Doe v. Oberweis Dairy, 7th Cir.
Brief as amicus
July 13, 2005

                  UNITED STATES COURT OF APPEALS
                    FOR THE SEVENTH CIRCUIT
                                                                                       
                                
                          No.  05-1998
                                                                                       

JANE DOE,
     Plaintiff-Appellant,
v.

OBERWEIS DAIRY,
     Defendant-Appellee.

                                                                                             
                                
        On Appeal from the United States District Court
    for the Northern District of Illinois, Chicago Division
                Honorable John W. Darrah, Judge
                                                                                             
                                
             AMICUS BRIEF OF THE EQUAL EMPLOYMENT 
             OPPORTUNITY COMMISSION IN SUPPORT OF 
                       APPELLANT JANE DOE
                                                                                              
          
                                   ERIC S. DREIBAND
                                   General Counsel

                                   VINCENT J. BLACKWOOD
                                   Acting Associate General Counsel

                                   CAROLYN L. WHEELER
                                   Assistant General Counsel

                                   PAULA R. BRUNER
                                   Attorney

                                   EQUAL EMPLOYMENT OPPORTUNITY
                                        COMMISSION
                                   1801 L Street, N.W., Rm. 7044
                                   Washington, DC 20507
                                   (202) 663-4731

                        TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF ISSUE . . . . . . . . . . . . . . . . . . . . . . .2

STATEMENT OF THE CASE

     1.   Statement of the Relevant Procedural Facts . . . . . .2
     2.   District Court Decision. . . . . . . . . . . . . . . .3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

     BECAUSE DOE FULFILLED THE PROCEDURAL PREREQUISITES TO SUIT
     SPECIFIED IN TITLE VII, THE DISTRICT COURT ERRED IN DISMISSING HER
     SUIT FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
     
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

                       TABLE OF AUTHORITIES

CASES

Adler v. Espy,
     35 F.3d 263 (7th Cir. 1994) . . . . . . . . . . . . . 11, 17

Alexander v. Gardner-Denver Co.,
     415 U.S. 36 (1974). . . . . . . . . . . . . . . . . 1, 4, 17

Associated Dry Goods Corp. v. EEOC, 
     720 F.2d 804 (4th Cir. 1983). . . . . . . . . . . . . . . 16

Brown v. General Servs. Admin., 
     425 U.S. 820 (1976) . . . . . . . . . . . . . . . . 8, 9, 10

Chandler v. Roudebush,
     425 U.S. 840 (1976) . . . . . . . . . . . . . . . . . . . .8

Cheek v. Western & Southern Life Ins. Co.,
     31 F.3d 497 (7th Cir. 1994) . . . . . . . . . . . . . . . 12

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
     467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . 15

Doe v. Oberweis Dairy,
     2005 WL 782709 (N.D. Ill. Apr. 6, 2005) . . .3, 4, 7, 13, 14

Duncan v. Consolidated Freightways Corp., 
     1995 WL 530652 (N.D. Ill. Sept. 7, 1995). . . . . . . . 3, 7

Edelman v. Lynchburg College,
     535 U.S. 106 (2002) . . . . . . . . . . . . . . . . . . . .5

EEOC v. Associated Dry Goods Corp.,
     449 U.S. 590 (1981) . . . . . . . . . . . . . . . .1, 14, 17

EEOC v. Commercial Office Prods. Co.,
     486 U.S. 107 (1988) . . . . . . . . . . . . . . . . . . . 15

Gibson v. West,
     201 F.3d 990 (7th Cir. 2000). . . . . . . . . . . . . . 6, 7

Gilardi v. Schroeder, 
     833 F.2d 1226 (7th Cir.1987). . . . . . . . . . . . . . . 15

Glisson v. United States Forest Serv.,
     55 F.3d 1325 (7th Cir. 1995). . . . . . . . . . . . . . . .8

Hill v. Potter,
     352 F.3d 1142 (7th Cir. 2003) . . . . . . . . . . 3, 6, 7, 9

Hill v. Potter,
     959 F. Supp. 488 (N.D. Ill. 1997) . . . . . . . . . . .9, 10

Horton v. Jackson County Bd. of County Comm'rs, 
     343 F.3d 897 (7th Cir. 2003). . . . . . . . . . . . . . . .8

Hottenroth v. Village of Slinger,
     388 F.3d 1015 (7th Cir. 2004) . . . . . . . . . . . . . . 12

 Jasch v. Potter, 
     302 F.3d 1092 (9th Cir. 2002) . . . . . . . . . . . . . . 10

Long v. Ringling Bros.-Barnum & Bailey Combined Shows,
     9 F.3d 340 (4th Cir. 1993). . . . . . . . . . . . . . . . .4

McBride v. Citgo Petroleum Corp.,
     281 F.3d 1099 (10th Cir. 2002). . . . . . . . . . . . . . .5

McCarthy v. Madigan,
     503 U.S. 140 (1992) . . . . . . . . . . . . . . . . . . . 12

McCottrell v. EEOC,
     726 F.2d 350 (7th Cir. 1984). . . . . . . . . . . . . . . 16

McDonnell Douglas Corp. v. Green,
     411 U.S. 792 (1973) . . . . . . . . . . .4, 5, 8, 13, 15, 16

