No. 02-10915 ________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant-Appellee, v. CHEVRON U.S.A., INC. Respondent-Appellant. ________________________________________________ On Appeal from the United States District Court for the Northern District of Texas, Dallas Division Hon. A. Joe Fish, Chief Judge, Presiding ________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPLICANT-APPELLEE ________________________________________________ JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7012 Washington, D.C. 20507 (202) 663-4055 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission ("EEOC") requests oral argument. The district court's holding in this case can be affirmed for two reasons, and oral argument would help the Court to determine the best ground for affirmance. TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT i TABLE OF AUTHORITIES iv STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 A. Course of Proceedings 2 B. Statement of Facts 3 C. District Court Opinion 6 SUMMARY OF ARGUMENT 8 ARGUMENT 9 The district court properly enforced the EEOC's subpoena 9 A. Standard of Review 9 B. The alleged untimeliness of a charge is not a valid defense in a subpoena enforcement proceeding under Title VII 9 C. The charge in this case is timely because the Intake Questionnaire qualifies as a Title VII charge 15 CONCLUSION 23 ADDENDUM Memo of 2/21/02 from EEOC Director of Field Programs to All District, Area, and Local Office Directors CERTIFICATE OF SERVICE TABLE OF AUTHORITIES No. 02-10915 ________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant-Appellee, v. CHEVRON U.S.A., INC. Respondent-Appellant. ________________________________________________ On Appeal from the United States District Court for the Northern District of Texas, Dallas Division Hon. A. Joe Fish, Chief Judge, Presiding ________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPLICANT-APPELLEE ________________________________________________ STATEMENT OF JURISDICTION The district court had jurisdiction over this subpoena enforcement action under Title VII, 42 U.S.C. §§ 2000e-8 to -9, and incorporated provisions of the National Labor Relations Act, 29 U.S.C. § 161(2). The district court entered final judgment in favor of the EEOC on August 13, 2002. (R.19, R.E. at C, Vol. 2 at 284) On August 15, 2002, Chevron filed a timely notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure. (R.20, R.E. at B, Vol. 2 at 286) This Court has jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Did the district court correctly enforce the EEOC's subpoena when the subpoena is based on a valid and timely-filed Title VII charge, and when, in any event, the alleged untimeliness of a charge is not a legitimate reason to resist compliance with an EEOC subpoena? STATEMENT OF THE CASE This is an appeal from a final judgment of the district court enforcing the EEOC's subpoena. A. Course of Proceedings On October 18, 2001, the EEOC issued a subpoena to Chevron in connection with a charge alleging racial discrimination in violation of Title VII. (Vol. 1 at 54) Chevron refused to comply with the subpoena, (Vol. 1 at 99), and on May 6, 2002, the EEOC applied to the district court for an order to show cause why the subpoena should not be enforced. (R.1, Vol. 1 at 1) The district court referred the case to Magistrate Judge Jeff Kaplan, (R.3, Vol. 1 at 103), who scheduled an evidentiary hearing. (R.7, Vol. 1 at 136) Following the hearing, Magistrate Judge Kaplan ordered Chevron to comply with the EEOC's subpoena. (R.10, R.E. at D, Vol. 1 at 140) Chevron objected to the magistrate's order. (R.11, Vol. 1 at 142) On August 13, 2002, the district court overruled Chevron's objections and enforced the subpoena. (R.19, R.E. at C, Vol. 2 at 284) On October 7, 2002, the district court denied Chevron's motion to stay its ruling pending appeal. (R.27, Vol. 2 at 315) Chevron turned the subpoenaed materials over to the EEOC. Opening Br. at 2. Following a brief investigation, the EEOC dismissed the Title VII charge and issued a notice of right to sue. On February 7, 2003, the charging party filed a Title VII lawsuit against Chevron. See Whitehead v. Chevron U.S.A., Inc., No. 3:03-cv-00956 (N.D. Tex.). B. Statement of Facts Under Title VII, a charging party in a "deferral" state such as Texas has 300 days to file a charge of discrimination. 