State of Texas v. EEOC et al

Filing 21

NOTICE of Erratum filed by Jacqueline Berrien, EEOC (Sandberg, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
STATE OF TEXAS,
Plaintiff,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, et al.,
Defendants

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Civil No. 5:13-CV-00255-C
ECF

NOTICE OF ERRATUM
This erratum corrects a minor omission in the Equal Employment Opportunity
Commission’s (“EEOC’s”) memorandum in support of its motion to dismiss regarding
the circumstances in which a right-to-sue letter may be issued to a state employee or
applicant for state employment who has filed an administrative charge of discrimination
with the EEOC.
No. 16, at 4-5, 19.
are issued.

Memo. in Support of Mtn. to Dismiss (“Memo.”), Jan. 27, 2014, Dckt.
The memorandum identifies two circumstances in which such letters

Memo. at 4-5, 19.

First, it notes that the EEOC may issue a right-to-sue

letter if the agency determines that there is no reasonable cause to believe that an
administrative charge of discrimination against a state is true.

Memo. at 4.

Second,

the memorandum explains that if the EEOC refers a charge to the Department of Justice
because it concludes that there is reasonable cause to believe that the charge is true
(recall, the EEOC cannot bring enforcement actions against states), then the Department

Notice of Erratum - Page 1

of Justice will issue a right-to-sue letter if it decides not to bring an enforcement action.
Memo. at 5.
But right-to-sue letters may be issued in another circumstance.

An employee or

applicant may request – and receive – a right-to-sue letter before the EEOC has made a
decision concerning whether there is reasonable cause to believe that a charge is true.
29 C.F.R. § 1601.28(a)(1), (a)(2), (d)(2).

If a charging party requests a right-to-sue

letter more than 180 days after s/he has filed the administrative charge of discrimination,
and the EEOC has not yet decided whether there is reasonable cause to believe that the
charge is true, then the EEOC will forward the charge to the Department of Justice for it
to issue a right-to sue-letter. 29 C.F.R. § 1601.28(a)(1), (d)(2).

If a complainant

requests a right-to-sue letter before the EEOC has made a cause determination and 180
days have not yet passed, then the EEOC may make a determination that it will be unable
to complete its investigation within 180 days and refer the charge to the Department of
Justice for it to issue a right-to-sue letter.

29 C.F.R. § 1601.28(a)(2), (d)(2).

This small correction is relevant to the EEOC’s argument that Count III (plaintiff’s
challenge to the constitutionality of Title VII, Compl. ¶¶ 41-43 ) is unripe and that
plaintiff lacks jurisdiction to raise Count III – but it does not alter those conclusions.
Memo. at 12,19.

In its memorandum in support of dismissal, the EEOC listed four

contingencies that must come to pass before the State of Texas would face a suit by an
individual, and therefore any injury premised on such a suit:
(i) plaintiff would have to exclude an individual from an
employment opportunity based on a felony conviction; (ii) the
individual would have to file an administrative charge with

Notice of Erratum - Page 2

the EEOC; (iii) the EEOC would have to find that the claim
lacked merit and issue a right to sue letter, or the Department
of Justice, after receiving a referral from the EEOC, would
have to decide not to bring an enforcement action and issue a
right to sue letter; and; (iv) the individual would have to sue
plaintiff on a disparate-impact theory.
Id. at 19.

This erratum clarifies that, in certain circumstances, there is a different

contingency that must come to fruition before an individual may sue the State of Texas
regarding one of its hiring policies.

Memo. at 19.

That is, in some circumstance, the

need for the EEOC to make a cause determination – part of Roman numeral iii in the
paragraph quoted above – is replaced by a plaintiff’s request for a right-to-sue letter prior
to such a determination. See id.

Nevertheless, as stated in the brief, four contingencies

must still come to fruition before plaintiff faces a suit:

The third contingency simply

includes the filing of a request for a right-to-sue letter, in addition to the issuance of a
cause determination by the EEOC, as a predicate for the Department of Justice issuing
such a letter.

This clarification also does not change the fact that the complaint fails to

allege that a single individual has sued Texas, under a Title VII disparate-impact theory,
based on felony-conviction hiring exclusion, and that the government is unaware of any
reported case reflecting these circumstances.

Id.

DATED this 14th day of February, 2014.
Respectfully submitted,
STUART F. DELERY
Assistant Attorney General
SARAH R. SALDAÑA

Notice of Erratum - Page 3

United States Attorney
JOSHUA E. GARDNER
Assistant Director, Federal Programs
Branch
s/ Justin M. Sandberg
JUSTIN M. SANDBERG, IL Bar No.
6278377
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Mass. Ave. NW, Rm. 7302
Washington, D.C. 20001
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Defendants

Notice of Erratum - Page 4

CERTIFICATE OF SERVICE
I hereby certify that, on February 14, 2014, a true and correct copy of the
foregoing was served by CM/ECF on:
Jonathan F. Mitchell
Andrew Stephen Oldham
Arthur D’Andrea
Office of the Texas Attorney General
209 West 14th Street
P.O. Box 12548
Austin, Texas 70711-2548
s/ Justin M. Sandberg
JUSTIN M. SANDBERG
Trial Attorney
U.S. Department of Justice

Notice of Erratum - Page 5