 McGinty v. United States Department of the Army, 
     900 F.2d 1114 (7th Cir. 1990) . . . . . . . . . . . . . . 11

McKennon v. Nashville Banner Pub. Co.,
     513 U.S. 352 (1995) . . . . . . . . . . . . . . . . . . . .1

Mohasco Corp. v. Silver, 
     447 U.S. 807 (1980) . . . . . . . . . . . . . . . . . . . .5

Morris v. Albertson, Inc.,
     2001 WL 936118 (N.D. Ill. Aug. 17, 2001). . . . . . . . 3, 7

Mourning v. Family Publications Serv., Inc.,
     411 U.S. 356 (1972) . . . . . . . . . . . . . . . . . . . 15

Occidental Life Ins. Co. v. EEOC, 
     432 U.S. 355 (1977) . . . . . . . . . . . . . . . . . . . .6

Oscar Mayer & Co. v. Evans,
     441 U.S. 750 (1979) . . . . . . . . . . . . . . . . . . . .5

Robinson v. Dalton,
     107 F.3d 1018 (3d Cir. 1997). . . . . . . . . . . . . . . 11

Sedlacek v. Hach,
     752 F.2d 333 (8th Cir. 1985). . . . . . . . . . . . . . . .5

Thomas Jefferson Univ. v. Shalala,
     512 U.S. 504 (1994) . . . . . . . . . . . . . . . . . . . 15

University of Tenn. v. Elliott,
     478 U.S. 788 (1986) . . . . . . . . . . . . . . . . . . . 16

Ward v. EEOC,
     719 F.2d 3111 (9th Cir. 1983) . . . . . . . . . . . . . . 16

Zugay v. Progressive Care,
     180 F.3d 901 (7th Cir. 1999). . . . . . . . . . . . . . 4, 7

STATUTES, REGULATIONS AND RULES

29 U.S.C.  621 et seq . . . . . . . . . . . . . . . . . . . . .1

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

42 U.S.C.  2000e-5(b) . . . . . . . . . . . . . . . . . . .4, 12

42 U.S.C.  2000e-5(c) . . . . . . . . . . . . . . . . . . .4, 12

42 U.S.C.  2000e-5(e) . . . . . . . . . . . . . . . . . . .4, 12

42 U.S.C.  2000e-5(f) . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C.  2000e-5(f)(1). . . . . . . . . . . . . .4, 12, 13, 14

42 U.S.C.  2000e-12(a). . . . . . . . . . . . . . . . . . 14, 15

42 U.S.C.  2000e-16(c). . . . . . . . . . . . . . . . . . . . 10

42 U.S.C.  12101 et seq . . . . . . . . . . . . . . . . . . . .1

29 C.F.R.  1601.6 . . . . . . . . . . . . . . . . . . . . . . 12

29 C.F.R.  1601.18(b) . . . . . . . . . . . . . . . . . . 13, 15

29 C.F.R.  1601.28(b)(3). . . . . . . . . . . . . . . . . 14, 15

29 C.F.R. 1601.28 (e) . . . . . . . . . . . . . . . . . . 14, 15

29 C.F.R.  1601.29. . . . . . . . . . . . . . . . . . . . . . 12

29 C.F.R.  1601.29(b)(3). . . . . . . . . . . . . . . . . . . .4

29 C.F.R.  1614.104 . . . . . . . . . . . . . . . . . . . . . 10

29 C.F.R.  1614.401 . . . . . . . . . . . . . . . . . . . . . 10

29 C.F.R.  1614.408 . . . . . . . . . . . . . . . . . . . . . 10

Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . .2

SECONDARY AUTHORITY

http://www.eeoc.gov/fedprocess.html. . . . . . . . . . . . . . 10

                      STATEMENT OF INTEREST

     The Equal Employment Opportunity Commission is the agency established by Congress to
administer, interpret and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e et seq.
("Title VII"), as well as the Age Discrimination in Employment Act (ADEA), 29 U.S.C.  621 et
seq., and Title I of the Americans With Disabilities Act (ADA), 42 U.S.C.  12101 et seq.. 
Effective enforcement of these statutes depends on lawsuits brought by individuals such as the
plaintiff in this action who believe they have been injured by illegal discrimination.  See Alexander
v. Gardner-Denver Co., 415 U.S. 36, 45 (1974) (Title VII); McKennon v. Nashville Banner Pub. Co.,
513 U.S. 352, 357-58 (1995) (ADEA).  Although the Commission is empowered to bring
enforcement actions, Congress also provided for a private right of action and "considered the
charging party a private attorney general,' whose role in enforcing the ban on discrimination is
parallel to that of the Commission itself."  EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602
(1981).
     This appeal raises an important issue concerning the procedural prerequisites individuals
must meet before filing suit against private employers under Title VII, and by extension, under the
ADA and the ADEA.  In this case, the district court dismissed the suit for failure to exhaust
administrative remedies because the EEOC dismissed the charge for failure to cooperate after the
charging party refused to submit personally to an interview during the investigation of the charge. 
In taking this action, the court read into Title VII a condition precedent to judicial action that this
Court has not recognized and that neither Congress nor the EEOC has imposed.  That condition
precedent has no basis in the statute or regulations, and the court's ruling is contrary to the EEOC's
interpretation of the statute and its own regulations.  If allowed to stand, the ruling will inevitably
foreclose other plaintiffs from seeking redress in the courts for alleged employment discrimination,
diminish private enforcement of Title VII, and undermine the EEOC's ability to process charges and
enforce the law.  Therefore, pursuant to Fed. R. App. P. 29(a), we offer our views to the Court.

