By Mikael Rojas and Maria Malaver
Both plaintiff and defense-side employment counsel have long understood that Title VII claimants in the District of Columbia had up to 300 days from an adverse action to file a charge with the D.C. Field Office of the Equal Employment Opportunity Commission (EEOC). A recent ruling in the U.S. District Court for the District of Columbia gave practitioners reason to question that understanding, holding that the 300-day charge-filing period only applied where a claimant first filed his or her charge with the D.C. Office of Human Rights (DCOHR). Now, however, that court has changed course, formally reconsidering its opinion and confirming that claimants have 300 days to file with either the DCOHR or the EEOC.
In a June 2019 Order partially granting the employer's motion to dismiss on timeliness grounds, Judge Colleen Kollar-Kotelly held that the extended 300-day charge-filing deadline - as opposed to the standard, shorter 180-day deadline - applies only when the claimant files first with the D.C. Office of Human Rights (DCOHR), and not with the EEOC. Epps v. Potomac Elec. Power Co., 389 F. Supp. 3d 53 (D.D.C. 2019) ("June 2019 Order").
However, on September 20, 2019, Judge Kollar-Kotelly granted the plaintiff's motion to reconsider and reversed course, determining that the 300-day deadline applied irrespective of the agency with which the plaintiff filed her charge. Epps v. Potomac Electric Power Company, No. 18-1423 (CKK), Doc. No 23 (Sept. 20, 2019 D.D.C) ("September 2019 Order"). The distinction is important for the forum selection rights of discrimination victims and their lawyers, who are very often not retained or even contacted until months after the charge-filling clock starts ticking. A shorter charge-filing deadline would therefore force many plaintiffs into local or state equal employment agencies, which vary widely in processing capacity, and deprive plaintiffs the ability to choose to pursue their claims through the EEOC. This new ruling brings Epps in line with the majority of rulings on this issue.
Authorities Applying a 180-Day Deadline to File with the EEOC
Under Title VII, specifically 42 U.S.C. § 2000e-5(e)(1), a plaintiff must file a charge of discrimination with the EEOC within 180 days after the alleged unlawful employment practice occurred. But, under the same statutory provision, if the plaintiff lives in a jurisdiction with a state or local agency empowered to grant or seek relief from unlawful employment practices, the deadline to file a claim is extended to 300 days where the "person aggrieved has initially instituted proceedings with a State or local agency[.]" Id. (emphasis added). In the June 2019 Epps ruling, Judge Kollar-Kotelly held that the plain language of Section 2000e-5(e)(1) requires a plaintiff to first, or "initially," institute proceedings with the DCOHR for the 300-day deadline to apply.
Judge Kollar-Kotelly was not the first D.C. judge to reach this conclusion. For example, her June 2019 Order relied on Ashraf-Hassan v. Embassy of France, 878 F. Supp. 2d 164 (D.D.C. 2012), where Judge James Boasberg held that since the plaintiff "fail[ed] to pursue her grievances through the state's administrative processes . . . she [could not] invoke the longer [300-day] presentment window" and was required to "file her claims within the 180-day window to be timely." Id. at 171.
Authorities Applying a 300-Day Deadline
Notwithstanding Ashraf-Hassan, the initial Epps ruling was in conflict with the weight of authority in the federal circuits, including the D.C. Circuit, which has long applied the 300-day time limit, regardless of which agency a plaintiff files the charge with first. Among other reasons, courts have highlighted two rationales for applying the 300-day time limit: (1) an EEOC regulation addressing work-sharing agreements which supports a 300-day limit, and (2) the need to effectuate the remedial purposes of Title VII.
First, pursuant to EEOC regulation 29 C.F.R. §1601.13(a)(4)(ii)(A), state or local agencies may waive their rights to a period of exclusive processing of discrimination charges by entering into work-sharing agreements with the EEOC. The purpose of work-sharing agreements is to avoid duplication of efforts by the agencies while ensuring that the aggrieved party's rights remain protected under federal and state law. The regulation states that under work-sharing agreements, "a charge is deemed to be filed with the Commission upon receipt of the document [by the deferral agency]," and the filing "is timely if the charge is received within 300 days from the date of the alleged violation." Id. The standard language of work-sharing agreements - such as the one governing the relationship between the EEOC's D.C. Field Office and the DCOHR - includes a designation of each agency as the other's "agent to receive a charge and initiate proceedings on its behalf." See Epps, September 2019 Order at 4. As a result, most courts to have addressed the issue have held that if a valid charge is filed with the EEOC, the charge is deemed filed with the relevant state deferral agency at that time as well, and the 300-day deadline applies.
