Lovelace Health Systems, Inc v. Catalina Martinez CV-2000-00205 SECOND JUDICIAL DISTRICT COURT COUNTY OF BERNALILLO STATE OF NEW MEXICO LOVELACE HEALTH SYSTEMS, INC., ) ) Respondent-Appellant, ) ) v. ) No. CV-2000-00205 ) CATALINA MARTINEZ, ) ) Complainant-Appellee. ) MEMORANDUM OF LAW OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF MS. MARTINEZ The Equal Employment Opportunity Commission ("Commission" or "EEOC") is the federal agency charged by Congress with administering, interpreting, and enforcing Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and other federal anti-discrimination laws. The instant case raises the question whether an attorney can be held in contempt of court or sanctioned for transferring his client's charge of discrimination from the New Mexico Human Rights Commission ("Human Rights Commission") to the EEOC after this Court has granted a motion to compel arbitration. The Court's resolution of the issue may have an effect on a charging party's right to unfettered access to the Commission's enforcement mechanism, and, hence, may directly impact the Commission's ability to carry out its congressional mandate. Therefore, the Commission respectfully offers its views to the Court. A. BACKGROUND Ms. Martinez filed a charge of discrimination with the Human Rights Commission alleging that her employer, Lovelace Health Systems, Inc. ("Lovelace"), subjected her to sexual harassment and retaliated against her, in violation of Title VII. The Human Rights Commission issued a determination of probable cause on all allegations and set the case for a hearing. Lovelace then asked the Human Rights Commission to compel arbitration of the dispute. The Human Rights Commission denied Lovelace's request for arbitration. Pursuant to New Mexico law, Lovelace filed a de novo appeal to this Court, seeking review of the Human Rights Commission's order denying its motion to compel arbitration. On July 31, 2000, the Court held a bench trial to determine whether Ms. Martinez's claims are subject to arbitration. The Court ruled from the bench that Ms. Martinez voluntarily signed a binding arbitration agreement, thus consenting to arbitrate her claims in accordance with Lovelace's arbitration policy.<1> Approximately one month after the trial, Ms. Martinez's attorney, Stephen Peterson, apparently contacted the Human Rights Commission, requesting that Ms. Martinez's charge be transferred to the EEOC. Based upon Mr. Peterson's request, the Human Rights Commission transferred Ms. Martinez's file to the EEOC on or about August 31, 2000. On September 8, 2000, Lovelace filed a motion to show cause in the instant proceedings. In its motion to show cause, Lovelace argues that Mr. Peterson engaged in an "ex parte communication" when he asked the Human Rights Commission to transfer Ms. Martinez's charge to the EEOC. (Motion to Show Cause at ¶ 10). Lovelace further maintains that Mr. Peterson asked the Human Rights Commission to transfer Ms. Martinez's charge to the EEOC "in an attempt to subvert this Court's authority in ordering the case to arbitration." (Motion to Show Cause at ¶ 6). In order to penalize Mr. Peterson for his "subversive action," (Motion to Show Cause at ¶ 7), Lovelace asks the Court to "issue a contempt order and assess sanctions" against him. B. DISCUSSION 1. Filing a charge of discrimination with the Commission is absolutely protected activity that cannot form the basis of a contempt order or an assessment of sanctions. An attorney should not face the threat of sanctions or a contempt order for doing what he has an absolute right to do on behalf of his client. Filing a charge of discrimination with the Commission is absolutely protected activity. See, e.g., Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969) (right to file a charge is absolutely protected because it is essential to the Commission's enforcement of the civil rights laws); McGarry v. Bd. of County Commissioners, 175 F.3d 1193, 1201 (10th Cir. 1999) (filing an EEOC charge is protected activity under Title VII); Kim v. Nash Finch Co., 123 F.3d 1046, 1061 (8th Cir. 1997) (same); Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir. 1986) (same); see also Blizzard v. Newport News Redevelopment and Housing Authority, 670 F. Supp. 1337, 1344 (E.D. Va. 1984) ("the participation clause in 42 U.S.C. § 2000e-3(a) grants an absolute privilege for filing a claim with the EEOC"); id. ("The filing of a claim with the EEOC is a protected right, the exercise of which cannot be infringed by the employer."). If the Court holds Mr. Peterson in contempt or sanctions him for coming to the EEOC with his client's charge of discrimination, this will have a chilling effect on employees' and attorneys' willingness to file charges of discrimination with the Commission. This chilling effect, in turn, will have a deleterious effect on the Commission's enforcement efforts. The Commission relies heavily on the filing of charges as its principal source of allegations of unlawful discriminatory conduct. See EEOC v. Cosmair, Inc., 821 F.2d 1085, 1090 (5th Cir. 1987); see also EEOC v. Bd. of Governors, 957 F.2d 424, 431 (7th Cir. 1992) (stating that effective enforcement of Title VII depends on the participation of individual employees). In fact, "the Commission's power to investigate is dependent upon the filing of a charge of discrimination." EEOC v. Astra USA, Inc., 94 F.3d 738, 746 (1st Cir. 1996). A charge not only empowers the Commission to investigate, but also to conciliate, and, if necessary, litigate in order to eradicate discrimination in the workplace. 