                      STATEMENT OF THE ISSUE<1>

 Whether a plaintiff who has satisfied the statutory prerequisites to a Title VII suit may proceed with
a claim against a private sector employer regardless of whether the EEOC dismissed her charge for
failure to cooperate during the administrative process.

                      STATEMENT OF THE CASE

     1.  Statement of the Relevant Procedural Facts

     On November 18, 2002, plaintiff Jane Doe's mother, Jane Roe, along with her attorney, filed
an EEOC charge on behalf of Doe, alleging sexual harassment.  R.138, Pl. Ex., Tab 64-EEOC
Charge, p.16.  Notice of the charge was provided to Oberweis Dairy.  Id.-Notice of Charge of
Discrimination, p. 18.  In January 2003, the EEOC investigator assigned to Doe's charge attempted
to schedule an interview with Doe through her lawyers. Id.-Investigator Notes, p. 102.  One of Doe's
attorneys indicated that she would produce her client for an interview after she determined her
availability, id., and subsequently communicated that Doe would not be available in March.  Id.-
Gorman e-mail to EEOC investigator, p. 75.  The investigator sent a letter on March 25, 2003,
reminding Doe's counsel that EEOC regulations require the charging party's cooperation and that
failure to participate in an interview within 33 days would result in termination of the investigation
and dismissal of the charge.  District Court Opinion at 5.  On April 7, 2003, Doe's attorney wrote
to the investigator to say that on advice of Doe's mother and her counselor, Doe could not be
interviewed, but that she (the attorney) was willing to answer any questions about the charge.  R.
138, Pl. Ex., Tab 64-Gorman Letter to EEOC, p. 135.  After the investigator failed to secure a face-
to-face interview with Doe, on April 28, 2003, the district director dismissed the charge for failure
to cooperate.  Id.-EEOC Dismissal and Notice of Rights, p. 14.  The notice indicated that if Doe
wanted to pursue her charge further, she had "the right to sue the respondent named in the charge
in a court of competent jurisdiction" as long as she did so within 90 days of receipt of the notice. 
Id.

     2.  District Court Decision

     Doe filed a timely complaint in district court, alleging inter alia sex discrimination and
harassment under Title VII.  The district court entered summary judgment against Doe on the
procedural ground that she failed to exhaust her administrative remedies.  Doe v. Oberweis Dairy,
2005 WL 782709, * 3-*6 (N.D. Ill. Apr. 6, 2005).  The court ruled that a plaintiff must cooperate
with the EEOC to meet the exhaustion requirement, id. at *3, citing inter alia, Hill v. Potter, 352
F.3d 1142 (7th Cir. 2003), and that it was undisputed that plaintiff failed to cooperate with the EEOC
investigator's request for an interview, id. at *3.  The court rejected plaintiff's argument that the
district court's reliance on federal employee cases was misplaced, noting that it had also cited private
sector decisions such as Morris v. Albertson, Inc., 2001 WL 936118, at *2 (N.D. Ill. 2001) and
Duncan v. Consol. Freightways Corp., 1995 WL 530652, at *3 (N.D. Ill. 1995).  Doe 2005 WL
782709 at *4.   The district court also rejected plaintiff's argument that her receipt of a right to sue
notice signified that she had exhausted administrative remedies, holding that the EEOC's issuance
of a right to sue notice in accord with its regulation providing for issuance of notices after dismissal
for failure to cooperate, 29 C.F.R.  1601.29(b)(3), "does not guarantee a Title VII claim may be
brought in federal court."  Id. at *5. 

                             ARGUMENT

     BECAUSE DOE FULFILLED THE PROCEDURAL PREREQUISITES TO SUIT
     SPECIFIED IN TITLE VII, THE DISTRICT COURT ERRED IN DISMISSING HER SUIT
     FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