42 U.S.C. § 2000e-5(e)(1). Chevron is resisting the EEOC's subpoena in this case because it believes that the charging party's Title VII charge was not timely filed. On November 21, 2000, Kerry Whitehead visited the EEOC's Dallas District Office in order to file a charge of discrimination against Chevron, his former employer. (Tr. at 14-15, 41) He filled out an Intake Questionnaire in which he said that Chevron had subjected him to wrongful termination, discrimination, and retaliation because of his race in violation of Title VII. (R.E. at F, Vol. 1 at 31) He said on the Intake Questionnaire that Chevron had discharged him on April 12, 2000 (223 days previously). Id. Whitehead signed the Intake Questionnaire under penalty of perjury. Id., Vol. 1 at 32. He then spent 30-60 minutes being interviewed by EEOC investigator Randy Garrett. (Tr. at 26, 40) When he left the EEOC, Whitehead believed that he had filled out all of the paperwork that was necessary for filing a charge. (Tr. at 48) Garrett told him to expect a formal charge in the mail in a few weeks, which he should sign and return to the EEOC. (Tr. at 15, 41, 47) Although Garrett was an experienced investigator, (Tr. at 9), he was unaware that the EEOC's Compliance Manual required him to treat Whitehead's Intake Questionnaire as a charge and to send Chevron notice of the charge within ten days. (Tr. at 31) He did not send Chevron notice of the Intake Questionnaire. Id. He used his interview notes to draft a perfected charge on an EEOC charge form (Form 5), which he sent to Whitehead for his signature on January 16, 2001 (279 days after the date on which Whitehead had said he was terminated). (Tr. at 16-18) Whitehead never received this mailing. (Tr. at 49) On January 23, 2001, Whitehead returned to the EEOC office. He met with investigator Sheila Squire, who produced a Form 5 for Whitehead's signature. (Tr. at 49-50) Whitehead signed the form that day (286 days after the day on which he had said he was terminated). (R.E. at G, Vol. 1 at 34) The EEOC sent Chevron notice of Whitehead's charge two days later and asked Chevron to provide a statement of its position with respect to Whitehead's allegations. (Vol. 1 at 37) On February 21, 2001, Chevron asked the EEOC to dismiss Whitehead's charge as untimely filed. (Vol. 1 at 39) Chevron asserted, without providing supporting evidence, that it had notified Whitehead on March 14, 2000, that he would be terminated the following month. Id. The March 14th date would mean that Whitehead's Intake Questionnaire was filed 252 days after the termination, and that the Form 5 was filed 316 days afterwards. Not until October 3, 2001, did Chevron produce evidence that it had told Whitehead on March 14th that he was going to be fired. (Vol. 1 at 49) By this point, nine months had passed since the EEOC first sought information from Chevron. Relying on equitable tolling, the EEOC asserted that Whitehead's charge was timely and again asked Chevron to cooperate with the investigation. (Vol. 1 at 52) Chevron refused. Unable to obtain the information voluntarily, on October 18, 2001, the EEOC issued a subpoena. (Vol. 1 at 54) Chevron petitioned the EEOC to revoke or modify the subpoena, (Vol. 1 at 59), and the EEOC denied the petition in its entirety. (Vol. 1 at 81) After Chevron told the EEOC that it intended not to turn over the subpoenaed materials, (Vol. 1 at 99), the EEOC filed this enforcement action in the district court. (R.1, Vol. 1 at 1) The sole issue before the district court was whether Whitehead's Intake Questionnaire qualifies as a timely charge that can support the EEOC's subpoena. (R.6, Vol. 1 at 110, 112, 125) Chevron argued that unless the EEOC had treated the Intake Questionnaire as a charge, it could not use the Intake Questionnaire as the basis for its investigation. (R.6, Vol. 1 at 125) The EEOC responded that under its regulations, the Intake Questionnaire constitutes a "minimally sufficient charge." (R.6, Vol. 1 at 115) C. District Court Opinion The magistrate judge agreed with Chevron that "the dispositive issue is whether the EEOC treated the [Intake Questionnaire] as a charge." (R.E. at E, Tr. at 64) He heard testimony from the charging party, Kerry Whitehead, and from the EEOC investigator, Randy Garrett. He concluded that Whitehead had intended to file a charge in November 2001 and that Garrett had considered the Intake Questionnaire to be a charge. Id. Noting that the EEOC took no action on Whitehead's charge until after Whitehead had signed a formal charging document in January, the magistrate judge nevertheless found that the Intake Questionnaire was a charge. "The testimony of Mr. Whitehead and Mr. Garrett strongly indicate that the charging party intended to file a charge of discrimination in November 2001," he said, "and there is no direct evidence to the contrary." Id. Accordingly, he held, the