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No. 06-1322

 

In the Supreme Court of the United States

FEDERAL EXPRESS CORPORATION, PETITIONER

v.

PAUL HOLOWECKI, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS

GREGORY G. GARRE
Acting Solicitor General
Counsel of Record
RENA J. COMISAC
Acting Assistant Attorney
General
TOBY J. HEYTENS
Assistant to the Solicitor
General
DENNIS J. DIMSEY
LISA J. STARK
Attorneys

Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

RONALD S. COOPER
General Counsel
VINCENT J. BLACKWOOD
Acting Associate General
Counsel
ANNE NOEL OCCHIALINO
Attorney
Equal Employment
Opportunity Commission
Washington, D.C. 20507

QUESTION PRESENTED

The Age Discrimination in Employment Act of 1967 (ADEA), provides that "[n]o civil action may be commenced by an individual * * * until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Em ployment Opportunity Commission." 29 U.S.C. 626(d). The question presented is what constitutes "a charge alleging unlawful discrimination" under the ADEA.

 

 

In the Supreme Court of the United States

No. 06-1322

FEDERAL EXPRESS CORPORATION, PETITIONER

v.

PAUL HOLOWECKI, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The question presented in this case is what constitutes "a charge alleging unlawful discrimination" under the Age Dis crimination in Employment Act of 1967 (ADEA or Act), 29 U.S.C. 621 et seq. The Equal Employment Opportunity Com mission (EEOC or Commission) administers and enforces the ADEA, and has promulgated regulations prescribing the form and content of charges under the Act. In addition, the resolu tion of the question presented will inform the requirements for a charge alleging discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12111 et seq. The EEOC has promulgated similar regulations under those statutes prescribing the form and content of charges filed with the Commission, and it has also entered

into agreements with various federal and state agencies stat ing that complaints filed with those agencies may constitute charges when they involve matters within the Commission's jurisdiction. In addition, the Attorney General has enforce ment responsibilities under Title VII and the ADA with re spect to state and local employers. The EEOC has a direct interest in the validity of its "charge" regulations, and the Court's resolution of this case will impact the enforcement responsibilities of both the EEOC and the Attorney General.

STATEMENT

1. The ADEA makes it unlawful for an employer to "dis criminate against any individual with respect to his compensa tion, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623(a)(1). As to private employers, that prohibition may be enforced in public actions brought by the Commission, 29 U.S.C. 626(b), and through private suits, 29 U.S.C. 626(c).1 Enforcement under the ADEA is generally triggered by the filing of "a charge alleg ing unlawful discrimination" with the Commission within 180 or 300 days of the alleged unlawful practice, depending on the jurisdiction. 29 U.S.C. 626(d). Acting pursuant to an express grant of authority, see 29 U.S.C. 628, the EEOC has adopted regulations that define the term "charge," 29 C.F.R. 1626.3; establish three minimum requirements regarding a charge's form, 29 C.F.R. 1626.6; and identify other information that charges "should contain," 29 C.F.R. 1626.8.

The ADEA provides that, "[u]pon receiving such a charge [of discrimination], the Commission shall promptly notify all persons named in the charge as prospective defendants * * * and shall promptly seek to eliminate any alleged unlawful employment practice by informal methods of conciliation, conference, and persuasion." 29 U.S.C. 626(d). Such attempts at conciliation are a statutory prerequisite to an action by the Commission. 29 U.S.C. 626(b). In contrast, private plaintiffs may initiate suit at any point starting 60 days after filing a timely charge, 29 U.S.C. 626(d), and ending 90 days after re ceiving notice that the Commission has terminated its own proceedings, 29 U.S.C. 626(e). Unlike Title VII (see 42 U.S.C. 2000e-5(f)(1)), there is no requirement that an ADEA plaintiff receive a right-to-sue letter or other EEOC document before filing suit.

2. Respondent Patricia Kennedy (respondent) is a courier for petitioner, Federal Express Corporation. J.A. 265. On December 3, 2001, respondent contacted the EEOC's Tampa field office and completed an EEOC "Intake Questionnaire" form. Ibid.; C.A. App. 108a.2 Respondent's form contains name, address, and telephone information for petitioner and respondent. J.A. 265. It states that respondent has been subjected to "age discrimination" that has affected "virtually every facet of [respondent's] job, [i]ncluding but not limited to starting time; courier performance reviews; late packages and data scans; on-the-job injuries; and other employee bene fits." Ibid. According to the form, the discrimination has spanned "the past several years," with the most recent harm having occurred on December 3, 2001, the date on which the form was initially completed. Ibid. The form also expresses respondent's consent to have her identity disclosed to peti tioner. Ibid.

Respondent attached a five-page notarized affidavit to the form detailing her allegations. J.A. 266-274. The affidavit contains a caption with spaces for a "Case Name" and a "Case No." J.A. 266. The affidavit begins by stating that respon dent has been "given assurances by an Agent of [the EEOC] that this Affidavit will be considered confidential * * * and will not be disclosed as long as the case remains open unless it becomes necessary for the Government to produce the affi davit in a formal proceeding." Ibid. The affidavit contains detailed allegations about how petitioner has used its "Best Practices Pays" program to "systematically target[]" respon dent and other older workers, thus making it more difficult for them to meet petitioner's "minimum acceptable perfor mance standards or MAPS." J.A. 267; see J.A. 267-272.

The affidavit closes by stating:

Please force [petitioner] to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created with their applica tion of Best Practices/ High-Velocity Culture Change.

J.A. 273.

The EEOC's Tampa field office did not serve notice of re spondent's December 3, 2001, submission on petitioner or begin an investigation, as the Commission is required to do under Section 626(d) when it receives a charge. Pet. App. 5a. On April 30, 2002, respondent and thirteen other individuals, who are also respondents here, filed a representative action alleging that petitioner had violated the ADEA and various state laws proscribing age discrimination. J.A. 19-35.3

3. The district court granted petitioner's motion to dis miss the complaint. Pet. App. 31a-42a. The court concluded that respondent's December 3, 2001, submission did not con stitute a "charge" under the ADEA because the Act does not "specifically state[]" that "an intake questionnaire or affidavit constitute[s] sufficient notice to the EEOC of alleged discrimi nation." Id. at 39a. Although the district court acknowledged that other courts had "on occasion * * * found that an in take questionnaire constitutes a formal charge," it stated that those rulings "involved situations where the plaintiff has been led by the EEOC to believe that the questionnaire alone con stituted sufficient notice." Ibid.

