United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 1999 Decided June 18, 1999
No. 98-7068
Elizabeth A. Martini,
Appellee/Cross-Appellant
v.
Federal National Mortgage Association, et al.,
Appellants/Cross-Appellees
Consolidated with
No. 98-7081
Appeals from the United States District Court
for the District of Columbia
(No. 95cv01341)
(No. 95cv03141)
---------
Paul J. Mode, Jr., argued the cause and filed the briefs for
appellants/cross-appellees.
Michael H. Gottesman argued the cause for appellee/cross-
appellant. With him on the briefs were David E. Schreiber
and Larry S. Greenberg.
Philip B. Sklover, Associate General Counsel, Equal Em-
ployment Opportunity Commission, Lorraine C. Davis, Assis-
tant General Counsel, and Caren I. Friedman, Attorney,
were on the brief for amicus curiae Equal Employment
Opportunity Commission.
Before: Williams, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: A jury found the Federal National
Mortgage Association liable under Title VII and the District
of Columbia Human Rights Act for sexual harassment and
retaliation against one of its employees, Elizabeth Martini,
and awarded nearly $7 million in damages. The district court
reduced her damages to $903,500. In this appeal, Fannie
Mae claims that Martini's Title VII suit was untimely because
she initiated it less than 180 days after she filed discrimina-
tion charges with the Equal Employment Opportunity Com-
mission. In her cross-appeal, Martini challenges several legal
conclusions underlying the district court's reduction of her
damages. Finding that Title VII requires complainants to
wait 180 days before suing in federal court so that the
Commission may informally resolve as many charges as possi-
ble, we reverse the judgment in her favor and remand with
instructions to dismiss her untimely suit without prejudice.
Since Martini's claims on cross-appeal are fully briefed and
likely to arise again in a new trial, we decide them as well,
holding first that frontpay is not subject to Title VII's cap on
compensatory damages, second that the district court should
have reallocated the portion of Title VII damages above the
statutory cap to Martini's recovery under D.C. law, and third
that D.C. law permits Martini to recover punitive damages on
a given claim as long as she has proven a basis for actual
damages.
I
Appellee Elizabeth Martini went to work for appellant
Federal National Mortgage Association as a debt manager in
1988. By 1995, she was earning $71,000 a year and held
valuable stock options. In early 1994, she alleged, one of her
co-workers, Forrest Kobayashi, began harassing her because
of her sex, humiliating her with abusive comments in the
presence of colleagues and subordinates, and excluding her
from meetings to which she should have been invited. Marti-
ni complained to her supervisor, Linda Knight, who also
supervised Kobayashi, but Knight failed to come up with a
solution. Despite Martini's complaints to Fannie Mae's Office
of Diversity, Knight recommended Kobayashi for a pro-
motion. Once promoted, Kobayashi was asked by Knight to
reorganize his department. Designed by Kobayashi and ap-
proved by Knight, the reorganization eliminated only one job:
Martini's. In March 1995, Knight fired Martini, telling her
that Fannie Mae would give prospective employers no infor-
mation about her job performance. Martini applied to five
firms with positions similar to the one she held at Fannie
Mae, but received no offers. She eventually abandoned her
job search, enrolling in a two-year course to become a finan-
cial planner.
On April 10, 1995, Martini filed a sexual harassment and
retaliation charge with the Equal Employment Opportunity
Commission. Twenty-one days later, at her request, the
EEOC issued a "right-to-sue" letter authorizing her to bring
a private action in federal court. In doing so, the EEOC
acted pursuant to 29 C.F.R. s 1601.28(a)(2) (1998), which
provides that the Commission may, upon a complainant's
request, authorize a private suit "at any time prior to the
expiration of 180 days from the date of filing the charge with
the Commission; provided, that [an appropriate Commission
official] has determined that it is probable that the Commis-
sion will be unable to complete its administrative processing
of the charge within 180 days from the filing of the charge."
Issuance of the right-to-sue letter terminated further EEOC
processing of Martini's charge. See id. s 1601.28(a)(3); Oral
Arg. Tr. at 22 (quoting Martini's right-to-sue letter). On July
20, 101 days after filing the EEOC charge, Martini sued
Kobayashi, Knight, and Fannie Mae in the United States
District Court for the District of Columbia, alleging sexual
harassment and retaliation in violation of Title VII and the
D.C. Human Rights Act. Although Fannie Mae offered
Martini a new position one month later, she rejected it
because it would have put her in close contact with Kobayashi
and Knight, and because Fannie Mae offered her no protec-
tion from further harassment.
Before trial, Fannie Mae moved to dismiss, arguing that
the EEOC's early right-to-sue regulation, 29 C.F.R.
s 1601.28(a)(2), violates the 180-day waiting period for pri-
vate suits established by 42 U.S.C. s 2000e-5(f)(1) (1994),
which says:
If a charge filed with the Commission ... 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 ... 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 respondent named in the charge....
The district court denied the motion.
After an eleven-day trial, the district court gave the jury a
single set of instructions for both the Title VII and the D.C.
Human Rights Act claims. Finding the defendants liable for
harassment and retaliation, the jury awarded Martini nearly
$7 million in damages--$153,500 in backpay, $1,894,000 in
frontpay and benefits, and $3,000,000 in punitive damages
under Title VII, as well as $615,000 in compensatory damages
and $1,286,000 in punitive damages under the D.C. Human
Rights Act.