EEOC's subpoena should be enforced. (Id., Tr. at 64-65) The magistrate judge added that "this unfortunate and costly situation could have been avoided had the EEOC not dropped the ball and acted promptly after Mr. Whitehead submitted his [Intake Questionnaire]." (Id., Tr. at 65) The district court reviewed the magistrate's decision de novo and upheld it in its entirety. (R.19, R.E. at C, Vol. 2 at 284-85) The court explained: "[T]he findings of fact and conclusions of law of the magistrate judge are correct. Accordingly, those findings and conclusions are adopted as the findings and conclusions of the court." (Id., Vol. 2 at 285) SUMMARY OF ARGUMENT This Court should affirm enforcement of the EEOC's subpoena because Chevron's arguments about the timeliness of Whitehead's charge are irrelevant in a subpoena enforcement proceeding. Subpoena enforcement proceedings are meant to be summary in nature, and respondents may not raise procedural or substantive objections that are more properly addressed at trial. As long as the EEOC has a valid Title VII charge, it acts within its authority in issuing a subpoena. Because timely filing has no bearing on the validity of a charge, allegations of untimeliness are generally not a defense to a subpoena enforcement action. Only if there is no possibility that a charge is timely may a court refuse to enforce a subpoena on timeliness grounds. Here, the EEOC has good reason to believe that Whitehead's charge was timely filed. Accordingly, this Court should enforce the subpoena without entertaining Chevron's arguments to the contrary. This Court should also affirm enforcement of the EEOC's subpoena because Whitehead's Intake Questionnaire is a timely filed Title VII charge. The status of his Intake Questionnaire does not turn on the EEOC's actions; it depends, instead, on whether the questionnaire contains the minimally sufficient information required by Title VII and constitutes a clear request for the EEOC to act. Whitehead's Intake Questionnaire satisfies the requirements of Title VII for a valid charge, and under the EEOC's Compliance Manual, the agency should have issued notice to Chevron within ten days. Although it failed to do so, an administrative error that does not prejudice the respondent should not derail a statutorily mandated investigation. Moreover, Whitehead should not be penalized for the EEOC's failure to meet its responsibilities. ARGUMENT The District Court Properly Enforced the EEOC's Subpoena. A. Standard of Review This Court reviews a subpoena enforcement order for abuse of discretion. United States v. Chevron U.S.A., Inc., 186 F.3d 644, 647 (5th Cir. 1999). B. The alleged untimeliness of a charge is not a valid defense in a subpoena enforcement proceeding under Title VII. This Court may affirm the district court's decision for any reason supported by the record, whether or not that reason was argued to the district court. Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 878 (5th Cir. 2002); Wooton v. Pumpkin Air, Inc., 869 F.2d 848, 850 n.1 (5th Cir. 1989). The Court should affirm the district court's order enforcing the EEOC's subpoena because Chevron's arguments have no place in a subpoena enforcement proceeding. A subpoena enforcement proceeding is intended to be summary in nature. Otherwise, a respondent could derail an agency's investigation by refusing to comply with a subpoena and forcing the agency to respond to one objection after another. See EEOC v. Dillon Cos., 310 F.3d 1271, 1277(10th Cir. 2002) ("We will not . . . either encourage or allow an employer to turn a summary subpoena-enforcement proceeding into a mini-trial by allowing it to interpose defenses that are more properly addressed at trial."); United States v. Sturm, Ruger & Co., 84 F.3d 1, 5 (1st Cir. 1996) ("‘an agency's investigations should not be bogged down by premature challenges to its regulatory jurisdiction'") (citation omitted); EEOC v. Roadway Express, Inc., 750 F.2d 40, 42 (6th Cir. 1984) ("A subpoena enforcement proceeding . . . is not the proper time to litigate the merits of a claim, either procedurally or substantively."); EEOC v. Children's Hosp. Med. Ctr., 719 F.2d 1426, 1429 (9th Cir. 1983) (en banc) ("agency jurisdiction is not abrogated because the party being investigated may have a valid defense to a subsequent suit by the agency"); Tobin v. Banks & Rumbaugh, 201 F.2d 223, 226 (5th Cir. 1953) ("[r]efusal of the courts to refrain from adjudicating the issue of coverage in the enforcement proceeding would result in a maelstrom of confusion"); see also Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 