . alleged unlawful employment practice by informal methods of
conference, conciliation, and persuasion."  42 U.S.C.  2000e-5(b).  Second,
although the Commission does not represent charging parties, the Commission
may sue on behalf of a charging party and thereby resolve a charge of
discrimination through litigation or settlement.  See 42 U.S.C.  2000e-5(f)(1).
Third, upon agreement of the parties and even before an investigation begins, the
Commission may resolve a charge through mediation.<7>  Thus, although the
Commission does not enter judgments resolving discrimination charges, the
Commission may secure resolution of discrimination charges through conciliation
and litigation, making the Agreement's prohibition on resolving complaints before
an administrative agency unenforceable.
     "The relevant principle is well established: a promise is unenforceable if the
interest in its enforcement is outweighed in the circumstances by a public policy
harmed by enforcement of the agreement."  Town of Newton v. Rumery, 480 U.S.
386, 392 (1987) (footnote omitted); see also Restatement (Second) of Contracts 
208 cmt. a (stating that the policy against unconscionable contracts "overlaps with
rules which render particular . . . terms unenforceable on grounds of public
policy").  Here, the interest served by enforcing the provision prohibiting the
resolution of claims before an administrative agency is the encouragement of
private settlement of employment disputes, which is in keeping with the "liberal
federal policy favoring arbitration agreements" manifested in the Federal
Arbitration Act.  Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 24 (1983).  For the reasons discussed below, however, that interest "is
outweighed by the public interest in EEOC enforcement of the ADEA," EEOC v.
Cosmair, Inc., L'Oreal Hair Care Div., 821 F.2d 1085, 1090 (5th Cir. 1987), as
well as EEOC enforcement of Title VII, the ADA, and the EPA.  Therefore, the
provision is unenforceable as a matter of law.

     A.   Because the provision could be interpreted as prohibiting the filing of
          a charge of discrimination or assisting in an EEOC investigation, it
          potentially interferes with the Commission's law enforcement
          mission.