In a post-trial motion, Fannie Mae again challenged the
timeliness of Martini's suit under section 2000e-5(f)(1) of Title
VII. Finding pre-180 day private suits not prohibited by
section 2000e-5(f)(1), the district court upheld the early right-
to-sue regulation. See Martini v. Federal Nat'l Mortgage
Ass'n, 977 F. Supp. 464, 471-72 (D.D.C. 1997). The district
court noted, however, that the D.C. Circuit "has not ad-
dressed this issue" and that "there is a split of authority"
among other courts. Id. at 471.
Fannie Mae also sought a reduction in damages, arguing
that the evidence was insufficient to justify the large awards,
that punitive damages unsupported by compensatory dam-
ages are impermissible under D.C. law, and that Title VII's
cap on compensatory damages, see 42 U.S.C. s 1981a(b)(3),
applied to Martini's frontpay award. Finding these argu-
ments persuasive, the district court reduced the Title VII
damages to $453,500, see Martini, 977 F. Supp. at 469-71,
478-79, and reduced the D.C. Human Rights Act damages to
$450,000, see id. at 474-79. In order to avoid a new trial,
Martini agreed to a remittitur order prohibiting her from
challenging the reduction in damages based on evidence
insufficiency.
On appeal, Fannie Mae argues that the district court
wrongly rejected its challenge to the timeliness of Martini's
suit. Although Fannie Mae also claims that the jury verdict
should be set aside because it improperly resulted from
passion or prejudice, Fannie Mae waived that claim by failing
to object to allegedly inflammatory statements by Martini's
lawyer at trial. See Hooks v. Washington Sheraton Corp.,
578 F.2d 313, 316-17 (D.C. Cir. 1977). Martini raises three
claims on cross-appeal: that Title VII's damages cap is
inapplicable to frontpay, that any Title VII damages exceed-
ing the cap should be reallocated to her D.C. Human Rights
Act recovery, and that D.C. law allows punitive damages to be
awarded in the absence of compensatory damages.
II
The 1972 amendments to Title VII established "an integrat-
ed, multistep enforcement procedure" prescribing the powers
and duties of the EEOC once a discrimination charge has
been filed. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355,
359 (1977) (discussing the Equal Employment Opportunity
Act of 1972, Pub. L. No. 92-261, 86 Stat. 103, 104-07 (codified
at 42 U.S.C. s 2000e-5)). The statute directs the EEOC to
notify the respondent of the charge within 10 days, to investi-
gate the charge, and to determine "as promptly as possible
and, so far as practicable, not later than one hundred and
twenty days from the filing of the charge" whether there is
reasonable cause to believe that the charge is true. 42 U.S.C.
s 2000e-5(b). If the EEOC finds no reasonable cause, then
it must dismiss the charge. See id. If it finds reasonable
cause, then it must attempt to resolve the dispute "by infor-
mal methods of conference, conciliation, and persuasion." Id.
"If within thirty days after a charge is filed ... the Commis-
sion has been unable to secure from the respondent a concilia-
tion agreement acceptable to the Commission, the Commis-
sion may bring a civil action against any [non-governmental]
respondent...." Id. s 2000e-5(f)(1).
In language lying at the heart of Fannie Mae's challenge to
the timeliness of Martini's suit, the statute further provides:
If a charge filed with the Commission ... 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 ... 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 respondent named in the charge....
Id. According to Fannie Mae, this sentence sets forth the
exclusive conditions under which a Title VII complainant may
sue: Either the Commission must dismiss the charge, or 180
days must elapse without informal resolution of the charge or
an EEOC lawsuit. Because section 2000e-5(f)(1) implicitly
prohibits a private suit within 180 days unless the charge is
dismissed, Fannie Mae argues, the EEOC's early right-to-sue
regulation is unlawful.
Defending the regulation, Martini, supported by the EEOC
as amicus curiae, points out that section 2000e-5(f)(1), while
establishing certain conditions giving rise to a private cause
of action, nowhere makes those conditions exclusive. Accord-
ing to Martini, the 180-day provision specifies the maximum,
not minimum, time that Title VII complainants must wait
before going to court. Although she acknowledges a statuto-
ry policy favoring administrative over judicial processing
during the first 180 days after a charge is filed, Martini
argues that the early right-to-sue regulation, by allowing
complainants to sue immediately when the EEOC has deter-
mined that administrative processing likely will be futile (i.e.,
likely will not lead to dismissal, conciliation, or an EEOC
lawsuit within 180 days), furthers the goal of providing quick,
effective relief for aggrieved persons without frustrating the
competing goal of encouraging informal resolution of com-
plaints.
Two of our sister circuits, the Ninth and Eleventh, have
squarely addressed this issue; both agree with Martini that
the early right-to-sue regulation comports with congressional
intent underlying section 2000e-5(f)(1)'s 180-day provision.
See Sims v. Trus Joist Macmillan, 22 F.3d 1059, 1061 (11th
Cir. 1994); Brown v. Puget Sound Elec. Apprenticeship &
Training Trust, 732 F.2d 726, 729 (9th Cir. 1984); cf. Weise v.
Syracuse Univ., 522 F.2d 397, 412 (2d Cir. 1975) (prior to
issuance of section 1601.28(a)(2), allowing EEOC to issue
early right-to-sue notice"[i]n the circumstances of this case").
Although many district courts also agree with Martini, a
comparable number agree with Fannie Mae and have dis-
missed complaints filed before expiration of the 180-day
period. Compare Montoya v. Valencia County, 872 F. Supp.
904, 906 (D.N.M. 1994) (finding early suits impermissible),
New York v. Holiday Inns, Inc., 656 F. Supp. 675, 680
(W.D.N.Y. 1984) (same), Mills v. Jefferson Bank East, 559 F.