214 (1946) ("Congress has authorized the Administrator, rather than the District Courts in the first instance, to determine the question of coverage in the preliminary investigation of possibly existing violations"). Among the few permissible objections at a subpoena enforcement hearing is that an agency is acting outside its authority. See NLRB v. Line, 50 F.3d 311, 314 (5th Cir. 1995). For purposes of Title VII, the EEOC acts outside its authority when it issues a subpoena without a valid charge of discrimination to support the investigation. EEOC v. Shell Oil Co., 466 U.S. 54, 65 (1984); see EEOC v. Hearst, 103 F.2d 462, 469 (5th Cir. 1997) (EEOC cannot base investigation on charges which have moved out of the administrative realm and have become the subject of private litigation). Hoping to show that the EEOC subpoena in this case rests on an invalid charge, Chevron erroneously suggests that a charge which is untimely filed is necessarily invalid. Opening Br. at 10. Contrary to Chevron's arguments, statutory language and regulations demonstrate that timely filing has no bearing on the validity of a charge. Title VII spells out the requirements for a valid charge in section 706(b), 42 U.S.C. § 2000e-5(b): a charge must be in writing and under oath, and it must contain such information and be in such form as EEOC regulations require. Provisions for timely filing are in section 706(e)(1), 42 U.S.C. § 2000e-5(e)(1). The two sections do not reference one another and there is nothing in the statutory language to suggest that timeliness, too, is an element of a valid charge. See Edelman v. Lynchburg College, 122 S. Ct. 1145, 1149 (2002) ("Neither provision incorporates the other so as to give a definition by necessary implication."); EEOC v. Shell Oil Co., 466 U.S. 54, 65 (1984) (with no discussion of timeliness, Court holds that "the existence of a charge that meets the requirements set forth in § 706(b) is a jurisdictional prerequisite to judicial enforcement of a subpoena issued by the EEOC"). The EEOC's regulations do not treat timeliness as an element of a valid charge. To the contrary, they treat untimeliness as grounds for dismissing a charge that has already been accepted for filing. See 29 C.F.R. § 1601.12 (spelling out requirements for a valid charge); id. § 1601.18(a) (requiring EEOC to dismiss untimely charges as soon as untimeliness becomes clear to EEOC). The EEOC's interpretation of its own regulations is entitled to substantial deference. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994); Shell Oil, 466 U.S. at 74 n.28; Girling Health Care v. Shalala, 85 F.3d 211, 215 (5th Cir. 1996). Precisely because untimeliness does not negate the validity of a charge, courts generally do not permit respondents to raise the issue during subpoena enforcement proceedings – especially when, as here, a charge appears timely on its face. See EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir. 1987) ("timeliness objection is not a proper defense to enforcement of the subpoena"); Roadway Express, 750 F.2d at 42 n.1 ("The district court should examine a charge to make sure that it is facially valid, but it need not go beneath the face of the charge to make factual determinations as to timeliness."); Pacific Maritime Ass'n v. Quinn, 491 F.2d 1294, 1296 (9th Cir. 1974) ("the statute of limitations issue has been raised prematurely"); see also EEOC v. Ocean City Police Dep't, 820 F.2d 1378, 1380, 1382 (4th Cir. 1987) (en banc) ("a charge which shows on its face that it is untimely is also an invalid charge incapable of invoking EEOC's investigatory powers," although court should consider whether charge may be timely despite its facial invalidity) (emphasis added), cert. granted and judgment vacated on other grounds, 486 U.S. 1019 (1988). As long as the EEOC has some plausible basis for believing that a charge may prove to be timely, a court must enforce the agency's subpoena. See Tempel Steel, 814 F.2d at 485 (court should enforce subpoena unless there is "clearly no factual or legal support for the agency's preliminary determination to investigate"); Roadway Express, 750 F.2d at 42 (same); Children's Hosp. Med. Ctr., 719 F.2d at 1432 (court should enforce subpoena "unless jurisdiction is ‘plainly lacking'"). As the Ninth Circuit has explained, if "the subpoenaed parties could, under some set of facts, be found in violation of federal law, it [makes] sense for the court not to adjudicate the parties' fact-specific defenses at the administrative subpoena stage." EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071, 1078 (9th Cir. 