Petition for Writ of Certiorari — Edward Eaves, Petitioner v. City of Charlotte, North Carolina

'I

NO

In The

SUPREME COURT OF THE UNITED STATES

Edward Eaves, Petitioner

V.

City of Charlotte, Respondent

On petition for Writ of Certiorari to the Supreme Court

From United States Court of Appeals for the Fourth Circuit

PETITION FOR AWRIT OF CERTIORARI

Edward E Eaves Jr.

Pro-se Petitioner

1133 Cullom Street South Apartment #2

Birmingham, Alabama 35205

(704) 726-4939

1.

QUESTIONS PRESENTED

Whether it was the intent of Congress for the United States Equal Employment

Opportunity Commission (EEOC) refuse to investigate a discrimination charge made by a

charging party, summarily close the charge, and issue a right to sue letter at the behest of

respondent's lawyer FIVE (5) days after EEOC charge was filed?

Whether it was the intent of Congress for the EEOC (Office of Field Programs) to deny

a charging party due process. Charging party requested reconsideration of his discrimination

charge with the OFP and the local EEOC office where the charge originated. Petitioner was

denied due process. District Director, Reuben Daniels, and Regional Lawyer Lynette Barnes,

refused to investigate petitioners EEOC charge?

Whether denying a charging party an investigation of his EEOC charge fundamentally

violates Due Process and the Equal Protection Clause to the U.S. Constitution?

Whether it was the intent of Congress for a U.S. District Court deny a Pro-Se litigant

procedural due process upon filing a Motion to proceed In Forma- Pauperis, and to receive

Notice of a Right to Appeal?

Whether respondent's City lawyer, Daniel Peterson, requesting that EEOC close

petitioner's EEOC charge, and issue petitioner a right to sue letter, violates the equal protection

clause?

2.

f

PARTIES TO THE PROCEEDING

Edward Eaves Petitioner

1133 Cullom Street South, Apartment #2

Birmingham, Alabama 35205

(704) 726-4939

The Office of the City Attorney

Daniel Peterson

600 East 4' Street

dpetersoncharlottenc.gov

(704) 432-5397

Charlotte, NC 28202-2841

Prepared By: pro) ,4etitioner

Ewfdgene Eaves

pirtment 2

1133 CulkStreet

(Birmingham, Al 35205

(704) 26-4939

3.

TABLE OF CONTENTS

Question presented ................................1

Parties to the Proceeding ......................2

Table of contents ...................................4

Appendix.. ........................................... 5

Table of Authorities ..............................6

Opinions below ....................................6

Jurisdiction ..........................................7.

Statutes and Regulations Involved .......7

Constitutional Provisions Statutes and Regulations Involved

.......9

Statement of the Case ..........................10

Reasons for Granting the Petition .......11

THIS CASE RAISES THE IMPORTANT QUESTION OF WHEN AN EEOC CHARGE IS

FILED AND EEOC FAILS TO FULFILL THEIR STATUTORY DUTY REFUSING TO

CONDUCT A FORMAL INVESTIGATION CLOSING A CHARGE FIVE DAYS AFTER IT

HAS BEEN FILED, HOWEVER, MAY NEVERTHELESS CONSTITUTE A VALID

CHARGE.

THIS CASE RAISES THE IMPORTANT QUESTION WHETHER EEOC IS STATUTORILY

REQUIRED TO INVESTIGATE A DISCRIMINATION CHARGE MADE DESPITE A

REQUEST MADE BY THE RESPONDENT AND THEIR LAWYERTO CLOSE THE

CHARGE.

THIS CASE RAISES THE IMPORTANT QUESTION WHETHER A U.S. DISTRICT

COURT MAY DENY A PRO-SE LITIGANT DUE PROCESS AFTER FILING A MOTION

WITH THE COURT TO PROCEED IN FORMA PAUPERIS.

THIS CASE RAISES THE IMPORTANT QUESTION WHETHER A DISTRICT DIRECTOR

OF EEOC AND ATTORNEY ADVISOR FOR THE EEOC OFFICE OF FIELD PROGRAMS

ARE STATUTORILY BOUND TO EXECUTE THE

DUTIES PROMULGATED BY CONGRESS PURSUANT TO THE 1964 CIVIL RIGHTS

ACT.

a

Conclusion

.20

Appendix A: Fourth Circuit Mandate September 26, 2017

Appendix B:

denying due process.

