The appellant, Harry M. Williams, brought suit in federal district court against both his former employer, the Washington Metropolitan Area Transit Authority (WMATA), and his union, Local 689, Amalgamated Transit Union, AFL-CIO, charging each with discrimination under Title VII of the Civil Rights Act of 1964, Sec. 701 et seq., Pub.L. No. 88-352, 78 Stat. 253 (1964) (codified as amended at 42 U.S.C. Sec. 2000e et seq. (1976)). The district judge found that Williams had failed to comply with the filing requirements set forth in 42 U.S.C. Sec. 2000e-5.1 She therefore granted defendants' motions to dismiss, or, in the alternative, for summary judgment.

The question on appeal is whether the district court erred in ruling that there was no genuine issue of material fact so as to preclude summary judgment.2 We hold that the district court did err because there are outstanding issues of fact that relate to whether the District of Columbia Office of Human Rights (DCOHR or OHR) was the actual agent of the Equal Employment Opportunity Commission (EEOC) for filing purposes, or whether OHR had the apparent authority to accept charges on behalf of EEOC.

Accordingly, we vacate the district court ruling and remand for further proceedings consistent with this opinion.

Appellant was dismissed from his job on December 15, 1976. On March 28, 1977, he filed a charge of discrimination against his former employer, WMATA, with OHR. Approximately three and one-half months later, he amended his charge to include the union.

OHR eventually found probable cause to believe that WMATA, but not the union, had engaged in a discriminatory practice. On July 25, 1979, after an unsuccessful conciliation attempt by OHR, but before any hearing on the allegations, OHR informed the appellant of a ruling by the District of Columbia Office of Corporation Counsel that OHR lacked jurisdiction over WMATA and that it could proceed no further on his claim. Appellant's Exhibit F. The following three years, during which Williams did not file a charge directly with the EEOC, were marked by procedural confusion. According to an affidavit submitted by Williams, for example, the EEOC continued to reassure him for more than a year after appellant received the July 25, 1979 letter that it was working on his complaint. Affidavit of Harry M. Williams (Aug. 20, 1982). In addition, according to the record in its current state, appellant could get no definitive word from EEOC as to the status of his right-to-sue notice until February 22, 1982. Appellant's Exhibit M. Nonetheless, Williams filed this action in district court in June, 1982.

After analyzing the events that occurred between July 25, 1979 and the initiation of court action by Williams on June 21, 1982, the trial court found that appellant had failed to comply with the statutory prerequisites to the commencement of a Title VII court action or to establish a case for "equitable tolling" of these prerequisites. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982). At the same time, however, the court found that OHR had a contractual agreement to cross-file complaints with EEOC, Memorandum Opinion, September 29, 1982, at 5; see Appellant's Exhibit O. It concluded nonetheless that the agreement was irrelevant since "the record [did] not indicate that plaintiff detrimentally relied on it." Id. at 5.

In reaching this conclusion, the district court missed the point. If, in reality, the agreement established OHR as an agent of EEOC for filing purposes, the statutory EEOC filing requirement was in fact satisfied. Whether the agreement between OHR and EEOC did create an actual agency relationship is an issue of material fact that should be resolved. Also, even if the strict legal conditions of an actual agency relationship did not exist, the factual issue of whether OHR had the "apparent authority" to accept filings on behalf of EEOC should be resolved.

A motion for summary judgment may be granted only when it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). In ruling on a summary judgment motion, the court must draw all inferences from the record in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam).

Indeed, "the record must show the movant's right to [summary judgment] 'with such clarity as to leave no room for controversy,' and must demonstrate that his opponent 'would not be entitled to [prevail] under any discernible circumstances.' "

Summary judgment is unavailable if it depends upon any fact that the record leaves susceptible of dispute.

