Opposition Brief — Simms v. Oklahoma ex rel. Oklahoma Department of Mental Health & Substance Abuse Services

Supreme Court, U.S.

F IL EOD

JUN 22 999

No. 98-1884 CLERK

In The

: Supreme Court of the United States

—

CEDRIC D. SIMMS,

Petitioner,

THE STATE OF OKLAHOMA, ex rel.,

THE DEPARTMENT OF MENTAL HEALTH

AND SUBSTANCE ABUSE SERVICES,

A STATE AGENCY,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

S

RESPONDENT'S BRIEF IN OPPOSITION

———= ®

W. CRAIG SUTTER

General Counsel

PENNY BROUGHTON McCRACKEN

Deputy General Counsel

Department of Mental Heaith and

Substance Abuse Services

(Counsel of Record)

1200 N.E. 13th

P.O. Box 53277

Oklahoma City, OK 73152-3277

(405) 522-3871

COCKLE LAW BRIEF PRINTING CO., (800) 225-6904

OR CALL COLLECT (402) 342-2831

“sy V4 Y

TABLE OF CONTENTS

Page

OPINIONS AND JUDGMENT BELOW ............. 1

STATUTORY AND REGULATORY PROVISIONS

EEE co wanvkon end seneeseeeseenteeeueeenées 1

STATEMENT OF THE CASE..........--000 eee eee 2

SUMMARY OF THE ARGUMENT ............--+-- 6

PIII gc ckcéctcccescetenctvisasesccecetsduns 8

I. AMENDMENTS MAY RELATE BACK TO THE

ORIGINAL DATE OF FILING IF THEY RELATE

TO OR GROW OUT OF THE SUBJECT MATTER

OF THE ORIGINAL CHARGE ..............-- 8

ll. THIS CASE CONCERNS A VERY NARROW

ISSUE THAT DOES NOT WARRANT SCRU-

TINY OF THE UNITED STATES SUPREME

COP bee v been ccvectesissscccuviescecseres 11

Ill. PETITIONER HAS POINTED TO NO PERTI-

NENT CASE LAW SUGGESTING A SPLIT IN

THE CIRCUITS INVOLVING THE ISSUE OF

WHETHER AMENDMENTS ALLEGING

RETALIATION BASED ON EVENTS THAT

TOOK PLACE PRIOR TO THE FILING OF THE

ORIGINAL CHARGE RELATE BACK TO THE

DATE OF THE ORIGINAL FILING............ 17

IV. THE TENTH CIRCUIT DID NOT ADOPT A

“HYPER-TECHNICAL” RULE INTERPRETING

29 CFR § 1601.12(b).......--- cece eee eee eee ees 25

CO oc ccc v onder ved cancverartasntecarses 29

TABLE OF AUTHORITIES

Page

CASES

Adames v. Mitsubishi Bank, Ltd., 751 F.Supp. 1565

GDOMY 10000 cdscccsce eee 1, 22, 29

Alexander v. Gardner-Denver Co., 415 U.S. 36, 39

L.Bd.24 147, 96 SCR. 1090 (IGFs cba cndesueeesese 8

Anderson v. Block, 807 F.2d 145 (8th Cir. 1986)....... 19

Ang v. The Proctor and Gamble Co., 932 F.2d 540 (6th

Cle BOUT). cvcs vectasases eens 15, 24, 28

Babrocky v. Jewel Food Co., 773 F.2d 857 (7th Cir.

. ) See rer ee oh oh ee 9

Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th

Cy, SOG 0s recs vévedkcsee ate 13

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), cert.

denied, 502 U.S. 1005, 116 L.Ed.2d 658, 112 S.Ct.

Peel. ere ro 12, 24

Brown v. Hartshorne Public Sch. Dist. No. 1, 864 F.2d

GOB (1GGs Cie. 16GB i's koccdedeenesn eee 14

Carter v. South Cent. Bell, 912 F.2d 832 (5th Cir.

1990), cert. denied, 501 U.S. 1260, 115 L.Ed.2d

S679, 323 GCE. Bree Cae ki ee iesa eens eee 13

Cheek v. Western and Southern Life Insurance Co., 31

Pad G7 Cis Ce. TO. kkicesse er oeneee 9, 27

Chisholm v. United States Postal Serv., 665 F.2d 482

Ci Cs TORE). 6 cccvassccadseieeee ae 10, 24

Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th

Cle DOOD oc occccrenwe 64930 005e00e ee eee 9

TABLE OF AUTHORITIES - Continued

Page

Conroy v. Boston Edison Co., 758 F.Supp. 54 (D.

Ea oy ERE DR ee nS ce 21, 22

Dent v. St. Louis-San Francisco Railway Co., 406

oe ee 9

EEOC v. Bailey Co., Inc., 563 F.2d 439 (6th Cir.

1977), cert. denied, 435 U.S. 915, 98 S.Ct. 1468, 55

i Cn wiv ceekwessecesesecsbseeertesses 8

EEOC v. General Electric Co., 532 F.2d 359 (4th Cir.

OS ee ee eT ee eee eT ee eee ee ee 9

Evans v. Technologies Applications & Serv. Co., 80

POU ac cc chcscevtstseevnewees 17, 18

Fellows v. Universal Restaurants, Inc., 701 F.2d 447

(Sth Cir. 1983), cert. denied, 429 U.S. 986, 107

i Fee RD BUD CRUE ccc cccccceeseseens 10

Hicks v. ABT Associates, 572 F.2d 960 (3rd Cir.

er es Lose euwbeen aa ee bes 19, 28

Hill v. Western Electric Co., 672 F.2d 381 (4th Cir.

1982), cert. denied, 459 U.S. 981 (1982).............. 8

Hornsby v. Conoco, Inc., 777 F.2d 243 (Sth Cir. 1985) .... 19

Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d

164 (7th Cir. 1976) (en banc), cert. denied, 429 U.S.

986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976)............ 9

Jones v. Runyon, 91 F.3d 1398 (10th Cir. 1996)........ 27

Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066 (2nd

CUE eae chase nda sees yieccecs ca4yns 10, 13

Love v. Pullman Co., 404 U.S. 522, 30 L.Ed.2d 679,

Re ee 8

Malarkey v. Texaco, Inc., 983 F.2d 1204 (2nd Cir.

