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O'Mara v. Virginia Department of Corrections

United States District Court, E.D. Virginia, Norfolk Division

February 2, 2017

DANIELLE L. KRAMER O'MARA, Plaintiff,
v.
VIRGINIA DEPARTMENT OF CORRECTIONS, Defendant

          REPORT AND RECOMMENDATION

          Lawrence R. Leonard United States Magistrate Judge

         Before the Court is Defendant Virginia Department of Corrections' ("VDOC") Motion to Dismiss for Noncompliance with Title VII and accompanying memorandum. ECF Nos. 6-7. Plaintiff Danielle L. Kramer O'Mara filed a Response in Opposition, ECF No. 10, and Defendant filed a Reply to Plaintiffs Response. ECF No. 12. This matter was referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to a Referral Order from the Chief United States District Judge. ECF No. 13; see also 28 U.S.C. §§ 636(b)(1)(B); Fed.R.Civ.P. 72(b); E.D. Va. Local Civ. R. 72. After reviewing the briefs, the undersigned makes its report and recommendation on the papers without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 7(J). For the foregoing reasons, the undersigned RECOMMENDS that Defendant's motion to dismiss, ECF No. 6, be DENIED.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         After Plaintiff was discharged by VDOC on March 17, 2016, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission's ("EEOC") Norfolk office. ECF No. 1 at 2. The Norfolk Office sent Plaintiff a "Dismissal and Notice of Rights" on June 29, 2016, stating that "the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge." ECF No. 1, attach. I.[1] The EEOC did not refer the case to the Attorney General, and consequently the Attorney General neither reviewed the Charge nor issued her own right to sue letter. On August 11, 2016, Plaintiff filed her Complaint in this Court alleging three counts of discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"). ECF No. 1.

         Defendant filed a Motion to Dismiss on September 23, 2016, arguing that Plaintiffs case should be dismissed because she did not notify the United States Attorney General of her case for review before filing the instant lawsuit. ECF No. 7 at 3. ("Plaintiff did not seek reference of the matter to the U.S. Attorney General."). Defendant relied on 42 U.S.C. § 2000e-5(f)(1) for the proposition that, in this case of a claim against a governmental agency, the Attorney General is required to issue the right to sue letter. Id. at 2. Since "VDOC is a department of the Commonwealth of Virginia and a governmental entity, " Defendant argued that the Attorney General should have been notified "to consider the merits of this lawsuit against the Commonwealth." Id. at 2. Moreover, Defendant contended that the Attorney General needed to review the case to "consider the impact upon federalism before allowing the lawsuit." Id. at 2-3. Defendant acknowledged that "[r]eceipt of the U.S. Attorney General's 'right to sue letter' is a condition precedent to a lawsuit but not a jurisdictional requirement." Id. at 2.

         Plaintiff filed her Memorandum in Opposition on October 3, 2016. Plaintiff relied on 42 U.S.C. § 2000e-5(b) for the proposition that, where the EEOC determines after investigation that no reasonable cause exists to believe that the charge of discrimination is true, it was required to dismiss the charge and issue the right to sue letter. ECF No. 10 at 2-3. Further, Plaintiff relied on the EEOC's own regulation, 29 C.F.R. § 1601.28(d), for the proposition that "the Attorney General is to issue right to sue letters in all charges against governmental respondents, except in cases which are dismissed without a finding of reasonable cause, in which cases it is the EEOC that issues the right to sue letter." Id. at 3-4. On October 8, 2016, Defendant filed a Reply and contended that the Attorney General can issue a right to sue letter after the EEOC has issued one. ECF No. 12 at 3. Defendant suggested that the present case "might follow the same developments" as Skrobiszewski v. Commonwealth of Virginia, No. 2:13cv599 (E.D.Va. 2013), where the parties filed a joint motion to stay the proceedings so the plaintiff could obtain a right to sue letter from the Attorney General. Id

         II. ANALYSIS

         The competing statutes cited by the parties, 42 U.S.C. § 2000e-5(b) and 42 U.S.C. § 2000e-5(f)(1), on their surface appear to conflict to the extent they identify the responsible entity for issuing a right to sue notice when a charge is made against a governmental entity. 42 U.S.C. § 2000e-5(b) provides in pertinent part:

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the "respondent") within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Charges shall not be made public by the Commission. If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action....

(emphasis added). By this statute, the EEOC is charged with issuing the right to sue letter when it determines after investigation that reasonable cause to believe the charge is true is lacking.

         Issuance of the right to sue letter is also delineated in 42 U.S.C. § 2000e-5(f)(1), which provides in pertinent part:

If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, governmental agency, or political subdivision, if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to subsection (b) of this section, is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government. governmental agency, or political subdivision, 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. ...

(emphasis added). By this statutory provision, in light of the multiple disjunctive clauses, it might appear that only the Attorney General is charged with issuing the right to sue letter in all cases involving a governmental entity. Defendant asked the Court to reach this conclusion when it truncated this statute as follows: "If a charge ... is dismissed by the Commission ... the Attorney General in a case involving a government. .. 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 ...." ECF No. 7 at 2.

         Section (f)(1) of this statute, with its multiple disjunctive clauses setting out various circumstances when an aggrieved party should be given notice of their right to file a civil action, is hardly a model of clarity. Assuming without deciding that Defendant's truncated interpretation of the statute is correct-that only the Attorney General is charged with notifying the aggrieved person of their right to sue-then it conflicts with the (comparatively) straightforward directive in section (b), which provides: "If the Commission determines after such investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action." Crediting Defendant's interpretation of section (f)(1), then at best the statute itself is ambiguous. Accordingly, the Court must turn to the agency regulations to determine how the agency interprets this statutory provision, applying the Chevron deference ...


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