4. The court of appeals reversed. Pet. App. 3a-23a. The court held that "a writing submitted to the EEOC" is a "charge" within the meaning of the ADEA when it contains the information required by EEOC regulations and a "rea sonable person" would conclude "that the grievant has mani fested an intent to activate the Act's machinery." Id. at 15a (quoting Bihler v. Singer Co., 710 F.2d 96, 99 (3d Cir. 1983)). While recognizing the importance of the EEOC's statutory notice and conciliation duties, the court refused to adopt an interpretation that "would * * * hold individuals account able for the failings of the agency." Id. at 16a. The court then held that respondent's December 3, 2001, submission consti tutes a "charge" under that test, because it satisfied the EEOC's regulations and "communicated [respondent's] intent to activate the EEOC's administrative process." Id. at 18a. In reaching the latter conclusion, the court pointed, inter alia, to the affidavit's "forceful tone and content," respondent's consent to have her identity disclosed to petitioner, and re spondent's request for EEOC to "force [petitioner] to end their age discrimination plan." Id. at 19a (quoting J.A. 273).4

SUMMARY OF ARGUMENT

The court of appeals correctly held that respondent's in take questionnaire and affidavit constitute "a charge alleging unlawful discrimination" under the ADEA.

A. In answering the question presented, the Court should follow the framework set forth in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). The first inquiry under Chevron is "whether Congress has directly spoken to the precise ques tion at issue." Id. at 842. The answer to that question is no, because the ADEA does not define or otherwise provide con crete guidance as to the meaning of "charge." Petitioner ar gues that Congress has directly spoken to the issue by defin ing "charge" based on whether the EEOC fulfills its notice and conciliation obligations with respect to a submission. That argument is directly contradicted by the statute's text.

The pertinent provision of the ADEA states that, "[u]pon receiving such a charge," the EEOC shall promptly notify the employer and seek to eliminate any unlawful discrimination through conciliation. 29 U.S.C. 626(d). But the Act makes clear that the notice and conciliation obligations do not define what a charge is, because those obligations do not attach until the EEOC has received "such a charge." Ibid. In addition, the notice and conciliation requirements serve different objec tives than the charge-filing requirement. A contrary con struction would conflict with the Court's analysis of an analo gous statutory question in Edelman v. Lynchburg College, 535 U.S. 106 (2002), unfairly penalize private parties for agency mistakes, and mean that the same submission could be treated differently based solely on agency conduct outside the com plainant's control.

B. Because Congress has not directly spoken to the ques tion of what is a "charge," resolution of this case turns on whether the agency has adopted "a permissible construction of the statute." Chevron, 467 U.S. at 843. It has. Acting pur suant to an express grant of authority, the EEOC has reason ably, and thus permissibly, defined "charge" as a submission that meets the form and content requirements set forth in the EEOC's regulations and objectively manifests a submitter's intent to make a formal accusation that a named party has engaged in unlawful discrimination. That interpretation is consistent with the dictionary meaning of "charge," i.e., an accusation or indictment; gives effect to the EEOC's regula tions, the EEOC Compliance Manual, and formal administra tive guidances; and avoids the arbitrary and unfair results of tying the definition of charge to conduct outside a complain ant's control.

In practice, most of the charges meeting the EEOC's defi nition are made on the EEOC's Form 5, which is entitled "Charge of Discrimination." But as both the EEOC Compli ance Manual and binding guidances issued in 2002 and 2007 expressly state, "correspondence," including intake question naires, may also qualify as charges. That conclusion is consis tent with Congress's use of the general term "charge" and the remedial object of the statute. Although the EEOC's past practice at the field office level has not been uniform in treating such submissions as charges, the EEOC has recently taken steps to ensure that all submissions constituting charges-including intake questionnaires or other correspon dence-are treated as charges, as required by the ADEA.

C. The EEOC's administrative interpretation of "charge" is entitled to deference. The agency's interpretation is consis tent with the text and object of the ADEA and gives "specific ity to a statutory scheme that the [Commission is] charged with enforcing and reflect[s] the considerable experience and expertise that the [EEOC] ha[s] acquired over time with re spect to the complexities of" dealing with the wide variety of submissions it receives from members of the public. Gonzales v. Oregon, 546 U.S. 243, 256 (2006). Although the objective intent requirement is not expressly stated in EEOC regula tions, it is embodied in the EEOC Compliance Manual and two formal advisory memoranda, and reflects a permissible construction of the EEOC's regulations. See Auer v. Robbins, 519 U.S. 452 (1997). In addition, the EEOC has reasonably determined that its construction appropriately accounts for the fact that most submissions are made by laypersons who are unlikely to appreciate the legal requirements for initiating a case. The admittedly uneven past practice in processing submissions at the field office level does not deprive the EEOC's interpretation of the deference that is customarily accorded such agency interpretations.

D. Respondent's December 3, 2001, submission consti tutes "a charge alleging unlawful discrimination" under the ADEA. There is no dispute that respondent's submission complies with all of the regulatory requirements as to a charge's form and content. In addition, respondent's intake questionnaire and accompanying affidavit objectively mani fest an intent to make a formal accusation of unlawful age discrimination against petitioner. In particular, on the intake questionnaire respondent specifically gives consent for the EEOC to disclose her identity to petitioner, and that docu ment was accompanied by a five-page notarized affidavit that details the alleged discrimination and asks the EEOC to "force [petitioner] to end [such] discrimination." J.A. 266-274. That submission clearly and objectively manifests an intent to make a formal accusation of unlawful age discrimination.

