Simms v OK Petitioners Reply to Brief of Respondents in Opposition to the Petition for Writ of Certiorari

    In  Th e

# > u j i m n £  ( & m v t  $ f  t l j p  l i& m tz b  S t a t e s

Ced ric  D. Sim m s ,
Petitioner,

v.

State o f  Ok la h o m a , ex  r e l .,
T h e  D epartm ent  of M e n ta l  Health  and  

Substa n ce  Abuse  Serv ices , a  state  a g en c y ,
Respondent.

On Petition for W rit of Certiorari to the 
United States Court of Appeals for the Tenth Circuit

PETITIONER’S REPLY TO BRIEF OF 
RESPONDENT IN OPPOSITION TO THE PETITION 

FOR A W RIT OF CERTIORARI

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
(Counsel o f Record)
Deborah N. Archer 
NAACP Legal Defense and 

Educational Fund, Inc .
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 965-2200

Ken Feagins 
Attorney At Law 

629 24th Avenue, S.W. 
Norman, OK 73069 
(405) 360-9700

Attorneys fo r  Petitioner

PRESS OF BYRON S. ADAMS ♦  WASHINGTON, D.C. ♦  1-800-347-8208



TABLE OF CONTENTS

Table  of  a u t h o r it ie s .................................................  ii

I. Th e  R espond ent  Makes In co rrect
Factual  and  Legal  a ssertions  ................ 1

A. The Statement of the Case  ................ 1

B. The Applicable EEO C Regulation . . .  2

II. R espondent A dvances Argum ents
That  a r e  Irrelev a n t  to th e  
Question  Presented  H e r e  and  That  
Obscure  the  Split  in  th e  Circuits . . . .  5

Conclusion 10



11

TABLE OF AUTHORITIES

Anderson v. Block, 807 F.2d 145
(8th Cir. 1986) .........................................................5

Ang v. Procter & Gamble Co., 932 F.2d 540
(6th Cir. 1991) ....................................................  7, 8

Conroy v. Boston Edison Co., 758 F. Supp. 54
(D. Mass. 1991) ......................................................... 6

Evans v. Technologies Applications & Serv. Co.,
80 F.3d 954 (4th Cir. 1 9 9 6 ) ..................................... 5

Hopkins v. Digital Equip. Corp., 1998 WL 702339
(S.D.N.Y. 1998) ............................   5

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

King v. Georgia Power Company, 295 F. Supp. 943
(N.D. Ga. 1 9 6 8 ) ......................................................... 4

Lantz v. Hospital of the Univ. of Penn.,
1996 WL 442795 (E.D.Pa. 1996) ............................ 5

Love v. Pullman, 404 U.S. 522 (1 9 7 2 )....................... 9

M alarkey v. Texaco, Inc., 983 F.2d 1204
(2nd Cir. 1 9 9 3 )....................... ................... .. 7, 8

Pejic v. Hughes Helicopters, Inc., 840 F.2d 667
(9th Cir. 1988) ............................................................5

Sanchez v. Standard Brands, Inc., 431 F.2d 455
(5th Cir. 1970) .................................................... 4, 5



Pages:

Seymore v. Shawver & Sons, Inc., I l l  F.3d 794
(10th Cir. 1997), cert, denied, 118 S.Ct. 342 
(1997) ............................................................ 7, 8, 10

Simms v. Oklahoma, 165 F.3d 1321
(10th Cir. 1999) .........................................................5

Steffen v. M eridian Life Insurance Co., 859 F.2d 534
(7th Cir. 1988) ...............    6-8

Washington v. Kroger Co., 671 F.2d 1072
(8th Cir. 1982) ............................................................5

Zanders v. O’Gara-Hess, 952 F.2d 404 (6th Cir. 1992), 
1992 U.S.App. Lexis 535 ..........................................5

Zipes v. Trans World Airlines, Inc. Independent 
Federation of Flight Attendants,
455 U.S. 385 (1982).................   9

Regulations:

29 C.F.R. 1601.11(b)....................... .............................. 2, 3

29 C.F.R. §1601.1 2 ( b ) ......................................... 2, 3, 7, 10

Other Authorities:

37 Fed. Reg. 9215 (May 6, 1 9 7 2 ) ...............................  2, 4

42 Fed. Reg. 47833 (Sept. 22, 1 9 7 7 ) ....................... 2

EEO C  Compliance M anual §§602.6 (1999 Commerce
Clearing House I n c .) ................................................. 9

I l l



PETITIONER’S REPLY TO BRIEF OF RESPONDENT 
IN OPPOSITION TO THE PETITION 

FOR A WRIT OF CERTIORARI

In its quest to avoid review of the Tenth Circuit’s 
erroneous opinion, the respondent has distorted the factual 
proceedings below and obscured the legal issues posed by 
this Petition. Petitioner, Cedric Simms, submits this reply 
brief to clarify the procedural histoiy and legal questions 
squarely presented for review in this case.