     The district court erred in dismissing this case on the ground that Doe failed to attend an
interview with an  EEOC investigator because its ruling was based on an exhaustion requirement that
is not found in the statute.  Title VII expressly requires a plaintiff challenging discrimination in a
state like Illinois, which has a law prohibiting the discrimination, to file a charge with the EEOC
within 300 days of the alleged discriminatory conduct and to institute proceedings with the
appropriate state agency. 42 U.S.C.  2000e-5(c) & (e).<2>  In addition, a plaintiff alleging a Title VII
claim must obtain a notice of right to sue and bring her lawsuit no more than 90 days thereafter.  42
U.S.C.  2000e-5(f)(1).  These are the only two administrative requirements that a private sector
plaintiff such as Doe must satisfy before bringing a discrimination lawsuit.  See Alexander v.
Gardner-Denver, 415 U.S. 36, 47 (1974) (Title VII "specifies with precision" that the two
prerequisites for filing suit are the filing of a timely charge and receipt of a notice of right to sue);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973) (prerequisites to Title VII suit are
filing a timely charge and receiving and acting upon a notice of right to sue).  See also Zugay v.
Progressive Care, 180 F.3d 901, 902 (7th Cir. 1999) ("[i]t is well-established" that a timely charge
and receipt of a right to sue letter are the prerequisites to suit filing under Title VII); Long v.
Ringling Bros.Barnum & Bailey Combined Shows, 9 F.3d 340, 342 (4th Cir. 1993) (Title VII's
"only" prerequisites are filing a charge with EEOC and bringing suit within 90 days of receiving a
right to sue); Sedlacek v. Hach, 752 F.2d 333, 335 (8th Cir. 1985) (same); but see McBride v. Citgo
Petroleum Corp., 281 F.3d 1099 (10th Cir. 2002) (also requiring that ADA plaintiff persuade the
district court that she cooperated with EEOC during the administrative process).  Title VII plainly
does not contain a requirement that a plaintiff cooperate with EEOC during the administrative
process.
     The Supreme Court has repeatedly rejected attempts by the lower courts or defendants to read
additional requirements, beyond those expressly provided by Congress, into the federal statutes
prohibiting employment discrimination.  In McDonnell Douglas, 411 U.S. at 798-99, for example,
the Supreme Court rejected the argument that a plaintiff could not include a claim in a Title VII
lawsuit unless EEOC had found reasonable cause on that claim.  Noting that the "Act does not
restrict a complainant's right to sue [in that way]," the Court explained that it would "not engraft on
the statute a requirement which may inhibit the review of claims of employment discrimination in
the federal courts."  Id.  Similarly, in Mohasco Corp. v. Silver, 447 U.S. 807 (1980), the Court noted
its disapproval of a judicially-created requirement that a Title VII plaintiff initiate state proceedings
within 180 days of the alleged discriminatory occurrence.  The Court observed that Title VII contains
no such "express" requirement, adding, "a court should not read in a time limitation provision that
Congress has not seen fit to include."  Id. at 816 n.19.  The Court reasoned, "experience teaches that
strict adherence to the procedural requirements specified by the legislature is the best guarantee of
evenhanded administration of the law."  Id. at 826.   See also e.g., Edelman v. Lynchburg College,
535 U.S. 106, 114 (2002) (rejecting a judicially-created requirement that Title VII charges must be
verified within the charge-filing period); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758-65 (1979)
(refusing to read into ADEA's provision that plaintiff must "commence" state proceedings a
requirement that a state charge must be timely under state law); Occidental Life Ins. Co. v. EEOC,
432 U.S. 355, 360-72 (1977) (refusing to infer that state statute of limitations applies to EEOC suits
under Title VII).
     In this case, it is undisputed that before instituting this action against her former employer
Doe satisfied Title VII's express prerequisites to suiti.e., a timely charge was filed on her behalf
with the EEOC and she brought suit well within the requisite 90 days of receiving notice that the
EEOC had dismissed her charge.  Consistent with Supreme Court precedent, therefore, the district
court should have determined that Doe was entitled to proceed with her Title VII lawsuit.
     In holding instead that Doe's suit was barred, the district court concluded that, despite her
compliance with Title VII's express requirements, Doe had not exhausted her administrative
remedies because she failed adequately to cooperate with the EEOC during the administrative
process.  Since Title VII contains no such requirement, the court reached this conclusion only by
engrafting an additional requirement  cooperation with the EEOC's administrative process  onto
the statute.  This was error.  As noted above, courts are not free to read in requirements that may
inhibit judicial review of private sector discrimination claims or lead to uneven administration of the
law.  There can be no doubt that the new procedural requirement the court imposed in this case had
precisely those effects.
     Lacking any statutory basis for its ruling that Doe had not exhausted her administrative
remedies,  the district court relied on this Court's decisions in federal employee cases such as Hill
v. Potter, 352 F.3d 1142 (7th Cir. 2003) and Gibson v. West, 201 F.3d 990 (7th Cir. 2000), and district
court decisions applying the rule of federal sector cases to private sector employees. See Doe, 2005
WL at *3.<3>  As this Court observed in Zugay, 180 F.3d at 902, a district court's reliance on a federal
employee casethere to determine that Zugay had failed to exhaust her remedies before the state
agency with which her charge was initially filed"was misplaced," because of the procedural
differences in the administrative requirements for federal employees and private sector employees.<4>
In Doe's case too, because of the different purposes of the federal and private sector administrative 
requirements, and because of the fundamental differences between the complex administrative
process for federal employees and the EEOC procedures for processing charges against private
employers, it was inappropriate for the district court to import the federal exhaustion requirement
of cooperating with the federal agency, identified in Hill, 352 F.3d at 1146, into the private sector. 
     As an initial matter, the Commission notes that the usual purposes of administrative
exhaustion are not implicated at all in employment discrimination cases, whether federal or private
employees are involved, because all such individuals are entitled to de novo trial of their claims in
federal court, as the Supreme Court noted in McDonnell Douglas, 411 U.S. at 799 with reference
