EEOC Briefing Paper - Bullock V Berrien (EEOC)

Case: 10-55866 02/16/2012 ID: 8072445 DktEntry: 37-1 Page: 1 of 17 (1 of 18)
C.A. No. 10-55866
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY E. BULLOCK,
Petitioner-Appellant,
v.
JACQUELINE A. BERRIEN,
Defendant-Appellee.
Appeal from the United States District Court

for the Southern District of California
Honorable William Q. Hayes, District Judge
APPELLEE’S SUPPLEMENTAL BRIEF
LAURA E. DUFFY
United States Attorney
TOM STAHL
Assistant U.S. Attorney
Chief, Civil Division
TIMOTHY C. STUTLER
KATHERINE PARKER
880 Front Street, Room 6293

San Diego, California 92101-8893
Telephone: (619) 557-7387/7744
Attorneys for Defendant-Appellee
Jacqueline A. Berrien, Chair of the
Equal Employment Opportunity
Commission
TOPICAL INDEX
Page
TABLE OF AUTHORITIES ii
I QUESTIONS PRESENTED 1
II SUMMARY OF THE CASE 2
A. FACTUAL BACKGROUND 2
B. STATUTORY AND REGULATORY BACKGROUND 3
III SUMMARY OF ISSUE AND THE AGENCY’S POSITION 4
IV DISCUSSION 6
A. BANKSTON APPLIES TO TITLE VII/REHABILITATION

ACT CASES 6
B. BULLOCK HAS WAIVED ANY ARGUMENT THAT

BANKSTON SUPERSEDES RIVERA 10
V CONCLUSION 11
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
i
TABLE OF AUTHORITIES
Cases Page
Bankston v. White,
345 F.3d 768 (9th Cir. 2003) 1, 4, 5, 6, 7, 8, 9, 10
Charles v. Garrett,
12 F.3d 870 (9th Cir. 1993) 7
James River Insurance Co. v. Hebert Schenk, P.C.,

523 F.3d 915 (9th Cir. 2008) 11
Kohler v. Inter-Telegraph Technologies,

244 F.3d 1167 (9th Cir. 2001) 10, 11
Miller v. Fairchild Industrial, Inc.,

797 F.2d 727 (9th Cir. 1986) 11
Rivera v. United States Postal Service,

830 F.2d 1037 (9th Cir. 1987) 1, 4, 6, 7, 10
Simpson v. Union Oil Co.,

411 F.2d 897 (9th Cir.),
rev'd on other grounds, 396 U.S. 13 (1969) 11
Stevens v. Department of Treasury,

500 U.S. 1 (1991) 8
TRW Inc. v. Andrews,

534 U.S. 19 (2001) 11
Vinieratos v. United States Department of the Air Force,

939 F.2d 762 (9th Cir. 1991) 3
ii
TABLE OF AUTHORITIES (Continued)
Statutes Page
Age Discrimination in Employment Act 1, 4, 8, 9
Civil Rights Act of 1964 1, 3, 4, 5, 9, 10, 11
Rehabilitation Act of 1973 1, 2, 3, 4, 5, 6, 8, 9, 10, 11
29 U.S.C. §§ 633a, et seq. 1
29 U.S.C. § 794a 1, 3
29 U.S.C. § 794a(a)(1) 3
42 U.S.C. § 2000e-16 1
42 U.S.C. § 2000e-16(c) 3, 5, 6, 10, 11
Rules
Fed. R. App. P. 28(a)(6) 10
Regulations
29 C.F.R.§ 1614.107(a)(3) 3
29 C.F.R. § 1614.201(c) 9
29 C.F.R. § 1614.403(a) 2
29 C.F.R. § 1614.407 4, 9
29 C.F.R. § 1614.407(a) 9
29 C.F.R. § 1614.409 7
iii
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY E. BULLOCK, ) C.A. No. 10-55866

