VF Jeanswear LP v. Equal Emp't Opportunity Comm'n

Cite as: 589 U. S. ____ (2020) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
VF JEANSWEAR LP v. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 19–446. Decided April 6, 2020

The petition for a writ of certiorari is denied.
JUSTICE THOMAS, dissenting from the denial of certiorari.
This case presents the question whether the Equal Em-
ployment Opportunity Commission (EEOC) may continue
to investigate an employer’s purported wrongdoing after is-
suing a right to sue notice to a private party who, in turn,
has initiated her own litigation. The Seventh and Ninth
Circuits have determined that Title VII of the Civil Rights
Act of 1964, 78 Stat. 253, grants the EEOC that power. See
EEOC v. Union Pacific R. Co., 867 F. 3d 843, 848 (CA7
2017); EEOC v. Federal Express Corp., 558 F. 3d 842, 851–
852 (CA9 2009). The Fifth Circuit, on the other hand, has
concluded that the plain text of Title VII prohibits such in-
vestigations. See EEOC v. Hearst Corp., 103 F. 3d 462, 469
(1997).
Though this split in authority is shallow, it directly im-
plicates the EEOC’s core investigative powers. If the Fifth
Circuit is correct that issuing a right to sue notice termi-
nates the EEOC’s ability to investigate, then the EEOC
may be wielding ultra vires power, impermissibly subject-
ing employers to time-consuming investigations. I would
grant certiorari to determine whether the agency is oper-
ating within the confines of the authority granted by
Congress.
I
A
A preliminary analysis of the text suggests that the
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THOMAS, J., dissenting

EEOC may lack the authority to continue an investigation
after it has issued a right to sue notice. The basic provisions
governing the EEOC’s role in investigating discrimination
claims are found in 42 U. S. C. §2000e–5. As relevant here,
the EEOC’s duties are triggered when it receives “a charge
. . . filed by or on behalf of a person claiming to be ag-
grieved.” §2000e–5(b); University of Pa. v. EEOC, 493 U. S.
182, 190 (1990). The EEOC must provide notice to the em-
ployer “within ten days, and shall make an investigation
thereof.” §2000e–5(b) (emphasis added). “If the Commis-
sion determines after such investigation that there is rea-
sonable cause to believe that the charge is true, the Com-
mission shall endeavor to eliminate any such alleged
unlawful employment practice by informal methods of con-
ference, conciliation, and persuasion.” Ibid. (emphasis
added). Otherwise, it will dismiss the charge. Ibid. “The
Commission shall make its determination on reasonable
cause as promptly as possible and, so far as practicable, not
later than one hundred and twenty days from the filing of
the charge.” Ibid. But “[i]f a charge filed with the Commis-
sion pursuant to subsection (b) is dismissed by the Commis-
sion, or if within one hundred and eighty days from the fil-
ing 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 the giving of
such notice a civil action may be brought against the re-
spondent named in the charge.” §2000e–(5)(f )(1); see also
Fort Bend County v. Davis, 587 U. S. ___ (2019).
Regardless of how the EEOC may approach this process
in practice, these statutory provisions set out a clear time-
table and a sequential series of steps for the EEOC to fol-
low. After giving notice to the employer, it must engage in
an investigation that comes to a definitive end either be-
cause the EEOC has entered into a conciliation process or
 Cite as: 589 U. S. ____ (2020) 3

THOMAS, J., dissenting

because it has dismissed the charge. Further, the EEOC
must issue the right to sue notice after 180 days—60 days
after the timeline contemplated by the statute for a reason-
able cause determination, which triggers dismissal of a
charge or conciliation efforts. Thus, at first glance, it ap-
pears that the more natural reading of these provisions is
that Congress “expected the EEOC to complete investiga-
tions within 120 days[, l]eaving an additional 60 days for
the EEOC to determine whether suit should be filed.”
Hearst, 103 F. 3d, at 467.
B
Whatever the correct interpretation of the text, however,
the Ninth Circuit’s approach in Federal Express, 558 F. 3d
842, is highly problematic. The Ninth Circuit began by as-
serting that it was bound to enforce an EEOC subpoena if
the agency’s jurisdiction was “plausible” and not “plainly
lacking.” Id., at 848 (internal quotation marks omitted).
Next, the court noted that the EEOC has, through regula-
tion, interpreted its own statutory authority to allow the
agency to continue processing a charge after it has issued a
right to sue notice. Id., at 850; see 29 CFR §1601.28(a)(3)
(2019). To cap off its analysis, the Ninth Circuit gave
weight to the fact that the EEOC had further interpreted
its own regulation allowing “ ‘further processing [of ] the
charge’ ” after issuing notice to “includ[e] further investiga-
tion.” Federal Express, 558 F. 3d, at 850 (citing EEOC Com-
pliance Manual §6.4 (2006)). Thus, under this dual layer of
agency interpretation, the Ninth Circuit concluded that Ti-
tle VII permitted the EEOC to continue with its investiga-
tion after issuing a right to sue notice. The Ninth Circuit
acknowledged that its reading conflicted with the Fifth Cir-
cuit’s decision in Hearst, 103 F. 3d 462. But it disagreed
with the Fifth Circuit primarily because it viewed Hearst as
conflicting with the EEOC’s role in vindicating the public’s
4 VF JEANSWEAR LP v. EQUAL EMPLOYMENT
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THOMAS, J., dissenting