I. Th e  Respondent Makes Incorrect Factual 
and Legal Assertions

A. The Statement o f the Case

In the body of its brief, respondent states that "[t]he 
Court should consider the amendment was not even filed 
until after Respondent filed a motion for partial summary 
judgment." [R. Br. at 22]. This statement creates the 
erroneous impression that Mr. Simms amended his second 
EEOC charge after filing an action in federal court based on 
that charge. Respondent has obscured the fact that the 
charge at issue here, Charge II, was still pending before the 
EEOC, without a right-to-sue letter having been issued, 
when Mr. Simms filed his amendment to that charge.

On October 31, 1994, Mr. Simms filed a charge with 
the EEOC based on the circumstances surrounding the 
denial of his promotion to Fire and Safety Officer Supervisor 
("Charge II"). On June 5, 1995, while Charge II was still 
pending, Mr. Simms filed a third EEOC charge ("Charge 
III") alleging retaliation for filing Charge II. On November 
29, 1995, the EEOC issued a right-to-sue letter for Charge
III. On January 12, 1996, Mr. Simms filed an action in the 
Western District of Oklahoma ('Simms IF ) based on the 
allegations in Charge III. When Simms I I  was filed, EEOC 
Charge II was still pending before the EEOC, and the 
Commission was still investigating the allegations of race 
discrimination.



2

On July 15, 1996, while Charge II was still pending, 
Mr. Simms filed an amendment to Charge II. The EEOC 
accepted the amendment, investigated the amended charge, 
attempted conciliation, and ultimately issued a right-to-sue 
letter for Charge II. On September 25, 1996, Mr. Simms 
filed an action in federal district court ('Simms ///") based 
on the amended allegations in Charge II. Charge II and 
Simms III  are at issue in this Petition.

B. The Applicable EEOC Regulation

The respondent’s arguments are predicated on an 
outdated version of the EEOC regulation at issue in this 
case. The respondent erroneously cites and relies on a 
version of 29 C.F.R. §1601.12(b), the regulation governing 
when amendments relate back to the date of an original 
charge, that has not appeared in the Code of Federal 
Regulations for 27 years. [R. Br. at 1-2, 10]. The version 
quoted by respondent appeared in the C.F.R. between 1967 
and 1972, and appeared at §1601.11, not at §1601.12, the 
section to which respondent attributes it. This outdated 
language has since been amended twice, in 1972 and 1977, 
to allow a broader range of amendments to relate back to 
the date of an original charge. See 37 Fed. Reg. 9215 (May 
6, 1972); and 42 Fed. Reg. 47833 (Sept. 22, 1977).

The outdated 1967 regulation that respondent quotes 
is misleading because it specifies only a limited number of 
purposes for which an EEOC charge may be amended: "to 
cure technical defects or omissions. . . or to clarify or 
amplify allegations made therein." 29 C.F.R. §1601.11(b) 
(1967).1 The current regulation, by contrast, specifically

'The 1967 regulation states:

A charge may be amended to cure technical defects or 
omissions, including failure to swear to the charge, or to 
clarify and amplify allegations made therein, and such 
amendments related back to the original filing date.



3

adds that "amendments alleging additional acts which 
constitute unlawful employment practices related to or 
growing out of the subject matter of the original charge will 
relate back to the date the charge was first received." 29
C.F.R. $1601.12(b) (1999).* 2 This addition significantly 
broadens the range of amendments that can relate back to 
the original filing date and makes clear that amendments 
relating back to the date of the original charge need not be 
limited to "clarifyjmg] or amplifying]" the allegations 
originally in the charge.

The version relied on by the respondent was 
amended expressly for the purpose of allowing amendments 
to EEOC charges like the one at issue in this case to relate 
back to the date of the original charge. In the edition of the 
Federal Register in which the 1967 regulation quoted by 
respondent was first amended, the EEOC included an 
explanatoiy preface making clear its intent to avoid limiting 
the protections under Title VII available to laypersons based 
upon a narrow interpretation of the grievances mentioned in

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.