Supp. 34, 35 (D. Colo. 1983) (same), Spencer v. Banco Real, 87
F.R.D. 739, 747 (S.D.N.Y. 1980) (same), and Loney v. Carr-
Lowrey Glass Co., 458 F.Supp. 1080, 1081 (D. Md. 1978)
(same), with Parker v. Noble Roman's, Inc., 1996 WL 453572,
at *2 (S.D. Ind. June 26, 1996) (finding early suits permissi-
ble), Defranks v. Court of Common Pleas, Civ. A. No. 95-327,
1995 WL 606800, at *6 (W.D. Pa. Aug. 17, 1995) (same),
Rolark v. University of Chicago Hosps., 688 F. Supp. 401, 404
(N.D. Ill. 1988) (same), Cattell v. Bob Frensley Ford, Inc., 505
F. Supp. 617, 622 (M.D. Tenn. 1980) (same), Vera v. Bethelem
Steel Corp., 448 F.Supp. 610, 614 (M.D. Pa. 1978) (same), and
Howard v. Mercantile Commerce Trust Co., No. 74-417C(1),
1974 WL 302, at *2 (E.D. Mo. Nov. 27, 1974).
Fannie Mae argues that Occidental Life Insurance Co. v.
EEOC forecloses any doubt about section 2000e-5(f)(1)'s
meaning. There the Supreme Court said that "a natural
reading of [section 2000e-5(f)(1)] can lead only to the conclu-
sion 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." 432 U.S. at 361. We agree with Martini
that the quoted language is dictum. Decided prior to the
EEOC's regulation authorizing early private suits, see 42 Fed.
Reg. 47,828 (1977), Occidental Life examined whether section
2000e-5(f)(1)'s 180-day provision functions as a statute of
limitations on the EEOC's power to bring a lawsuit where a
complainant chooses not to sue after 180 days. The Supreme
Court said no: "Nothing in [section 2000e-5(f)(1)] indicates
that EEOC enforcement powers cease if the complainant
decides to leave the case in the hands of the EEOC rather
than to pursue a private action." Id.; see also id. at 366
("The subsection imposes no limitation upon the power of the
EEOC to file suit in a federal court."). Although the Court
reached its conclusion by offering what it believed to be the
best reading of section 2000e-5(f)(1), its holding turned not on
that interpretation, but only on the narrower, negative conclu-
sion that nothing in section 2000e-5(f)(1)'s text or legislative
history imposes a 180-day limitation on the EEOC's power to
sue. Equally significant, in Occidental Life the EEOC had
sought to continue enforcement proceedings both during and
beyond the 180-day period, whereas here the Commission
authorized the complainant to sue upon finding it unlikely
that administrative processing would resolve the charge with-
in 180 days. The issue presented in this case--whether
Congress intended to impose a 180-day waiting period not
only in the first situation but also in the second--was neither
raised in Occidental Life nor addressed by the Supreme
Court. Because the Court's "natural reading" of section
2000e-5(f)(1) was not essential to its holding, cf. Young v.
Community Nutrition Institute, 476 U.S. 974, 980 (1986)
(finding ambiguity under Chevron even where one "reading of
the statute may seem to some to be the more natural
interpretation"), Occidental Life's interpretation of that provi-
sion does not dictate the result in this case. Like the Ninth
and Eleventh Circuits, we therefore undertake our own analy-
sis of the statute.
In "review[ing] an agency's construction of the statute
which it administers," we must ask "[f]irst, always, ...
whether Congress has directly spoken to the precise question
at issue." Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842 (1984). "If the intent of
Congress is clear, that is the end of the matter; for the court,
as well as the agency, must give effect to the unambiguously
expressed intent of Congress." Id. at 842-43. The "precise
question at issue" here is this: Does section 2000e-5(f)(1)
specify the exclusive conditions under which Title VII com-
plainants may bring private lawsuits in federal court? Put
differently, did Congress clearly intend to prohibit private
suits within 180 days after a charge is filed as long as the
EEOC has not dismissed the charge? In discerning congres-
sional intent, we owe no deference to the agency's views, see
id. at 843 n.9 ("The judiciary is the final authority on issues of
statutory construction and must reject administrative con-
structions which are contrary to clear congressional intent."),
and because we ultimately find congressional intent clear in
this case, we need not consider what level of deference would
govern EEOC interpretation of an ambiguous statutory provi-
sion, see EEOC v. Arabian-American Oil Co., 499 U.S. 244,
257 (1991).
We begin with the statutory text relied on by Fannie Mae.
Section 2000e-5(f)(1) says that an aggrieved party may sue
under Title VII if the Commission dismisses the charge or if
it neither sues the respondent nor reaches an acceptable
conciliation agreement within 180 days after the filing of the
charge. See 42 U.S.C. s 2000e-5(f)(1). Although the statute
nowhere says that complainants may sue only if one of these
conditions occurs, Fannie Mae--invoking the maxim expres-
sio unius est exclusio alterius, i.e., the "[m]ention of one
thing implies exclusion of another," Black's Law Dictionary
581 (6th ed. 1990)--argues that the statute's explicit authori-
zation of private suits after 180 days implies congressional
intent to prohibit such suits any earlier.
A non-binding rule of statutory interpretation, not a bind-
ing rule of law, the expressio unius maxim "is often misused."
Shook v. District of Columbia Fin. Responsibility & Manage-
ment Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998);
see Cheney R.R. Co. v. ICC, 902 F.2d 66, 68-69 (D.C. Cir.