E. The fact that the EEOC failed to fulfill its notice and conciliation duties upon receiving respondent's charge does not transform that charge into something else, and it does not bar respondent's suit. As discussed, the ADEA's text estab lishes no such rule, and the background rule is that a private party's right to sue is generally not dependent on the govern ment's faithful performance of its own duties. See Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). At the same time, if the EEOC has failed to comply with its statutory du ties, a district court may take steps to minimize any prejudice to the defendant. For example, a court may stay proceed ings-including discovery-for a period to provide an oppor tunity for conciliation, dismiss the suit based on the doctrine of laches if the plaintiff has delayed unreasonably in filing it, or take the defendant's lack of timely notice into account when crafting evidentiary and other trial-management rul ings. But when the agency regrettably drops the ball in han dling a timely submitted charge, defendants are not entitled to a windfall in the form of the dismissal of a potentially meri torious age discrimination suit.

ARGUMENT

THE COURT OF APPEALS CORRECTLY HELD THAT RE SPONDENT'S INTAKE QUESTIONNAIRE AND ACCOMPANY ING AFFIDAVIT CONSTITUTE "A CHARGE ALLEGING UN LAWFUL DISCRIMINATION" UNDER THE ADEA

The question presented is what constitutes "a charge al leging unlawful discrimination" under the ADEA. 29 U.S.C. 626(d). In answering that question, this Court should follow the framework established by Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). Under that familiar framework, the Court first considers "whether Congress has directly spoken to the precise question." Id. at 842. If the answer to that question is no, then the Court considers "whether the agency's answer is based on a permissible construction of the statute." Id. at 843. As explained below, in this case, a proper application of the Chevron framework leads to the conclusion that the EEOC's interpretation should be given effect: a "charge" is a submission that meets the form and content requirements set forth in the Commission's regulations and objectively manifests a submitter's intent to make a formal accusation that a named party has engaged in unlawful dis crimination. Applying that interpretation, respondent's in take questionnaire and accompanying affidavit constitute a charge within the meaning of the ADEA.

A. Congress Has Not Directly Spoken To What Is A "Charge" Under The ADEA

The ADEA does not directly answer the question pre sented because it does not define the term "charge." Al though petitioner explicitly acknowledged in its petition (at 8) that "the ADEA does not define what constitutes a charge," it now asserts that the Act "straightforwardly de fines 'charge'" as a document that "activate[s] the EEOC's investigative machinery." Pet. Br. 11-12. That argument is directly contradicted by the ADEA's text. After referring in general terms to a "charge alleging unlawful discrimination," the Act states that, "[u]pon receiving such a charge," the EEOC shall promptly notify the employer and seek to elimi nate any unlawful discrimination through conciliation. 29 U.S.C. 626(d). But a plain reading of Section 626(d) makes clear that the notice and conciliation obligations do not define what a charge is in the first place, because those obligations do not attach until the EEOC has received "such a charge." Ibid. Treating the notice and conciliation obligations as ele ments of what is a charge triggering those obligations would require an implausible "structural and logical leap." Edelman v. Lynchburg Coll., 535 U.S. 106, 112 (2002).

That conclusion follows lock step from the result that this Court reached in Edelman in rejecting an analogous statutory argument as to the meaning of "charge" under Title VII. Like the ADEA, Title VII requires that prospective plaintiffs file a "charge" within a specified period, 42 U.S.C. 2000e-5(e)(1), but, unlike the ADEA, it also declares that "[c]harges shall be in writing under oath or affirmation," 42 U.S.C. 2000e-5(b). Edelman concerned the validity of an EEOC regulation per mitting "an otherwise timely filer to verify a charge after the time for filing had expired." 535 U.S. at 109.

The Court began by rejecting the court of appeals' conclu sion that the EEOC regulation was invalid because Title VII itself defined "charge" as a document made under oath or affirmation. Edelman, 535 U.S. at 112-113. The Court stressed that neither the timing nor the oath provision de fined "charge," and that the term was "likewise undefined elsewhere in the statute." Id. at 112. Nor did either provision "incorporate[] the other so as to give a definition by necessary implication." Ibid. The Court further determined that "the two quite different objectives of the timing and verification requirements"-which it identified as "encourag[ing] a poten tial party to raise a discrimination claim before it gets stale" and "protecting employers from the disruption and expense of responding to such a claim unless a complainant is serious enough and sure enough to support it by oath subject to liabil ity for perjury," respectively-"st[oo]d in the way of reading 'charge' to subsume them both by definition." Id. at 112-113.

The Edelman analysis precludes a finding that the ADEA defines "charge" as a document that is served on an employer and results in an attempt at conciliation. The ADEA's notice and conciliation command does not purport to say what a charge is, and the term "charge" is likewise undefined in the Act's separate definitions section (29 U.S.C. 630). The Act's use of the phrase "such a charge" in both the timing and noti fication provisions further confirms that the notice and concil iation requirements do not inform the meaning of the term "charge," but instead are obligations triggered by the receipt of a charge. And unlike the verification provision in Edelman, the ADEA's notice and conciliation command does not even involve the contents of the required filing, and it is directed to the entity that receives the filing (the EEOC) rather than the person who is required to make it.

In addition, as in Edelman, the requirements set forth in Section 626(d)'s three sentences serve distinct, albeit comple mentary, purposes. A complainant's filing of "a charge alleg ing unlawful discrimination" alerts the EEOC to the existence of potentially unlawful conduct and provides the Commission with enough information to begin investigating. The require ment that "[s]uch a charge" be filed within a specified period ensures that a prospective plaintiff has not slept on her rights and weeds out stale claims. And the Commission's mandatory duties to alert the employer and attempt conciliation when ever it receives "such a charge" are designed to provide prompt notice to prospective defendants and to facilitate in formal resolutions of disputes that do not involve the courts, when possible.

The untenable consequences of petitioner's construction further confirm that the ADEA does not define "charge" based on what the EEOC is required to do after receiving one. Under that construction, the same document may, or may not, be a "charge" based solely on factors outside a com plainant's control. In addition, although petitioner purports to remain agnostic (Pet. Br. 28 n.12), an inescapable implica tion of its argument is that no filing-including an EEOC Form 5-may constitute a "charge" sufficient to preserve a private plaintiff's right to sue whenever the EEOC fails, for whatever reason, to comply with its statutory obligations to serve notice and attempt conciliation. See pp. 25-27, infra.