01/11/2016 U.S. Equal Employment Office of Field Programs

Appendix C:

01/20/2016 U.S. Equal Employment Office Charlotte, division

denying reconsideration of charge filed December 10, 2015.

Appendix D:

EEOC Discrimination Charge 430-2016-00520

Appendix

Dismissal And Notice of Rights

Appendix

May 27, 2016, Process and Return Receipt

Appendix

Court Order May 26, 2016

Appendix

Court Order June 27, 2016

Appendix

Writ of Mandamus

Appendix

Court Order September 19, 2016

Appendix

Notice of Appeal

Appendix

Fourth Circuit Court of Appeal Notice of Judgment

Appendix

Docketing Notice

Appendix

Letter to Chief Judge Whitney September 1, 2016

Appendix

0:

Department of Justice Correspondence July 8, 2016

Appendix

F:

Department of Justice Correspondence July 16, 2016

Appendix

Q:

Correspondence DOJ May 16, 2016

61

TABLE OF AUTHORITIES

CASES

Henschke v. New York Hospital-Cornell Medical Center 821 F. Supp. 166 (S.D.N.Y.

1993).

Cheeky. W & S. Life Ins. Co., 31 F. 3rd 497 500 (7th Cir. 1994).

Evans v. U.S. Pipe &Foundiy, Co., 696 F. 2d 925, 929 (lith Cir. 1983).

TBrown v. Walt Disney World Co., 805 F. Supp. 1554, 1558 (Md. Fla. 1992).

Occidental Life. In Montoya v. Valencia County

New York v. Holiday Inns, Inc.,

Spencer v. Banco Real S.A.

Walker v. United Parcel Service, Inc.,

Parker v. Noble Roman's, Inc.,

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993) (quoting United States

Postal Serv. Bd. of Governorsv. Aikens, 460 U.S. 711, 716 (1983)

Railway Labor Act, 45 U.S. C. §§ 151-188

Local 553, Transp. Workers Union v. E. Air Lines, Inc., 695 F2d 668, 674 (2d Cir.

1982).

Cattell v. Bob Frensley Ford, Inc., 505 F Supp. 617, 622 (MD. Tenn. 1980

Chicago Board of Realtors, Inc. v. City of Chicago, 819 F2d 732, 741 (7th Cir. 1987

91

STATUTES AND REGULATIONS

:.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq ...............

42 U.S.C. § 2000e-5(b) ...................

42 U.S.C. § 2000e-5(b)-(f) ................

42 U.S.C. §§ 2000e-5(c), (e) ................

42 U.S.C. § 2000e-5(f) (

42 U.S.C. § 2000e-16(c) .....

29 CFR 1601.28 Notice of Right to sue: Procedure & Authority

29 C.F.R. § 601.10 ...................

29 C.F.R. § 1601.28(a)

29 C.F.R. § 1601.75(a)

29 C.F.R. §§ 1601.761601.79

29 C.F.R. § 1601.80.

U.S. Constitution Fifth Amendment Due Process Clause Substantive Due Process

Procedural Due Process U. S. Constitution Fourteenth Amendment Equal

Protection Clause

7.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner Edward Eaves respectfully prays that a writ of Certiorari issue to

Review the judgment below.

OPINION BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit appendix A to this

petition. The court's judgment is September 26, 2017.

JURISDICTION

A Stay of MANDATE under FED. R. APP. P. 41(d) (1) was filed August 1, 2017. Appeal from

the United States District Court for the Western District of North Carolina was filed June 28, 2017.

Decided July 18, 2017. Petitioner filed a petition for rehearing July 26, 2017 EN BAC with the Fourth

Circuit Court of Appeals. The U.S. Court of Appeals for the Fourth Circuit issued its decision on

September 26, 2017. A copy is attached at appendix A. The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS

U.S. Const. Amend. XIV, sec. 1: All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

District Court Jurisdiction.

The court of of first instance, the Untied States District Court for the Western District of North

Carolina.

THIS CASE RAISES THE IMPORTANT QUESTION WHETHER A DISTRICT

DIRECTOR OF EEOC AND ATTORNEY ADVISOR FOR THE EEOC OFFICE OF

FIELD PROGRAMS ARE STATUTORILY BOUND TO EXECUTE THE DUTIES

PROMULGATED BY CONGRESS PURSUANT TO THE 1964 CIVIL RIGHTS ACT.