1990) (refusing to apply expressio unius). "The maxim's
force in particular situations," we have said, "depends entirely
on context, whether or not the draftsmen's mention of one
thing ... does really necessarily, or at least reasonably, imply
the preclusion of alternatives." Shook, 132 F.3d at 782. That
in turn depends on "whether, looking at the structure of the
statute and perhaps its legislative history, one can be confi-
dent that a normal draftsman when he expressed 'the one
thing' would have likely considered the alternatives that are
arguably precluded." Id. Here, as in Cheney, Clinchfield
Coal Co. v. Federal Mine Safety & Health Comm'n, 895 F.2d
773, 779 (D.C. Cir. 1990), and Mobile Communications Corp.
of Am. v. FCC, 77 F.3d 1399, 1404-05 (D.C. Cir. 1996), the
expressio unius maxim, unsupported by arguments based on
the statute's structure or legislative history, " 'is simply too
thin a reed to support the conclusion that Congress has
clearly resolved [the] issue.' " Id. at 1405 (citation omitted);
see Cheney, 902 F.2d at 69 (noting that expressio unius is "an
especially feeble helper in an administrative setting, where
Congress is presumed to have left to reasonable agency
discretion questions that it has not directly resolved").
In addition to relying on expressio unius, Fannie Mae
pointed out at oral argument that the language of section
2000e-5(f)(1)'s 180-day provision parallels the language of
section 2000e-5(f)(1)'s first sentence, which governs the tim-
ing of EEOC-initiated lawsuits: "If within thirty days after a
charge is filed ... the Commission has been unable to secure
from the respondent a conciliation agreement acceptable to
the Commission, the Commission may bring a civil action
against any [non-governmental] respondent." 42 U.S.C.
s 2000e-5(f)(1). Relying on Martini's concession that the 30-
day provision imposes a mandatory waiting period on suits by
the EEOC, see Appellee's Reply Br. at 3 n.1, Fannie Mae
argues that the 180-day provision imposes a similar mandato-
ry waiting period on suits by private plaintiffs.
Like the 180-day provision, the 30-day provision specifies
one condition, not necessarily an exclusive condition, under
which the EEOC may sue. Fannie Mae's parallelism argu-
ment thus raises a question analogous to the one presented in
this case: May the EEOC sue within 30 days after a charge
is filed if a recalcitrant employer declares at the outset that it
will not accept any EEOC-negotiated conciliation agreement?
Not only have the parties not briefed this issue, but even if
the 30-day provision requires the EEOC to wait 30 days
before filing suit, the parallelism argument by itself still
would not compel Fannie Mae's interpretation of the statute.
To be sure, "there is a natural presumption that identical
words used in different parts of the same act are intended to
have the same meaning." Atlantic Cleaners & Dyers, Inc. v.
United States, 286 U.S. 427, 433 (1932). But that presump-
tion "is not rigid and readily yields whenever there is such
variation in the connection in which the words are used as
reasonably to warrant the conclusion that they were em-
ployed in different parts of the act with different intent." Id.
On numerous occasions, both the Supreme Court and this
court have determined, after examining statutory structure,
context, and legislative history, that identical words within a
single act have different meanings. See, e.g., Dewsnup v.
Timm, 502 U.S. 410, 417-20 (1992) (relying on statutory
context and legislative history to give different meanings to
the words "allowed secured claim" in different subsections of
the same bankruptcy provision); Atlantic Cleaners, 286 U.S.
at 435 (relying on legislative history to give different mean-
ings to the words "restraint of trade or commerce" in differ-
ent sections of the Sherman Act); Weaver v. United States
Information Agency, 87 F.3d 1429, 1437 (D.C. Cir. 1996)
(allowing the agency to give different meanings to the words
"cleared" and "clearance" in different subsections of the same
regulation). Without inquiring further into Title VII's struc-
ture, context, and legislative history, we cannot conclude with
the certainty required under Chevron's first step that the
parallel sentences within section 2000e-5(f)(1) have parallel
meanings.
Like its use of the expressio unius maxim, Fannie Mae's
parallelism argument thus leaves the question before us
unanswered. Nothing in section 2000e-5(f)(1)'s language
forecloses Martini's view that the 180-day provision is simply
a maximum, not minimum, waiting period for complainants
seeking access to federal court. To show that Martini's view
unambiguously frustrates Congress's intent, Fannie Mae
must shore up its reading of the statute's text with indepen-
dent arguments based on structure, context, or legislative
history.
Taking up this challenge, Fannie Mae observes that the
180-day provision governing private suits is part of an elabo-
rate enforcement scheme detailing who may bring certain
actions and when. See 42 U.S.C. s 2000e-5(f)(1) to (2).
Relying on Hallstrom v. Tillamook County, 493 U.S. 20
(1989), and Perot v. Federal Election Comm'n, 97 F.3d 553
(D.C. Cir. 1996), Fannie Mae says that courts have strictly
enforced statutory waiting periods designed to foster informal
resolution of complaints, notwithstanding the likely or even
certain futility of administrative dispute resolution. The
cases cited by Fannie Mae do not support its position. In
Hallstrom, the Supreme Court enforced a 60-day notice and
waiting period for plaintiffs wishing to file suit under the
Resource Conservation and Recovery Act. See 493 U.S. at
29. Noting that Congress imposed the 60-day period to
encourage administrative enforcement of environmental regu-
lations, see id., the Court rejected the argument that where
government agencies had "explicitly declined to act, it would
be pointless to require the citizen to wait 60 days to com-
mence suit," id. at 30. Although this appears to support
Fannie Mae, the statute at issue in Hallstrom differs from
Title VII in a critical respect: It expressly prohibits the filing
of a lawsuit within the 60-day notice period. After quoting
42 U.S.C. s 6972(b)(1), the Court said: "The language of this
provision could not be clearer.... Actions commenced prior
to 60 days after notice are 'prohibited.' Because this lan-
guage is expressly incorporated by reference into s 6972(a), it
acts as a specific limitation on a citizen's right to bring suit."