29 C.F.R. §1601.11(b)(1967).

2The current regulation states:

A charge may be amended to cure technical defects or 
omissions, including failure to verify the charge, or to clarify 
and amplify allegations made therein. Such amendments and 
amendments alleging additional acts which constitute 
unlawful employment practices related to or growing out of 
the subject matter of the original charge will relate back to 
the date the charge was first received. A charge that has 
been so amended shall not be required to be redeferred.

29 C.F.R. 1601.12(b)(1999).



4

their original charges:

. . . the nature of employment discrimination is 
complex, pervasive, and institutionalized, and. . . 
those filing charges may not fully comprehend the 
distinctions among its various forms. The 
Commission is under an obligation to safeguard the 
Federal rights of persons "* * * untutored in the 
technicalities of the law and who may or may not (at 
the time of filing the charge) be able to fully 
articulate their grievances or be aware of the full 
panoply of discriminatory practices against them or 
others similarly situated * * *"

37 Fed. Reg. 9215 (May 6, 1972), quoting Sanchez v. 
Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). 
Although this passage referred specifically to other 
provisions of the C.F.R. that were amended at the same 
time, the language illuminates the EEOC’s reasons for 
changing the provision governing when amendments to 
EEOC charges can relate back to the date of the original 
charge.

In its preface to the amendments, the EEOC went on 
expressly to recognize that a charge alleging a particular 
violation or legal theory under Title VII could legitimately 
grow to encompass other violations or legal theories:

There is a substantial possibility that a charge which 
initially alleges only limited violations of title VII 
"may encompass any kind of discrimination like or 
related to allegations contained in the charge and 
growing out of such allegations* * *"

37 Fed. Reg. 9215 (May 6, 1972) quoting King v. Georgia 
Power Company, 295 F. Supp. 943, 947 (N.D. Ga. 1968). 
Thus, at the time it rejected the outdated version of the 
regulation cited by respondent, the EEOC recognized that 
a charge only alleging certain violations, could naturally 
grow to encompass "any kind of [related] discrimination."



5

The regulatory language which respondent misleadingly 
presents, and on which its arguments rely, does not reflect 
the recognition by the EEOC, better articulated in the 
current regulation, that the complexities of employment 
discrimination demand that charges not be restricted to the 
kinds or theories of discrimination originally alleged.

II. R espondent Advances Arguments That are
Irrelevant to the Question Presented H ere
and That Obscure the Split in  the Circuits

The respondent devotes a substantial part of its 
opposition brief to attempting to explain away the clear split 
among the Courts of Appeals on the issue directly raised by 
this case: When does an amendment to a pending EEOC 
charge relate back to the date of the original charge? 
Compare Simms v. Oklahoma, 165 F.3d 1321,1326-28 (10th 
Cir. 1999) (prohibiting amendments alleging new legal claims 
deriving from same set of operative facts included in the 
original charge); Evans v. Technologies Applications & Serv. 
Co., 80 F.3d 954, 963 (4th Cir. 1996) (same); Pejic v. Hughes 
Helicopters, Inc., 840 F.2d 667, 675 (9th Cir. 1988) (same); 
Hopkins v. Digital Equip. Corp., 1998 WL 702339, *2 
(S.D.N.Y. 1998) (same); Lantz v. Hospital o f the Univ. o f 
Penn., 1996 WL 442795, *4 (E.D.Pa. 1996) (same); with 
Zanders v. O ’Gara-Hess, 952 F.2d 404 (6th Cir. 1992), 1992 
U.S.App. Lexis 535 (allowing amendments alleging new legal 
claims deriving from same operative facts included in the 
original charge); Anderson v. Block, 807 F.2d 145, 149 (8th 
Cir. 1986) (same); Washington v. Kroger Co., 671 F.2d 1072, 
1075-1076 (8th Cir. 1982) (same); Sanchez v. Standard 
Brands, Inc., 431 F.2d 455, 464 (5th Cir. 1970) (same). See 
also, Hornsby v. Conoco Inc., I l l  F.2d 243, 247 (5th Cir. 
1985) (dicta).