Factual Background.

December 10, 2015, petitioner. Eaves filed an EEOC charge with the Charlotte NC local EEOC

office against the City of Charlotte. December 15, 2015, EEOC denied petitioner an

investigation of his EEOC charge, dismissed petitioner's charge, and issued petitioner a right

to sue letter. Petitioner appealed the EEOC'S decision to the EEOC'S office of Field

Operations, Washington DC.

January 11, 2016, the EEOC office of Field Operations denied petitioner relief. On January

20, 2016, the EEOC Charlotte office notified petitioner Eaves denying petitioner Eaves request

for reconsideration of their earlier closure and dismissal of petitioner's EEOC charge filed

December 10, 2015.

March 14, 2016, petitioner filed a complaint against the City of Charlotte in the U.S.

District Court, Western Division for Charlotte NC and a motion to proceed in-forma pauperis.

The U.S. District Court denied petitioner due process by refusing to respond to petitioners

motion to proceed in forma pauperis and to issue a Court Order Granting petitioner Eaves

Motion to proceed in forma pauperis.

Petitioner filed.a complaint with the U.S. Department of Justice May 16, 2016. After

petitioner filing a complaint with the U.S. Department of Justice The U.S. District Court

issued an order granting petitioners request to proceed in-forma pauperis on May 26,

2016, Seventy Three (73) Days after petitioner filed his complaint with the District

Court on March 14, 2016.

September 22, 2016, Petitioner filed Writ of Mandamus with the Eleventh Circuit

Court of Appeals which later, the Eleventh Circuit transferred petitioner's writ to the

Fourth Circuit Court of Appeals.

September 1, 2016 Petitioner filed a formal complaint with U.S. District Courts, Chief

Judge, Frank D Whitney, for denial of due process. Chief judge Whitney would not

respond to petitioners complaint. Petitioner filed a writ of mandamus with the Eleventh

Circuit of Appeals which was later (transferred to the fourth circuit).

3.

District Courts Decision

During the Fourth Circuit Courts review of petitioner's writ, unbeknownst to

Petitioner, his case was dismissed by the U.S. District Court. The U.S. District court

neither issued petitioner a notice of his appeal rights nor mailed petitioner a copy of the

court's order dismissing petitioner's complaint. Petitioner was not served notice of the

dismissal by the US District Court.

Petitioner obtained a copy of the court's dismissal at the U.S. District Court December

27, 2016, after receiving Notice from the Fourth Circuit Court of appeals. Petitioner

immediately filed his appeal with the Fourth Circuit Court of Appeals. At no time

whatsoever did petitioner receive a copy of the U.S. District Court's decision in the U.S.

Mail, nor did petitioner receive a copy of the U.S. District Court decision from defendant

Counsel in the U.S. Mail. Petitioner has stated these points in his briefs upon filing his

Initial Appeal with the Fourth Circuit Court of Appeals. Petitioner's intent all along

was to TIMELY seek an appeal. Petitioner filed a writ of mandamus appealing the

inaction of the U.S. District Court for the same reasons for denial of due process.

The U.S. District Court unarguably denied petitioner his due process rights. At the

onset the U.S. District Court would not act on petitioner's complaint filed March 14,

2016. Therefore, petitioner filed a writ of mandamus with the intent to appeal the

decision of the U.S. District Court denying petitioner due process and equal protection of

law. Petitioner's intent in filing a timely notice of appeal is clear pursuant to his actions.

Simultaneously, while petitioner was vehemently petitioning the U.S. District court

to receive due process petitioner had no choice, but file a writ of mandamus with

the Eleventh Circuit.

93 days later, the Fourth Circuit denied petitioners writ, However, advised

petitioner to file an appeal. At the same time petitioner's writ was being reviewed

the U.S. District Court dismissed petitioners complaint.

The U.S. District Court did not provide petitioner with notice. Under Law, this

constitutionally denied petitioner his Fifth Amendment right to due process and his

Fourteenth Amendment right to equal protection of law. The District courts inaction to

provide petitioner adequate and sufficient NOTICE of his right to appeal violated his

constitutional rights.