Id. at 26. Perot is equally inapplicable. In that case, our
enforcement of a 120-day waiting period for private suits
under the Federal Election Campaign Act, despite petition-
er's claim that agency action would be futile, turned on the
fact that the Act explicitly provides for "exclusive" agency
jurisdiction during the 120-day period. See 97 F.3d at 558
(quoting 2 U.S.C. ss 437d(e), 437c(b)(1) (1994)). Because
Title VII contains no similar language prohibiting early pri-
vate suits or making agency jurisdiction exclusive, neither
Hallstrom nor Perot provides a basis for us to conclude that
private suits within 180 days would impermissibly upset Title
VII's enforcement scheme in cases where timely EEOC-
negotiated resolution is improbable.
Fannie Mae argues that the likely futility of administrative
processing does not defeat the statutory policy of encouraging
informal resolution of charges because Congress intended the
180-day period to serve as a mandatory "cooling off" period
during which the parties might voluntarily resolve their dis-
pute, even in the absence of agency action. Not only does
Fannie Mae cite no legislative history to support this claim,
but the fact that the statute authorizes the EEOC to sue
within the 180-day period if it is unable to secure an accept-
able conciliation agreement demonstrates that Congress could
not have intended to establish a mandatory "cooling off"
period. The statute even authorizes a complainant to sue
within 180 days if the EEOC dismisses the charge. Fannie
Mae nowhere explains why it makes sense to read a "cooling
off" period into the statute for cases where the EEOC cannot
complete administrative processing within 180 days, but not
for cases where the EEOC dismisses the charge or sues the
respondent within 180 days.
Next, Fannie Mae points to legislative history indicating
that Congress enacted the 180-day provision governing pri-
vate suits with "an acute awareness of the enormous backlog
of cases before the EEOC and the consequent delays of 18 to
24 months encountered by aggrieved persons awaiting admin-
istrative action on their complaints." Occidental Life, 432
U.S. at 369 (citing House and Senate hearings as well as floor
debate). By choosing a 180-day window for informal resolu-
tion of charges despite knowing that many charges would not
be resolved within 180 days, Fannie Mae argues, Congress
clearly intended the 180-day period to be the minimum time
complainants must wait before going to court, even if EEOC
processing would be futile. Again, we are unconvinced.
We have no doubt that when Congress wrote section
2000e-5(f)(1) in 1972, it knew all about the long delays in
EEOC processing of discrimination charges. See S. Rep. No.
92-415, at 23 (1971); H.R. Rep. No. 92-238 (1971), reprinted
in 1972 U.S.C.C.A.N. 2137, 2147. Congress enacted the 180-
day provision as "a means by which [an aggrieved party] may
be able to escape from the administrative quagmire which
occasionally surrounds a case caught in an overloaded admin-
istrative process." 1972 U.S.C.C.A.N. at 2148; see S. Rep.
No. 92-415, at 23. After the House and Senate passed the
1972 amendments, the Conference Committee explained in a
statement accompanying the Conference Report:
[The 180-day provision] is designed to make sure that
the person aggrieved does not have to endure lengthy
delays if the Commission ... does not act with due
diligence and speed. Accordingly, the [180-day provi-
sion] allow[s] the person aggrieved to elect to pursue his
or her own remedy under this title in the courts where
there is agency inaction, dalliance or dismissal of the
charge, or unsatisfactory resolution.
118 Cong. Rec. 7168 (1972) (section-by-section analysis of 1972
amendments). But this account of section 2000e-5(f)(1) con-
tains the same ambiguity as the statutory language itself:
Did Congress simply intend to guarantee the right to sue
after 180 days, or did it further intend to prohibit private
suits within 180 days? To be sure, the right to sue after 180
days is the only means that Congress provided for escaping
the administrative process. But Martini argues--plausibly,
we think--that authorizing early private suits in cases where
the EEOC likely will be unable to resolve the charge within
180 days furthers Congress's intent to "allow the person
aggrieved to elect to pursue his or her own remedy ... in the
courts where there is agency inaction, dalliance ... or unsat-
isfactory resolution." Id.
Thus, neither section 2000e-5(f)(1)'s language nor the legis-
lative history cited by Fannie Mae reveals "the unambiguous-
ly expressed intent of Congress" on "the precise question at
issue" in this case. Chevron, 467 U.S. at 843. If our inquiry
were to end here, we likely would agree with the Ninth and
Eleventh Circuits that the early right-to-sue regulation does
not violate section 2000e-5(f)(1). Under Chevron's first step,
however, we have a duty to conduct an "independent exami-
nation" of the statute in question, New York Shipping Ass'n
v. Federal Maritime Comm'n, 854 F.2d 1338, 1355 (D.C. Cir.
1988), looking not only "to the particular statutory language
at issue," but also to "the language and design of the statute
as a whole," K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988); see also United States Nat'l Bank v. Independent Ins.
Agents of Am., Inc., 508 U.S. 439, 455 (1993) ("Over and over
we have stressed that '[i]n expounding a statute, we must not
be guided by a single sentence or member of a sentence, but
look to the provisions of the whole law, and to its object and
policy.' ") (quoting United States v. Heirs of Boisdore, 49 U.S.
(8 How.) 113, 122 (1849)). We thus turn to a provision of
Title VII not relied on by Fannie Mae that we asked the
parties to address at oral argument--a provision that we
think eliminates any ambiguity about the question before us.