     Although Parilla filed a charge of discrimination in this case, the prohibition
on resolving claims before an administrative agency could be interpreted as
having prohibited her from doing so and as prohibiting her from assisting in a
Commission investigation.  Such a prohibition would clearly violate public policy
by undermining employees' statutory right to file charges and the Commission's
independent statutory authority to investigate them.
     "[U]nder the procedural structure created by the 1972 amendments [to Title
VII], the EEOC does not function simply as a vehicle for conducting litigation on
behalf of private parties; it is a federal administrative agency charged with the
responsibility of investigating claims of employment discrimination and settling
disputes, if possible, in an informal, noncoercive fashion."  Occidential Life Ins. v.
EEOC, 432 U.S. 355, 368 (1977).  Under Title VII and the ADA, the EEOC only
has jurisdiction to investigate discrimination where a charge has been filed.  See
42 U.S.C.  2000e-5(b) (stating that "[w]henever a charge is filed by or on behalf
of a person claiming to be aggrieved, or by a member of the Commission," the
Commission shall investigate); 42 U.S.C.  12117(a) (adopting Title VII
procedures under the ADA); see also EEOC v. Shell Oil Co., 466 U.S. 54, 64
(1984) ("the EEOC's investigative authority is tied to charges filed with the
Commission; unlike other federal agencies that possess plenary authority to
demand to see records relevant to matters within their jurisdiction, the EEOC is
entitled to access only to evidence relevant to the charge under investigation'")
(citation and footnote omitted).  By far, the vast majority of charges filed under
these statutes are filed by aggrieved employees.  
     In contrast to Title VII and the ADA, the EEOC's investigative authority
under the ADEA and EPA is not tied to the filing of a charge.  See 29 U.S.C. 
626(a) (under ADEA, stating that the Commission "shall have the power to make
investigations"); 29 C.F.R.  1620.30(a)(1) (stating that under EPA the
Commission may "investigate and gather data").  Nevertheless, the filing of
charges by aggrieved individuals is the primary means through which the EEOC
learns of possible discrimination under these statutes as well.  See, e.g., B.
Lindemann & P. Grossman, Employment Discrimination Law at 523 (3rd ed.
1996) ("Although the government can initiate investigations sua sponte, most
[EPA] investigations are conducted in response to complaints lodged by
employees.").
     Thus, in contrast to "a complaint initiating a lawsuit," the "function of a
Title VII charge . . . is to place the EEOC on notice that someone (either a party
claiming to be aggrieved or a Commissioner) believes that an employer has
violated the title."  Shell Oil, 466 U.S. at 68.  Significantly, a charge is not
restricted to merely notifying the Commission that the charging party may have
been unlawfully discriminated against.  Instead, a charge "also may identify other
unlawful company actions."  Cosmair, 821 F.2d at 1090.  This is true because a
charging party can allege that other co-workers have also been victims of
discriminatory actions and because  "[a]ny violations that the EEOC ascertains in
the course of a reasonable investigation of the charging party's complaint are
actionable."  General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980) (citation
omitted).  Thus, prohibitions in arbitration agreements on the filing of charges
impermissibly impedes the Commission's ability to learn not just about individual
acts of discrimination against a charging party but also to learn about about
systemic discrimination.  See Shell Oil, 466 U.S. at 69 ("it is crucial that the
Commission's ability to investigate charges of systemic discrimination not be
impaired").
     The Supreme Court has recognized the statutory right of employees to file
charges, even when employees have agreed to arbitrate their claims against an
employer.  In Gilmer v. Interstate/Johnson Lane Corp. the Court held that an
ADEA claim may be subject to arbitration but stated that "[a]n individual ADEA
claimant subject to an arbitration agreement will still be free to file a charge with
the EEOC, even though the claimant is not able to institute a private judicial
action."  Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991)
(emphasis added).  Thus, the Court in Gilmer implicitly acknowledged that the
filing of charges serves an important public interest that survives an employee's
agreement to arbitrate an employment dispute.
     The Fifth Circuit has reached the same result in an ADEA case involving
the enforceability of a waiver of the right to file a charge.  See Cosmair, 821 F.2d
at 1090.  In Cosmair the Fifth Circuit held that "an employer and employee cannot
agree to deny to the EEOC the information it needs to advance th[e] public
interest.  A waiver of the right to file a charge is void as against public policy." 
Cosmair, 821 F.2d at 1090; cf. EEOC v. Astra USA, Inc., 94 F.3d 738, 745-47 (1st
Cir. 1996) (in preliminary injunction action under Title VII where EEOC was
already investigating three charges of discrimination against employer, holding
that no significant risk of irreparable harm existed where settlement agreement
prohibited employees from filing charges).  
     Congress reaffirmed the strong public policy against interfering with the
EEOC's enforcement efforts when it enacted the Older Workers Benefit Protection
Action of 1990 ("OWBPA").  This act states in part that "[n]o waiver agreement
may affect the Commission's rights and responsibilities to enforce this chapter"
and that no waiver may "justify interfering with the protected right of an employee
to file a charge."  29 U.S.C.  626(f)(4).  Although the OWBPA concerns waivers,
the public policy principles underlying Congress' explicit affirmation of
employees' right to file a charge and the Commission's right and responsibility to
enforce the ADEA  regardless of any waiver they may have signed  are the same
as those at stake in pre-employment arbitration agreements.  Therefore, to the
extent that the Agreement in this case may be read to prohibit the filing of a
charge of discrimination, it is clearly unenforceable as a matter of  public policy.
     Similarly, to the extent that the Agreement's prohibition on resolving claims
before an administrative agency can be construed as a prohibiting Parilla from
assisting the Commission in its investigation, the provision is unenforceable.  See,
e.g., 29 U.S.C.  626(f)(4) (stating that no waiver of ADEA claim may "justify
interfering with the protected right of an employee to . . . participate in an
investigation or proceeding conducted by the Commission"); Astra, 94 F.3d 738. 
In Astra, the EEOC sought a preliminary injunction under Title VII to prevent the
employer from enforcing provisions of settlement agreements prohibiting
employees from assisting the EEOC in its investigations.  Astra, 94 F.3d at 740-
41.  The court held that "non-assistance covenants which prohibit communication
with the EEOC are void as against public policy."  Id. at 745.  In reaching its
conclusion, the court stated that "if victims of or witnesses to sexual harassment
are unable to approach the EEOC or even to answer its questions, the investigatory
powers that Congress conferred would be sharply curtailed and the efficacy of
investigations would be severely hampered."  Id. at 744.  Noting that the
Commission acts not just on behalf of private parties but also to vindicate the
public interest, the court further stated, "any agreement that materially interferes
with communication between an employee and the Commission sows the seeds of
harm to the public."  Id. (citation omitted); see also EEOC Compliance Manual
Notice 915.002, "EEOC Enforcement Guidance on non-waivable employee rights
under [ ] (EEOC) enforced statutes," (April 10, 1997),
www.eeoc.gov/docs/waiver.html, ("An employer may not interfere with the
protected right of an employee to file a charge, testify, assist, or participate in any
manner in an investigation, hearing, or proceeding under Title VII," the ADA, the
ADEA, or the EPA).