EC Per rT oer tre tee eer e ee 15

iV

TABLE OF AUTHORITIES - Continued

Page

McKenzie v. Illinois Dept. of Trans., 93 F.3d 473 (7th

ee: SE ak ahd cane eens caaew reese meen eeeees 12, 13

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992).......... 8

O'Rourke v. Continental Casualty Co., 983 F.2d 94

GPa Ws Se ooo bechacwcedeuscstdvesssseeuenpies 16

Oatis v. Crown Zellerback Corp., 398 F.2d 496 (5th

Ce enced were hoa eae so aes a tes ate 9

Oubichion v. North American Rockwell Corp., 482

Sea et EE gt PO 58 56 kao 05005 60ecaeescaveene 9

Pejic v. Hughes Helicopters, Inc., 840 F.2d 667 (9th

Ry EE Awe eu Coke ¥ ene cehcchaeuneeadecedas 17, 18, 21

Rush v. McDonald's Corporation, 966 F.2d 1104 (7th

Se EE cevicucs cencasacdcyeorecedtacesentaserisete 8

Satz v. ITT Fin. Corp., 619 F.2d 738 (8th Cir. 1980) .... 10

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th

ek EE cake o oake a ob 6a so ew otae eee eae 20, 21, 28

Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124

a Fe eer erry tee EP roly Orewa rerere 8, 9

Seymore v. Shawver & Sons, Inc., 111 F.3d 794,

(10th Cir. 1997), cert. denied, 11 S.Ct. 342

PEC Gis hide ds ouseleeese eke 14, 16, 24, 26

Steffen v. Meridian Life Ins. Co., 859 F.2d 534 (7th

Cir. 1988), cert. denied, 491 U.S. 907, 109 S.Ct.

Peeks Wee Ems COO CUIN Ee oc vce cwkicccsseccnxes 15

Trevino-Barton v. Pittsburgh Nat. Bank, 919 F.2d 874

Ge ey a cu Koss oedo scant eveeescenreoe seen 8

Waiters v. Parsons, 729 F.2d 233 (3rd Cir. 1984) ...... 13

a a rawr) enw

TABLE OF AUTHORITIES - Continued

SRK 5-625 0040080 e bse eee Ete 20

Zanders v. O’Gara-Hess, 952 F.2d 404 (6th Cir. 1992) .... 19

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71

Lee ae, Be GR BEAT CIGD ckvccccncccccvees y

STATUTES

42 U.S.C. § 2000e-5(e) and (f)(1) (1994)............... 8

REGULATIONS

BP Ce © BGS ARO) 66 os cccdivedenseseses 10, 11, 25, 28

RESPONDENT'S BRIEF IN OPPOSITION

OPINIONS AND JUDGMENT BELOW

Simms v. State of Oklahoma, ex rel., Department of Mental

Health and Substance Abuse Services, 165 F.3d 1321 (10th

Cir. 1999).

Simms v. State of Oklahoma, ex rel., Department of Mental

Health and Substance Abuse Services, Case No. CIV-96-2158-

A, United States, District Court, Western District of Okla-

homa, Judgment entered on September 3, 1997.

+

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. §§ 2000e et seq. 29 CFR § 1601.12(b):

Notwithstanding the provisions of paragraph

(a) of this section, a charge is deemed filed when

the Commission receives from the person

aggrieved a written statement sufficiently pre-

cise to identify the parties and to describe gen-

erally the action or practices complained of. A

charge may be amended to cure technical

defects or omissions, including failure to swear

to the charge, or to clarify and amplify allega-

tions made therein, and such amendments relate

back to the original filing date. However, an

amendment alleging additional acts constituting

unlawful employment practices not directly

related to or growing out of the subject matter of

the original charge will be permitted only where

at the date of the amendment the allegation

could have been timely filed as a separate

charge.

STATEMENT OF THE CASE

Petitioner, Cedric Simms, began working for Respon-

dent, the Department of Mental Health and Substance

Abuse Services, a state agency, on April 29, 1991. Peti-

tioner’s Petition p. 2a. On October 12, 1992, after being

denied a promotion, Petitioner filed a Charge of Discrimi-

nation, Charge No. 311930053 (“Charge I”) alleging he

had been discriminated against because of his race. Id. On

December 21, 1993 he filed a Title VII lawsuit (“Simms I”)

in the United States District Court, Western District of

Oklahoma. On April 13, 1994, a settlement was reached,

wherein Petitioner was promoted to the position of Fire &

Safety Officer II with Griffin Memorial Hospital, Norman,

Oklahoma. He began his supervisory duties June 20,

1994. Id.

Ten days later, on June 30, 1994, Respondent posted a

job announcement for the position of Fire and Safety

Officer Supervisor. Id. The posting stated “PREFERENCE

WILL BE GIVEN TO APPLICANTS WITH SUPERVISORY

EXPERIENCE.” Id. Petitioner applied for the position. Id.

He and another candidate, a white male, were selected as

the top two candidates after a first round of interviews.

Id. Petitioner had a score of 1,866 out of 2,000, and the

white male had a score of 1,835 out of 2,000, a 1.55%

difference. Id. at 12a, n.4. A second interview was held to

make the final selection and on August 15, 1994 the white

male candidate, who had greater supervisory experience,

was chosen. Id. at 2a. Because he was not selected, on

October 31, 1994, Petitioner filed a second Charge of

Discrimination, Charge No. 311950136 (“Charge II”)

alleging he was discriminated against because of his race.

In the section of the charge reading “The Particulars

Are,” Petitioner stated:

I. Effective August 15, 1994, I was denied

promotion to the position of Fire and

Safety Officer Supervisor.

II. Carol Kellison (Director Management Sup-

port Services) informed me by written

notice that a better experienced candidate

had been selected.

III. I believe I have been discriminated against

because of my race, Black, in violation of

Title VII of the Civil Rights Act of 1964, as

amended.

Id. at 29a.

In the section of Charge II reading “Date Discrimina-

tion Took Place,” Petitioner listed August 15, 1994 as the

“earliest” and “latest” date. Id. In the section reading

“Cause of Discrimination Based On,” Petitioner checked

the box identified as “Race.” Id. Petitioner did not check

the box identified as “Retaliation” or allege any facts that

would give rise to an inference that retaliation had taken

place. Id. No mention of the previous EEOC charge or any

other allegedly wrongful acts were made. Id.