to private sector employees, and in Chandler v. Roudebush, 425 U.S. 840, 848 (1976), with respect
to federal employees.  The doctrine of exhaustion, as this Court has observed, is ordinarily invoked
in cases that come to court for review of an agency decision to "preserve[] the integrity and
autonomy of the administrative process, and ensure[] that when the administrative proceeding does
come before the court, the court will have before it the mature, considered, and final articulation of
the basis of the agency's action." Glisson v. United States Forest Serv., 55 F.3d 1325, 1326 (7th Cir.
1995).  Since courts do not review agency determinations in Title VII de novo proceedings, this
purpose of exhaustion does not come into play.
     Fulfillment of the administrative prerequisites to suit in Title VII cases is routinely referred
to as an exhaustion requirement as well, but the purpose of these requirements is significantly
different from that in cases involving review of agency actions, and, more importantly, it is
significantly different in federal sector and private employee cases.  In all cases, rather than creating
an administrative record for judicial review, the purpose of whatever administrative prerequisites
Congress created is to notify employers of the existence of a claimed violation of the statutes, to
provide some opportunity for agency resolution, and if that is unsuccessful, to give the aggrieved
individual notice of a right to sue.  See, e.g., Horton v. Jackson County Bd. of County Comm'rs, 343
F.3d 897, 899 (7th Cir. 2003) (explaining notice function of administrative exhaustion requirement
in non-federal employee case); Brown v. General Servs. Admin., 425 U.S. 820, 832-833 (1976)
(holding that Title VII is the exclusive remedy for discrimination by federal agencies and that
"rigorous administrative exhaustion requirements" are part of a carefully designed statutory scheme
that requires a complainant first to "seek relief in the agency that has allegedly discriminated against
him" before filing suit).
     The differences between the administrative prerequisites to suit for federal and private sector
employees and between the animating purposes of those requirements can be illustrated by analyzing
one of the cases cited by the district court in this case.  In Hill, this Court noted that a Postal Service
supervisory employee failed to cooperate with the EEOC during the administrative processing of his
discrimination claims against his employer agency.  352 F.3d at 1146.  The Hill case had a
complicated procedural history.  Id. at 1143.  Hill's initial suit alleging age, race and sex
discrimination and retaliation was dismissed without prejudice for a failure to exhaust administrative
remedies, and Hill subsequently went to the EEOC in an attempt to exhaust his remedies but "[i]t
refused to give him any relief, on the ground that he had failed to cooperate with it when he had first
filed charges with the agency, before filing suit, and that once the suit was filed and decided it was
too late for him to try to exhaust his administrative remedies."  Id.
     The district court's explanation of Hill's failure to cooperate that led to its failure-to- exhaust
dismissal focused on Hill's failure to provide information to the equal employment officer at the
Postal Service who originally attempted to investigate his complaint.  Hill, 959 F. Supp. 488, 494-
496 (N.D. Ill. 1997).  The EEOC's only role in processing Hill's complaint had been to review the
file at Hill's request and remand the case to the employer agency to allow it to develop the record
by obtaining Hill's affidavit explaining the issues and bases of his complaint.  Id. at 494.  After
refusing for many months to cooperate with his employer agency, Hill finally began to provide
information, and then, after two months, "became impatient, and rushed to the court house" thereby
"effectively abandon[ing] administrative remedies in midstream."  Id. at 495. 
     The factual scenario in the Hill case illustrates a crucial difference between the federal and
private employee administrative procedures.  As the Supreme Court emphasized in Brown, 425 U.S.
at 832,  the federal employee presents his complaint in the first instance to his employer agency,
which then must conduct an investigation and ultimately come to a final decision about whether
discrimination has occurred and if so, what remedies will be instituted.  See 42 U.S.C.  2000e-16(c)
(discussing administrative procedures and civil actions in federal employer context); 29 C.F.R. 
1614.104-.204, .401-.410 (same); and see http://www.eeoc.gov/federal/fedprocess.html (explaining
federal process).  The employee has a right to file a de novo civil action in court or appeal to the
EEOC and then file a de novo action if relief is not provided, see 29 C.F.R.  1614.408, but the
federal scheme is designed to allow employer agencies to respond to discrimination complaints in
the first instance.   See Jasch v. Potter, 302 F.3d 1092, 1096 (9th Cir. 2002) (Title VII's exhaustion
requirements for suits against federal government agencies were intended to give the agency the
opportunity to right any wrong it may have committed).
     The Supreme Court explained that this "careful blend of administrative and judicial
enforcement powers," Brown, 425 U.S. at 833, is a product of Congress' concern with the
appropriate limits on this significant waiver of sovereign immunity, id. at 827-833 (discussing
legislative history regarding sovereign immunity barriers to judicial recourse for federal employees
before enactment of section 717 of Title VII, 42 U.S.C.  2000e-16).  Because government agencies,
as employers, are statutorily empowered to investigate and remedy discrimination themselves, it is
not surprising that they assert a failure to exhaust remedies when federal employees ignore or
abandon the administrative avenues provided to them and instead seek immediate access to federal
district court, as Hill did.  Hill, 959 F. Supp. at 495 (Hill "effectively abandoned administrative
remedies in midstream").  To allow federal employees to sue without fulfilling the administrative
requirements would essentially permit a suit against the sovereign on terms other than those
Congress specified, in clear derogation of the doctrine of sovereign immunity.
     Another related factor this Court has identified that weighs in favor of exhaustion in federal
employer cases, but that counts for less in private sector cases, is the "pragmatic, prudential'" reason
that a plaintiff's abandonment of "administrative remedies he has initiated would tend to frustrate
the ability of the agency to deal with complaints.'" McGinty v. United States Department of the
Army, 900 F.2d 1114, 1117 (7th Cir. 1990) (citation omitted).  See also Robinson v. Dalton, 107 F.3d