42 U.S.C. §§ 2000e-5(b) & (f)(1). If individuals were unwilling to file charges of discrimination with the Commission due to the threat of sanctions or a contempt order, the Commission's enforcement efforts would be thwarted. The general public would thereby be harmed, as well. As one court has emphasized, "an employee's right to communicate with the EEOC must be protected . . . to safeguard the public interest." Astra, 94 F.3d at 744 n.5; see also id. (stressing the "significant public interest in encouraging communication with the EEOC"). Furthermore, the Commission's broad investigatory powers allow it to pursue not only the allegations contained in the charge, but any other discriminatory practices that may be unearthed during the investigation of the initial charge, as well. See Astra, 94 F.3d at 746 (stating that a charge of discrimination "serves as a jurisdictional springboard" enabling the Commission to investigate not only the charge itself but the surrounding circumstances) (citation omitted). It is imperative, then, that charging parties have unhindered access to the Commission's enforcement mechanism. Moreover, any conduct that deters the filing of discrimination charges violates public policy. See, e.g., Cosmair, 821 F.2d at 1090 (holding that a "waiver of the right to file a charge is void as against public policy"); EEOC v. United States Steel Corp., 671 F. Supp. 351, 358 (W.D. Pa. 1987) (lowering a retiree's pension benefits for filing a charge tends to deter charge filing and therefore violates public policy), rev'd on other grounds, 921 F.2d 489 (3d Cir. 1990). As one court has observed, anything "that materially interferes with communication between an employee and the Commission sows the seeds of harm to the public interest." Astra, 94 F.3d at 744. A sanction or contempt order itself, then, would be antithetical to public policy because it would deter the filing of charges by others. Should the Court hold Mr. Peterson in contempt or sanction him, Ms. Martinez will effectively be penalized for resorting to Title VII's legal procedures. Such a ruling would have the impermissible consequence of interfering with the EEOC's ability to enforce the law. The strong public policy that prohibits interference with governmental law enforcement activities would thereby be infringed. The public interest demands vigorous enforcement of Title VII by the EEOC, which in turn requires that any person with relevant information remain free to apprise the EEOC of a charge without fear that she may have to show cause why she should not be sanctioned or held in contempt of court. To ensure unrestricted access to the Commission's administrative machinery and to ensure the Commission a free hand in the exercise of its congressionally mandated duties, the Court should refrain from ordering contempt or sanctions. Finally, it is worth noting that, although the Court has compelled arbitration, Ms. Martinez is not obligated to begin arbitrating, and, therefore, there is no basis on which to hold her attorney in contempt or sanction him. First of all, Ms. Martinez has a right to appeal the order compelling arbitration, which apparently she has done. See Lyman v. Kern, 128 N.M. 582, 585-86, 995 P.2d 504, 507-08 (Ct. App. 1999), cert. denied, 128 N.M. 688, 997 P.2d 820 (2000) (trial court's order compelling arbitration is final and appealable); Britt v. Phoenix Indemnity Ins. Co., 120 N.M. 813, 815-16, 907 P.2d 994, 996-97 (1995) (same). Second, even if the New Mexico Court of Appeals affirms, Ms. Martinez is under no obligation to resolve her employment dispute in an arbitral forum; she could choose to forego that right altogether. Third, the Human Rights Commission has authority to process a claim only under New Mexico law, and, therefore, as it stated in its Order on Motion to Compel Arbitration, it "does not have the authority to compel federal arbitration in this matter." Thus, the Court only had jurisdiction to compel arbitration of Ms. Martinez's state claim. For all of these reasons, Lovelace's assertion that Mr. Peterson is attempting to "subvert" the Court's authority is without merit. Consequently, a contempt or sanctions order is wholly unwarranted. 