) D.C. No. 06-cv-2329-WQH-CAB
Petitioner-Appellant, )
)
v. )
)
JACQUELINE A. BERRIEN, )
)
Defendant-Appellee. )
___________________________________ )
QUESTIONS PRESENTED
A. Whether this Court’s decision in Bankston v. White, 345 F.3d 768 (9th
Cir. 2003), which held that a federal employee plaintiff pursuing a claim under the
Age Discrimination in Employment Act, as amended in 1974 (29 U.S.C. §§ 633a, et
seq.) (“ADEA”), need not completely exhaust her administrative appeal before filing
a district court action, applies to claims brought under Title VII of the Civil Rights
Act of 1964 (42 U.S.C. § 2000e-16), and the Rehabilitation Act of 1973 (29 U.S.C.
§ 794a).
B. Whether Appellant Mary E. Bullock (“Bullock”) waived her argument
that the Ninth Circuit’s decision in Bankston supersedes Rivera v. United States
Postal Service, 830 F.2d 1037 (9th Cir. 1987).

II
SUMMARY OF THE CASE
A. FACTUAL BACKGROUND
As discussed in the Opening Brief of Appellee Jacqueline A. Berrien
(“Berrien”), Bullock was an EEOC1/ employee who alleges in this case that the
Agency discriminated against her on the basis of disability, in violation of the
Rehabilitation Act, when it failed to provide reasonable accommodations for her
disabilities. [Berrien’s Opening Brief, at pages 2-3.] She also alleges that the Agency
retaliated against her for asserting her rights under the Rehabilitation Act. [Id.]
In May 2003, Bullock filed a formal complaint against the Agency with the
EEOC’s Office of Equal Employment Opportunity. [ER 151, ¶9, p. 6, lines 21-23.]
After hearings in the matter, the assigned administrative judge issued findings.
[ER 139, ¶5, p. 3, lines 3-5.]2/
Neither party was satisfied with the administrative judge’s findings. On
July 17, 2006, the Agency appealed to the EEOC’s appellate division, the Office of
Federal Operations (“OFO”), pursuant to 29 C.F.R. § 1614.403(a). [ER 139, ¶7, p. 3,
lines 10-11; ER 122, ¶2; ER 124-128.] The following month, on August 18, 2006,
Bullock filed her own appeal to the OFO. [ER 122, ¶3; ER 130-131.]
1/
This brief will hereafter call the EEOC “the Agency,” when referring to
the EEOC in its capacity as Bullock’s employer.
2/
“ER” refers to Bullock’s Excerpts of Record.
2
On September 14, 2006, Bullock withdrew her appeal. [ER 26.] She then filed
a district court action on October 18, 2006. [ER 215-243.]
In April 2007, the OFO dismissed the remaining appeal filed by the Agency.
[ER 134, n.4.] In June 2007, the Commission vacated and replaced the OFO decision
with its own decision dismissing the Agency’s appeal. [ER 133-136.]
B. STATUTORY AND REGULATORY BACKGROUND
Under Title VII and the Rehabilitation Act,3/ a federal employee must exhaust
certain administrative remedies prior to filing suit in district court. 42 U.S.C.
§ 2000e-16(c). That provision requires the plaintiff to seek relief from her employing
agency before filing suit in court, and to wait at least 180 days for the agency to act,
before filing suit in court. [Id.]; cf. 29 C.F.R.§ 1614.107(a)(3).
The employee may also file an action in court within 90 days of receiving the
agency’s decision. Alternatively, she may take an optional appeal to the EEOC (with
the possibility of a civil action within 90 days of receiving an EEOC decision denying
relief on appeal). The statute further provides that in the event the employee elects
3/
The Rehabilitation Act expressly incorporates Title VII procedures,
including the provisions of 42 U.S.C. § 2000e-16(c). See 29 U.S.C. § 794a(a)(l)
(“[t]he remedies, procedures, and rights set forth in section 717 of the Civil Rights
Act of 1964” are applicable to complaints filed under section 501 of the
Rehabilitation Act). This Court has recognized that an employee claiming a violation
of the Rehabilitation Act “must exhaust the administrative remedies available under
Title VII; Title VII provides the exclusive channel by which such allegations may be
heard in federal court.” Vinieratos v. United States Dept. of the Air Force, 939 F.2d
762, 773 (9th Cir. 1991).
3
to take such an appeal, but the EEOC does not resolve the appeal within 180 days, the
employee may thereafter file a civil action.
The relevant EEOC regulation provides that an employee “who has filed an
individual complaint . . . is authorized under Title VII, the ADEA and the
Rehabilitation Act to file a civil action” in federal district court:
(a) Within 90 days of receipt of the final action on an individual or class