     B.   The prohibition on resolving claims before an administrative agency
          violates public policy because it interferes with the Commission's
          statutory obligation to seek compliance through conciliation and
          litigation.

     On its face, the Agreement's prohibition on resolving claims before an
administrative agency precludes the Commission from resolving Parilla's Title
VII claim through conciliation or litigation.  This provision runs afoul of
Congress' mandate, as expressed in Title VII, the ADA, and the ADEA, that the
Commission seek voluntary compliance through conciliation and, when necessary,
through litigation.  See 42 U.S.C.  2000e-5(b) (under Title VII, stating that if the
Commission determines "that there is reasonable cause to believe that the charge
is true, the Commission shall" attempt conciliation), 2000e-5(f)(1) (if conciliation
is unsuccessful, "the Commission may bring a civil action"); 42 U.S.C.  12117(a)
(under ADA, adopting the "powers, remedies, and procedures" of 42 U.S.C 
2000e-5); 29 U.S.C.  626(b) (under ADEA, stating that Commission must
attempt conciliation before instituting any action).  See also 29 C.F.R. 
1620.30(a)(6) (stating that under the EPA, the Commission may initiate and
conduct litigation).<8>  Therefore, the provision violates public policy and is
unenforceable.  
     The 1972 amendments to Title VII authorized the Commission to bring suit
against private employers.  "In so doing, Congress sought to implement the public
interest as well as to bring about more effective enforcement of private rights." 
General Tel., 446 U.S. at 325-26.  The amendments did not, however, transfer to
the Commission all responsibility for enforcing private rights.  See id. at 326.
Instead, individuals are also able to bring their own actions to enforce Title VII. 
See id.  "These private-action rights suggest that the EEOC is not merely a proxy
for the victims of discrimination."  Id.  Thus, while the Commission may seek
victim-specific relief, the Commission "is guided by the overriding public interest
in equal employment opportunity . . . asserted through direct Federal
enforcement.'"  Id. (quoting 118 Cong. Rec. 4941 (1972)).  Therefore, "[w]hen the
EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts
also to vindicate the public interest."  Id. (footnote omitted); see also Waffle
House, 534 U.S. at 296 (stating that when the EEOC decides to bring an
enforcement action, "the agency may be seeking to vindicate a public interest, not
simply provide make-whole relief for the employee, even when it pursues entirely
victim-specific relief").
     Pre-employment arbitration agreements entered into by employees and
employers do not vitiate the Commission's authority  and, indeed, its statutory
obligation   to vindicate the public interest by enforcing Title VII and other
statutes through conciliation and litigation.  See Waffle House, 534 U.S. 279;
Gilmer, 500 U.S. 20.  As discussed supra, in Gilmer the Supreme Court held that
ADEA claims may be subject to arbitration.  Gilmer, 500 U.S. at 35.  In rejecting
the argument that arbitration does not adequately further the purposes of the
ADEA because arbitration does not allow for equitable relief and class actions, the
Supreme Court stated, "it should be remembered that arbitration agreements will
not preclude the EEOC from bringing actions seeking class-wide and equitable
relief."  Gilmer, 500 U.S. at 32 (emphasis in original).
     More recently, in EEOC v. Waffle House the Supreme Court held that the
EEOC may seek not only class-wide and equitable relief where an employee has
signed a pre-employment arbitration agreement, but that the Commission may also
seek victim-specific relief.  See Waffle House, 534 U.S. 279.  In reaching that
conclusion, the Court stated that "[t]here is no language in the statutes or in either"
Occidental Life or General Telephone "suggesting that the existence of an
arbitration agreement between private parties materially changes the EEOC's
statutory function or the remedies that are otherwise available."  Waffle House,
534 U.S at 288.  When weighing the policy goals of the FAA against the language
of Title VII and the arbitration agreement the plaintiff had signed, the Court
further stated:
          No one asserts that the EEOC is a party to the contract,
          or that it agreed to arbitrate its claims.  It goes without
          saying that a contract cannot bind a nonparty. 
          Accordingly, the proarbitration policy goals of the FAA
          do not require the agency to relinquish its statutory
          authority if it has not agreed to do so.
          