B. The EEOC Has Reasonably, And Thus Permissibly, De fined "Charge" Within The Meaning Of The ADEA

Because Congress has not directly spoken to the issue, the EEOC has issued regulations-and binding interpretations of those regulations-that together define "charge" as a submis sion that contains the elements required by the EEOC's regu lations and is received under circumstances that objectively indicate an intent to make a formal accusation of unlawful conduct against an identified person or entity. Because that definition is a reasonable construction of both the ADEA and the EEOC's own regulations, it is entitled to "substantial def erence." Gonzales v. Oregon, 546 U.S. 243, 255 (2006).

The ADEA authorizes the EEOC to "issue such rules and regulations as it may consider necessary or appropriate for carrying out this chapter." 29 U.S.C. 628. In 1983, after en gaging in formal notice-and-comment rulemaking, the Com mission issued regulations regarding the form and content of ADEA charges. See 46 Fed. Reg. 9970 (1981) (notice of pro posed rulemaking); 48 Fed. Reg. 138 (1983) (final rule); 26 C.F.R. 1626. Because Congress explicitly "left a gap for the agency to fill" as to the meaning of "charge," and because "there is an express delegation of authority" to issue regula tions of this kind, the EEOC's regulations are entitled to Chevron deference. Chevron, 467 U.S. at 843-844; see United States v. Mead Corp., 533 U.S. 218, 229-231 (2001); Edelman, 535 U.S. at 120, 122 (O'Connor, J., joined by Scalia, J., concur ring in the judgment).

The EEOC's regulations do three things that are perti nent here. First, they define "charge" as "a statement filed with the Commission by or on behalf of an aggrieved person which alleges that the named prospective defendant has en gaged in or is about to engage in actions in violation of the Act." 29 C.F.R. 1626.3. Second, they establish three mini mum requirements: "A charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act(s)." 29 C.F.R. 1626.6. Third, they set forth information that charges "should contain," including contact information for all persons against whom the charge is being made; a "clear and concise" description of the alleg edly discriminatory acts, including relevant dates; the approx imate number of people employed by the proposed respon dent; and whether proceedings have been commenced before an appropriate State agency. 29 C.F.R. 1626.8(a). That same provision, however, declares that "a charge is sufficient when the Commission receives * * * either a written statement or information reduced to writing by the Commission that con forms to the requirements of § 1626.6." 29 C.F.R. 1626.8(b).5

At the same time, although the regulations do not ex pressly so provide, the EEOC has reasonably concluded that not every communication possessing the three characteristics set forth in 29 C.F.R. 1626.6 is a "charge alleging unlawful discrimination" under Section 626(d). Rather, the EEOC's considered view is that to constitute a charge, a written sub mission must objectively manifest an intent to make a formal accusation that an identified person or entity "has engaged or is about to engage in action in violation of the Act." 29 C.F.R. 1626.3. That objective intent requirement squares with the common dictionary definition of the term "charge"-i.e., "[A]n accusation or indictment," The American Heritage Dictio nary of the English Language 226 (1976)6-and is embodied in the EEOC Compliance Manual and two formal advisory memoranda. See pp. 16-18, infra.

A completed Form 5 "Charge of Discrimination" is the prototypical example of a "charge" that is received and pro cessed by the EEOC. But the EEOC has never formally taken the position that only a completed Form 5 may consti tute a "charge." That Form is neither contained nor refer enced in any of the EEOC's regulations. Form 5 is included as an exhibit in the EEOC Compliance Manual, a publication that sets forth suggested guidance for field offices. See 1 EEOC Manual Exh. 2-C at 2:0009-2:0010 (Aug. 2002). But the Form's inclusion in the EEOC Compliance Manual merely indicates that a Form 5 is typically sufficient to constitute a charge, not that it is the only thing that may constitute one. Cf. Fed. R. Civ. P. 84 (emphasizing that "[t]he forms con tained in the Appendix of forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate") (emphasis added).

Indeed, far from suggesting that a Form 5 is the only doc ument that may constitute a charge, Section 2.2(b) of the EEOC Compliance Manual specifically instructs that "corre spondence"-which another Section defines as "[a]ll written requests for assistance unrelated to a pending charge/com plaint, whether prepared on an EEOC form or not"-should be treated as a charge whenever it "contains all information necessary to begin investigating, constitutes a clear and timely request for EEOC to act, and does not express con cerns about confidentiality or retaliation." 1 EEOC Manual § 2.2(b) at 2:0001 (Aug. 2002); see id. § 1.6, at 1:0001 (June 2001) (definition of "correspondence"). In addition, the case law confirms that the EEOC has in practice treated some non- Form 5 documents as charges,7 and the EEOC has for de cades taken the position in litigation that intake question naires and accompanying documents may sometimes consti tute charges.8

Furthermore, top EEOC officials have twice in recent years reiterated, in binding guidances issued to all field of fices, that there are circumstances in which intake question naires and other correspondence may constitute charges. On February 21, 2002, the EEOC's Director of the Office of Field Programs (Director) issued a Memorandum mandating use of the EEOC Compliance Manual standard for determining whether a non-Form 5 submission constitutes a charge: "When correspondence contains all the information necessary to begin investigating, constitutes a clear and timely request for EEOC to act, and does not express concerns about confi dentiality or retaliation, we should docket it as a charge; ac knowledge it [with the complainant]; and serve a copy on the respondent." App., infra, 5a. On August 13, 2007, the Direc tor and the EEOC's General Counsel issued a joint Memoran dum reiterating that "[a]n intake questionnaire or other cor respondence can constitute a charge under the statutes we enforce if it contains all the information required by EEOC regulations governing the contents of a charge and constitutes a clear request for the agency to act." Id. at 7a. Those formal agency memoranda are binding on all of the EEOC's field offices and represent the Commission's considered position regarding the proper interpretation of the EEOC's formally promulgated regulations.9