complaint if no appeal has been filed;
(b) After 180 days from the date of filing an individual or class
complaint if an appeal has not been filed and final action has not been
taken;
(c) Within 90 days of receipt of the Commission’s final decision on an

appeal; or
(d) After 180 days from the date of filing an appeal with the
Commission if there has been no final decision by the Commission.
29 C.F.R. § 1614.407.
III
SUMMARY OF ISSUE AND THE AGENCY’S POSITION
In Rivera, this Court determined that a Title VII plaintiff who elects to take an
appeal to the EEOC must wait 180 days before filing a civil action. The Court
reasoned that an appeal, once taken, must be exhausted. Subsequently, however, in
Bankston, the Court reached a different conclusion with respect to an ADEA plaintiff
who elected to take an appeal to the Merits Systems Protection Board (“MSPB”). In
Bankston, the Court held that the ADEA plaintiff was not required to see his appeal
through to completion or until the lapse of the requisite waiting period, but instead
could withdraw his appeal and proceed directly to court.
4
The issue in the present case is whether, when an employee with a
Rehabilitation Act/Title VII claim elects to take an appeal to the EEOC but then
reconsiders within the 90-day period following receipt of the agency’s final decision
and now wishes to proceed directly to file a civil action in court, that employee may
proceed directly to court, or if she is instead required to wait until 180 days have
passed from the date she filed her appeal (or until the EEOC decides the appeal, if
sooner).
This Court’s request for supplemental briefing on the effect upon this case of
Bankston has caused the Agency to consider anew the position it took in the district
court that Bullock failed to exhaust her administrative remedies. Based on such
reconsideration, the Agency now conclude
s that the reasoning of Bankston applies to Title VII/Rehabilitation Act plaintiffs.
Thus, a plaintiff in a Title VII/Rehabilitation Act case who elects to take an appeal
to the EEOC may reconsider and proceed directly to the district court without waiting
for Section 2000e-16(c)’s 180-day waiting period to elapse, so long as she does so
within 90 days of receiving the agency’s final decision.
Notwithstanding the foregoing, this Court should affirm the district court’s
judgment dismissing Bullock’s Second Amended Complaint (“SAC”), because
Bullock abandoned and waived the above issue by failing to support it with authority
or argument in her Opening Brief.
5
IV
DISCUSSION
A. BANKSTON APPLIES TO TITLE VII/REHABILITATION