June 27, 2016, the district court took unusual but proactive steps to assure

petitioner received adequate NOTICE of defendant's motion to dismiss and to respond

within Fourteen Days. The District court instructed the Clerk of the Court to issue a

return receipt to show as a matter of record that plaintiff was served notice by way of

CERTIFIED mail.

The District Court failed to take these same procedural guidelines when the court

dismissed petitioner's complaint September 19, 2016. Petitioner was not provided

notice. The U.S. District Court's procedural safeguards used to assure plaintiff

received NOTICE by the court to respond to defendant's motion to dismiss were not.

District Court to assure petitioner's Due Process rights ensure sufficient Notice was

used to ensure petitioner's Notice of right to APPEAL.

12.

REASONS FOR GRANTING THE PETITION

THE COURT SHOULD GRANT THE WRIT TO DECIDE WHETHER THE EEOC

MUST COMPLY WITH IT'S STATUTORY DUTY.

THIS CASE RAISES THE IMPORTANT QUESTION OF WHEN AN EEOC CHARGE

MADE FAILS TO FULFILL THE STATUTORY DUTY OF THE EEOC WITHOUT ANY

FORMAL INVESTIGATION AND CLOSING A CHARGE FIVE DAYS AFTER IT HAS

BEEN FILED BUT MAY NEVERTHELESS CONSTITUTE A VALID CHARGE.

Petitioner's ARGUMENT

(1). 821 F. Supp. 166 (S.D.N.Y. 1993). (2). A right-to-sue letter constitutes official

notice from the Equal Employment Opportunity Commission (EEOC) to an aggrieved

party that the party may institute a Title VII claim in federal court. 42 U.S.C. § 2000e5(f)(1) (1988). See also Michelle Kissell Price, Note, Relieffrom Retaliation: Does Title

VII Allow a Private Right to Preliminary Injunctive Relief?, 25 TULSA L.J. 639, 640

(1990). The EEOC issues an "early" right-to-sue letter when it issues a letter to a

claimant within 180 days from the date the claimant filed charges with the EEOC. See

Price, supra, at 640. (3). By enacting Title VII of the Civil Rights Act of 1964, Congress

intended "to assure equality of employment opportunities by eliminating those

practices and devices that discriminate on the basis of race, color, religion, sex, or

national origin." Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974) (citations

omitted). To further this goal, Congress created the EEOC to investigate charges of

discrimination, promote voluntary cooperation with Title VII, and institute civil actions

against employers named in a charge. Id. See 42 U.S.C. § 2000e-4 (1988). In

addition, Title VII requires coo peratiorrbètweén anindividual claimant and the EEOC.

See 42 U.S.C. § 2000e-5 (1988).

Each claimant must file charges with the EEOC and obtain a right-to-sue letter from

the EEOC before instituting a private Title VII civil action. 42 U.S.C. § 2000e-5(a), (f)

(1988). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973). (4).

Henschke, 821 F. Supp. at 170-71. This Case Comment focuses upon whether the

EEOC's failure to wait 180 days before issuing a right-to-sue letter deprives a federal

court of subject-matter jurisdiction in a private civil action. The propriety of

injunctive relief during that same time period is beyond the scope of this Case

Comment. For a discussion on Title VII injunctive relief procedure, see generally Price,

supra note 2. 5. 821 F. Supp. at 168. Dr. Henschke claimed that the defendants

appointed "a less qualified male" as acting chief of the radiology department and

denied her access to necessary information, equipment, and personnel.

(6). Id. Dr. Henschke filed charges with the EEOC on September 21, 1992 and

simultaneously requested an early right-to-sue letter. On October 22, the EEOC issued

the letter. On November 16, Dr. Henschke filed suit in federal court. Id. (7). Section

2000e-5(f)(l) provides: 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

...

the Commission has

not filed a civil action under this section... or the Commission has not entered into

a conciliation agreement to which the person aggrieved is a party, the Commission...

shall so notify the person aggrieved and within ninety days after giving such notice a

civil action may be brought

....

42 U.S.C. § 2000e-5(f)(I) (1988). (8). 821 F. Supp. at

168. (9). Id. at 170. In 1977, the EEOC codified its long-standing practice of issuing

early right-to-sue letters in 29 C.F.R. § 1601.28(a)(2). The EEOC regulations provide:

When a person claiming to be aggrieved requests, in writing, that a notice of right to

sue be issued

...

the Commission may issue such notice as described in 1601.28(e)

with copies to all parties, at any time prior to the expiration of 180 days from the date

of filing with the Commission; provided that[a director] has determined that it is

probable that the Commission will be unable to complete its administrative processing

of the charge within 180 days from the filing of the charge.... 29 C.F.R. § 1601.28(a)(2)

(1993).