Rather than challenge the existence of the circuit 
split, the respondent argues that Mr. Simms' reliance on this 
line of cases is misplaced. In a manner that can only 
confuse the issues, respondent argues that the central



6

question before the Court is whether the retaliatory conduct 
complained of occurred prior to or after the EEOC charge 
was filed. To support this argument the respondent relies 
on factually and legally distinguishable cases that address the 
distinct issue of whether a plaintiff may seek judicial relief 
in a federal court complaint for discriminatory or retaliatory 
incidents that have never been listed in an original or 
amended EEOC charge. This issue is irrelevant to the 
question before this Court: When may an amendment to a 
pending EEOC charge relate back to the date the charge 
was originally filed?

The cases relied upon by respondent focus on the 
separate question of when, under the "scope of the 
investigation" rule or the "reasonably related" rule3 a court 
can hear a claim that was never made a part of an EEOC 
charge. For example, in Steffen v. Meridian Life Insurance 
Co., 859 F.2d 534 (7th Cir. 1988), the Seventh Circuit 
addressed the question of whether a plaintiffs claim of 
retaliation that was not included in the EEOC charge was 
"like or reasonably related to the allegations of the charge" 
before the court so as to be cognizable in the federal action. 
Steffen, 859 F.2d at 544. The court did not address the issue 
of when an amendment to an EEOC charge alleging 
retaliation may relate back to the date of the original charge 
and distinguished the case before it from cases where "the

3As discussed in Mr. Simms’ Petition the "scope of the 
investigation" and the "like or reasonably related" doctrines are 
inquiries distinct from the question whether amendments relate back 
to the date of the original charge. These two doctrines

revolveQ around the principle that the scope of a civil action 
is not determined by the specific language of the charge filed 
with the agency, but rather, may encompass acts of 
discrimination which the [ ] investigation could reasonably be 
expected to uncover.

Conroy v. Boston Edison Co., 758 F. Supp. 54, 58 (D. Mass. 1991).



7

employer was given clear notice from the EEOC that 
retaliation was at issue." 859 F.2d at 545, n.2. See also 
Seymore v. Shawver & Sons, Inc., I l l  F.3d 794 (10th Cir. 
1997), cert, denied, 118 S.Ct. 342 (1997); Malarkey v. 
Texaco, Inc., 983 F.2d 1204 (2nd Cir. 1993); Ang v. Procter 
& Gamble Co., 932 F.2d 540 (6th Cir. 1991); Steffen v. 
Meridian Life Ins. Co., 859 F.2d 534 (7th Cir. 1988), cert, 
denied, 491 U.S. 907 (1989).

In contrast, Mr. Simms filed an amendment to his 
EEOC charge pursuant to 29 C.F.R. § 1601.12(b) to include 
retaliation as a legal claim and to explain why he believed 
respondent's decision not to promote him was motivated by 
racial discrimination and retaliation for his previous lawsuit. 
This amendment was filed while the underlying EEOC charge 
was still pending before the administrative agency. The 
EEOC accepted Mr. Simms' amendment, investigated the 
amended charge, found cause to believe that the amended 
charge was true, and attempted conciliation. Accordingly, the 
issue before the district court was not whether Mr. Simms 
could include in his lawsuit claims not previously subject to an 
EEOC charge, because he had amended his EEOC charge to 
include the retaliation claims prior to filing his lawsuit.

The distinction between the question presented in 
Steffen, Ang, Malarkey, and Seymore and that at issue in the 
instant case is important. The policy considerations that 
motivated the decisions cited by the respondent are not 
relevant here. The respondent's attempt to conflate the two 
issues only serves to underscore the dangers of severely 
limiting a Title VII complainant's ability to amend a pending 
charge to include additional legal claims stemming from the 
same core of operative facts as in the original charge. When 
the case is viewed from the proper analytic framework, the 
respondent's "list of horribles" of what could result 
disappears. This is in stark contrast to the very real dangers 
of applying the technical rule advocated by the respondent



8

to a process usually initiated by uncounselled complainants.

First, the policy considerations supporting the 
opinions in Seymore, Malarkey, Steffen, and Ang  are distinct 
from those here. In those cases, the courts were motivated 
by the desire to protect the purposes of the EEOC filing 
requirement by providing notice to respondents and 
providing the EEOC opportunity to investigate and attempt 
to conciliate the retaliation claim. See Seymore, 111 F.3d at 
800; Malarkey, 983 F.2d at 1209; Ang, 932 F.2d at 546; 
Steffen, 859 F.2d at 545, n. 2. Here, all purposes of the 
EEOC filing requirement were fulfilled. The respondent 
was given notice of Mr. Simms’ retaliation claims and the 
EEOC thoroughly investigated the charge as amended and 
provided the parties with an opportunity to conciliate all 
claims. The purpose of the statutory exhaustion requirement 
is not furthered by denying a complainant the opportunity to 
pursue such claims in federal court.