Second, many Title VII litigants begin the process of alleging violations of Title VII and related statutes by filing their charge pro se. Imposing hyper-technical steps on pro se plaintiffs to receive the benefit of the extended deadline would contravene Title VII's remedial purposes. As noted above, applying the shorter charge-filing deadline also more often deprives plaintiffs of the ability to choose their preferred forum.
Although in both its June 2019 Order and its September 2019 Order the Epps court stated that there is no binding circuit authority, to the extent that it has spoken on the issue in a published decision,1 the D.C. Circuit appears to have applied a uniform 300-day charge-filing deadline. For instance, in Carter v. George Washington University, the D.C. Circuit stated in no uncertain terms that "employees have up to 300 days to file [their charge] where a work-sharing agreement exists between the EEOC and a local fair employment practices agency. Because the EEOC had such an agreement with the D.C. Office of Human Rights, the Plaintiff had up to 300 days to file with the EEOC." 387 F.3d 872, 879 (D.C. Cir. 2004).
Most D.D.C. decisions have followed suit. For example:
- In Akonji v. Unity Healthcare, the court stated that "although [the Plaintiff] did not file with a state or local agency first, employees are entitled to the 300-day window when a 'work-sharing agreement' exists between the EEOC and a local fair employment practices office." 517 F.Supp.2d 83, 89 (D.D.C. 2007). The Akonji court granted summary judgment in favor of the Defendant, but because some of the plaintiff's claims fell outside the 300-day window, not the 180-day window.
- In Hodge v. United Airlines, the court noted that application of the 300-day deadline was appropriate, stating that "although [Plaintiff] did not file with a state or local agency first, employees are entitled to a 300-day window when a 'work-sharing agreement' exists between the EEOC and a local fair employment practices office." 666 F.Supp.2d 14, n.5 (D.D.C. 2009).
- In Lee v. District of Columbia, a case in which the plaintiff filed her charge with the EEOC after 180 days but before 300 days from the adverse action, the court denied the Defendant's motion for summary judgment, stating that "the applicable time limitation for filing a charge of discrimination in the District of Columbia is 300 days because the DCOHR has entered into a work-sharing agreement with the EEOC." 733 F.Supp.2d 156, 160 (D.D.C. 2010).
- In Tucker v. Howard University Hospital, in which the two plaintiffs filed their initial charges with the EEOC after 180 days but before 300 days from the adverse action, the court denied Defendant's motion to dismiss, affording the plaintiffs the benefit of the 300-day period. The court ruled that "in the District of Columbia, an EEOC charge must be filed within 300 days of the date of the alleged discrimination" because of the work-sharing agreement that exists between the EEOC and the DCHRA. 764 F.Supp.2d 1, 6 (D.D.C. 2011).
Notably, neither the Epps court's June 2019 Order nor Ashraf-Hassan considered the effect of the regulation permitting work-sharing agreements on the charge-filing deadline. That would change in the Epps court's September 2019 Order.
The September 2019 Order Granting Plaintiff's Motion for Reconsideration
Following the court's September 2019 Order, the plaintiff in Epps filed a motion for reconsideration. The motion included an affidavit from the Acting Director of the EEOC's Washington D.C. Field Office summarizing the EEOC's interpretation of the statute and the relevant regulatory guidance supporting the application of the 300 day time limit. The September 2019 Order also drew immediate disagreement from at least one other D.C. judge, who found it "to be incompatible" with the binding Circuit precedent in Carter. See Chambers v. D.C., 389 F. Supp. 3d 77, 87 (D.D.C. 2019) (quoting Carter, 387 F.3d at 879) (Walton, J.).
On September 20, 2019, the Epps court granted the motion for reconsideration and held that the EEOC's regulation and the language of the applicable work-sharing agreement meant that "the 300-day limitations period should apply[.]" September 2019 Order, Doc. No 23 at 4. Notably, Judge Kollar-Kotelly only looked to EEOC regulation to clarify the "ambiguity" created by Title VII's text and the work-sharing agreement which designated the EEOC and the DCOHR as agents of one another. Id.
What does this mean for advocates going forward? Plaintiffs' counsel should be aware that some judges may not be convinced that there is binding precedent on this issue, leaving open the possibility that they conclude that the plain language of Title VII's statutory text only reserves the 300-day filing period for plaintiffs who first file with their local or state fair employment agency and therefore ignore the need to look to the EEOC's regulations for clarification. However, given the reconsideration in Epps, one of the relatively few outliers in this area, D.C. plaintiffs should feel more confident filing directly with the EEOC, even after 180 days have elapsed.
Mikael Rojas is an Associate in Outten & Golden.
Maria Malaver, a former summer law clerk with Outten & Golden's Washington D.C. Office, is currently a 3L at Emory Law School in Atlanta, Georgia.