Henschke, 821 F. Supp. at 170. The court suspended the plaintiffs claim pending

resubmission of the charges to the EEOC for the remainder of the 180 day waiting

period. Id. at 171. The court also granted Dr. Henschke leave to amend her Title VII

claim and gave her the opportunity to reactivate her claim upon five days' notice. Id.

Id. at 170. (12). 42 U.S.C. § 2000e-5(f)(3) (1988) (conferring jurisdiction over Title

VII claims on the federal district courts). (13). Id. § 2000e-5(f)(l). (14). Id. Originally,

section 706(e) of the Civil Rights Act of 1964 provided: If within thirty days after a

charge is filed with the Commission.... the Commission has been unable to obtain

voluntary compliance with this title, the Commission shall so notify the person

aggrieved and a civil action may, within 30 days thereafter, be brought against the

respondent named in the charge. Civil Rights Act of 1964, Pub. L. No. 88-352, §

706(e), 78 Stat. 241, 260 (1964) (prior to 1972 amendment) (codified as amended at

42 U.S.C. § 2000e-5(f(1)(1988)). In 1972, Congress amended § 2000e-5(f) as part of

the Equal Employment Opportunity Act. Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, § 4, 86 Stat. 103, 104 (1972) (codified at 42 U.S.C. § 2000e-5(f)(l)

(1988)).

The new provision retains the individual's rightto private civil action, but extends the

time period for EEOC action from 30 to 180 days and private civil action from 30 to 90

days. 42 U.S.C. § 2000e-5(f)(1)(1988). (15). See 821 F. Supp. at 170. The EEOC's

procedural regulations for right-to-sue letters are found at 29 C.F.R. § 1601.28. The

EEOC's regulations provide in pertinent part:

The notice of right to sue shall include: (1) Authorization to the aggrieved person to

bring a civil action under Title VII

...

within 90 days from receipt of such authorization;

:(2)Ad.?'ice concern ing the institution of such civil action by thèpërsOn claiming to be

aggrieved, where appropriate; (3) A copy of the charge; (4) The Commission's

decision, determination, or dismissal, as appropriate. 29 C.F.R. § 1601.28(e) (1993).

(16). See, e.g., Bryant v. California Brewers Assn, 585 F.2d 421,425 (1978). See also

Price, supra note 2, at 640. (17). Compare Howard v. Mercantile Trust Co., 8 Empl.

Prac. Dec. (CCH) 9842, at 6502 (E.D. Mo. Nov. 27, 1974) (upholding early right-to-sue

letter) with Budreck v. Crocker Nat'l Bank, 407 F. Supp. 625 (N.D. La. 1976) (finding

180 days a condition precedent to jurisdiction). (18). The Ninth Circuit approved the

early right-to-sue letter in Bryant, 585 F.2d at 425. In Weise v. Syracuse Univ., 522

F.2d 397 (2d Cir. 1975), the Second Circuit, in dictum, disapproved of the early

right-to-sue letter, id. at 412. 19. Budreck, 407 F. Supp. at 645 (finding that 180 day

requirement is jurisdictional). See infra notes 31-40 and accompanying text. 20.

See Howard, 8 Empl. Prac. Dec. (CCH) at 6504 (holding that a letter can be sent

within 180 days). See infra notes 26-28, 53-56 and accompanying text.

MARTINI AND OTHER CASES SUPPORTING REMAND TO THE AGENCY ISSUANCE

OF A RIGHT TO SUE LETTER

In 1999, the Court of Appeals for the District of Columbia Circuit was the first appellate

court to hold that the EEOC may not issue an early right-to-sue letter. In Martini v. Federal

National Mortgage Ass'n, the D.C. Circuit vacated and remanded a judgment in favor of

plaintiff Elizabeth Martini for $903,500 on sexual harassment and retaliation claims following

a jury trial because the EEOC had granted a right-to-sue letter only twenty-one days after she

had filed her charge with the Commission. The court concluded that the EEOC's power to

authorize private suits within 180 days undermines its express statutory duty to investigate

every charge filed, as well as Congress's unambiguous policy of encouraging informal

resolution of charges up to the 180th day." Although some district courts had held that early

right-to-sue letters were not permissible, this was the first circuit court to make this decision

and thus invalidate the regulation issued by the EEOC.