ACT CASES
Section 2000e-16(c) does not definitively answer the question raised by the
Court. That section provides that an employee may file a civil action “after one
hundred and eighty days” from the initial filing of a charge with her agency or from
the filing of an appeal with the EEOC, but need not be read to render irrevocable an
election to take an appeal, and thus to compel waiting for 180 days, if – within 90
days of receiving the agency’s decision – she reconsiders and wishes to proceed
directly to district court.
This Court appears to agree that Section 2000e-16(c) does not dictate such a
reading. See Rivera, 830 F.2d at 1039 (asking whether employee is “bound, per 42
U.S.C. § 2000e-16(c), for 180 days to stay with the EEOC” after filing an appeal, and
stating that the “answer to this question is not entirely obvious”).
The apparent purpose of the 180-day waiting period is to permit the EEOC a
reasonable period of time within which to consider an appeal and potentially resolve
the case without any need for proceedings in court (while also affording the employee
an escape hatch if the appeal is not resolved within that period). But the EEOC
interprets its regulations to require it to cease processing an appeal once the employee
files a district court action, even if the employee’s initial election to take an appeal
has occasioned an expenditure of resources by the EEOC in considering her appeal.
6
See 29 C.F.R. § 1614.409. The EEOC’s regulations provide that the filing of a civil
action “shall terminate Commission processing of [an] appeal,” and requests the
parties “to notify the Commission in writing” if “private suit is filed subsequent to the
filing of an appeal.” [Id.]
The Court in Bankston recognized that the EEOC had altered its rules since the
Court’s decision in Rivera, and indicated that the change was significant to its
analysis. Bankston, 345 F.3d at 774-75. At the time the Court issued the Rivera
decision, the EEOC did not cease the processing of an appeal upon the filing of a civil
action, and the imposition of a requirement to wait for the 180-day period to elapse
thus did not operate to deny the employee any remedy.4/
In Bankston, this Court explained that the “principal ground” for imposing an
exhaustion requirement “is that agencies shouldn’t be put to the bother of conducting
administrative proceedings from which the complainant can decamp at any time
without consequence,” but that this “consideration is designed for the benefit of the
agencies, not of judges, and if the agencies don’t want it, there is no reason for us to
4/
Charles v. Garrett, 12 F.3d 870 (9th Cir. 1993), does not dictate a
particular outcome here. In that case, the Court held that “if plaintiffs cooperated in
the administrative process for 180 days after they filed their first appeal with the
EEOC, they may file in district court.” Id. at 875. In reaching this conclusion,
however, the Court rejected plaintiffs’ argument that they were entitled to file a
district court action under Title VII even though an administrative appeal had been
filed with the EEOC, because over 180 days had elapsed since they had filed their
initial complaint with the agency. [Id. at 874.] Charles is distinguishable because it
was pre-Bankston, did not address the current EEOC regulations, and did not
specifically deal with the situation where an employee filed an appeal and decided to
withdraw within 90 days of receiving the final agency decision.
7
give it great weight.” Bankston, 345 F.3d at 775. That logic would also apply here
in view of the regulation requiring the EEOC to terminate processing an appeal upon
the filing of a district court action.
Further, since an employee is not required to take an appeal to the EEOC in the
first place, if she makes an initial election to do so but later reconsiders, she should
not be forced to defer proceeding to court (much less be forced to wait, when the
EEOC is required to cease processing her appeal). See Bankston, 345 F.3d at 775
(“‘There is . . . no basis from which to infer that a complainant who has voluntarily
sought administrative relief must exhaust all administrative remedies before
proceeding to court.’”) (quoting Stevens v. Dep’t of Treasury, 500 U.S. 1, 12 (1991)
(Stevens J., concurring). As this Court recognized in Bankston, the imposition of a
strict requirement to wait for the 180-day period to elapse before filing a civil action
could have the consequence of leaving an employee who files an action without any
remedy at all: the EEOC would terminate the processing of her administrative appeal
under its regulation because she filed a civil action, and the court would dismiss her
action for failure to exhaust her administrative appeal. [Id. at 775-776.] The Court’s
concern over such a result factored into its conclusion that an ADEA plaintiff need
not wait for the 180-day period to elapse before proceeding with a civil action.
To be sure, Bankston arose in the context of the ADEA, which, unlike Title VII
(and the Rehabilitation Act) contains no exhaustion requirement at all. But the
exhaustion requirement in Title VII/Rehabilitation Act cases concerns the initial need
to seek relief before the employing agency. An employee who takes that initial step
8
can then proceed directly to court without taking the optional appeal to the EEOC.
See 29 C.F.R. § 1614.407(a). Therefore, Bankston – which dealt in part with an
optional EEOC appeal, not the requirement to seek relief before the employing
agency in the first place – need not be confined to the ADEA context. Moreover,
there is value in promoting consistent treatment of the interaction between EEOC
appeals and civil actions across Title VII, Rehabilitation Act, and ADEA cases,
particularly given that the EEOC’s regulations concerning the conduct of
administrative appeals purport to govern all of those contexts without drawing any
distinctions. See 29 C.F.R. §§ 1614.407; 1614.201(c).
For the reasons set forth in Bankston, this Court should find that a Title
VII/Rehabilitation Act federal employee plaintiff need not see her EEOC appeal
through to completion or until the lapse of the 180-day period, but instead may
withdraw her appeal and proceed directly to district court, if she does so within 90
days of receiving the final agency decision.5/
5/
This case only presents the question of whether a federal employee
plaintiff who initially elects to take an appeal, but reconsiders within 90 days of
receiving an agency’s final decision, must delay filing a court action on her claim
until 180 days after her appeal was filed (assuming the EEOC failed to act on the
appeal). As this Court recognized in Bankston, under Title VII, “exhaustion of
remedies is statutorily mandated.” 345 F.3d at 774. However, the Court need not
address the question whether such a plaintiff who takes an appeal, but then decides
to file a district court action more than 90 days after receiving the final agency
decision, must delay filing her court action until 180 days after her appeal was filed.
9
B. BULLOCK HAS WAIVED ANY ARGUMENT THAT