2. Ms. Martinez's arbitration agreement, even if binding, can neither prevent her from filing a charge with the EEOC nor prevent the EEOC from processing the charge. The Commission takes no position on the question whether the arbitration agreement between Ms. Martinez and Lovelace is valid and binding. However, even if the agreement is valid and binding, it certainly does not prevent Ms. Martinez from filing a charge of discrimination with the EEOC. Nor can such an agreement prevent the Commission from processing the charge. Because the EEOC "depends on the filing of charges for notification of possible discrimination," Ms. Martinez may not "contract away her right to file a charge with the EEOC, as such contracts are void as against public policy." EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999). Indeed, the Supreme Court has confirmed that even if a claimant "is not able to institute a private judicial action" due to a binding arbitration agreement, she would "still be free to file a charge with the EEOC." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991). In fact, now that Ms. Martinez's charge of discrimination resides with the EEOC, she is not permitted to withdraw it without the EEOC's consent. See Frank's Nursery, 177 F.3d at 456 (citing 29 C.F.R. § 1601.10). Moreover, an agreement between Ms. Martinez and Lovelace, even if binding with respect to her, cannot bind the Commission. That is because private agreements to arbitrate are unenforceable as against the EEOC. See Frank's Nursery, 177 F.3d at 462. Indeed, the Commission is permitted to seek broad injunctive relief in federal court "notwithstanding the charging party's agreement to arbitrate." EEOC v. Waffle House, Inc., 193 F.3d 805, 812-13 (4th Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3726 (U.S. Oct. 2, 2000) (No. 99-1823). The Commission has its own interest in eradicating employment discrimination, independent of an individual's interest. See Frank's Nursery, 177 F.3d at 459 ("Congress granted to the EEOC the right to represent an interest broader than that of a particular individual when it exercises its authority to sue"). Once the Commission investigates Ms. Martinez's charge and attempts conciliation, it is empowered to file suit not only on her behalf, but on behalf of the public interest. See id. at 458 ("'[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 in preventing employment discrimination'") (quoting General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980)); see also EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1543 (9th Cir. 1987) (noting that the EEOC has the authority "to vindicate rights belonging to the United States as sovereign"). It is clear, then, that Ms. Martinez's agreement to arbitrate cannot prevent the Commission from carrying out its congressional mandate. And in order to do so, it is imperative that the Commission receive charges. 3. Lovelace's action in seeking a contempt order and sanctions is retaliatory. Lovelace's action in seeking a contempt order and sanctions against Mr. Peterson constitutes unlawful retaliation under Title VII.<2> Title VII states that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). In enacting the anti-retaliation provision of Title VII, Congress recognized that the employees on whom Title VII's enforcement depends are vulnerable to retribution by employers displeased at being made to answer for their unlawful employment practices. Congress therefore expressly prohibited employers from retaliating against employees because they have participated in protected activity or opposed unlawful practices. According to the plain language of the statute, bringing a charge to the Commission's attention is protected activity. See 42 U.S.C. § 2000e-3(a). The Supreme Court has made clear that former employees such as Ms. Martinez are covered by Title VII's protection against unlawful retaliation. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding that the definition of the term "employee" as used in Title VII includes former employees). Moreover, the Supreme Court has held that filing a baseless lawsuit with the intent of retaliating is an unfair labor practice under the National Labor Relations Act ("NLRA"). See Bill Johnson's Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731, 744 (1983); cf. Martinez v. Deaf Smith County Grain Processors, Inc., 583 F. Supp. 1200, 1209 (N.D. Tex. 1984) (concluding that filing a state lawsuit may constitute retaliation prohibited by the Fair Labor Standards Act). The NLRA's anti-retaliation provision is similar to that of Title VII. Compare 29 U.S.C. § 158(a)(4) (making it unlawful "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony" under the Act) with 42 U.S.C. § 2000e-3(a) (making it unlawful to discriminate against an employee because she has opposed an unlawful practice or because she has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under the Act). In fact, the NLRA provided the model for Title VII's anti-retaliation provision. See Hearings Before the General Subcommittee on Labor of the Committee on Education and Labor, House of Representatives, 88th Cong., 1st Sess., pp. 83-84 (May 3, 1963). Thus, Bill Johnson's Restaurants' holding with respect to the NLRA should apply with equal force