2001); cf. EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696, 707 (7th Cir. 2002) (respondent need not comply with portion of subpoena investigating merits of claim "if it is plain on the basis of uncontested facts" that alleged victims of discrimination were not covered by the age discrimination statute) (emphasis added). When timeliness is at issue, the EEOC will virtually always have a plausible basis for investigating. As the EEOC's regulations recognize, timeliness often cannot be determined from the face of a charge. See 29 C.F.R. § 1601.18(a). Investigation may uncover tolling or other arguments that would render a seemingly untimely charge timely filed. In most circumstances, therefore, it would be premature to resolve objections to timeliness during a subpoena enforcement proceeding. See Pacific Maritime Ass'n, 491 F.2d at 1297 ("EEOC ought to be allowed to determine, in the first instance . . . whether the violation is a continuing one. It cannot properly make that determination without first getting the relevant facts."); Ocean City Police Dep't, 820 F.2d at 1383-84 (Hall, J., dissenting) ("it would be a rare case where timeliness could be conclusively determined prior to subpoena enforcement"). This case illustrates why courts should not permit inquiries into timeliness during a subpoena enforcement proceeding. In the EEOC's view, Whitehead's charge was timely filed. See infra at 15-22. Despite this fact, Chevron interposed arguments about timeliness to delay the EEOC's investigation for nearly 21 months. See Notice of Charge & Request for Info., Vol. 1 at 37 (Jan. 25, 2001); Denial of Stay, R.27, Vol. 2 at 315 (Oct. 7, 2002). Once Chevron turned over the requested information, the EEOC rapidly concluded its investigation, dismissed the charge, and issued a right to sue notice. See Whitehead v. Chevron, No. 3:03-cv-00956 (N.D. Tex.) (Filed Feb. 7, 2003). Had Chevron cooperated in the first place, the EEOC's investigation might have been resolved long ago without any judicial intervention. C. The charge in this case is timely because the Intake Questionnaire qualifies as a Title VII charge. The district court correctly held that Whitehead's Intake Questionnaire is a timely filed Title VII charge capable of supporting the EEOC's subpoena. Title VII requires only that a charge be in writing and under oath, and that it contain such information and be in such form as EEOC regulations require. 42 U.S.C. § 2000e-5(b). EEOC regulations provide that "a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." 29 C.F.R. § 1601.12(b). Whitehead's Intake Questionnaire satisfies these requirements. It is in writing, it is signed under penalty of perjury, it identifies Chevron U.S.A. as Whitehead's employer, and it alleges that Chevron subjected Whitehead to wrongful termination, discrimination, and retaliation because of his race. (R.E. at F, Vol. 1 at 31-32) Title VII requires no more. Although the EEOC prefers, for clarity and consistency, to formalize all charges on an official Form 5 charging document, a charge need not be formalized in order to be valid. Courts have recognized that informal written statements to the EEOC may constitute Title VII charges. See Edelman v. Lynchburg College, 300 F.3d 400, 404 (4th Cir. 2002) (letter that charging party mailed to EEOC constitutes a charge), on remand from 122 S. Ct. 1145 (2002); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1320 (11th Cir. 2001) (an Intake Questionnaire constitutes a charge if "the circumstances of [the] case [would] convince a reasonable person that [the plaintiff] manifested her intent to activate the machinery of Title VII by lodging her intake questionnaire with the EEOC"); Philbin v. General Elec. Capital Auto Lease, Inc., 929 F.2d 321, 323 (7th Cir. 1991) ("an intake questionnaire which is later verified may be sufficient to constitute a charge in some circumstances"); Peterson v. City of Wichita, Kansas, 888 F.2d 1307, 1308-09 (10th Cir. 1989) (unverified Intake Questionnaire constitutes a charge, and later verification can relate back in time); Casavantes v. California State Univ., 732 F.2d 1441, 1443 (9th Cir. 1984) (the Intake Questionnaire, as completed by the plaintiff, "was sufficient to constitute a charge"); Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 78-79 (5th Cir. 1982) (triable issue of fact whether EEOC waived verification requirement such that unverified Intake Questionnaire should constitute a charge); see generally 2 Barbara Lindemann & Paul Grossman, EMPLOYMENT DISCRIMINATION LAW 1219 (Paul W. Cane, Jr., et al. eds., 3d ed. 1996) ("To constitute a