BANKSTON SUPERSEDES RIVERA
The district court in this case expressly relied on Rivera in dismissing
Bullock’s action for failure to exhaust administrative remedies:
“[O]nce a party appeals to a statutory agency, board or commission, the

appeal must be ‘exhausted.’ To withdraw is to abandon one’s claim, to
fail to exhaust one’s remedies. Impatience with the agency does not
justify immediate resort to the courts.” Rivera v. United States Postal
Service, 830 F.2d 1037, 1039 (9th Cir. 1987).
Plaintiff failed to exhaust her administrative remedies. Both Plaintiff

and the EEOC appealed to the OFO, which triggered the mandatory 180-
day waiting period before Plaintiff was permitted to file with this Court.
[ER 6.]
In her Opening Brief, Bullock did not challenge the district court’s reliance on
Rivera, directly attack Rivera’s holding, or question the general rule that once a
federal employee or employer files an administrative appeal, the appeal must be
exhausted before a court action may be filed. Rather, she argued only that the
administrative appeals in this case should be treated as void, i.e., as if they had never
been filed.
Bullock may not now argue that Bankston supersedes Rivera by excusing Title
VII/Rehabilitation Act plaintiffs from waiting the periods specified in Section 2000e-
16(c) of Title VII before filing a district court action; she abandoned and waived that
issue by failing to support it with authority or argument. Kohler v. Inter-Tel
Technologies, 244 F.3d 1167, 1182 (9th Cir. 2001); see also Fed. R. App. P. 28(a)(6)
(providing that “[t]he argument must contain the contentions of the appellant on the
10
issues presented, and the reasons therefore, with citations to the authorities, statutes,
and parts of the record relied on.”)
Even if Bullock had raised the issue in her Opening Brief, issues not supported
with argument are deemed abandoned and waived. See Kohler, 244 F.3d at 1182;
Simpson v. Union Oil Co., 411 F.2d 897, 900 n.2 (9th Cir.) (an issue referred to in an
appellant’s statement of the case but not discussed in the body of the opening brief
is deemed waived), rev’d on other grounds, 396 U.S. 13 (1969). Accordingly, this
Court “will not ordinarily consider matters on appeal that are not specifically and
distinctly argued in appellant’s opening brief.” Miller v. Fairchild Indus., Inc., 797
F.2d 727, 738 (9th Cir. 1986); see also TRW Inc. v. Andrews, 534 U.S. 19, 34 (2001);
James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920, n.1 (9th Cir. 2008).
CONCLUSION
As a general matter, a plaintiff in a Title VII/Rehabilitation Act case who elects
to take an appeal to the EEOC may reconsider and proceed directly to the district
court without waiting for Section 2000e-16(c)’s 180-day waiting period to elapse, so
long as she does so within 90 days of receiving the agency’s final decision. However,
because Bullock abandoned and waived that issue by failing to support it with
11
authority or argument in her Opening Brief, this Court should affirm the district
court’s judgment dismissing Bullock’s SAC.
Date: February 16, 2012 Respectfully submitted,
LAURA E. DUFFY
United States Attorney
TOM STAHL
Chief, Civil Division
s/Timothy C. Stutller
TIMOTHY C. STUTLER
s/Katherine Parker
KATHERINE PARKER
Attorneys for Defendant-Appellee

Jacqueline A. Berrien, Chair of the
Equal Employment Opportunity
Commission
12
C.A. No. 10-55866
CERTIFICATE OF COMPLIANCE
I certify that:
This Supplemental Brief complies with a page or size-volume limitation
established by separate court Order dated January 12, 2012, and is
X Proportionately spaced, has a typeface of 14 points, or more and contains
2,858 words
Dated: February 16, 2012 s/Timothy C. Stutler