interest in eradicating employment discrimination.* Fed-
eral Express, 558 F. 3d, at 852.
The Ninth Circuit’s analysis contains at least four flaws.
Most egregiously, the Ninth Circuit failed to consider the
most useful, and perhaps dispositive, evidence—the text of
Title VII itself. Nor did it perform anything remotely re-
sembling an independent assessment of that text. Even un-
der Chevron U. S. A. Inc. v. Natural Resources Defense
Council, Inc., 467 U. S. 837 (1984), courts are instructed to
engage in their own analysis of the statute to determine
whether any gap has been left for the agency to fill. Id., at
843, n. 9; see also INS v. Cardoza-Fonseca, 480 U. S. 421,
447–448 (1987). The Ninth Circuit, by contrast, bypassed
the statutory text entirely.
Second, the Ninth Circuit’s approach to jurisdiction was
highly suspect, if not outright erroneous. As the Ninth Cir-
cuit has elsewhere recognized, all administrative agencies
“are creatures of statute, bound to the confines of the stat-
ute that created them.” United States Fidelity & Guaranty
Co. v. Lee, 641 F. 3d 1126, 1135 (2011). This fundamental
principle applies not only to substantive areas regulated by
an agency but also to the agency’s underlying jurisdiction.
There is no basis for applying a “plainly lacking” standard
when assessing the authority of an agency to act, let alone
to issue wide-ranging subpoenas that consume the time and
resources of employers.
Third, reliance on and deference to the EEOC’s regula-
tion also seems inappropriate under this Court’s Chevron
framework. The regulation was originally promulgated be-
fore this Court’s decision in Chevron. See 29 CFR §1601.28
——————
* The Ninth Circuit also relied in part on this Court’s decision in EEOC
v. Waffle House, Inc., 534 U. S. 279 (2002), where this Court held that an
employee’s agreement to arbitrate employment disputes did not prevent
the EEOC from pursuing victim-specific relief in court. But that decision
conflicts with the principle that the EEOC takes a plaintiff as it finds
him. See id., at 303–312 (THOMAS, J., dissenting).
 Cite as: 589 U. S. ____ (2020) 5

THOMAS, J., dissenting

(a)(3) (1978). The associated rulemaking contains no indi-
cation that the agency invoked its interpretive authority or
even believed it was interpreting the statute at all. See 42
Fed. Reg. 42025, 42030–42031, 47831 (1977); see also 37
Fed. Reg. 9214–9220 (1973). Thus, it is hardly self-evident
that, even under our precedents, Chevron deference should
apply. See Barnhart v. Walton, 535 U. S. 212, 222 (2002).
Last but not least, the Ninth Circuit’s invocation of the
EEOC Compliance Manual not only assumes that the reg-
ulation is ambiguous—itself a dubious proposition—but
also is premised on so-called Auer deference to the agency’s
interpretation of its own ambiguous regulation. Auer v.
Robbins, 519 U. S. 452 (1997). This doctrine has rightly
fallen out of favor in recent years, as it directly conflicts
with the constitutional duty of a judge to faithfully and in-
dependently interpret the law. See Kisor v. Wilkie, 588
U. S. ___, ___ (2019) (GORSUCH, J., concurring in judgment);
Perez v. Mortgage Bankers Assn., 575 U. S. 92, 112 (2015)
(THOMAS, J., concurring in judgment).
II
Leaving the Seventh and Ninth Circuit’s highly question-
able interpretation undisturbed has wide-reaching ramifi-
cations for employers subject to litigation in those Circuits.
In this case, for instance, a former salesperson employed by
petitioner VF Jeanswear LP filed a charge with the EEOC,
alleging that she was demoted on the basis of her sex and
age in violation of Title VII. §2000e–2(a)(1). After she filed
a complaint in state court, the EEOC issued her a right to
sue notice, indicating that it would not finish processing her
charge within the allotted 180-day timeframe. The former
employee proceeded to litigate her claims in federal court,
and the EEOC did not intervene.
Meanwhile, the EEOC continued with its own, far
broader investigation, including a subpoena directing VF
Jeanswear to “[s]ubmit an electronic database identifying
6 VF JEANSWEAR LP v. EQUAL EMPLOYMENT
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THOMAS, J., dissenting

all supervisors, managers, and executive employees at VF
Jeanswear’s facilities during the relevant period,” including
information such as the “position(s) held and date in each
position” and, “if no longer employed, [the] date of termina-
tion, and reason for termination.” 2017 WL 2861182, *2 (D
Ariz., July 5, 2017). Thus, the EEOC not only subjected VF
Jeanswear to a second investigation, but it also issued a
subpoena covering material that departed significantly
from the employee’s original, individualized allegations. As
the District Court noted in refusing to enforce the sub-
poena, the EEOC sought information regarding positions
for which the employee never applied, and amounted to “a
companywide and nationwide subpoena for discriminatory
promotion, a discriminatory practice not affecting the
charging party.” Id., at *6.
Because the textual argument against the EEOC’s power
to issue this subpoena seems strong, and the argument sup-
porting it particularly weak, I respectfully dissent from the
denial of certiorari.