Id. at 294.  Thus, in this case, the IAP Agreement's prohibition on resolving
claims before an administrative agency contravenes the teachings of Waffle House
in that the Supreme Court has expressly held that the EEOC may pursue victim-
specific relief even where an employee has signed an arbitration agreement.
     In short, the Agreement's prohibition on resolving claims before an
administrative agency prevents the remedial principles of Title VII and other civil
rights statutes from being effectuated by interfering with the Commission's
independent statutory authority to serve the public interest by resolving
complaints of unlawful employment discrimination. 

                           CONCLUSION

     The provision of the Agreement between Parilla and IAP VI that prohibits
the resolution of claims before an administrative agency directly contravenes the
statutory framework and principles of Title VII and the other civil rights statutes
enforced by the Commission by interfering with the Commission's statutory
authority  and obligation  to vindicate the public interest by eradicating
unlawful employment discrimination.  Therefore, the provision violates public
policy and is unenforceable as a matter of law.

          Respectfully submitted,
          JAMES L. LEE
          Deputy General Counsel
          
          CAROLYN L. WHEELER
          Acting Associate General Counsel 
          
          
          
          __________________________
          ANNE NOEL OCCHIALINO
          Attorney
          U.S. EQUAL EMPLOYMENT
             OPPORTUNITY COMMISSION
          1801 L Street, NW, Room 7030
          Washington, DC 20507
          (202) 663-4724
          


                    CERTIFICATE OF COMPLIANCE

     I certify that this brief complies with the type-volume limitation set forth in
Fed. R. App. P. 32(a)(7)(B).  This brief contains 4,380 words.

____________________________
ANNE NOEL OCCHIALINO
August 7, 2003


                     CERTIFICATE OF SERVICE

     I certify that on August 7, 2003, I served two copies of this brief by mailing
them overnight mail to the following:

K. Glenda Cameron, Esq.
LAW OFFICES OF LEE J. ROHN
1101 King St., Ste. 2
St. Croix, Virgin Islands 00820
Attorney for Plaintiff-Appellant

Francis J. D'Eramo, Esq.
NICHOLAS NEWMAN LOGAN & E'ERAMO, P.C.
1131 King St.
Christiansted, St. Croix
U.S. Virgin Islands
00820-4971
Attorney for Defendant-Appellee


                                   
                                   ____________________________
                                   Anne Noel Occhialino
                                   Attorney
                                   U.S. EQUAL EMPLOYMENT
                                     OPPORTUNITY COMMISSION
                                   Office of General Counsel
                                   1801 L Street, NW, Room 7030
                                   Washington, DC 20507
                                   (202) 663-4724


*********************************************************************
<<FOOTNOTES>>

<1> The Commission takes no position on any other issue raised in this appeal.

<2> Reference to A is to IAPs appendix.

<3> IAP has filed with this Court a motion to dismiss Parillas cross-appeal for lack
of jurisdiction.  Parilla has also filed with this Court a motion to dismiss three of 
the IAP Defendants (IAP Worldwide Services, Inc., Gene Ludlow, and Roy Varner) for 
lack of jurisdiction.

<4> Parilla filed a charge of discrimination with the Virgin Island Department of 
Labor that was referred to the EEOC.  A204 (8/7/02 letter to IAP).  Although 
apparently not in the record, the EEOC subsequently dismissed Parillas charge upon 
learning that she had filed suit.

<5> Plaskett was not appealed

<6> The Q & A section of the EEOCs web page even contains a section called How Does 
EEOC Resolve Discrimination Charges?  See www.eeoc.gov/facts/qanda.html.

<7> The EEOC voluntarily implemented its mediation program; it is not required by 
statute.  See generally www.eeoc.gov/mediate/facts.html.

<8> The Commission is not required to conciliate EPA charges before filing suit under 
the EPA, see 29 U.S.C.  216(c), 217, although the Commission does conciliate a 
number of EPA charges each year.  See www.eeoc.gov/stats/epa.html (providing 
statistics concerning EPA charges received and resolved).