On June 5, 1995, Petitioner filed a third charge of

discrimination, Charge No. 311950898, (“Charge III”),

contending various work-related disciplines imposed

upon him were retaliation for having filed Charge II. Id.

at 3a. A right-to-sue letter on Charge III was issued by the

Equal Employment Opportunity Commission (“EEOC”)

on November 29, 1995. Id. He brought a Title VII action in

the federal district court of the Western District of Okla-

homa on January 12, 1996, alleging race-based employ-

ment discrimination and retaliation, including allegations

of retaliatory acts occurring prior to 1995 that were not

covered by Charge III (“Simms II”). Id. At the time the suit

was brought, he had not yet received a right to sue letter

on Charge II. Id. On July 13, 1996, Respondent filed a

motion for partial summary judgment in Simms II on the

grounds Petitioner had failed to exhaust his administra-

tive remedies as to the race discrimination and pre-1995

retaliation claims. Id.

Two days later, on July 15, 1996, Petitioner filed an

amendment to Charge II, alleging pre-1995 acts of retalia-

tion. In the section of the charge reading, “The Particulars

Are,” Petitioner stated:

I. Beginning in May of 1994 and continuing

until the present, I have had my super-

visory duties with held from my fire and

safety Officer II position in direct violation

of a court order entered in a previous

EEOC charge. Effective August 15, 1994, I

was denied promotion to the position of

Fire and Safety Officer Supervisor.

II. The reasons given for withholding of

supervisory duties and other disciplinary

acts, I believe were pretextural. No other

reason has been given for the withholding

of supervisory duties. Carol Kellison

(Director Management Support Services)

informed me by written notice that a bet-

ter experienced candidate had been

selected.

Ill. I believe I have been discriminated against

because of my race, Black, and retaliated

against for filing previous charges, and for

objecting to unlawful employment prac-

tices, in violation of Title VII of the Civil

Rights Act of 1964, as amended.

This charge has been amended to include retaliation, and

the continuing violation. Id. at 3la.

In the section reading “Date Discrimination Took

Place,” Petitioner listed May 5, 1994 as the “earliest” and

September 22, 1995 as the “latest” date. Id. Petitioner

checked the boxes identified as “Retaliation” and “Race.”

Id.

Or. September 3, 1996, the district court in Simms II

granted Respondent’s motion for partial summary judg-

ment leaving only the post-1995 retaliation claims for

trial. Id. at 3a-4a. On September 25, 1996, the EEOC issued

a right to sue on Charge II, and Petitioner filed this suit

(“Simms III”). Id. at 4a. On January 6, 1997, Petitioner

filed a motion to consolidate Simms II and Simms III. Id.

The motion to consolidate was denied because at the time

it was filed, Simms II was scheduled to begin jury trial in

a week. Id.

On June 16, 1997, Respondent filed a motion for

summary judgment in Simms III claiming Petitioner’s

pre-1995 retaliation claims were time-barred and did not

relate back to Charge II, the underlying EEOC charge. Id.

On September 3, 1997, the district court found Peti-

tioner’s amendment was neither timely or related to the

activities contained in Charge II. Id. The Order was

appealed to the Tenth Circuit which, in a published opin-

ion, held Petitioner had failed to exhaust his administra-

tive remedies regarding the retaliation claims. Id. at 16a.

Thereafter, it denied Petitioner’s request for rehearing,

leading to this Petition for Certiorari.

¢

SUMMARY OF THE ARGUMENT

The issues raised in this appeal touch on a very

narrow issue that does not warrant the perusal of the

United States Supreme Court. In Petitioner’s Petition for

Certiorari, Petitioners couch the Question Presented in

terms far too broad for the facts of the case presented, as

follows:

Does an amendment to an EEOC charge of dis-

crimination relate back to the date of the origi-

nal charge of the purpose of complying with the

statute of limitations for Title VII of the Civil

Rights Act of 1964, as amendea, 42 U.S.C.

§ 2000e et seq., where the amendment alleges an

additional “legal theory” that grows out of the

same set of operative facts that were in the

original charge?

This case, with its odd fact pattern, turned on far more

narrow grounds that do not give rise to the weighty

considerations espoused by Petitioner. The only pertinent

issue arising from this case for this court to consider is:

Does an amendment to an EEOC charge of dis-

crimination adding a new legal theory of retalia-

tion based on facts that occurred prior to filing

the original charge relate back to the date of the

7

original charge of the purpose of complying

with the statute of limitation for Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C.

§§ 2000e et seq., when the original charge makes

no reference to any facts that would demon-

strate pre-filing retaliation, and when the

EEOC complaint from which retaliation

allegedly flowed is not before the Court?

Due to the unique facts in this case, Petitioner has relied

upon cases that are not on point and cannot be used to

demonstrate a split in the Circuits.

Further, a careful reading of the Tenth Circuit Opin-

ion does not support Petitioner’s claim it has adopted a

hyper-technical rule that erects improper procedural

roadblocks which will compromise the purposes of Title

VII. Because the Tenth Circuit examined what was alleged

in Petitioner’s original charge to determine whether the

amendment reasonably related back to the date of the

filing, it cannot be said its holding espouses a hyper-

technical rule that will impermissibly undermine the

laudable goals of Title VII. Further, Petitioner has pro-

vided this Court no caselaw interpreting the unique fact

pattern of this case that contradicts the analysis of the

Tenth Circuit or evidences a split in the Circuits.

¢

ARGUMENT

I. AMENDMENTS MAY RELATE BACK TO THE

ORIGINAL DATE OF FILING IF THEY RELATE TO

OR GROW OUT OF THE SUBJECT MATTER OF

THE ORIGINAL CHARGE.

Petitioner’s claim he was disciplined in retaliation for

having filed an EEOC charge in 1992 was dismissed

because he failed to exhaust his administrative remedies.

It is well settled that in order for federal courts to have

subject matter jurisdiction of Title VII claims, the claimant

must first unsuccessfully pursue administrative relief. See

42 U.S.C. § 20002-5(e) and (f)(1) (1994); See Love v. Pullman

Co., 404 U.S. 522, 30 L.Ed.2d 679, 92 S.Ct. 616 (1972); Rush

v. McDonald’s Corporation, 966 F.2d 1104, 1110, n.20 (7th

Cir. 1992); Trevino-Barton v. Pittsburgh Nat. Bank, 919 F.2d

874, 878 (3rd Cir. 1990).