This decision in Martini created a circuit split that provides an important issue for

resolution by the United States Supreme Court. The EEOC had issued the following

regulation based upon its interpretation of the provisions of 42 U.S.C. § 2000e-5(f) (1): When

a person claiming to be aggrieved requests, in writing, that a notice of right to sue be issued..,

the Commission may issue such notice.. at any time prior to the expiration of 180 days from

the date of filing the charge with the Commission; provided, that the District Director or other

delegated officials] has determined that it is probable that the Commission will be unable to

complete its administrative processing of the charge within 180 days from the filing of the

.

charge and has attahed awrittencertificate to that effect.

A court interpreting an administrative agency's construction of a statute uses the twostep inquiry mandated by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.

The court must first ask "whether Congress has directly spoken to the precise question at

issue. If so, then the unambiguous intent of Congress must be carried out by the reviewing

court. But "if the statute is silent or ambiguous with respect to the specific issue, the question

for the court is whether the agency's answer is based on a permissible construction of the

statute.

The Martini court found that "Congress clearly intended to prohibit private suits

within 180 days after charges are filed, and it therefore held that the agency's interpretation

that allowed for early right-to-sue letters violated the clear, unambiguous intent of Congress

and had to be overruled under Chevron.

In deciphering the intent of Congress not to allow early private suits, the Martini court

relied on the provision prescribing the EEOC's duties that requires a prompt determinationwithin 120 days if practicable." The court found that "the Commission's duty to investigate is

both mandatory and unqualified." Further, it stated that Congress "hoped that recourse to the

private lawsuit will be the exception and

Not the, rule. Not allowing early private suits should put pressure on the EEOC to improve its

investigatory procedures or perhaps to ask Congress for additional funding so that it would be

able to complete its statutory duties.2 The United States Supreme Court, in dictum, prior to

the EEOC's promulgation of 29 C.F.R. § 1601.28, reached the same conclusion as the Martini

court when seven Justices agreed that a plain reading of the statute compels the finding that

early suits prior to the expiration of 180 days should not be permitted. In Occidental Life

Insurance Co. of California v. EEOC, the Court stated, natural reading of [the statute] can lead

only to the conclusion that it simply provides that a complainant whose charge is not

dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that

he must wait 180 days before doing so.

The Court considered a claim by a defendant that the 180-day period was a statute of

limitations and the EEOC could not file a charge beyond the expiration of this time.23 The

Court rejected this assertion and, without knowledge or consideration that this issue would

later become relevant, found that the EEOC must wait 180 days before giving permission to a

plaintiff to file a charge in United States district court. After the EEOC promulgated 29 C.F.R.

§ 1601.28(a) (2), a district court used similar reasoning to that of the Supreme Court in

Occidental Life. In Montoya v. Valencia County, the court held that, even exercising the

deference to the Commission required by Chevron, the EEOC's interpretation was "patently

inconsistent with section 2000e5(f) (1). The court therefore rejected the allowance of an

early suit and subsequently granted the defendants' motion to dismiss the case. The court

expressed sympathy for the EEOC's difficulties in carrying out its duties but suggested that the

proper way to resolve the lack of funding and inability to investigate all charges within the

statutory time limit was to ask Congress to amend the statute or increase funding, and that

unilateral action by the agency in issuing a regulation contrary to its underlying statute was

not the solution.

-

In New York v. Holiday Inns, Inc., the district court noted the attractiveness of allowing

plaintiffs to sue prior to the expiration of the time period when the EEOC is backlogged, but

quoted the dictum from Occidental Life stating that it was Congress's intent that 180 days

must elapse before charges could be filed in district court. The court noted that despite the

apparent "futility of forcing victims of discrimination to 'mark time' when it appears that the

EEOC will be unable to investigate their charges or reach conciliation proceedings within the

180-day period," arguments for allowing early suits should be addressed to Congress rather

than to the judiciary. Other courts have noted that the purpose of the 180-day period is to

induce conflict resolution through conciliation within the EEOC 11 rather than litigation. In

1980, Judge Sofaer of the Southern District of New York looked at the problem from a

separation of powers perspective in Spencer v. Banco Real S.A.