Finally, the Commission has determined that an objective intent requirement benefits all concerned. Persons who have contacted the EEOC will not be unpleasantly surprised to learn that their employers have been notified of charges that they did not intend to operate as formal accusations. The EEOC will not be required to expend already stretched re sources investigating perhaps tens of thousands of submis sions that were never intended to be formal accusations of unlawful discrimination, or to attempt conciliation in situa tions "where the employee, on his own, has received satisfac tion from the employer." Bihler v. Singer Co., 710 F.2d 96, 99 (3d Cir. 1983). And employers will not be called upon to re spond to submissions that did not constitute formal accusa tions. Cf. Edelman, 535 U.S. at 115 (stating that "it is no small thing to be called upon to respond" to a charge of unlaw ful employment discrimination).10

C. The EEOC's Interpretation Warrants Deference

The EEOC's position-that a "charge" is a submission that contains the elements required by the EEOC's regula tions and objectively indicates an intent to make a formal accusation of unlawful conduct against an identified person or entity-reflects a reasonable construction of the ADEA and the Commission's own regulations. Despite the policy objec tions of petitioner and its amici to the EEOC's interpretation, the Commission's view "simply cannot be said to be unreason able." Auer v. Robbins, 519 U.S. 452, 458 (1997); see Edel man, 535 U.S. at 114. Accordingly, because the ADEA "en trusts matters of judgment such as this to the [Commission], not the federal courts," this Court should give effect to the EEOC's view. Auer, 519 U.S. at 458.

Deference is warranted to the EEOC's interpretation of its own regulations. As in Auer, "the underlying regulations g[i]ve specificity to a statutory scheme that the [Commission is] charged with enforcing and reflect the considerable experi ence and expertise that the [EEOC] ha[s] acquired over time with respect to the complexities of" dealing with the wide variety of submissions it receives from members of the public. Gonzales, 546 U.S. at 256; EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 125 (1988) (O'Connor, J., concurring in part and concurring in the judgment) ("deference is particularly appropriate" with respect to "technical issue[s] of agency pro cedure"). In addition, although the EEOC's regulations do not explicitly articulate an objective intent requirement, the definition of "charge" set forth in 29 C.F.R. 1626.3 "comfort ably bears" (Auer, 519 U.S. at 461) the EEOC's view-re flected in the EEOC Compliance Manual and formal advisory memoranda-that a document is not a charge unless the cir cumstances objectively indicate an intent to make a formal accusation of unlawful conduct. See note 6, supra.

The EEOC's position reflects its expertise in issues of agency procedure. The EEOC has determined that a func tional definition that looks to a complainant's intent is appro priate given the reality that most submissions are received from laypersons, who are in all likelihood unaware of the pre cise legal requirements for initiating proceedings, much less the various forms that the agency employs. See Love v. Pull man Co., 404 U.S. 522, 527 (1971) (Title VII case) (stating that "technicalities" regarding the charging process "are particu larly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process"); accord Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761 (1979) (making similar observation in ADEA case).11

That functional approach allows for some line-drawing in borderline cases, but the EEOC has taken steps to attempt to reduce any uncertainty. As this Court noted in Edelman, even in situations where an intake questionnaire or corre spondence would constitute a charge under the EEOC's regu lations, "[t]he general practice of EEOC staff members [has been] to prepare a formal [Form 5] charge of discrimination for the complainant to review" before a charge is formally docketed. 535 U.S. at 115 n.9. That practice ensures that a person intends to make a formal accusation of unlawful dis crimination against an entity before the notice and concilia tion process is commenced, benefitting complainants, the EEOC, and employers alike. See pp. 18-19, supra.

Despite its advantages in clarifying matters, this approach raises problems in situations where a potentially qualifying submission cannot be transferred to a Form 5 either within the 180/300 day period in which a private complainant is re quired to file a charge, or soon enough to enable the EEOC to comply with its duty to afford "prompt[] notic[e]" to the ac cused party. 29 U.S.C. 626(d).12 In the former situation, the EEOC Compliance Manual has for a number of years directed staff to treat any qualifying submission as a charge and pro vide notice to the employer. 1 EEOC Manual § 2.2(a)(1) and (2), at 2:0001 (Aug. 2002).13

Moreover, both the February 21, 2002, and the August 13, 2007, Memoranda reiterate that agency policy requires that notice be served within ten days of receipt of any document constituting a "charge" under the test set forth in the EEOC Compliance Manual. App., infra, 5a, 7a. The August 13, 2007, Memorandum further instructs that in situations where it does not appear that a completed Form 5 may be obtained and served within ten days, Commission staff are required to "take steps to promptly ascertain whether the submitter in tended to initiate proceedings and, if so, docket the question naire or other correspondence as a charge and serve notice on the respondent within ten days of receipt." Id. at 7a. Such an intent, the Memorandum instructs, "can be inferred from a plain reading of the correspondence or determined by con tacting the author/submitter." Ibid. Thus, the EEOC has taken concrete steps to ensure that such charges are pro cessed in accordance with its statutory duties.

Finally, the Commission's view is by no means a "post hoc rationalization[]" or a "convenient litigating position." Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-213 (1988) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). Although EEOC briefs have not always been consistent in advocating use of the objective intent stan dard, see note 8, supra, the language of current Section 2.2(b) has been contained in the EEOC Compliance Manual since September 1988, and the first of the two Memoranda (App., infra, 4a-5a) was issued more than five years ago, long before the EEOC's central office became aware of this case. Cf. Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339, 2349 (2007) (deferring to agency interpretation set forth only in an internal document written in response to the litigation then before the Court). In short, "[t]here is simply no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question," Auer, 519 U.S. at 462, and the Commission's interpretation of its own regulations is thus controlling.

D. Respondent's December 3, 2001, Submission Constitutes A "Charge" Under The EEOC's Regulations

Respondent's intake questionnaire and accompanying affidavit possess all the elements required by the EEOC's charge regulations, and contain all of the information that those regulations state that a charge "should" contain. Com pare J.A. 265-274, with 29 C.F.R. 1626.6, 1626.8; see Pet. App. 18a. In addition, respondent's December 3, 2001, submission objectively manifests an intent to make a formal accusation of unlawful age discrimination against petitioner. In particular, on the first page of the intake questionnaire, respondent as serts that petitioner has engaged in a pattern of "age discrimi nation," consents to having her identity disclosed to peti tioner, and affirms that she has not "filed an EEOC charge in the past." J.A. 265 (emphasis added).