Section 2000e-5(b) prescribes the EEOC's duties once a
charge is filed. See supra at 6. It says that the Commission
"shall" investigate the charge and "shall" make a reasonable
cause determination "as promptly as possible and, so far as
practicable, not later than one hundred and twenty days from
the filing of the charge." 42 U.S.C. s 2000e-5(b). Thus,
although the statute allows some flexibility in the timing of
reasonable cause determinations, the Commission's duty to
investigate is both mandatory and unqualified. Yet an early
right-to-sue notice typically terminates EEOC investigation of
the charge, see 29 C.F.R. s 1601.28(a)(3), precisely what
happened in this case. Although the record nowhere contains
Martini's right-to-sue letter, her counsel read it to us at oral
argument: " 'With the issuance of this notice of right to sue,
the Commission is terminating [its] process with respect to
this charge.' " Oral Arg. Tr. at 22 (quoting Martini's right-to-
sue notice). We cannot square this early termination of the
process or the regulation authorizing it, see 29 C.F.R.
s 1601.28(a)(3), with section 2000e-5(b)'s express direction to
the Commission that it investigate all charges.
Of course, Fannie Mae does not challenge section
1601.28(a)(3), but we think section 1601.28(a)(2) alone violates
section 2000e-5(b) of the statute for the same reason. Even
in the absence of a regulation formally terminating adminis-
trative processing, issuance of an early right-to-sue letter
would have the same effect. We think it implausible that an
agency as chronically overworked as the EEOC would either
begin or continue to investigate charges for which it has
authorized an alternative avenue of relief. In most such
cases, the charge will simply go to the bottom of the pile.
Although after 180 days this result comports with congres-
sional intent, see S. Rep. No. 92-415, at 23, prior to 180 days it
conflicts with section 2000e-5(b)'s unambiguous command.
Martini and the EEOC both argue that requiring a com-
plainant to wait 180 days when the agency knows it will be
unable to investigate the charge would be futile. We dis-
agree. Section 1601.28(a)(2) does not limit the issuance of
early right-to-sue letters to situations where the EEOC has
determined that it is impossible to investigate within 180
days. Rather, the regulation allows the Commission to au-
thorize a private suit when it "has determined that it is
probable that [it] will be unable to complete its administrative
processing of the charge within 180 days." 29 C.F.R.
s 1601.28(a)(2) (emphasis added). If the term "probable"
means "more likely than not," then the regulation allows the
EEOC to authorize a private suit even when there is as much
as a 49 percent chance that it will complete administrative
processing within 180 days. And in this case, the Commis-
sion made that probability determination only 21 days after
Martini filed her charge. We do not see how such a specula-
tive prediction of futility can justify departure from section
2000e-5(b)'s express requirement that the Commission inves-
tigate every charge filed.
In any event, the regulation would violate section 2000e-
5(b) even if the Commission could say with certainty that it
cannot fully process a charge within 180 days. Congress well
understood that the EEOC's limited resources preclude it
from investigating every charge within 180 days, see supra at
14-15, but nevertheless "hoped that recourse to the private
lawsuit will be the exception and not the rule." 118 Cong.
Rec. 7168. Contrary to this congressional "hope," the early
right-to-sue regulation makes it less likely that "the vast
majority of complaints will be handled through the offices of
the EEOC." Id. Without authority to allow early suits, the
EEOC would face more internal pressure, along with external
pressure from complainants, to improve its investigatory ca-
pacities--for example, by streamlining its procedures for
handling charges, by setting higher case clearance goals, by
improving training, or by reallocating staff and other re-
sources among regions or between national and regional
offices--so that it could resolve as many charges as possible
within 180 days. If such efforts proved inadequate to achieve
statutory compliance, then the Commission would be forced
to ask Congress to appropriate additional funds. Whether
authorizing early private suits is preferable to enlarging the
Commission's budget is a question for Congress, not the
EEOC or this court. We conclude only that greater compli-
ance with the mandatory duties that Congress expressly
prescribed for the EEOC in section 2000e-5(b) will occur
when all complainants must wait 180 days before filing suit
than when the Commission may authorize them to sue earlier.
As we stated at the outset, the precise question at issue in
this case is whether Congress clearly intended to prohibit
private suits within 180 days after charges are filed. See
supra at 9. Because the power to authorize early private
suits inevitably and impermissibly allows the EEOC to relax
its aggregate effort to comply with its statutory duty to
investigate every charge filed, we think the answer is yes.
This straightforward reading of section 2000e-5(b) finds
support in legislative history of section 2000e-5(f)(1) not cited
by either party. While the House version of the 1972 bill
containing what is now section 2000e-5(f)(1) authorized pri-
vate actions after 180 days, see 117 Cong. Rec. 32,113 (1971);
118 Cong. Rec. 1510 (1972), the Senate version authorized
private actions after only 150 days, see 118 Cong. Rec. 4945
(1972). Noting this discrepancy, the conference committee
chose the 180-day period. See H.R. Rep. No. 92-899 (1972),
reprinted in 1972 U.S.C.C.A.N. 2179, 2182. Although this
alone does not unequivocally show that Congress was unwill-
ing to permit private suits within 180 days--Congress simply
might have been unwilling to guarantee the right to sue
within 180 days--we note that at least two major sponsors of
the 1972 bill clearly understood the provision to prohibit early
suits. Senator Javits said that it required complainants
"necessarily [to] sit[ ] around awaiting 6 months." 118 Cong.