Once a charge is made and a right to sue letter is

issued, a plaintiff may bring suit in federal court. The

scope of the complaint is limited to charges set forth in

the EEOC charge. See Alexander v. Gardner-Denver Co., 415

U.S. 36, 47, 39 L.Ed.2d 147, 94 S.Ct. 1011 (1974). Rush, 966

F.2d at 1110 n.20; Nealon v. Stone, 958 F.2d 584, 590 (4th

Cir. 1992); Hill v. Western Electric Co., 672 F.2d 381, 390

n.6 (4th Cir. 1982) (quoting Sanchez v. Standard Brands,

Inc., 431 F.2d 455, 466 (5th Cir. 1970)), cert. denied, 459 U.S.

981 (1982); EEOC v. Bailey Co., Inc., 563 F.2d 439, 446 (6th

Cir. 1977), cert. denied, 435 U.S. 915, 98 S.Ct. 1468, 55

L.Ed.2d 506 (1978) (The judicial complaint must be lim-

ited to the scope of the EEOC investigation reasonably

expected to grow out of the charge of discrimination; See

also Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127

(7th Cir. 1989); EEOC v. General Electric Co., 532 F.2d 359,

373 (4th Cir. 1976).

Although the rule is not jurisdictional, Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 392, 71 L.Ed.2d 234, 102

S.Ct. 1127 (1982), it is a condition precedent with which

Title VII piaintiffs must comply. Babrocky v. Jewel Food Co.,

773 F.2d 857, 862-64 (7th Cir. 1985). Allowing a complaint

to encompass allegations outside the ambit of the predi-

cate EEOC charge would frustrate the EEOC’s investiga-

tory and conciliatory role, as well as deprive the charged

party of notice of the charge. Cheek v. Western and South-

ern Life Insurance Co., 31 F.3d 497, 500 (7th Cir. 1994).

When an employee seeks judicial relief for incidents

not listed in his original charge to the EEOC, the judicial

complaint nevertheless may encompass any discrimina-

tion like or reasonably related to the allegations of the

EEOC charge, including new acts occurring during the

pendency of the charge before the EEOC. See Oubichion v.

North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir.

1973) (citing to Danner v. Phillips Petroleum Co., 447 F.2d

159, 162 (Sth Cir. 1971); Tipler v. E.I. duPont deNemours &

Co., 443 F.2d 125, 131 (6th Cir. 1971); Sanchez, 431 F.2d at

465-67; cf. Macklin v. Spector Freight Systems, Inc., 156

U.S.App. D.C. 69, 478 F.2d 979 (D.C. Cir. 1973)) (emphasis

added); See also Schnellbaecher v. Baskin Clothing Co., 887

F.2d 124 (7th Cir. 1989); Jenkins v. Blue Cross Mut. Hosp.

Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc), cert.

denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976);

Dent v. St. Louis-San Francisco Railway Co., 406 F.2d 399,

403 (5th Cir. 1969); Choate v. Caterpillar Tractor Co., 402

F.2d 357, 359 (7th Cir. 1968); Oatis v. Crown Zellerbach

10

Corp., 398 F.2d 496, 497-498 (5th Cir. 1968). See, e.g., Fel-

lows v. Universal Restaurants, Inc., 701 F.2d 447, 464 (5th

Cir. 1983), cert. denied, 429 U.S. 986, 107 S.Ct. 102, 78

1.Ed.2d 106 (1983); Chisholm v. United States Postal Serv.,

665 F.2d 482, 491 (4th Cir. 1981); Kirkland v. Buffalo Bd. Of

Educ., 622 F.2d 1066, 1068 (2nd Cir. 1980); Satz v. ITT Fin.

Corp., 619 F.2d 738, 741 (8th Cir. 1980).

In Charge II, the underlying charge, Petitioner

alleged only that he had been discriminated against on

the basis of race. Petitioner’s amendment included a new

theory of retaliation and pre-filing acts he alleged were

done in retaliation for filing Charge I. Proper amend-

ments must meet the standards set forth in 29 CFR

§ 1601.12(b), which states as follows:

Notwithstanding the provisions of paragraph

(a) of this section, a charge is deemed filed when

the Commission receives from the person

aggrieved a written statement sufficiently pre-

cise to identify the parties and to describe gen-

erally the action or practices complained of. A

charge may be amended to cure technical

defects or omissions, including failure to swear

to the charge, or to clarify and amplify allega-

tions made therein, and such amendments relate

back to the original filing date. However, an

amendment alleging additional acts constituting

unlawful employment practices not directly

related to or growing out of the subject matter of

the original charge will be permitted only where

at the date of the amendment the allegation

could have been timely filed as a separate

charge.

The Tenth Circuit found the amendment did not rea-

sonably relate to the original charge. Petitioner attempts

to persuade this Court he was denied the right to bring

11

his retaliation claims because the Tenth Circuit took an

overly narrow view of the EEOC regulation. This argu-

ment is without merit. An objective look at the facts of

the case reveals he simply failed to set forth information

in his original charge upon which to base a retaliation

claim. The Tenth Circuit opinion turned on this issue

rather than on a “hyper-technical” interpretation of 29

CFR § 1601.12(b).

Il. THIS CASE CONCERNS A VERY NARROW ISSUE

THAT DOES NOT WARRANT SCRUTINY OF THE

UNITED STATES SUPREME COURT

Petitioners couch the Question Presented in terms far

too broad for the facts of the case presented, as follows:

Does an amendment to an EEOC charge of dis-

crimination relate back to the date of the origi-

nal charge of the purpose of complying with the

statute of limitations for Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e et seq., where the amendment alleges an

additional “legal theory” that grows out of the

same set of operative facts that were in the

original charge?

This case turned on a far more narrow issue that does not

give rise to the weighty considerations espoused by Peti-

tioner. The only pertinent issue arising from this case

was:

Does an amendment to an EEOC charge of dis-

crimination adding a new legal theory of retalia-

tion based on facts that occurred prior to filing

the original charge, relate back to the date of the

original charge of the purpose of complying

12

with the statute of limitation for Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C.

§§ 2000e et seq., when the original charge makes

no reference to any facts that would demon-

strate pre-filing retaliation, and when the

EEOC charge from which retaliation allegedly

flowed, is not before the Court?

The bulk of Petitioner’s Petition is based on his claim

the Circuits are split on the issue of what standard to

apply in determining whether amendments relate back to

the date of the original charge. However, retaliation

charges are comprised of fundamentally different ele-

ments than are discrimination claims, and only a compar-

ison of similar cases is helpful in making such

observation.