TIMOTHY C. STUTLER
9th Circuit Case Number(s) 10-55866
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Case: 10-55866 02/16/2012 ID: 8072445 DktEntry: 37-1 Page: 1 of 17 (1 of 18)

C.A. No. 10-55866

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Appeal from the United States District Court

APPELLEE’S SUPPLEMENTAL BRIEF

880 Front Street, Room 6293

II SUMMARY OF THE CASE 2

B. STATUTORY AND REGULATORY BACKGROUND 3

III SUMMARY OF ISSUE AND THE AGENCY’S POSITION 4

A. BANKSTON APPLIES TO TITLE VII/REHABILITATION

B. BULLOCK HAS WAIVED ANY ARGUMENT THAT

James River Insurance Co. v. Hebert Schenk, P.C.,

Kohler v. Inter-Telegraph Technologies,

Miller v. Fairchild Industrial, Inc.,

Rivera v. United States Postal Service,

Simpson v. Union Oil Co.,

Stevens v. Department of Treasury,

TRW Inc. v. Andrews,

Vinieratos v. United States Department of the Air Force,

TABLE OF AUTHORITIES (Continued)

Age Discrimination in Employment Act 1, 4, 8, 9

Civil Rights Act of 1964 1, 3, 4, 5, 9, 10, 11

Rehabilitation Act of 1973 1, 2, 3, 4, 5, 6, 8, 9, 10, 11

29 U.S.C. §§ 633a, et seq. 1

42 U.S.C. § 2000e-16(c) 3, 5, 6, 10, 11

Fed. R. App. P. 28(a)(6) 10

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY E. BULLOCK, ) C.A. No. 10-55866

Age Discrimination in Employment Act, as amended in 1974 (29 U.S.C. §§ 633a, et

B. Whether Appellant Mary E. Bullock (“Bullock”) waived her argument

Postal Service, 830 F.2d 1037 (9th Cir. 1987).

SUMMARY OF THE CASE

As discussed in the Opening Brief of Appellee Jacqueline A. Berrien

Agency discriminated against her on the basis of disability, in violation of the

Rehabilitation Act, when it failed to provide reasonable accommodations for her

[ER 139, ¶5, p. 3, lines 3-5.]2/

Neither party was satisfied with the administrative judge’s findings. On

Federal Operations (“OFO”), pursuant to 29 C.F.R. § 1614.403(a). [ER 139, ¶7, p. 3,

a district court action on October 18, 2006. [ER 215-243.]

B. STATUTORY AND REGULATORY BACKGROUND

certain administrative remedies prior to filing suit in district court. 42 U.S.C.

before filing suit in court. [Id.]; cf. 29 C.F.R.§ 1614.107(a)(3).

employee may thereafter file a civil action.

Rehabilitation Act to file a civil action” in federal district court:

(a) Within 90 days of receipt of the final action on an individual or class

(c) Within 90 days of receipt of the Commission’s final decision on an

SUMMARY OF ISSUE AND THE AGENCY’S POSITION

reasoned that an appeal, once taken, must be exhausted. Subsequently, however, in

could withdraw his appeal and proceed directly to court.

The issue in the present case is whether, when an employee with a

reconsideration, the Agency now conclude

s that the reasoning of Bankston applies to Title VII/Rehabilitation Act plaintiffs.

within 90 days of receiving the agency’s final decision.

judgment dismissing Bullock’s Second Amended Complaint (“SAC”), because

or argument in her Opening Brief.

A. BANKSTON APPLIES TO TITLE VII/REHABILITATION

directly to district court.

stating that the “answer to this question is not entirely obvious”).

has occasioned an expenditure of resources by the EEOC in considering her appeal.

filing of an appeal.” [Id.]

thus did not operate to deny the employee any remedy.4/

the filing of a district court action.

sought administrative relief must exhaust all administrative remedies before

proceeding to court.’”) (quoting Stevens v. Dep’t of Treasury, 500 U.S. 1, 12 (1991)