Rec. 1069 (1972) (Senate debate). Senator Dominick called it
a "180-day private filing restriction." Id. In any event, by
choosing 180 days instead of 150 days, Congress indicated its
belief that informal resolution of charges, even as late as the
180th day, would be preferable to allowing complainants to
sue earlier. Cf. 42 U.S.C. s 2000e-5(f)(1) (authorizing courts
to stay private suits for up to 60 days to allow "further efforts
of the Commission to obtain voluntary compliance"). Allow-
ing private suits within 180 days eases the pressure on the
EEOC to resolve charges informally, thus defeating the ex-
plicit congressional policy favoring EEOC-facilitated resolu-
tion up to the 180th day.
In sum, examining "the language and design of the statute
as a whole," K Mart Corp., 486 U.S. at 291, and indulging all
plausible inferences from the legislative history, we conclude
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. We thus hold that Title VII complainants must wait 180
days after filing charges with the EEOC before they may sue
in federal court. We recognize that this conclusion runs
counter to that reached by our sister circuits. See Sims, 22
F.3d at 1061; Brown, 732 F.2d at 729. But with all respect,
those courts did not read section 2000e-5(f)(1) in light of
section 2000e-5(b), nor did they consider the legislative histo-
ry that we discovered.
This brings us to the question of relief. We agree with
both parties that the 180-day waiting period is not jurisdic-
tional. As the Supreme Court said in Zipes v. Trans World
Airlines, Inc., "filing a timely charge of discrimination with
the EEOC is not a jurisdictional prerequisite to suit in federal
court, but a requirement that, like a statute of limitations, is
subject to waiver, estoppel, and equitable tolling." 455 U.S.
385, 393 (1982). But apart from the futility arguments that
we have found inadequate to relieve the EEOC of its statuto-
ry duty to process every charge for at least 180 days, Martini
suggests no equitable considerations that might warrant an
exception to the 180-day rule.
Finding Martini's suit untimely, we vacate the district
court's judgment and remand with instructions to dismiss her
complaint without prejudice. Because the EEOC stopped
processing her charge 21 days after she filed it, Martini may
file a new complaint in district court only after the Commis-
sion has attempted to resolve her charge for an additional 159
days.
III
Although we have vacated the judgment in Martini's favor,
we proceed in the interest of judicial economy to address her
claims challenging the district court's reduction of her dam-
ages. See Committee of 100 on the Fed. City v. Hodel, 777
F.2d 711, 718-19 (D.C. Cir. 1985). The claims are fully
briefed and likely to arise again in a new trial. Contrary to
Fannie Mae's contention, moreover, Martini never waived
these claims when she agreed to remittitur; as we read the
record, the remittitur covered only the district court's reduc-
tion of damages against Fannie Mae on her D.C. law retalia-
tion claim based on insufficient evidence of the scope of these
damages. See Martini, 977 F. Supp. at 478-79; Martini v.
Federal Nat'l Mortgage Ass'n, No. 95-1341, at 2 (D.D.C. Mar.
27, 1998) ("Martini Mem. Op."); see also William Inglis &
Sons Baking Co. v. Continental Baking Co., 942 F.2d 1332,
1343 (9th Cir. 1991) ("[T]he waiver implicit in remittitur [is] a
narrow one that involves only the right to appeal the reduc-
tion of damages effected by the remittitur.").
Frontpay
Under Title VII, "[t]he sum of the amount of compensatory
damages awarded under this section for future pecuniary
losses, emotional pain, suffering, inconvenience, mental an-
guish, loss of enjoyment of life, and other nonpecuniary
losses, and the amount of punitive damages awarded under
this section, shall not exceed" $300,000 for an employer as
large as Fannie Mae. 42 U.S.C. s 1981a(b)(3). Martini
claims that the district court erred in applying Title VII's
damages cap to the frontpay award. According to Fannie
Mae, "future pecuniary losses" include frontpay. See
McKnight v. General Motors Corp., 908 F.2d 104, 116 (7th
Cir. 1990) (defining frontpay as "a lump sum ... representing
the discounted present value of the difference between the
earnings [an employee] would have received in [her] old
employment and the earnings [she] can be expected to receive
in [her] present and future, and by hypothesis inferior, em-
ployment"). We agree with Martini.
In the provision immediately preceding the damages cap,
the statute says: "Compensatory damages ... shall not
include backpay, interest on backpay, or any other type of
relief authorized under section 706(g) of the Civil Rights Act
of 1964." 42 U.S.C. s 1981a(b)(2). Section 706(g) authorizes
district courts to order "reinstatement ... with or without
back pay ... or any other equitable relief as the court deems
appropriate." Id. s 2000e-5(g)(1). Like the majority of cir-
cuits, we have regarded frontpay as an equitable remedy
available under section 706(g) both before and after the Civil
Rights Act of 1991 made compensatory damages available
under Title VII. See Barbour v. Merrill, 48 F.3d 1270, 1277-
78 (D.C. Cir. 1995); Anderson v. Group Hospitalization, Inc.,
820 F.2d 465, 473 (D.C. Cir. 1987); see also Williams v.
Pharmacia, Inc., 137 F.3d 944, 951-52 (7th Cir. 1998); Win-
sor v. Hinckley Dodge, Inc., 79 F.3d 996, 1002 (10th Cir.
1996); Lussier v. Runyon, 50 F.3d 1103, 1107 (1st Cir. 1995);
Hadley v. VAM P T S, 44 F.3d 372, 376 (5th Cir. 1995);
Hukkanen v. International Union of Operating Eng'rs, 3
F.3d 281, 286 (8th Cir. 1993); Weaver v. Casa Gallardo, Inc.,
922 F.2d 1515, 1528 (11th Cir. 1991). Section 1981a(b)(2)
therefore excludes frontpay from the range of compensatory
damages subject to the damages cap under section
1981a(b)(3).