charge, correspondence need not be received on an official EEOC charge form, so long as it is in writing and contains the required information, e.g., the name of the respondent and the relevant facts of the alleged discrimination."). Chevron seeks to persuade this Court that an Intake Questionnaire can only constitute a charge if the EEOC treats it as one, assigning it a charge number and issuing immediate notice to the respondent. See Opening Br. at 12 n.5. While it is true that some courts, including this one, have looked at the EEOC's intentions in determining whether to recognize an Intake Questionnaire as a charge, see Price, 687 F.2d at 78-79; see also Wilkerson, 270 F.3d at 1320; Philbin, 929 F.2d at 324, this approach is fundamentally flawed. This Court appears not to have considered in Price the possibility that all writings submitted to the EEOC may constitute charges if they contain minimally sufficient information and seek to invoke the EEOC's administrative process. The EEOC's Compliance Manual provides that all Intake Questionnaires are charges so long as they contain the minimally sufficient information required by Title VII and constitute a clear request for the EEOC to act. See 1 EEOC Compl. Man. (BNA) § 1.7, at 1:0001 (if charging party leaves EEOC without signing a charge, then the Intake Questionnaire should be treated as correspondence); id. § 2.2, at 2:0001 (if correspondence identifies a respondent by name and describes a matter which may be employment discrimination, it is a minimally sufficient charge). The Compliance Manual requires the EEOC to notify the respondent within ten days after receipt of an Intake Questionnaire that constitutes a minimally sufficient charge. See id. § 2.2(b), at 2:0001, § 3.2, at 3:0001. Unfortunately, the EEOC has been inconsistent in complying with its own procedures. As in this case, the EEOC has sometimes failed to notify a respondent within ten days of receiving an Intake Questionnaire. At times, as in this case, the EEOC has taken longer than promised to draft a formalized charge. Although these lapses are regrettable, and the EEOC seeks to prevent such errors, the EEOC's failure to carry out its own responsibilities should have no bearing on the validity of a charge. Otherwise, the EEOC's mistakes would unfairly foreclose the charging party from filing suit. See 42 U.S.C. § 2000e-5(f) (aggrieved individual must have filed charge with EEOC before suing employer). Such an outcome would violate the well-established principle that administrative mistakes should not prejudice a charging party. See McKee v. McDonnell Douglas Tech. Servs. Co., 700 F.2d 260, 264 (5th Cir. 1983) ("‘The complainant is not to be prejudiced by the EEOC's failure to fulfill its duty'") (citation omitted). Additionally, administrative mistakes that do not prejudice the respondent should not prevent the EEOC from carrying out its statutorily mandated obligation to "vindicate the public interest in preventing employment discrimination." General Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980). Chevron does not allege that the EEOC's failure to provide notice within ten days of receiving Whitehead's Intake Questionnaire prejudiced it in any way. The Fourth Circuit recently held in a case much like this one that the EEOC's failure to give timely notice did not affect the validity of a Title VII charge consisting of informal correspondence. In Edelman v. Lynchburg College, 300 F.3d 400 (4th Cir. 2002), the plaintiff mailed the EEOC a letter that substantively satisfied Title VII's minimal charge requirements. The EEOC did not assign the letter a charge number and did not notify the defendant that a charge had been filed. The Court considered whether the EEOC's failure to treat the plaintiff's letter as a charge meant that the letter could not constitute a charge as a matter of law. It concluded that the EEOC's lapses did not affect the validity of the charge. "The problems noted by the college," the Court said, "are not deficiencies in the charge; they are failures of the EEOC to carry out its responsibilities under Title VII." Id. at 404. The Court concluded that "[o]nce a valid charge has been filed, a simple failure by the EEOC to fulfill its statutory duties regarding the charge does not preclude a plaintiff's Title VII claim." Id. Chevron seeks to distinguish Edelman by arguing that the litigant seeking to rely on the charge in that case was the charging party, whereas the litigant seeking to rely on the charge here is the EEOC. Opening Br. at 12. This distinction is illogical. Either a charge is valid or it is not. If this