The jurisdiction of the federal courts should not be expanded by judicial decision or by

agency regulations, but rather through an act of Congress." The court also examined policy

considerations in making its decision. Not allowing suits would put pressure on the EEOC to

improve its efficiency rather than simply hand off the work to the courts. Since the

Commission still has to determine which cases to pursue and in which to issue early right-tosue letters, it would have too much discretion to decide which cases to keep and which to give

to the courts. This argument about the incentive effects seems to be the most persuasive

objection to allowing early suits. A further consideration is that employers who are unwilling

or unable to afford litigation costs for even unmeritorious suits may settle because of the small

chance of recovering costs from unsuccessful plaintiffs3 Title VII plaintiffs might be able to

take advantage of this tendency by trying to sidestep the Commission and sue prior to the

period for investigation and conciliation by the EEOC.

LEGISLATIVE HISTORY OF 2000E-5(B)

A crucial question in determining the intent of the framers of the EEOC's enabling statute

is what they expected would happen if there were a backlog of cases and the Commission

could not act on a sufficient number of them within the 180 days set by the statute. There is

credible evidence supporting two possible interpretations, but it is not clear that the framers

actually considered this precise question. First, members of Congress were aware of the

backlog that the EEOC faced in 1971 when this provision was included in a bill modifying the

enforcement procedures and jurisdiction of the EEOC.

At least one Senator recognized the relative workloads of the EEOC and the district courts

and understood that they were both possible fora for the resolution of employment

discrimination claims. The Chairman of the EEOC testified in 1971 that the Commission's

backlog was 32,000 cases and that the median time for resolution by the EEOC was eighteen

to twenty-four months.6 In contrast, the median time for a case in district court to move from

issuance to trial in a non jury trial in 1971 was ten months, and the twenty-nine district courts

that were expected to hear the largest share of the cases had median times to trial of twelve

months or less. Members of the House were also aware of the backlog of the EEOC in

resolving cases. The majority report of the House Committee on Education and Labor asserted

a competence argument in favor of an administrative resolution of employment discrimination

by the Commission:

Administrative tribunals are better suited to rapid resolution of such complex issues than

are Courts. Efficiency and predictability will be enhanced if the necessarily detailed case by case

findings of fact and fashioning of remedy is performed by experts in the subject matter.

Moreover, administrative tribunals are less subject to technical rules... and are less constrained

by formal rules of evidence-which give rise to a lengthier and more costly) process of proof.

This argument is in favor of the Commission having the opportunity to resolve the

dispute before allowing plaintiffs to proceed in United States district court. It does not speak

directly to the question of the ability of an overworked Commission to allow a plaintiff to go

to court prior to the end of the 180-day period.

THIS CASE RAISES THE IMPORTANT QUESTION WHETHER EEOC IS

STATUTORILYREQUIRED TO INVESTIGATE A DISCRIMINATION CHARGE

DESPITE A REQUEST MADE BY THE RESPONDENTAND THIER LAWYER NOT TO

INVESTIGATE PETITIONER'S EEOC CHARGE.

EEOC'S ISSUANCE OF EARLY RIGHT-TO-SUE LETTERS

The court in Spencer ordered a suspension of an early suit for two reasons both because

it was against Congress's intent and because it was unsupported by policy arguments. The

review of this problem in the District of Columbia Circuit's opinion in Martini seems to reach

the proper result, even if it at first glance seems unfair to the plaintiff who lost a nearly onemillion-dollar judgment. The good of preventing the EEOC from preceding its jurisdiction and

choosing which cases it wants to pursue is important. The plain meaning of the statute and the

policy arguments also support this view. I turn next to the arguments in favor of allowing early

right-to-sue letters, which is the position taken by three circuit courts and several district

courts.

The Supreme Court unanimously held that a lower court may review whether the

EEOC satisfied its statutory obligation to attempt conciliation before filing suit. The

Court held that the EEOC's two letters, which indicated only that the process would

start soon, and later that the process was finished, did not prove that the EEOC

actually tried to conciliate. The EEOC's "bookend" letters were insufficient to actually

verify the EEOC's attempt to conciliate

Further, the law provides specified methods pertaining to what the "endeavor"

must entail: conference, conciliation, and persuasion. See §2000e-5(b). These

methods "necessarily involve communication between parties, including the

exchange of information and views." Thus, Title VII has provided courts with a

manageable standard to review the EEOC's efforts: In order for the EEOC to meet its

statutory duty, it must at least (1) tell the employer about the claim (i.e. which practice

has harmed which person or class), and (2) provide the employer with an opportunity

to discuss the matter in an effort to achieve voluntary compliance with Title VII.