The Tenth and Eighth Circuits have recently reached the
same conclusion. See McCue v. Kansas Dep't of Human
Resources, 165 F.3d 784, 792 (10th Cir. 1999); Kramer v.
Logan County Sch. Dist. No. R-1, 157 F.3d 620, 626 (8th Cir.
1998). We respectfully disagree with the Sixth Circuit's
contrary holding, see Hudson v. Reno, 130 F.3d 1193, 1203-04
(6th Cir. 1997), on which the district court relied, see Martini
Mem. Op., No. 95-1341, at 3, since its assertion that frontpay
"is not authorized by the plain language of s 706(g) itself,"
Hudson, 130 F.3d at 1204, conflicts with our precedent.
Reallocation of Damages
The district court gave the jury a single set of instructions
applicable to Martini's claims under both Title VII and the
D.C. Human Rights Act. See 12/9/96 Trial Tr. at 33. As
required by law, the court never informed the jury about
Title VII's damages cap. See 42 U.S.C. s 1981a(c)(2). Over
the objections of both parties, the district court gave the jury
a verdict form with "special interrogatory questions" for
assessing damages for each type of claim (harassment or
retaliation) against each defendant (Fannie Mae, Kobayashi,
or Knight) under each statute (Title VII or D.C. Human
Rights Act). Martini v. Federal Nat'l Mortgage Ass'n, No.
95-1341 (D.D.C. Dec. 13, 1996) (entering judgment on the
verdict for plaintiff). The jury awarded Title VII damages
well in excess of the statutory cap. The district court limited
these damages (excluding backpay) to $300,000. See Martini,
977 F. Supp. at 471. Martini argues that the portion of Title
VII damages exceeding the statutory cap should have been
reallocated to her recovery under the D.C. Human Rights
Act. Again, we agree.
Because the jury used exactly the same instructions in
evaluating Martini's Title VII and D.C. law claims, and be-
cause the jury had no knowledge of Title VII's damages cap,
it had no legal basis for distinguishing between the two
statutes. Thus, for any one claim against any one defendant,
distinguishing between damages that the jury awarded under
Title VII and damages that it awarded under the D.C.
Human Rights Act makes no sense. For example, although
the jury awarded punitive damages of $2 million under Title
VII and $1 million under D.C. law against Fannie Mae on
Martini's retaliation claim, there is no basis for saying that
the jury intended to impose a $2 million award specifically
under Title VII, plus a $1 million award specifically under
D.C. law. Instead, the most sensible inference is that the
jury sought to impose a total of $3 million in punitive dam-
ages against Fannie Mae for retaliation. To be sure, only
$300,000 of that amount may be awarded under Title VII.
But we see no reason why Martini should not be entitled to
the balance under the D.C. Human Rights Act, since the local
law contains the same standards of liability as Title VII but
imposes no cap on damages.
Were we not to treat damages under federal and local law
as fungible where the standards of liability are the same, we
would effectively limit the local jurisdiction's prerogative to
provide greater remedies for employment discrimination than
those Congress has afforded under Title VII. Such a result
would violate Title VII's express terms: "Nothing in [Title
VII] shall be deemed to exempt or relieve any person from
any liability, duty, penalty, or punishment provided by any
present or future law of any State...." 42 U.S.C. s 2000e-7;
see id. s 2000e(i) (defining "State" to include the District of
Columbia); see also Kimzey v. Walmart Stores, 107 F.3d 568,
576 (8th Cir. 1997) (holding that Title VII damages cap does
not apply to discrimination claims under state law); Luciano
v. Olsten Corp., 912 F. Supp. 663, 675 (E.D.N.Y. 1996) (reallo-
cating Title VII damages above the cap to plaintiff's state law
recovery on the ground that "Title VII does not relieve a
defendant from liability and the award of damages under
state law where a jury has found such a violation under both
laws"). Other than traditional judicial authority to reduce
damages due to excessiveness, the power to limit total dam-
ages in cases where plaintiffs sue under both federal and local
law belongs to Congress and the D.C. Council, not this court.
Availability of punitive damages under D.C. law
Turning finally to Martini's challenge to the district court's
holding that D.C. law prohibits the award of punitive dam-
ages where no compensatory damages have been awarded on
a particular legal claim, we think the controlling precedent is
Maxwell v. Gallagher, where the D.C. Court of Appeals said
that "[a] plaintiff must prove a basis for actual damages to
justify the imposition of punitive damages." 709 A.2d 100,
104 (D.C. 1998). Although the jury in this case assessed
punitive damages but no compensatory damages against
Knight and Fannie Mae on Martini's sexual harassment claim
under the D.C. Human Rights Act, it did assess compensato-
ry damages against Fannie Mae on Martini's harassment
claim under Title VII. Since the court gave the jury a single
instruction for finding liability under both Title VII and D.C.
law, see supra at [23], we are inclined to believe that Martini
"prove[d] a basis for actual damages" against Fannie Mae--
but not against Knight--on her harassment claim under D.C.
law. Id.; see Dyer v. Bergman & Assocs., 657 A.2d 1132,
1139-40 (D.C. 1995) (affirming punitive damage award in the
absence of compensatory damage award where plaintiff had
proven actual injury and had accepted a compensatory arbi-
tration award). Because we have dismissed Martini's com-
plaint, however, we leave the proper application of Maxwell
to the district court should this issue arise again in a new
trial.
IV
We vacate the district court's judgment and remand with
instructions to dismiss the complaint without prejudice.
So ordered.