Moreover, respondent, unlike most people who submit intake questionnaires, attached a notarized affidavit outlining her allegations of unlawful discrimination in considerable detail. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1320- 1321 (11th Cir. 2001) (stating that "verification indicates to the filing party that the information must be accurate because it is legally significant"). That affidavit contains blank spaces for a "Case Name" and a "Case No.," J.A. 266, and expresses an understanding that a "case [is] open," ibid. Further, the affidavit closes by calling upon the EEOC to "force [peti tioner] to end their age discrimination." J.A. 273.

Neither the pre-printed intake questionnaire that respon dent used nor anything respondent wrote on the form or in her affidavit indicates that she did not intend the submission to be a charge. Under the caption of "routine uses," the pre- printed text on the second page of the intake questionnaire states that information contained on the form is used by EEOC employees to determine whether the "Commission has jurisdiction over potential charges" and to provide "pre- charge filing counseling as is appropriate." J.A. 265 (empha ses added). But that general language is perfectly consistent with the fact that any submission is a potential charge, and that the EEOC does not make a determination whether a submission is in fact a charge until it has reviewed the infor mation and concluded that it meets the form and content re quirements of its regulations and manifests the requisite in tent. And as a practical matter, a great many intake question naires do not meet those requirements. More fundamentally, the focus here is not on how the EEOC may have anticipated that a particular form would typically be used, but rather the objective intent of the person who completed it.

The argument that respondent's December 3, 2001, sub mission is an ADEA charge is substantially stronger than the corresponding argument in Edelman. As Judge Luttig noted on remand, Edelman himself characterized the initial letter he sent the Commission "not as a charge, but rather as a request for a charge," his two letters alleged "different discriminatory conduct," and his second letter expressly asked that the EEOC refrain from notifying his employer. Edelman v. Lynchburg Coll., 300 F.3d 400, 406 (4th Cir. 2002) (Luttig, J., dissenting). Here, in contrast, nothing respondent wrote in her intake questionnaire or accompanying affidavit manifests a belief that the December 3, 2001, submission is not a charge; the questionnaire, the affidavit, and respondent's subse quently filed Form 5 all allege the same essential course of discrimination; and respondent's intake questionnaire ex pressly authorizes the Commission to notify petitioner.

E. The EEOC's Failure To Fulfill Its Statutory Duties Af ter Receiving Respondent's December 3, 2001, Charge Does Not Transform That Charge Into Something Else

Because respondent's December 3, 2001, submission con stitutes "a charge alleging unlawful discrimination," the EEOC was obligated by the ADEA "promptly" to notify peti tioner and seek to eliminate its allegedly unlawful conduct "by informal methods of conciliation, conference, and persuasion." 29 U.S.C. 626(d). It is undisputed that the EEOC's Tampa field office did neither, and thus failed to fulfill the Commis sion's statutory responsibilities. As the EEOC's Director of the Office of Field Programs and its General Counsel stated in their August 13, 2007, Memorandum: "That situation should not have occurred." App., infra, 7a.

But the EEOC's failure (even when unexcused) to meet its statutory responsibilities does not bar a plaintiff's suit. The statutory text makes a plaintiff's ability to bring suit contin gent on her own compliance with various timing rules, and not on the EEOC's compliance with its own statutory duties. See, e.g., 29 U.S.C. 626(d) (providing that "[n]o civil action may be commenced by an individual" absent the filing of a timely charge). The lower courts broadly agree that it is inappropri ate "to condition an action for discrimination on the EEOC's performance of its duties." Wilkerson, 270 F.3d at 1320.14 And courts have reached the same conclusion in analogous contexts where the initiation of a private suit entails partici pation of government officials, such as where a United States marshal who has been designated to do so under Federal Rule of Civil Procedure 4(c)(2) fails to make proper service of a pro se plaintiff's complaint,15 or where a court clerk erroneously refuses to accept a complaint for filing within the relevant limitations period.16

Basing the determination whether a submission is a charge, or not, on whether the EEOC fulfills its statutory duties also would create the anomalous result that a document filed by one person alleging unlawful discrimination could constitute a charge (when the EEOC fulfills its statutory du ties), but the identical document filed by a different party would not constitute a charge (because the EEOC failed to fulfill those duties). There is no evidence that Congress in tended to establish a regime that would generate such hap hazard results and place the fate of otherwise appropriate charges of unlawful discrimination in the hands of the particu lar agency employees who happen to receive them.

In addition, any conclusion that the ADEA requires elimi nation of a private plaintiff's right to sue as a remedy for er rors committed by the EEOC would raise questions under Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). In Logan, this Court unanimously concluded that the Illinois courts had acted unconstitutionally in dismissing an em ployee's properly filed charge of disability discrimination be cause a state commission had failed to comply with its duty to convene a factfinding conference within 120 days. As the Court explained, although a State may certainly condition the right to sue on a complainant's compliance with reasonable rules, the state system at issue impermissibly "destroy[ed] a complainant's property interest, by operation of law, when ever the [state commission] fails to convene a timely confer ence." Id. at 436. That was true, the Court held, regardless of whether the commission's action was the result of "negli gence, maliciousness, or otherwise." Ibid.

Justice Powell likewise observed that the state's scheme was "arbitrary and irrational." Logan, 455 U.S. at 444 (con curring in the judgment; joined by Rehnquist, J.). As he ex plained, "[u]nder this classification, claimants with identical claims, despite equal diligence in presenting them, would be treated differently, depending on whether the Commission itself neglected to convene a hearing within the prescribed time." Id. at 443. Since "claimants possessed no power to convene hearings," Justice Powell found it "unfair and irratio nal to punish [claimants] for the Commission's failure to do so." Id. at 444. As noted, the position advanced by petitioner in this case-which similarly ties the validity of a charge to agency action wholly outside a claimant's control-leads to the same type of "arbitrary and irrational" results.