National Association of Government Employees v. Campbell, 593 F.2d 1023, 1027 (D.C.Cir.1978) (footnote omitted) (quoting Nyhus v. Travel Management Corporation, 466 F.2d 440, 440 (D.C.Cir.1972)). This is the standard both at trial and on appeal. Weiss v. Kay Jewelry Stores, Inc., 470 F.2d 1259 (D.C.Cir.1972); Libby v. L.J. Corp., 247 F.2d 78 (D.C.Cir.1957).

B. Filing With OHR As Satisfying the Required Filing With EEOC

In a case with facts remarkably similar to the one before us today, the District Court for the District of Columbia held that a genuine factual issue did exist as to whether the EEOC filing had been properly made, and accordingly denied a summary judgment motion with respect to a Title VII claim. In Lamont v. Forman Brothers, Inc., 410 F. Supp. 912 (D.D.C.1976), the plaintiff charged his former employer with violations of numerous civil rights provisions. Among those asserted violations was a Title VII claim, which Lamont had lodged with DCOHR soon after he was fired. Despite the alleged existence of "an understanding" between DCOHR and EEOC that the former would timely cross-file its complaints with the EEOC, EEOC did not receive Lamont's charge until approximately one and one-half years after the allegedly discriminatory incident took place, apparently because of an administrative foul-up at DCOHR. Defendant moved for dismissal of the Title VII charge, asserting that Lamont had failed to lodge a timely complaint with the EEOC.

The district court denied defendant's motion. It held that "Mr. Lamont should not suffer dismissal of his Title VII claim if he was misled by DCOHR or if filing with DCOHR amounted to filing with the EEOC according to the established procedures of those agencies." 410 F. Supp. at 916. In so doing, the court rejected a summary dismissal on two levels. It ruled that dismissal of Lamont's charge was improper, apparently because OHR might have been the agent of EEOC for filing purposes or because OHR might have had the apparent authority to accept charges on behalf of EEOC. If either were the case, filing with OHR would constitute filing with EEOC, and the statutory filing requirement would be met.

In the case before us, the existence of evidence in the record to support these two "agent" and "apparent authority" theories, particularly when viewed in the light most favorable to appellant, makes summary judgment improper.

Reminiscent of Lamont, Appellant's Exhibit O,3 the affidavit indicating that OHR had a "contractual agreement" to cross-file with EEOC, suggests that the local agency might have been an agent of EEOC for filing purposes. Numerous cases have found such agency relationships to exist, both between a federal and a state agency and between two federal agencies. See, e.g., Reynolds Metals v. Rumsfeld, 564 F.2d 663 (4th Cir.1977) (recognizing the validity of a Memorandum of Understanding between the EEOC and the Office of Federal Contract Compliance (OFCC), which provided that complaints filed with the latter should be deemed filed with the former), cert. denied, 435 U.S. 995, 98 S. Ct. 1646, 56 L. Ed. 2d 84 (1978); Kahn v. Pepsi Cola Bottling Group, 526 F. Supp. 1268, 1269 (E.D.N.Y.1981) ("By checking a box on the bottom of the charge form, plaintiff indicated that he also charged Pepsi Cola with violating Title VII and authorized the State Division to accept his Title VII complaint on behalf of the EEOC."); Hall v. Board of County Commissioners of Frederick County, 509 F. Supp. 841, 844 (D.Md.1981) ("Under the work sharing agreement in force when plaintiff filed her state charge, the EEOC had designated the [state commission] as 'an agent of EEOC for the purpose of receiving charges on behalf of EEOC.' "); McDonnell Douglas Corp. v. Marshall, 465 F. Supp. 22, 29 (E.D.Mo.1978), aff'd sub nom. Emerson Electric Co. v. Schlesinger, 609 F.2d 898 (8th Cir.1979); State Division of Human Rights on Complaint of Fitzhugh v. Monroe, 88 Misc. 2d 16, 386 N.Y.S.2d 317, 320 (N.Y.Sup.Ct.1976) ("By a Memorandum of Understanding between the [state] Division and the Commission in 1972, the Division ... is constituted a filing agent by the Commission."). In addition, the apparent use by OHR of EEOC forms4 may indicate that OHR was an EEOC agent for filing purposes.