Actionable retaliation, by its very nature, is an act

taken in reaction to the protected conduct of a plaintiff.

McKenzie v. Illinois Dept. of Trans., 93 F.3d 473 (7th Cir.

1996). Unless a plaintiff indicates in the original charge

that he engaged in some protected conduct that led to the

defendant's alleged retaliatory acts, there arises no rea-

sonable inference that retaliation has taken place. Further,

even a layperson would have no difficulty explaining this

in plain language, i.e., “I was fired because I filed an

EEOC charge.”

Petitioner makes no claim there is a dispute among

the Circuits as to whether post-filing claims of retaliation

relate back to the original date of filing, and indeed, the

Circuits appear to be in agreement a plaintiff need not file

additional charges for retaliatory acts that occur after the

original charge is filed. See Bouman v. Block, 940 F.2d 1211

13

(9th Cir. 1991) (holding that retaliation claim was “rea-

sonably related” to prior sex discrimination claim), cert.

denied, 502 U.S. 1005, 116 L.Ed.2d 658, 112 S.Ct. 640

(1991); Carter v. South Cent. Bell, 912 F.2d 832 (5th Cir.

1990) (reasoning that because other Title VII claims were

properly before court, jurisdiction existed over retaliatory

termination claim as well), cert. denied, 501 U.S. 1260, 115

L.Ed.2d 1079, 111 S.Ct. 2916 (1991); Baker v. Buckeye Cellu-

lose Corp., 856 F.2d 167 (11th Cir. 1988); Kirkland v. Buffalo

Bd. Of Educ., 622 F.2d 1066 (2nd Cir. 1980) (holding that

act of retaliation was “directly related” to plaintiff’s ini-

tiation of litigation); But see Waiters v. Parsons, 729 F.2d

233, 237 n.10 (3rd Cir. 1984) (declining to adopt a “per se

rule”).

This position makes sense. As stated by the Court in

McKenzie v. Illinois Dept. of Trans., 92 F.3d 473 (7th Cir.

1996):

It is the nature of retaliation claims that they

arise after the filing of the EEOC charge. Requir-

ing prior resort to the EEOC would mean that

two charges would have to be filed in a retalia-

tion case — a double filing that would serve no

purpose except to create additional procedural

technicalities when a single filing would com-

pete with the intent of Title VII. We are reluctant

to erect a needless procedural barrier to the

private claimant under Title VII, especially since

the EEOC relies largely upon the private lawsuit

to obtain the goals of Title VII. Intertwined with

the practical reason for our holding is a strong

policy justification. Eliminating this needless

procedural barrier will deter employers from

14

attempting to discourage employees from exer-

cising their rights under Title VII. (Citations

omitted). Id. at 482.

The Circuits have had no difficulty finding retalia-

tory acts that occur after the original charge is filed relate |

back to the date of the original filing, including the Tenth

Circuit. See Seymore v. Shawver & Sons, Inc., 111 F.3d 794,

799 (10th Cir. 1997), cert. denied, 11 S.Ct. 342 (1997); Brown

v. Hartshorne Public Sch. Dist. No. 1, 864 F.2d 680 (10th Cir.

1988) (holding that retaliation arising out of first EEOC

filing was “reasonably related” to that filing, obviating

the need for a second EEOC charge). These cases address-

ing retaliation charges directly contradict Petitioner’s

claim the Tenth Circuit has a rigid approach to allowing

the relation back of amendments to the date of the origi-

nal charge.

However, in all the cases listed that held the amend-

ment related back, the alleged retaliatory acts occurred as

a result of filing the underlying EEOC charge. In other

words, the alleged retaliatory acts took place after the

filing of the underlying charge and during its pendency.

The sticking point in this case is that the alleged retalia-

tory acts did mot occur as a result of the filing of the

underlying charge or during its pendency. Instead, in his

amendment, Petitioner tried to add a claim of retaliation

based on facts that allegedly occurred before he filed the

underlying charge, notwithstanding that he did not so

much as hint at them in Charge II. The Circuits that have

faced this issue have not been willing to find such acts to

be reasonably related to the original charge, and Peti-

tioner has pointed to no cases in support of such proposi-

tion, much less a split in the Circuits.

OOO eve

15

For example, in Malarkey v. Texaco, Inc., 983 F.2d 1204

(2nd Cir. 1993), the plaintiff asked the Second Circuit to

rule all retaliation claims are per se reasonably related.

The court declined the plaintiff’s request. The court noted

“the reasonable related rule has been broadly construed

to allow judicial redress for most retaliatory acts arising

subsequent to an [Equal Employment Opportunity Com-

mission] filing.” Id. at 1209 (emphasis added). In order to

be reasonably related to the Equal Employment Oppor-

tunity Commission complaint, the court stated “the rule

is that a claim must arise only after the . . . complaint has

been filed.” Id. (emphasis added).

Likewise, in Ang v. The Proctor and Gamble Co., 932

F.2d 540 (6th Cir. 1991), the plaintiff alleged Proctor and

Gamble fired him in retaliation for his demand that they

study the differential treatment of minority Ph.D.’s at the

company. The conduct occurred prior to the filing of the

EEOC charges and thus could have been alleged in the

original charge. The Sixth Circuit held that retaliatory

conduct occurring prior to the filing of the EEOC com-

plaint is distinguishable from conduct occurring after-

wards and that it did not meet the criteria to relate back.

Id. at 546. The amendment was not allowed.

In Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 545 n.2

(7th Cir. 1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3191,

105 L.Ed.2d 699 (1989), the plaintiff brought claims based

on age discrimination and retaliation. The Seventh Circuit

acknowledged a number of cases have allowed retaliatory

discharge claims to proceed even though the underlying

charge did not mention retaliation. However, it recog-

nized retaliation that allegedly occurred prior to the filing

of the original charge was an entirely different situation.

16

In discussing post-filing retaliation claims, the Seventh

Circuit held:

These cases are distinguishable from the present

case where the alleged retaliatory acts occurred

before Steffen’s December 1, 1983 charge of dis-

crimination was filed and Meridian was not

given clear notice that retaliation was at issue.

Id. at 545 n.2 (emphasis added).

See also O’Rourke v. Continental Casualty Co., 983 F.2d 94

(7th Cir. 1993) (pre-filing retaliatory acts not alleged in

the original charge disallowed).