Although the EEOC's failure to fulfill its statutory duties does not bar a plaintiff's suit, a district court may take steps to minimize any prejudice to the defendant in such situations. First, because the defendant was entitled to "prompt[] notice" of the charge, whereas the plaintiff was barred from filing suit for at least 60 days after it was filed, see 29 U.S.C. 626(d), the defendant may seek a stay of the action, including any discov ery, for a period not to exceed 60 days to provide an opportu nity for conciliation. Second, in the event that a plaintiff who has filed a timely charge nonetheless delays unreasonably in filing suit-certainly if the plaintiff waits "five, ten or twenty years or more after the claims arose" (Pet. Br. 19)-a district court may consider whether dismissal is appropriate under the doctrine of laches or the like.17

Finally, where litigation proceeds, the district court should be sensitive to the risk that the defendant's failure to receive timely notice could prejudice its ability to defend it self. For example, the district court should refuse to give any adverse inference instruction-or to permit the plaintiff to ask the jury to draw such an inference-based on the defen dant's routine and otherwise lawful destruction of documents or other evidence during the period during which it should have, but had not in fact, been on notice of the plaintiff's alle gations. In addition, the defendant should be permitted to argue that, had it received timely notification, it would have taken steps to preserve exculpatory evidence.

But when, as here, the EEOC regrettably fails to fulfill its statutory obligations upon receiving a timely charge of unlaw ful discrimination, nothing in the ADEA, the EEOC's regula tions, or common sense entitles defendants to a windfall in the form of the dismissal of a potentially meritorious action for unlawful discrimination under the ADEA.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

 

GREGORY G. GARRE
Acting Solicitor General
RENA J. COMISAC
Acting Assistant Attorney
General
TOBY J. HEYTENS
Assistant to the Solicitor
General
DENNIS J. DIMSEY
LISA J. STARK
Attorneys

RONALD S. COOPER
General Counsel
VINCENT J. BLACKWOOD
Acting Associate General
Counsel
ANNE NOEL OCCHIALINO
Attorney
Equal Employment
Opportunity Commission

 

 

SEPTEMBER 2007

 

* The Solicitor General is recused from this case.

1 A separate provision of the ADEA addresses age discrimination by federal employers. See 29 U.S.C. 633a (Supp. IV 2004). The procedures set forth in Section 633a differ in important respects from those applicable to private employers and are not at issue here.

2 The Intake Questionnaire form that respondent submitted is an outdated 1987 version of the standard Form 283 contained in the EEOC Compliance Manual. See 1 EEOC Compl. Man. (BNA) Exh. 1-B at 1:0005-1:0006 (June 2001) (EEOC Manual). Among other differences, standard Form 283: (1) is captioned "Charge Questionnaire"; (2) states that it will be deemed "a sufficient charge of discrimination" where it "constitutes the only timely written statement of allegations of employment discrimination"; and (3) describes its "Routine Uses" as determining whether the Commission has jurisdiction over "allegations of employment discrimination and * * * provid[ing] such charge filing counseling as is appropriate." In the past, many of the EEOC's field offices modified Form 283 in various respects. On December 4, 2006, however, the EEOC adopted a Uniform Intake Questionnaire for use by its National Contact Center, and, on August 30, 2007, mandated its use by all field offices.

3 After filing suit, respondent submitted to EEOC a form captioned "Charge of Discrimination," which is also known as a "Form 5 charge." J.A. 275-276; see 1 EEOC Manual Exh. 2-C at 2:0009-2:0010 (Aug. 2002). This two-page form, which was signed on May 30, 2002, contains the same basic information as respondent's December 3, 2001, submission, including contact information, an estimate of petitioner's number of employees, an assertion of unlawful age discrimination, and a brief factual narrative. J.A. 275. The Commission assigned a charge number to this submission. Ibid.

4 Having concluded that respondent's December 3, 2001, submission was a charge, the court of appeals held that eleven other plaintiffs who had not sub mitted anything to EEOC could "piggyback" on that filing. Pet. App. 21a. That holding is not before this Court. See Pet. i.

5 Because the EEOC need not receive a charge to initiate public enforce ment under the ADEA, see Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991), the regulations also define a "complaint" as "information received from any source, that is not a charge, which alleges that a named prospective defendant has engaged in or is about to engage in actions in violation of the Act." 29 C.F.R. 1626.3. Contrary to the Chamber of Commerce's suggestion (at 12), neither the Commission's regulations, nor any other EEOC document states that "[t]he completed Intake Questionnaire is the complaint [and a Form 5] is the charge," Early v. Bankers Life & Cas. Co., 959 F.2d 75, 80 (7th Cir. 1992), and Early itself acknowledged that intake questionnaires may some times constitute charges, see id. at 80-81.

6 See also Funk & Wagnalls New Standard Dictionary of the English Language 451 (1945) ("An accusation, allegation, or imputation, or the subject- matter thereof"); The Random House Dictionary of the English Language 248 (1966) ("an accusation"; synonyms: "indictment, imputation, allegation"); 2 The Oxford English Dictionary 284 (1978) ("Attribution or imputation of something culpable; accusation").

7 See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1316 (11th Cir. 2001); Philbin v. General Elec. Capital Auto Lease, Inc., 929 F.2d 321, 322 (7th Cir. 1991) (per curiam); Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 76 (5th Cir. 1982).

8 See, e.g., Gov't Amicus Br. at 10-15, Casavantes v. California State Univ., 732 F.2d 1441 (9th Cir. 1984) (No. 83-2087); Gov't Amicus Br. at 5-6, 12-13, Philbin, supra (No. 90-2945); Gov't Br. at 12-15, Shempert v. Harwick Chem. Corp., 151 F.3d 793 (8th Cir. 1998) (No. 97-1634), cert. denied, 525 U.S. 1139 (1999); Gov't Amicus Br. at 15-19, Scruggs v. University Health Serv., 281 F.3d 1285 (11th Cir. 2001) (Table) (No. 01-10935). Although the EEOC has con sistently taken the position in litigation that documents other than Form 5s may constitute charges, it has at times argued that a particular document con stituted a charge solely because it met the form and content requirements set forth in EEOC regulations. See, e.g., Gov't Amicus Br. at 17, Gordon v. Shafer Contracting Co., 469 F.3d 1181 (8th Cir. 2006) (No. 06-1963) (arguing that because an intake questionnaire satisfied "all of the statutory and regulatory requirements, * * * no more [was] needed to" deem that document a charge). Those briefs are inconsistent with the EEOC's considered view that a sub mission must not only meet the form and content requirements but also manifest the requisite intent. In any event, the EEOC has consistently taken the position that documents other than Form 5s may qualify as charges.