Because the district court did not pass on the actual agency question, we remand for determination of that issue.5

Moreover, remand is necessary to determine whether OHR possessed the apparent authority to act on EEOC's behalf in this case.6 Unlike actual agency, which exists whether or not the third party knows of or suspects an agency relationship, apparent agency depends in large part upon the representations made to the third party and upon the third party's perception of those representations.7 In other words, in the present case, one of the questions the district court must ask is whether Williams detrimentally relied on OHR's apparent authority to receive charges on behalf of the EEOC at the time he lodged a charge with OHR. The district court's sharp focus on the events that took place after the OHR filing, see Memorandum Opinion, September 29, 1982, at 2-3, supports its conclusion that the equitable tolling doctrine, established by Zipes v. Trans World Airlines, 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982), does not operate to extend the period in which Williams was required to file with the EEOC up to the time when he actually filed this suit. However, summary judgment is precluded by the possibility that, when appellant went to file with the OHR on March 28, 1977, he relied on OHR's apparent authority to accept charges on behalf of EEOC.8 Accordingly, we believe that a second issue of material fact must be resolved.

In determining whether OHR in this case was vested with the apparent authority of EEOC for filing purposes, the district court must remember that the creation and termination of apparent authority rests with the principal. Restatement (Second) of Agency Secs. 27, 49 comment c, 125, 125 comment a (1958); H. Reuschlein & W. Gregory, Agency and Partnership Sec. 23(c) (1979).9 Evidence that EEOC created such apparent authority may include much of the evidence relevant to whether OHR was the actual agent of EEOC. See H. Reuschlein & W. Gregory, Agency and Partnership Sec. 23 (Supp.1981) ("In many cases the same evidence may be relevant to theories of express, implied, apparent, and inherent authority."). The EEOC's February 22, 1982 letter to appellants' lawyer, in which EEOC recognized that it was only by dint of an administrative error that Williams' charge was never forwarded to it, would be relevant. Appellant's Exhibit M; see Appellant's Exhibit I. Also, the sworn statement from the OHR director (Appellant's Exhibit O) and the use by OHR of EEOC Form 5 as part of its intake procedure (Appellant's Exhibit A) may indicate that EEOC established apparent authority in OHR.10 The district court also should consider that the EEOC need not have intentionally established a relationship with OHR in order to have vested apparent authority in the local agency. Indeed, the apparent authority of OHR to accept filings on behalf of EEOC may have sprung from the negligence of EEOC in failing to correct representations made by the local agency through the known use of such items as the EEOC form. See Fargo National Bank v. Massey-Ferguson, Inc., 400 F.2d 223, 226 (8th Cir.1968); Kamen & Co. v. Paul H. Aschkar & Co., 382 F.2d 689, 695 (9th Cir.1967), cert. dismissed, 393 U.S. 801, 89 S. Ct. 40, 21 L. Ed. 2d 85 (1968); H. Reuschlein & W. Gregory, Agency and Partnership Sec. 23(c) (1979); Restatement (Second) of Agency Sec. 49 comment c, illustration 5 (1958).

Our holding today reaffirms the general belief that the application of Title VII's procedural requirements be "animated by the broad humanitarian and remedial purposes underlying the federal proscription of employment discrimination." Coles v. Penny, 531 F.2d 609, 616 (D.C.Cir.1976). Our direction of remand for further factual determinations is consistent with the Supreme Court's "flexible approach toward filing requirements." Egelston v. State University of Geneseo, 535 F.2d at 755 n. 4 (citing Love v. Pullman, 404 U.S. 522, 92 S. Ct. 616, 30 L. Ed. 2d 679 (1972)).11 It expresses no opinion as to what the result of those determinations should be.12