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A.

IV. Dismissal, Determination and Fina Processing of the charge

Case Law and the Statute A Title VII suit must be filed within 90 days of the receipt of a notice of right to sue or a notice of termination of EEOC proceedings, $706(E).60/ The receipt of the notice must be "actual".61/ There has been considerable litigation concerning what types of acts by the EEOC cause the 90-day period to file suit to begin the run. In general, any final determination by the Exoc, for example dismissal of the charge, a determination of no reasonable cause, notice that the EEOC will not file suit triggers the running of the 90-day period. 62/

Where the respondent is a state or local government the notice of right to sue will be issued by the Attorney General, $706 (f) and $1601.28(a).

B.

Requlations and Implementing EEOC Procedures The procedure and authority for issuing the notice of right to sue is plainly set forth in $1601.28. It should be noted that

the EEOC will issue a notice of right to sue upon the request of

the CP within 180 days after the filing of the charge provided that the EEOC 63/ has determined that it is probable that the Commission

60

Alexander v. Gardner-Denver Company, supra. 61/ Franks v. Bowman Transportation Co., 495 F.2d 398 (5th cir. 1974). 62/ See e.g., Tuft v. McDonnell-Douglas Corp., 517 F.2d 1031 (8th Cir. 1975) cert. denied. 423 U.S. 1052 (1976): De Matteis y. Eastman Kodak, 511 F.2d 306 (2nd cir. 1975) Mod. on rehear. 520 F.2d 409. 63/ The decision may be made by the District Director, the Director of the Office of Field Services, or the Director of the office of Systemic Programs.

will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge...."

Apparently one of the major methods used to enforce complaince with the procedures, and to generally regulate the system, is the provision for dismissing charges for any number of reasons.

The regulation and authority for dismissing charges is outlined in $1601.19 and the procedures are detailed in the Compliance Manual in Section 4.64 The practitioners must review the dismissal mechanism closely in order to avoid dismissal of the charge (if, in fact, administrative processing is desired) and to be prepared for filing a civil action within 90 days of the dismissal. over, in certain circumstances a dismissal for "failure to cooperate" may cause a problem in private litigation. If the respondent prevails in the civil action, it may use the EEOC determination as a basis for arguing that attorneys' fees are owed by the plaintiffs.65

More

This is especially the case because of the language contained

in the notice of right to sue.

Three of the reasons which may be

checked indicating the grounds for the issuance of the notice are
as follows:

You failed to provide requested necessary
information, failed or refused to appear or
be available for necessary interviews/conferences
or otherwise refused to cooperate to the extent
the Commission has been unable to resolve
your charge. You have had more than 30 days
in which to respond to our final written letter

64/

In the Intial several months of operation, 16% of the charges closed by the model offices were dismissed for lack of jurisdiction (11%) or "failure to cooperate" (5%), EEOC Handout dated December 2, 1977. 65 The standard for awarding attorneys fees to prevailing defendants is that the action was "frivolous, unreasonable, or without foundation even though not brought in subjective bad faith". Christiansburg Garment co. v. EEOC, U.S. 46 U.S.L.W. 4105 (1978).

The Commission has made reasonable efforts to
locate you and has been unable to do so. You
have had at least 30 days in which to respond
to a notice sent to your last know address.

The respondent has made a written settlement
offer which affords full relief for the harm
you alleged. At least 30 days have expired

since you received actual notice of this
settlement offer.

Finally, there is an argument which respondents may advance that the failure to cooperate with the administrative procedure is comparable to the failure to exhaust the administrative requirements of the Act. Although it is very unlikely that respondents would prevail on this argument, 66/ counsel for CP should consider this problem. The reasons for dismissing a charge are briefly listed; practi. tioner should consult Slé0l. 19 and Section la of the Compliance Manual. 67/ Any charges which are not timely filed or otherwise fail to state a claim under Title VII will be dismissed, Slé0l. 19 (a). Where the Commission finds no reasonable cause the charge will be dismissed, Slé0l. 19 (b). The Commission by resolution passed on July 20, 1977 established a more strigent standard for determining reasonable cause: The reasonable cause decision will constitute a determination that the claim has sufficient merit to warrant litigation if the matter is

not thereafter conciliated by the Commission
or the charging party. See CM 30.

66/ The Supreme court has emphatically stated that the only prerequisites for filing a Title VII action are the timely filing of a charge and the timely filing of the lawsuit after receipt of notice of a right to sue or of termination of EEOC procedures, Alexander v. Gardner-Denver company, supra; McDonnell-Douglas Corp. v. Green, 4ll U.S. 792 (1973).

67/ There is, of course, no substantial experience concerning the implementation of these procedures; we would appreciate receiving any comments, problems, etc.

The Commission of rotice Putilstei in the Federal Register. Vol. 42, No. 235 at 54535 tort-ter 7. --> - set forth a somewhat different standari

A Commission finding of rac reasonable ca-se
to believe that discrimination in viciation
of Title VII has occ-rred reflects a -dogment
that the evidence cotained in the Commission's
investigation of the charge does not prepon-
derate -- or cf a cc-c--sion totat there is
reascoat-e -se to believe that there is a
violation the Title. A Commission finding
of no reasonable cause is based -pon. and
limited to... the evidence cotained in the
Commission's investigation.

A charge may be dismissed for failure to cooperate during the investigation or other administrative processing of the charge. $1601.19sc). This may happen in any number of circumstances includins the following: refusal to provide the detailed information required by $1601.15(b) <e/; fails to appear for fact finding conference SS/. or interviews; or "otherwise refuses to cooperate to the extent that the Commission is unable to resolve the charge".

The commission may dismiss the charge when the cF can not be located: "reasonable efforts” have to be made to locate the CF. $1601.19 (d). The cro is under an obligation to provide the EEOC "with notice of any change in address and with notice of any Prolonged absence from that current address...", slēol. 7 (b) - what constitutes reasonable efforts to locate the CP are listed in

CM 4.7. It includes contacting the person listed on the charge

657 This section provides substantial difficulty for compliance.

see 15, supra.
69/ See 24-27, supra-

[graphic]

form in the space designated "someone who always knows where to contact me". The attorney for the CP should generally list his or her name in that space.

Finally, the charge may be dismissed where the respondent has made an offer which would "afford full relief for the harm alleged by the person claiming to be aggrieved and the person claiming to be aggrieved fails to accept such an offer within 30 days after actual notice of the offer", $1601.19(e). The District

Director is required to make a written determination that the

relief offered is "what the charging party would obtain...in litigation of the same charge", CM 4.9. Even with this clarifi

cation the provision is unclear: for example, must the respondent offer full class relief if the charge alleges class violations, or just relief for the individual; may the District Director make such a determination prior to an investigation of the charge; must the

offer of full relief include attorneys' fees if the CP was repre

sented by counsel during the administrative proceedings.

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