Court rules that Whitehead's Intake Questionnaire is not a valid charge, the holding will affect not only the EEOC's subpoena enforcement action, but also Whitehead's pending litigation. See Whitehead v. Chevron, No. 3:03-cv-00956 (N.D. Tex.) (filed Feb. 7, 2003). Moreover, Chevron's argument ignores the fact that the EEOC's investigation is mandated by statute, see 42 U.S.C. § 2000e-5(b), and that its purpose is not to benefit the EEOC, but to benefit the public interest. See General Tel. Co., 446 U.S. at 326 ("When 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."). Here, as the district court found, Whitehead went to the EEOC's Dallas District Office intending to file a charge, and he left the office believing that he had filled out all of the necessary paperwork. (Tr. at 14-15, 41, 48) Whitehead could not control whether the EEOC assigned a charge number to his Intake Questionnaire or whether it promptly notified Chevron that a charge had been filed. Because Whitehead did exactly what the EEOC told him to do in filing his charge, it would be contrary to Title VII's remedial purpose to rule that his charge was rendered invalid by the EEOC's inaction. See Conf. Report on the Equal Employment Opportunity Act of 1972, 118 Cong. Rec. 7167 (Mar. 6, 1972) (section by section analysis) (EEOC's failure to give timely notice should not prejudice the rights of the aggrieved party); see generally 4 Lex K. Larson, EMPLOYMENT DISCRIMINATION § 73.02[2], at 73-4 (2d ed. 1998) ("Because the responsibility for giving notice rests with the EEOC, a notoriously over-burdened agency, courts are reluctant to deny judicial redress to a plaintiff because the EEOC failed to act with the requisite diligence or within the allotted time."). CONCLUSION This Court should affirm enforcement of the EEOC's subpoena because arguments about timeliness have no place in a subpoena enforcement proceeding. In the alternative, this Court should affirm enforcement of the EEOC's subpoena because Whitehead's Intake Questionnaire is a timely filed charge. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel ______________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 July 3, 2003 ADDENDUM CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I served two paper copies and one electronic copy of the foregoing brief this 3rd day of July, 2003, by first-class mail, postage pre-paid, to the following counsel of record: Steven R. McCown Eduardo F. Cuaderes Jr. LITTLER MENDELSON, P.C. 2001 Ross Ave., Suite 2600 Lock Box 116 Dallas, TX 75201 _________________________ Gail S. Coleman Attorney, Appellate Services Office of General Counsel U.S. Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7012 Washington, D.C. 20507 1. References to the record are as follows: "R." refers to docket entries, "R.E." refers to pages of Chevron's Record Excerpts, "Vol. 1" and "Vol. 2" refer to the first two volumes of the official record, and "Tr." refers to the transcript of the June 4, 2002, hearing, contained in Volume 3 of the official record. 2. Contrary to Chevron's assertion that Whitehead signed "an entirely new charge" when he met with Squire, Opening Br. at 4, Whitehead testified that he did not give Squire any additional information and that the charge which he signed might already have been in the EEOC's computer system. (Tr. at 50) Garrett testified that Whitehead's Form 5 appeared to be the one that he had drafted. (Tr. at 21) 3. Chevron argues that Whitehead's Intake Questionnaire is not a minimally sufficient charge because Whitehead erroneously said on the questionnaire that Chevron has only two employees. Opening Br. at 3 n.3. The charging party's estimation of a respondent's size is not an element of a minimally sufficient charge. See 29 C.F.R. § 1601.12(b). Moreover, the EEOC investigator testified that Whitehead's mistake was irrelevant because he had independent knowledge that Chevron employs enough people to be covered by Title VII. (Tr. at 30) 4. Formal charges often, as in this case, amplify the allegations in the original charge. Compare Intake Questionnaire, R.E. at F, Vol. 1 at 31-32, with Form 5 Charge, R.E. at G, Vol. 1 at 34-35. Unlike an original charge, which is often drafted by laypersons, a formal charge is drafted by EEOC personnel. (Tr. at 11) 5. See, e.g., Memorandum from EEOC Director of Office of Field Programs to All District, Area, and Local Office Directors, "Notifying Respondents of Receipt of Mail Charges" (Feb. 21, 2002) (re-emphasizing importance of giving notice within 10 days of receipt of a document that clearly constitutes a charge) (attached as Addendum).