In Seymore v. Shawver & Sons, Inc., 111 F.3d 794 (10th

Cir. 1997), the Tenth Circuit articulated a well reasoned

position concerning whether alleged retaliatory acts that

took place prior to the original charge, but were not

mentioned, may relate back to the original date via an

amendment. In Seymore, the plaintiff filed a complaint

alleging race and sex discrimination with the Oklahoma

Human Rights Commission prior to her termination. She

then filed a separate charge with the EEOC five days after

she was terminated. The Court held Ms. Seymore was

aware of her retaliation claim at that time, and had the

opportunity to assert that claim on her EEOC charge, thus

giving defendants notice of the claim and providing the

EEOC the opportunity to attempt to conciliate the claim.

Because the complaint was filed after her termination, the

Court held the defendants, as well as the EEOC, were

entitled to presume Ms. Seymore was only asserting

claims for race and sex discrimination. The Court

addressed the policy issues involved in such a factual

situation. It held:

17

If we were to allow Ms. Seymore to rely on her

earlier Human Rights’ Commission complaint to

assert a claim or retaliation, we would be acting

in blatant disregard of the dual purposes of the

Equal Employment Opportunity Commission

charge requirement. Id. at 800.

Due to the unique facts in this case, Petitioner has relied

upon cases that are not on point and cannot be used to

demonstrate a split in the Circuits.

III. PETITIONER HAS POINTED TO NO PERTINENT

CASE LAW SUGGESTING A SPLIT IN THE CIR-

CUITS INVOLVING THE ISSUE OF WHETHER

AMENDMENTS ALLEGING RETALIATION

BASED ON EVENTS THAT TOOK PLACE PRIOR

TO THE FILING OF THE ORIGINAL CHARGE

RELATE BACK TO THE DATE OF THE ORIGI-

NAL FILING

Petitioner claims the Circuits are split on the issue of

what standard to apply in determining if amendments

relate back to the original filing. He claims his Petition for

writ of certiorari should be granted because the decision

below “directly and irreconcilably conflicts with the rul-

ings of several other Circuits as well as the applicable

decisions of this Court.” Petitioner’s Petition p. 8. He

claims the Tenth, Fourth and Ninth Circuits have con-

cluded an amendment will not relate back if it advances a

new theory of recovery regardless of what facts were

included in the original charge, citing to this case; Evans

v. Technologies Applications & Serv. Co., 80 F.3d 954, 963

(4th Cir. 1996); and Pejic v. Hughes Helicopters, Inc., 840

F.2d 667, 675 (9th Cir. 1988). In contrast, Petitioner claims

the Third, Fifth, Sixth and Eighth Circuits have taken a

18

more flexible approach to the regulation and have held

the language of the regulation allows amendments based

on different legal theories that derive from the same set

of operative facts included in the original charge. The

cases relied upon by Petitioner are factually different

from this case, rendering them inapplicable.

In both the Evans and Pejic cases, the courts refused

to allow amendments alleging new legal theories to relate

back to the time of the original filings. In Evans, the

plaintiff attempted to add a sex discrimination claim to

the original charge of age discrimination. In Pejic, the

plaintiff attempted to add an age discrimination claim to

the original charge of discrimination based on national

origin. In essence, both courts held that because the dif-

ferent legal theories arose from different statutory

schemes they did not relate back to the original charge.

“Title VII and ADEA claims arise from entirely different

statutory schemes.” Pejic, 840 F.2d at 675. See also Evans,

80 F.3d at 963.

These cases need not stand for the proposition that

the courts need only look to the original legal theory

alleged in the underlying charge. Clearly, the courts

looked to the substance and facts provided in the original

charge in determining whether the amendment related

back to the date of the original filing, the result, notwith-

standing. There is nothing to suggest in either of these

cases that the courts would have hesitated to allow the

amendments had there been a factual hint in the original

filings that other legal theories were a possibility. As

stated previously, defendants are entitled to notice.

19

The other cases cited by Petitioner are also not on

point. In Hicks v. ABT Associates, 572 F.2d 960 (3rd Cir.

1978), the Court reversed a summary judgment because

| there was a question of material fact as to whether the

| EEOC had improperly refused to allow the plaintiff to

amend his complaint to add sex discrimination during

the statutory period allowed b_ statute. Zanders v.

O’Gara-Hess, 952 F.2d 404 (6th Cir. 1992), 1992 US. App.

Lexis 535 should not be relied upon because it is not a

published opinion. In Anderson v. Block, 807 F.2d 145 (8th

Cir. 1986) the Court addressed an amendment related to

post filing conduct. The Court held, “In addition, while

the length of time during which a plaintiff may bring suit

based on post filing conduct will be limited only by the

promptness with which administrative proceedings on

the initial charges are concluded, we see no unfairness in

thus preserving the right to a judicial determination

throughout the period during which the post charge inci-

dent could be subject to administrative investigation and

resolution.” Id. at 148. (emphasis added). Because this

case does not concern post filing conduct, Anderson is not

on point.

In Hornsby v. Conoco, Inc., 777 F.2d 243 (5th Cir. 1985),

the plaintiff clearly wrote in the factual circumstances

related to sex discrimination so that amending the charge

later was not troublesome. In that case, the plaintiff

checked the box marked “other” and wrote in “age and

retaliation.” In the body of her statement she wrote she

had told a supervisor that unless she was promoted, she

would go to the EEOC because she felt she was being

discriminated against because of her sex. Id. at 244. In

contrast, in this case Petitioner set forth no factual basis

Bn Ne eee a

20

to support the retaliation claim based on pre-filing con-

duct.

In Washington v. Kroger Co., 671 F.2d 1072 (8th Cir.

1982), the Court allowed a second charge to serve as an |

amendment of the first, but the substance of the second

charge was based on acts that occurred after the filing of

the first charge and were also alleged in the first charge.

The Court stated:

But plaintiff’s claim of denial of opportunity to

perform “checker” duties appears in her origi-

nal charge filed with the EEOC . . . reappears in

the complaint filed three and a half months later

with the Missouri Department of Human Rela-

tions, . . . and is also contained in the second

charge of discrimination filed with the EEOC on

July 6, 1973. . . . This claim alleges facts that

suggest a violation of Title VII continuing at

least until the date plaintiff filed her complaint

with the Department of Human Relations.” Id.

at 1075-76.