Before filing a Title VII action, a plaintiff must exhaust his administrative remedies

by filing a charge with the EEOC. Green v. Indus., Inc., 152 F. Appx's 838, 840 (lith

Cir. 2005) citing Sanchez v. Brands, Inc. 431 F.2d 455 (5th Cir. 1970). The purpose of

this exhaustion requirement is that the (EEOC) should have the first opportunity to

INVESTIGATE the alleged discriminatory practices to perform its role in obtaining

voluntary compliance and promoting conciliation efforts. Evans v. U.S. Pipe & Foundry

Co., 696 F.2d 925, 929 (lith Cir. 1983); see also Wu v. Thomas, 863 F.2d 1543, 1548

(lith Cir. 1989). The purpose of the filing requirement is to insure that the

settlement of grievances be first attempted through the office of the EEOC.

Cheek v. W & S. Life Ins. Co., F. 3rd 497,500 (7 th Cir. 1994). For allowing a complaint

outside the ambit of the predicate EEOC charge would frustrate the EEOC'S

investigatory and conciliatory role, as well as deprive charged party of notice of

charge. THE SCOPE OF A CIVIL COMPLAINT IS LIMITED TO THE SCOPE OF THE

EEOC INVESTIGATION THAT CAN BE EXPECTED TO GROW OUT OF THE

DISCRIMINATION CHARGE. Brown v. Walt Disney World Co. ,805F. Supp. 1554,

1558 (M.D. Fla. 1992).

A. At the inception of this case petitioner was denied Due Process

and Equal Protection of law from both the (EEOC) Equal Employment

Opportunity Commission for Charlotte NC and the U.S. District Court for the

Western District of Charlotte. Both entities are under federal jurisdiction and

authority and are required under law to administer equal and fair justice.

B. THIS CASE RAISES THE IMPORTANT QUESTION WHETHER A U.S.

DISTRICT COURT MAY DENYA PRO-SE LITIGANT DUE PROCESS AFTER FILING A

MOTION WITH THE COURT TO PROCEED IN FORMA PAUPER/S.

MAY 16, 2016, COMPLAINT FILED WITH THE U.S. JUSTICE DEPARTMENT

Petitioner filed a Complaint in the U.S. District Western Division, Charlotte, NC

March 14, 2016. The District Court refused to process petitioner's Complaint.

Petitioner's complaint was not processed by the District Court. Petitioner

notified the U.S. Department of Justice for denial of due process.

Due process requires that the procedures by which laws are applied must be evenhanded,

so that individuals are not subjected to the arbitrary exercise of government

power. Exactly whatprocedures are needed to satisfy due process, however, will vafy

depending on the circumstances and subject matter involved. One of the basic criteria

used to establish if due process is satisfied is whether such procedure was historically

required in like circumstance.

The Requirements of Due Process. —although due process tolerates

variances in procedure appropriate to the nature of the case, it is nonetheless

possible to identify its core goals and requirements. First, procedural due

process rules are meant to protect persons not from the deprivation, but from

the mistaken or unjustified deprivation of life, liberty, or property. Thus, the

required elements of due process are those that "minimize substantively unfair

or mistaken deprivations" by enabling persons to contest the basis upon which a

State proposes to deprive them of protected interests. The core of these

requirements is notice and a hearing before an impartial tribunal. Due process

may also require an opportunity for confrontation and cross-examination, and for

discovery; that a decision be made based on the record, and that a party be

allowed to be represented by counsel. Ballard v. Hunter, 204 U.S.

241, 255 (1907); Palmer v. McMahon, 133 U.S. 660, 668 (1890).

20.

Conclusion

Because this case presents an important issue of federal law on which the circuits are

divided and which has not been, but should be settled by this Court, the petition for a

writ of Certiorari should be granted.

4

Pro-se

Edward Eaves

1133 Cullom Street, South Apartment 2

Birmingham, Alabama 35205

(704) 726-4939