Respondent has disingenuously argued that "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 reasonable inference that 
retaliation has taken place" and respondent is, thereby, 
denied notice of the retaliation charge. [R. Br. at 12]. The 
respondent further states that:

. . .  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 
investigator 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.

[R. Br. at 21]. This claim makes no sense. Even if the 
complainant did not mention the retaliation charge in the 
original charge, the standard EEOC investigation of an



9

employee’s discrimination charge would likely reveal 
previous charges by the same employee against the same 
employer. See EEOC Compliance Manual §§602.6(a)(l) and 
(c) (1999 Commerce Clearing House Inc.).

The EEOC’s formal investigation procedures begins 
with an inquiry into the history of the employee’s 
relationship with the employer:

The charging party/complainant provides all of the 
initial information concerning the basis and issue of 
the charge/complaint . . . .  Background information 
includes, but is not limited to, a brief summary of the 
charging party/complainants’s work history with the 
respondent . . . and any other information which 
charging party/complainant feels is relevant to the 
charge/complaint.

EEOC Compliance Manual §602.6(a)(l). A prior EEOC 
charge is likely to be a salient feature of any such history 
and is, therefore, likely to be among the first pieces of 
information gathered by the investigator.

Here, in addition to notification through the EEOC 
process, the respondent was undoubtedly aware of Mr. 
Simms’ prior EEOC charge and Title VII action and that it 
might be at issue because its managers, Kellison and 
LaBoon, received a copy of the settlement order in Simms 
I  and the instant charge was filed only six months after the 
parties reached a settlement in Simms I.

To adopt the per se rule urged by the respondent, 
restricting pre-filing retaliation charges but not post-filing 
retaliation charges, would result in the type of technical 
stringency this Court warned against in Love v. Pullman, 404 
U.S. 522 (1972) and Zipes v. Trans World Airlines, Inc. 
Independent Federation o f Flight Attendants, 455 U.S. 385 
(1982). It neither promotes Title VII nor respects the 
realities of the administrative process often initiated by 
laypersons.



10

Finally, the respondent has misstated the thrust and 
effect of the Tenth Circuit’s opinion in this case. 
Respondent argues that the decision rested on its 
determination that under Seymore v. Shawver & Sons, Mr. 
Simms’ retaliation claims were not "reasonably related" to 
the federal complaint. [R. Br. at 26]. The respondent has 
lumped together two distinct lines of inquiry performed by 
the court of appeals in an attempt to obscure the needlessly 
stringent and technical rule employed by the court.

As discussed above, Seymore and similar cases cited 
by the respondent examine when a claim not included in any 
EEOC charge may still be included in a federal action. 
Thus, in applying the reasoning in Seymore to the present 
case the Tenth Circuit was determining under the 
"reasonably related rule" whether the retaliation claim could 
be so included. But what the respondent has ignored is that 
the foundation for the Tenth Circuit’s "reasonably related" 
analysis is its determination that Mr. Simms’ retaliation 
amendment did not relate back to the date of the original 
charge under §1601.12(b). To reach that conclusion the 
court employed the rule that amendments to an EEOC 
charge alleging new legal claims, even those stemming from 
the same core of operative facts as in the original charge, 
cannot relate back to the date of the original charge. This 
is a hyper-technical approach, divorced from the realities of 
the EEOC administrative process and the facts of this case.

Further belying the respondent’s claim that Mr. 
Simms has imported a circuit split from an unrelated line of 
cases and misrepresented the Tenth Circuit’s opinion is that 
court’s own acknowledgement of a split in the circuits on the 
issue of when an amendment stating new legal claims relates 
back to the date of the original charge. (Pet. App. 7a-8a.)

Conclusion

For the foregoing reasons, the petition for a writ of 
certiorari should be granted and the decision below reversed.



Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J, Chachkin 
Charles Stephen Ralston 
0Counsel o f Record)
Deborah N. Archer 
NAACP Legal Defense and 

Educational Fund, In c .
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 965-2200

Ken Feagins 
Attorney at Law 

629 24th Avenue S.W. 
Norman, OK 73069 
(405) 360-9700

Attorneys fo r  Petitioner