In contrast, Petitioner did not set forth a factual basis for

the retaliation claim, nor did he suggest in his Petition

how the facts in his original charge were broad enough to

include the retaliation claims.

In Sanchez v. Standard Brands, Inc., 431 F.2d 458 (5th

Cir. 1970), the plaintiff originally checked “sex” to indi-

cate what form of discrimination she was alleging. She

included a number of facts including being struck by her

supervisor, and not being paid when she injured her

thumb at work. Id. at 458. Later, she amended the charge

to include facts amplifying the original description, and

alleged both sex discrimination and discrimination based

on national origin. Id. at 459. The Court held the factual

21

statements were sufficiently broad enough to support a

charge of discrimination based on national origin and

allowed the charge to be amended. Sanchez is easily dis-

tinguished from this case. In addition to not including

retaliation as the proper legal theory, Petitioner failed to

include any essential factual details that would give a

reasonable EEOC investigator and the plaintiff’s

employer notice that retaliation was included in the

charge. Retaliation is not synonymous with discrimina-

tion.

Petitioner also relies upon two district court cases,

Conroy v. Boston Edison Co., 758 F.Supp. 54 (D. Mass. 1991)

and Adames v. Mitsubishi Bank, Ltd., 751 F.Supp. 1565

(E.D.N.Y. 1990), to support his position. It is interesting

that Petitioner would rely upon Conroy because in that

case, the Court refused to allow the plaintiff to amend her

original charge of sex discrimination to include age dis-

crimination. The Court adopted the reasoning found in

Pejic, 840 F.2d 667 (9th Cir. 1988) and held the plaintiff’s

amendment did not clarify or amplify the earlier charge

of sex discrimination. Id. at 59. Further, the Court held

that a reasonable investigation of sex discrimination

would have focused upon whether plaintiff was dis-

charged on account of her sex rather than her age. Id.

Likewise, a reasonable investigation of Petitioner’s

original charge would have looked to see if he had been

denied a promotion because of his race. Nothing in the

original charge would have alerted a reasonable investi-

gator to go back in time to determine whether there had

been previous EEOC filings that could possibly reveal a

retaliatory motive for the failure to promote. Under Peti-

tioner’s theory, an investigator could look back in time

22

over a period of decades searching the history of the

parties to determine if the Petitioner had ever engaged in

protected activity. If any were found, even though it was

not mentioned in the filing, the Petitioner would be

allowed to amend the charge to include retaliation. Peti-

tioner points to no caselaw and offers no argument to

support such an unfair and absurd proposition.

Petitioner claims “the rule adopted by the Tenth Cir-

cuit undermines the administrative scheme adopted by

Congress [to place the charged party on notice of alleged

violations and to give the EEOC sufficient information to

investigate, and to provide the parties an opportunity to

conciliate]” Petitioner’s Petition p. 16. However, Respon-

dent asserts allowing amendments to encompass acts and

theories that took place prior to the original filings serves

to undermine these very goals.

The Court should consider the amendment was not

even filed until after Respondent filed a motion for par-

tial summary judgment. Petitioner’s Petition p. 3a. The

amendment in question was filed long after Petitioner

had obtained counsel. The Court should discourage the

use of amendments as mere trial tactics to avoid the

statutory constraints of the statute. See e.g. Conroy, 758

F.Supp. at 58 (Courts have looked at the timing of the

amendment, and have said that where the filing of the

amendment closely precedes the filing of the federal

court action, it is likely an attempt to avoid the filing

requirements) (cites omitted)).

The Adames case is also not on point. In Adames, the

plaintiff originally alleged sex and national origin dis-

crimination. She later attempted to amend the charge to

23

include a class-wide discrimination claim based on race

and color. Adames, 751 F.Supp. at 1568. The Court found

the original filing did not put the defendants on notice

and that the amendment covered a much more extensive

time frame than did the original filing. Accordingly, the

amendment was not allowed. Id.

Likewise, Petitioner’s amendment is far broader than

was the original charge, and did not reasonably serve to

place Respondent on notice of additional issues. The orig-

inal charge was limited to race discrimination for failure

to promote. In contrast, the proposed amendment

attempted to add “withholding of supervisory duties”

and retaliation for “filing previous charges, and for objec-

ting to unlawful practices.” The original charge was

based on the events of one day, August 15, 1994. The

amendment expended this time frame from the earliest

date May 1, 1994 to the latest date September 22, 1995.

Petitioner’s Petition p. 31a. Allowing such amendment

would have been improper.

In claiming the Circuits are split because they have

selected different legal standards to determine whether

amendments relate back to the original charge, Petitioner

attempts to prove too much. Such a conclusion can not be

drawn without comparing the factual circumstances of

the relevant opinions. As set forth herein, a review of the

relevant Circuit opinions indicates they regularly find

amendments alleging retaliatory acts that take place post-

filing relate back to the original charge. However, they

are not likely to hold that amendments setting forth

alleged retaliatory acts that took place prior to filing the

original charge relate back.

24

Petitioner has made broad sweeping claims that the

Tenth, Fourth and Ninth Circuits have unduly restrictive

rules on relation back of amendments. Yet all three of

these Circuits have adopted rules allowing retaliation .

claims arising during the pendency of the underlying

claim to be part of a subsequent lawsuit. See Bouman, 40

F.2d 1211 (9th Cir. 1991), cert. denied, 502 U.S. 1005, 116

L.Ed.2d 658, 112 S.Ct. 640 (holding that retaliation claim

was “reasonably related” to prior sex discrimination

claim); Chisholm, 665 F.2d 482, 491 (4th Cir. 1981); Seymore,

111 F.3d 794 (10th Cir. 1997). These cases aptly demon-

strate the analysis contained in Petitioner’s Petition is

flawed because it does not address issues on point to this

case.

In addition, Petitioner has claimed on page 14 of his

Petition that “ .. . [hJad the petitioner been in one of the

Circuits allowing amendment alleging additional legal

claims to relate back when the amendment flows from the

same facts as in the original charge, he would have had

the opportunity to present his retaliation claims to a

jury.” Presumably Petitioner is referring to the Third,

Fifth, Sixth and Eighth Circuits which he alleges have a

flexible approach to the relation back doctrine. See Peti-

tioner’s Petition p. 11. Yet in Ang v. The Proctor and Gamble

Co, 932 F.2d 540 (6th Cir. 1991), a case with a fact pattern

similar to this case, the Sixth Circuit rendered the same

decision as did the Tenth Circuit. Because the Third, Fifth

and Seventh Circuits have not published conflicting opin-

ions on point, no conclusion can be drawn as to whether

there is diversity among the Circuits. Because these types

of cases are so fact-driven, Petitioner could not show a

25

split in the Circuits unless he limited discussion to cases

that were factually similar. He has not done so.