1018, 1021 (3d Cir.1997) (stating that one purpose of exhaustion of administrative remedies
requirement as applied specifically to federal employees is to "respect [ ] executive autonomy by
allowing an agency the opportunity to correct its own errors").  Again, this is an interest only when
the employer is a federal agency empowered to investigate and remedy discrimination in the first
instance.  This Court has noted that agencies should not "be put to the bother of conducting
administrative proceedings from which the complainant can decamp at any time without
consequence" and that this is "a consideration designed for the benefit of the agencies, not of the
judges."  Adler v. Espy, 35 F.3d 263, 265 (7th Cir. 1994).
     Such concerns of sovereign immunity and the pragmatic value of encouraging federal
plaintiffs to exhaust the remedies provided by their employers have little to no relevance in the
instant case, where both plaintiff and defendant are private parties.  The federal agency whose
administrative processes have been abortedthe EEOCis not the employer, is not a party to the
litigation, and  has no interest in barring a charging party's access to court.  Since, as this Court said,
the considerations animating an exhaustion requirement are for the benefit of agencies, "and if the
agencies don't want it, there is no reason for us to give it great weight," id., the Court should not
preclude Doe's suit because of her failure to appear for a face-to-face interview with an EEOC
investigator, because the EEOC, as the enforcement agency, does not "want" that result.
     The EEOC's role in processing private sector employment discrimination charges is very
different from the role of agencies in processing federal employee complaints.  The EEOC does not
have the authority to adjudicate the conflict or to order the private employer to remedy
discrimination.  See McCarthy v. Madigan, 503 U.S. 140, 147-48 (1992) ("doubt as to whether the
agency was empowered to grant effective relief" is key circumstance weighing "heavily" against
requiring administrative exhaustion).  All the Commission can do is determine whether there is any
basis to believe that discrimination occurred and attempt to conciliate.  And its determinations are
not binding on either party.  See generally, 42 U.S.C.  2000e-5(b)-(f) (discussing administrative
procedures and civil actions by individuals against private employers); 29 C.F.R.  1601.6-1601.29
(same).   This Court has observed, in a private sector case, that a purpose of the administrative
process is to give "the EEOC and the employer an opportunity to settle the dispute through
conference, conciliation, and persuasion.'"  Hottenroth v. Village of Slinger, 388 F.3d 1015, 1034
(7th Cir. 2004) (quoting Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.
1994)).
     In Hottenroth, 388 F.3d at 1034, the Court held that a plaintiff's failure adequately to allege
harassment in her charge bars her from pursuing a harassment claim in court because she had not
exhausted her administrative remedies on that claim.  This Court's concern with the function of a
charge in giving notice to the employer of the nature of the alleged violation is not implicated in this
case.  To the extent a failure to cooperate terminates an investigation because the Commission is
unable to resolve the charge, of course no conciliation efforts are undertaken by the Commission,
and the charging party must shoulder the burden of proving her claim in court without further
assistance from the EEOC.   The statute, however, does not obligate a private charging party to
attempt conciliation before filing suit.  See 42 U.S.C.  2000e-5(f)(1).  Conciliation is solely the
responsibility of the Commission and efforts to conciliate are a precondition to suit only when the
Commission itself brings suit.  Id.  While it may seem unwise to fail to use the EEOC process, that
does not convert cooperation into a condition precedent for suit where Congress has not imposed that
requirement.  See McDonnell Douglas, 411 U.S. at 798-99 (Court would "not engraft on the statute
a requirement which may inhibit the review of claims of discrimination in the federal courts").
     In this case, the district court also found support for dismissing Doe's complaint in the
EEOC's regulation that permits the agency to dismiss a charge if the aggrieved person fails to
provide requested information, refuses to be interviewed, or otherwise refuses to cooperate.  Doe,
2005 WL at * 5 (citing 29 C.F.R.  1601.18(b)).  Just as the statutory provisions do not support
imposition of a cooperation requirement on private sector employees, neither does anything in the
Commission's regulations support such a requirement.  Nothing in the plain language of section
1601.18(b) supports the district court's interpretation that cooperation with the EEOC is a condition
precedent to suit.  The regulation simply alerts the charging party that she risks EEOC dismissal of
the charge, not dismissal of a later-filed court action, if she "refuses to cooperate to the extent that
the Commission is unable to resolve the charge."  29 C.F.R.  1601.18(b).  Thus, on its face, the
regulation only notifies the charging party that she may lose the EEOC's assistance in the resolution
of her claim.  
     The regulation cannot fairly be read to suggest that, if the Commission is dissatisfied with
the charging party's level of cooperation during the administrative process, she may also lose her
right to go to court.  Indeed, that construction is contrary to the terms of the Dismissal and Notice
of Rights form Doe received, which specifically stated she had 90 days to file a civil action.    See
R. 138, Pl. Ex., Tab 64-EEOC Dismissal and Notice of Rights, p. 14 (notifying Doe that she had "the
right to sue the respondent named in the charge in a court of competent jurisdiction" as long as she
did so within 90 days of receipt of the notice).
     It is the Commission's position that, regardless of the agency's reason for dismissing a
charge, if the charging party has satisfied the express prerequisites to suit, she has the right to sue
her employer, based on the charge, and have a court determine the merits of her discrimination claim. 
That is why the notice of right to sue that Doe received is worded as it is.  Despite the district court's
characterization of the Commission's notice as "pro forma'" precisely because such a notice is
issued regardless of the basis for the Commission's dismissal of a charge, see Doe, 2005 WL at *5 
(citation omitted), the Commission's practice is entirely consistent with the statute and with its
interpretation of the statutory prerequisites to suit.  See 29 C.F.R.  1601.28(b)(3) & (e) ("Where
the Commission has dismissed a charge pursuant to  1601.18, it shall issue a notice of right to sue