9 These Memoranda are also posted on the EEOC's website. See Memo- randum (Feb. 21, 2002) <http://www.eeoc.gov/charge/memo-2-21-02.html>; Memorandum (Aug. 13, 2007) <http://www.eeoc.gov/charge/memo-8-13- 07.html>.

From February 2, 2005, until September 18, 2007, one of the answers set forth in a database of "Frequently Asked Questions" maintained on the EEOC's website stated that "[y]our charge is filed when the completed, signed Form 5 is received back in the EEOC field office and a charge number has been issued." Although EEOC's preferred practice is indeed to receive a completed Form 5 whenever possible, see p. 21, infra, to the extent that this statement suggested that Form 5s are the only documents that may constitute charges, it was inconsistent with EEOC's considered position and past Commission practice. See pp. 15-18, supra. Having been made aware of this entry, the EEOC's Director of the Office of Field Programs directed that the following sentence be inserted after the language quoted above: "An intake question naire or other correspondence can also constitute a charge under the statutes we enforce if it contains all the information required by EEOC regulations gov erning the contents of a charge and constitutes a clear request for the EEOC to act." The revised language is available on the Commission's website in the Frequently Asked Questions database under the entry "How do I file a charge of employment discrimination?" EEOC, FAQs (visited Sept. 21, 2007) <https://eeoc.custhelp.com/cgi-bin/eeoc.cfg/php/enduser/std_alp.php?p_ sid=r9xBKEAh&p_lva=&p_sp=&p_li=>.

10 The EEOC does not track the number of documents it receives per year that satisfy the minimum criteria set forth in 29 C.F.R. 1626.6. In fiscal year 2006, however, the EEOC received 175,334 "inquiries," which include contacts ranging from phone calls through written submissions, and docketed 76,146 "charges," which include Form 5s, intake questionnaires, and other correspon dence.

11 The EEOC's approach is also in harmony with the maxim that "docu ment[s]" filed by pro se litigants "are 'to be liberally construed.'" Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). See, e.g., Smith v. Barry, 502 U.S. 244, 248-249 (1992) (stating that court of appeals had erred in not considering the possibility that a pro se litigant's informal brief could function as a notice of appeal). Equitable tolling should also be available in situations where an EEOC or state official misleads a complainant into believing that a non-qualifying document was, in fact, a charge. See, e.g., Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455, 459 (8th Cir. 1998); Early, 959 F.2d at 81.

12 Although the EEOC does not maintain information about how long it takes to transpose information from intake questionnaires or other correspondence to Form 5s, the agency does have internal statistics showing the length of time between initial inquiries (which include phone calls, letters, office visits, and intake questionnaires), and the docketing of ADEA charges. In fiscal year 2006, the total time was less than ten days in the majority of cases (9208 out of 16,595), and the mean period was 28.1 days.

13 The Chamber of Commerce errs in asserting (at 19-20) that intake ques tionnaires cannot constitute charges because their disclosure would violate the Privacy Act, 5 U.S.C. 552a (2000 & Supp. V 2005). The ADEA does not require that employers be served with a copy of the charge; it requires only "noti[ce]" that such a charge has been filed. 29 U.S.C. 626(d); see 29 C.F.R. 1626.11. In cases where the EEOC has docketed non-Form 5 documents as charges, it has typically sent notice without serving a copy of the correspondence itself. See, e.g., Wilkerson, 270 F.3d at 1316; Philbin, 929 F.2d at 322.

14 See Forehand v. Florida State Hosp., 89 F.3d 1562, 1570-1571 (11th Cir. 1996) (failure to certify in early right-to-sue letter that Commission could not process charge within 180 days); Watson v. Gulf & W. Indus., 650 F.2d 990, 993-994 (9th Cir. 1981) (failure to name one of proposed defendants in right-to- sue letter); Russell v. American Tobacco Co., 528 F.2d 357, 365 (4th Cir. 1975) (failure to serve notice of Title VII charge), cert. denied, 425 U.S. 935 (1976); Thornton v. East Tex. Motor Freight, 497 F.2d 416, 424 (6th Cir. 1974) (same).

15 See, e.g., Sellers v. United States, 902 F.2d 598, 602 (7th Cir. 1990); Fowler v. Jones, 899 F.2d 1088, 1095 (11th Cir. 1990); Rochon v. Dawson, 828 F.2d 1107, 1109-1110 (5th Cir. 1987); Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986).

16 See, e.g., McDowell v. Delaware State Police, 88 F.3d 188, 191 (3d Cir. 1996); Lyons v. Goodson, 787 F.2d 411, 412 (8th Cir. 1986) (per curiam); Loya v. Desert Sands Unified Sch. Dist., 721 F.2d 279, 281 (9th Cir. 1983).

17 As for the possibility of having to defend against stale claims (Pet. Br. 18- 21), no private action may be brought unless the plaintiff has filed an EEOC charge within the "quite short deadlines" imposed by the statutes that the Commission is charged with enforcing. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2170 (2007) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980)). Once a charge has been filed, the only statutory time limits applic able to a private ADEA action are that suit may be filed no less than 60 days after the charge, 29 U.S.C 626(d), and no more than 90 days after the Commission gives notice that it has terminated its own proceedings, 29 U.S.C. 626(e). That regime, however, is the result of deliberate congressional choice. See Civil Rights Act of 1991, Pub. L. No. 102-166, § 115(3), 105 Stat. 1079 (repealing prior cross-reference to the Portal-to-Portal Act, 29 U.S.C. 251 et seq., that had established a limitations period of either two or three years from accrual of a plaintiff's cause of action, depending on whether the conduct was "willful"). If Congress believes that additional time limits are warranted, it is of course free to impose them. In addition, petitioner provides no explanation for why ADEA-protected individuals-persons who, by definition, tend to be older workers-who have made a timely assertion of their rights by filing EEOC charges are likely to then wait years before filing suit and seeking relief in court, and it cites no evidence that this is a serious concern in the circuits that have rejected its position.