IV. THE TENTH CIRCUIT DID NOT ADOPT A

“HYPER-TECHNICAL” RULE INTERPRETING 29

CFR § 1601.12(b).

Petitioner claims the Tenth Circuit improperly

affirmed the judgment of the district court by adopting a

“hyper-technical” rule that turned on the legal theory

alleged in the original filing. He claims:

The Tenth Circuit’s decision would allow

amendments to relate back only if those amend-

ments clarify legal theories already articulated

in the original charge. (App 8a.) The result is a

blanket rule prohibiting amendments alleging

new legal claims even when those claims are

‘related or grow [] out of the subject matter of

the original charge. (App 6a).’ Petitioner’s Peti-

tion pp 9-10.

In support, he quotes from the Tenth Circuit Opinion as

follows:

... [W]e hold that Mr. Simms’ retaliation charge

does not relate back under § 1601.12(b) because

his 1996 amendment alleges a new theory of

recovery, retaliation, that he did not raise in the

second EEOC charge.

Standing alone, this passage could possibly be inter-

preted as Petitioner has suggested. However, Respondent

respectfully suggests these statements have been taken

out of the proper context of the entire opinion. For exam-

ple, Petitioner does not apprise the Court that in the very

26

next paragraph of the Opinion, the Court continues its

analysis as follows:

Even though Mr. Simms did not properly

exhaust administrative remedies, our inquiry as

to whether this court may hear the retaliation

claims has not come to an end. This court has

adopted a limited exception to the exhaustion

rule for Title VII claims when the unexhausted

claim is for “discrimination like or reasonably

related to the allegations of the EEOC charge.”

Ingels, 42 F.3d at 625 (quoting Brown v. Hartshorne

Pub. Sch,. Dist. No. 1, 864, F.2d 680, 682 (10th cir.

[sic] 1988)). ...

Petitioner’s Petition p. 8a. (emphasis added).

The Tenth Circuit, relying heavily on Seymore v. Shawver

& Sons, Inc., 111 F.3d 794 (10th Cir. 1997), then went on to

discuss the exception concerning retaliatory acts, includ-

ing an analysis of other cases with similar facts.

In the underlying charge, Petitioner made absolutely

no reference to the fact that he had previously filed

Charge I, nor did he claim he had not been promoted

because he had engaged in any protected activity. He

listed the date of the occurrence giving rise to Charge II

as beginning and ending on August 15, 1994, the date he

was denied a promotion. He listed his race, black, as the

reasons he believed he was being discriminated against.

Absolutely nothing set forth in the original charge would

suggest he was alleging retaliation. Accordingly, applying

the reasoning in Seymore, the amendment was deemed to

not relate back to the date of the original filing.

Petitioner has claimed this case turned on whether

the proper legal theory was checked off in the boxes

27

denoting race, age, retaliation, etc. He claims “In this

case, Mr. Simms’ failure to check the “retaliation” box

had the consequence, in the opinion of the court below, of

completely cutting off his right to bring his retaliation

claims before a court even though they were investigated

and unsuccessfully conciliated by the EEOC.” Petitioner’s

Petition pp. 17-18. Such statement is not accurate. It was

not until it had addressed the actual facts of the case,

including the factual description of the events contained

in the original charge, that the Tenth Circuit affirmed the

finding of the district court.

This is the typical manner employed by the Tenth

Circuit in determining if amendments relate back to the

date of the original filing. In Jones v. Runyon, 91 F.3d 1398

(10th Cir. 1996) the Tenth Circuit held:

When an employee seeks judicial relief for inci-

dents not listed in his original charge to the

EEOC, the judicial complaint nevertheless may

encompass any discrimination like or reason-

ably related to the allegations of the EEOC

charge. . . . Ingels v. Thiokol Corp., 42 F.3d 616,

625 (10th Cir. 1994) (quotations omitted). There-

fore, we examine both [the plaintiff’s] original

charge to the EEOC and her federal court com-

plaint to determine whether the issues she

raised to the district court were both new and

unrelated to her EEOC charges, thus defeating

the court’s jurisdiction over her action). Id. at

1400.

In reviewing the cases, discussion concerning

whether the appropriate box denoting what legal theory

was checked appears frequently, but comprises only one

factor addressed. See e.g. Cheek, 31 F.3d 497 (7th Cir. 1994);

28

Ang, 932 F.2d 540 (6th Cir. 1991); Hicks, 672 F.2d 960 (3rd

Cir. 1977); Sanchez, 431 F.2d 455 (5th Cir. 1970). In cases

such as these, it is much more likely than not the plaintiff

neglected to check the appropriate box, else the defen-

dant-employer would not believe he had grounds to con-

test the amendment. That the Tenth Circuit addressed this

issue before continuing to discuss whether the amend-

ment set forth information that was reasonably related to

the facts alleged in the original charge was certainly not

error. Had the Tenth Circuit failed to continue the anal-

ysis of determining whether the amendment was reason-

ably related to the original charge, such omission might

have been inappropriate, but this is not an issue in this

case.

Although Petitioner has argued the Tenth Circuit

adopted a hyper-technical rule that circumvents the pur-

poses of Title VII, a review of the opinion indicates its

decision to affirm the district court complies fully with 29

CFR § 1601.12(b) and properly balances the competing

interests of plaintiffs, defendants and the EEOC.

¢

’

:

29

CONCLUSION

For all the reasons contained herein, the Tenth Circuit

properly affirmed the district court order. Further, there

exists no split in the Circuits on the pertinent issues in

this case to warrant acceptance of certiorari by this Court.

Respectfully submitted this 22 day of June, 1999.

CRAIG SUTTER

General Counsel

PENNY BRrouGHTON McCRACKEN

Deputy General Counsel

Department of Mental Health

and Substance Abuse Services

1200 N.E. 13th Street

Post Office Box 53277

Oklahoma City, OK 73152-3277

(405) 522-3871

Counsel for Respondent