as described in  1601.28(e)" which in turn provides that the notice "shall include" authorization "to
bring a civil action under title VII . . . within 90 days").  The EEOC's regulations merely echo the
express terms of Title VII, which states that "[i]f a charge . . . is dismissed by the Commission . . .
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."  42 U.S.C.
 2000e-5(f)(1); see also Associated Dry Goods Corp., 449 U.S. at 595  ("If the EEOC dismisses the
charge, the employee may immediately file a private action.").
     In enacting Title VII, Congress charged the Commission with the responsibility to enforce
the statute and vested it with the authority "to issue, amend, or rescind suitable procedural
regulations to carry out the provisions of this subchapter."  42 U.S.C.  2000e-12(a).  The regulations
codified at 29 C.F.R.  1601.18(b) and 1601.28(b)(3) & (e), are precisely such procedural
regulations.  A regulation promulgated pursuant to 42 U.S.C.  2000e-12(a) must be upheld "so long
as it is reasonably related to the purposes of the enabling legislation.'"  Mourning v. Family
Publications Serv., Inc., 411 U.S. 356, 369 (1972); see EEOC v. Commercial Office Prods. Co., 486
U.S. 107, 115 (1988) (EEOC's interpretation of statutory language "need only be reasonable to be
entitled to deference").  There can be no serious suggestion that the Commission's procedural
regulations governing dismissal of charges and issuance of right to sue notices are in any way
unreasonable and thus they must be accepted as " based on a permissible construction of the statute." 
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).  The
Commission's interpretation of its own regulations and their intended effect is likewise entitled to
deference.  Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (court "must defer to
[agency's] interpretation [of its own regulation] unless an alternative reading is compelled by the
regulation's plain language or by other indications of [agency's] intent at the time of the regulation's
promulgation"); Gilardi v. Schroeder, 833 F.2d 1226, 1232 (7th Cir.1987) ("[t]his Court is bound
to give substantial weight to the EEOC's interpretation of the statute that it administers"). The
Supreme Court held in McDonnell Douglas, 792 U.S. at 799, that plaintiffs may bring claims to
court despite the absence of an EEOC determination of reasonable cause to believe discrimination
has occurred, relying in part on the fact that the "Commission itself does not consider the absence
of a reasonable cause' determination as providing employer immunity from similar charges in a
federal court."  (citing Commission regulation).  Consistent with the Commission's regulations and
its understanding of their role in implementing the statutory requirements, this Court should hold that
the EEOC's issuance of a right to sue notice to a private sector charging party does in fact signal
exhaustion of administrative remedies and fulfillment of the conditions precedent to suit.
     Finally, the district court's creation of this additional condition precedent must be rejected
because it is wholly inconsistent with the logic and rationale of an unbroken line of cases holding
that the EEOC's conduct during the administrative process does not affect the charging party's right
to a de novo review of the merits of her complaint.  See University of Tenn. v. Elliott, 478 U.S. 788,
793 (1986) ("it is settled that decisions by the EEOC do not preclude a trial de novo in federal
court"); accord McCottrell v. EEOC, 726 F.2d 350, 351-52 (7th Cir.1984) ("[i]t is settled law, in this
and other circuits, that Title VII does not provide either an express or implied cause of action against
the EEOC to challenge its investigation and processing of a charge[;]" "plaintiff's remedy in a case
such as this is to commence suit in the district court against the party allegedly engaged in
discrimination."); see also Associated Dry Goods Corp. v. EEOC, 720 F.2d 804, 809, 812 (4th Cir.
1983) ("no rule or decision of the Commission, however denominated, can affect the rights or
impose any obligation on any party"); Ward v. EEOC, 719 F.2d 311, 313-14 (9th Cir. 1983) (EEOC's
conduct during administrative process has no "determinate consequences" since it is merely
"preparatory to a lawsuit" by EEOC or the charging party).  In contrast, under the district court's
ruling in this case, the Commission's decision to dismiss Doe's charge for failure to cooperate, rather
than take some other action, has significantly affected Doe's rights by foreclosing her private right
of action.  Had the EEOC instead simply dismissed Doe's charge for failure to state a claim, or
because the investigator had not discovered sufficient evidence to believe a violation had occurred,
Doe could have tested the validity of her allegations de novo in court.  McDonnell Douglas, 411 U.S. 
at 799 (absence of EEOC reasonable cause determination no barrier to de novo review of claim).
     In determining how to use its limited resources effectively, the EEOC needs the flexibility
to resolve particular charges as it deems best within the context of its overall enforcement program. 
If the district court's rule is upheld, it will restrict that flexibility.  If the district court's ruling is
affirmed, given the adverse consequences the EEOC's decisions might have on charging parties'
substantive rights, investigators may feel constrained in the future to retain charges like Doe's even
though that means devoting less time to charges that, in the investigator's judgment, would otherwise
warrant more extensive treatment.  Thus, the district court's rule would actually hamper, rather than
assist, the EEOC's ability to carry out its statutory obligations.  See Adler, 35 F.3d at 265
(considerations underlying exhaustion are for the benefit of the agencies, "and if the agencies don't
want it, there is no reason for us to give it great weight").
     It is apparent in this case that the district court's imposition of an extra-statutory
administrative cooperation requirement has vitiated the charging party's ability to function as a
"private attorney general,' whose role in enforcing the ban on discrimination is parallel to that of
the Commission itself," Associated Dry Goods Corp., 449 U.S. at 602, and has undermined the long-
standing rule that "the final responsibility for enforcement of Title VII is vested with the federal
courts."  Alexander, 415 U.S. at 44.  Therefore, this Court should reverse the district court's ruling
on exhaustion and hold, consistent with Supreme Court precedent, that a private sector plaintiff who
has satisfied the administrative requirements that Congress specified in Title VII is entitled to a de
novo judicial determination of the merits of her discrimination claim whether or not her underlying
charge was dismissed for failure to cooperate with the EEOC.