to Title VII. Indeed, courts have found that filing a lawsuit against one who has filed a charge of discrimination violates Title VII's prohibition against retaliation. For example, in EEOC v. Virginia Carolina Veneer Corp., 495 F. Supp. 775 (W.D. Va. 1980), the charging party filed a charge of sex discrimination against her employer. The employer responded by filing a state defamation action against her. Id. at 776. The Commission sued the employer for retaliation, and the district court granted the Commission's motion for summary judgment, holding that the employer's actions in filing the defamation lawsuit "clearly violate the participation clause" of Title VII [42 U.S.C. § 2000e-3(a)]. Id. at 777. The court emphasized that because "the charge process is the lifeblood of Title VII," there is "an absolute privilege for the filing of a discrimination charge." Id. The court reiterated that "to insure uninhibited access to Title VII's enforcement mechanism, Congress included [42 U.S.C. § 2000e-3(a)] in the Act prohibiting employer retaliation in any form." Id. (emphasis added). Courts are in agreement with Virginia Carolina Veneer, that initiating judicial proceedings against one who has exercised her rights under Title VII can constitute unlawful retaliation within the meaning of the Act. See, e.g., Steffes v. Stepan Co., 144 F.3d 1070, 1075 (7th Cir. 1998) ("actions taken in the course of litigation could constitute retaliation" prohibited by Title VII); Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (pressing criminal charges against one who has filed a charge of discrimination with the EEOC may form the basis of a Title VII retaliation claim); Beckham v. Grand Affair of N.C., Inc., 671 F. Supp. 415, 419 (W.D.N.C. 1987) (when an employer causes an employee to be arrested and prosecuted in retaliation for her having filed a charge of discrimination with the EEOC, this states a cause of action under 42 U.S.C. § 2000e-3(a)); EEOC v. Levi Strauss & Co., 515 F. Supp. 640, 643 (N.D. Ill. 1981) ("There is little doubt that a state court defamation action filed in retaliation for having engaged in conduct protected by [42 U.S.C. § 2000e-3(a)], including the filing of a charge with the Commission, violates this section."). Permitting an employer to retaliate against an employee in a "court proceeding" would have a "chilling effect" on "an employee's protected right to challenge discrimination under Title VII." Levi Strauss, 515 F. Supp. at 642-43. In the instant case, Lovelace's coercive action in filing a motion to show cause is analogous to filing a retaliatory lawsuit against Ms. Martinez. Indeed, Lovelace's motivation in filing the motion is manifestly retaliatory. Not only did Lovelace file its motion just one week after the charge of discrimination was transferred to the Commission, but Lovelace admits in the body of the motion that the reason it filed the motion is because Mr. Peterson sought to have the EEOC process the charge. Lovelace's motion subjects Ms. Martinez to the burden of expending time and money to defend herself in the instant proceedings, and to the stress of knowing that her attorney could be held in contempt and sanctioned. Lovelace's egregious conduct has placed Ms. Martinez in an untenable position simply because she has come to the EEOC with a charge of discrimination. C. CONCLUSION For the foregoing reasons, the Commission urges the Court to deny Lovelace's request for a contempt order or sanctions against Ms. Martinez's attorney for bringing his client's charge to the Commission. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________________ CAREN I. FRIEDMAN (N.M. Bar # 7905) Attorney Counsel for Amicus Curiae EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, NW, 7th Floor Washington, D.C. 20507 (202) 663-4720 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of October 2000, a true and correct copy of the foregoing Memorandum of Law was mailed via Federal Express to counsel of record at the following addresses: Stephen M. Peterson, Esq. 1332 Gusdorf Road, Suite E Taos, New Mexico 87571 (505) 758-3071 Lorna M. Wiggins, Esq. WIGGINS, CAMPBELL & WELLS, LLP 200 Third Street, NW, Suite 710 Albuquerque, New Mexico 87102 (505) 764-8400 ______________________________ 1The Court entered Findings of Fact and Conclusions of Law on September 13, 2000. 2Ms. Martinez has filed a separate charge of discrimination with the Commission, alleging that Lovelace has retaliated against her by filing the Motion to Show Cause in the instant proceedings. That charge is currently under investigation. Should either she or the Commission file suit on that charge, the following elements would have to be met to establish a prima facie case: 1) Ms. Martinez "engaged in protected opposition to discrimination;" 2) she was subjected "to an adverse employment action subsequent to the protected activity;" and 3) there is a causal nexus between the protected activity and the adverse action. Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir. 2000).