                            CONCLUSION

     The district court improperly dismissed this case on exhaustion grounds and this Court
should reverse that erroneous ruling.

                              Respectfully submitted,
                              ERIC S. DREIBAND
                              General Counsel 

                              VINCENT J. BLACKWOOD
                              Acting Associate General Counsel

                              CAROLYN L. WHEELER
                              Assistant General Counsel
     
                              ______________________________
                              PAULA R. BRUNER
                              Attorney

                              EQUAL EMPLOYMENT OPPORTUNITY
                              COMMISSION
                              1801 L Street, N.W.  Rm. 7044
                              Washington, D.C.  20507
                              (202) 663-4731

                    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 5,668 words and the typeface is Times Roman 12 point.

_________________________________
PAULA R. BRUNER

                     CERTIFICATE OF SERVICE

     This is to certify that on July 13, 2005, two copies  of the foregoing  brief and a computer
diskette along with the certificate of service was mailed first class, postage prepaid, to the following
counsel of record:
                    H. Candace Gorman, Esq.
                    Gorman & Caporusso
                    542 S. Dearborn, Suite 1060
                    Chicago, Illinois 60605

                    Anthony J. Crement, Esq.
                    Franczek Sullivan, P.C.
                    300 S. Wacker Dr., Suite 3400
                    Chicago, Illinois 60606

                              PAULA R. BRUNER
                              Attorney

                              EQUAL EMPLOYMENT OPPORTUNITY
                              COMMISSION
                              1801 L Street, N.W.  Rm. 7044
                              Washington, D.C.  20507
                              (202) 663-4731
                              
                    
July 13, 2005

***************************************

<<FOOTNOTES>>

<1> The Commission takes no position on other issues raised by this appeal.

<2> Title VII also expressly permits charges to be filed on behalf of a person 
claiming to be aggrieved as occurred in this case.  See 42 U.S.C.  2000e-5(b).

<3> In Gibson, a federal employee who successfully pursued his sex discrimination 
claim during the administrative process, was denied compensatory damages when he sued 
in federal court because he had failed to request them when his case was before the 
EEOC.   201 F.3d at 991-92.  On appeal, this Court ruled that, although this 
particular component of the exhaustion requirement was not a jurisdictional 
requirement, he could not succeed on his equitable estoppel theory because his 
agencys failure to advise him of the need to seek damages during the administrative 
process was, at most, ordinary negligence and not an affirmative act to misrepresent 
or mislead.   Id. at 994.  The necessity to present the claims to be pursued in 
court to the administrative agency is not implicated in this case.

<4> The district courts reliance in this case on private sector-exhaustion cases, 
Duncan v. Consolidated Freightways Corp , 1995 WL 530652 (N.D. Ill. Sept. 7, 1995) 
and  Morris v. Albertson, Inc., 2001 WL 936118 (N.D. Ill. Aug. 17, 2001), see Doe, 
2005 WL at *3-4, is equally infirm because those decisions, like that of the lower 
court in Zugay, uncritically adopted the rationale of the federal employee plaintiff 
cases, which are distinguishable for the reasons discussed in text.