Although we have not addressed whether a plaintiff must cooperate with the EEOC in order to exhaust his or her administrative remedies under the ADEA, we have held that such cooperation is required under both Title VII and the ADA. See McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1107 (10th Cir. 2002) ("[T]he district court was not clearly erroneous in finding that [the plaintiff] failed to cooperate with the EEOC and, therefore, failed to exhaust her administrative remedies [under the ADA]."); Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993) (holding that under Title VII "'[g]ood faith effort by the employee to cooperate with the agency and the EEOC and to provide all relevant, available information is all that exhaustion requires'" and continuing that "when a complainant refuses or fails to provide the agency information sufficient to evaluate the merits of the claim," he or she has not exhausted his or her administrative remedies) (quoting Wade v. Sec'y of Army, 796 F.2d 1369, 1377 (11th Cir. 1986)).

Thus, because we must interpret the similar charge filing requirements of the ADEA, Title VII, and the ADA consistently, we will be bound in this case by our prior Tenth Circuit authority interpreting the charge filing requirements of Title VII and the ADA, unless there is a meaningful difference between this case, McBride, and Khader.

We are convinced of the soundness of our holding in part because other courts of appeals have dismissed ADEA cases in which the charging party failed to cooperate with the investigating federal agency. For example, the D.C. Circuit affirmed the dismissal of an ADEA suit in Rann v. Chao, 346 F.3d 192, 198, 199 (D.C. Cir. 2003), based on a federal employee's failure to cooperate in an investigation conducted by the Labor Department's Equal Employment Opportunity office. In that case, following an unsuccessful attempt at informal mediation with the Labor Department, Rann provided an investigator with an initial formal complaint, but then failed to respond to repeated requests to submit a signed affidavit or to provide additional details. Id. at 194. Concluding that Rann had engaged in "months of . . . stonewalling" and had "in no way attempted to exhaust the administrative process," the D.C. Circuit held that his claim had properly been dismissed. Id. at 196-97; see also Wrenn v. Sec'y, Dep't of Veterans Affairs, 918 F.2d 1073, 1078 (2d Cir. 1990) (noting that a federal employee must participate in the administrative investigation of his ADEA charge in good faith and that the failure to do so may preclude the bringing of an age discrimination claim, since "[a] claimant . . . must cooperate in the administrative investigation of the complaint by making specific charges and by providing information necessary to the investigation") (internal citations omitted). While these cases involved federal employees, they are persuasive in the case at bar for the reasons discussed in connection with Khader.

A number of federal district courts have dismissed ADEA suits in which charging private sector employees failed to cooperate or otherwise failed to exhaust their administrative remedies. See Haggard v. Standard Register Co., No. 01-2513-CM, 2003 WL 22102133 at *6 n.3 (D. Kan. Aug. 1, 2003) (unpublished) ("[A]llowing a plaintiff to proceed with an ADEA claim after failing to cooperate with the EEOC would thwart the administrative process and turn the EEOC filing requirement into a mere formality."); Green v. Heidelberg U.S.A., 854 F. Supp. 511, 513 (N.D. Ohio 1994) (dismissing suit based on the plaintiff's failure to cooperate with the EEOC where the plaintiff failed to respond to the EEOC's efforts to interview him regarding his allegations); see also Kozlowski v. Extendicare Health Servs., Inc., No. 99-4338, 2000 WL 193502 at *3-4 (E.D. Pa. Feb. 17, 2000) (unpublished) (noting that a claimant is required to cooperate with the EEOC during the sixty-day period of the EEOC's exclusive jurisdiction over an ADEA charge but refraining from dismissing the suit because the record did not make clear whether the plaintiff's non-cooperation had occurred during or after this sixty-day period).⁽⁴⁾ Such holdings give us further confidence in our own holding.

1. Public Policy

Requiring a claimant to cooperate with the EEOC in order to exhaust his or her administrative remedies under the ADEA is consistent with established public policy emphasizing the importance of voluntary cooperation in the enforcement of federal antidiscrimination laws. The ADEA embodies this policy in stating that the EEOC "shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance . . . through informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(b); see also 29 C.F.R. § 1626.15. Moreover, in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Supreme Court observed:

Cooperation and voluntary compliance were selected as the preferred means for achieving [Title VII's] goal. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit.

Id. at 44. Other courts of appeals have noted that cooperation by the charging party is indispensable to the EEOC's processing of a charge. See, e.g., Jordan v. United States, 522 F.2d 1128, 1131 (8th Cir. 1975) ("Implicit in the . . . attempted control of . . . discrimination by administrative and judicial machinery is a degree of cooperation from the complaining party. A full development of the pertinent facts cannot be had without the disclosure by the aggrieved employee of the facts serving as a basis for his complaint."); Wrenn, 918 F.2d at 1078-79 ("The purpose of the good faith participation requirement is to give the administrative process an opportunity to work and to enhance the chances of administrative resolution."); Hill v. Potter, 352 F.3d 1142, 1146 (7th Cir. 2003) ("[R]efus[al] to cooperate with the EEOC" constitutes "a worse form" of "failure to exhaust" than not initiating the administrative process at all.). This is because the time is intended to be used for meaningful dialogue and conciliation efforts, not just as a cooling-off period, and the EEOC cannot engage in conciliation without the active engagement of both sides to a dispute.

Indeed, in drafting the ADEA, Congress opted to require would-be plaintiffs to wait sixty days before filing suit precisely to afford the EEOC or its state counterpart the opportunity to conciliate disputes informally and thereby to divert them from the courts. See H.R. Conf. Rep. No. 950, 95th Cong., 2d Sess. 12 (1978), reprinted in 1978 U.S.C.C.A.N. 504, 534; Howard Eglit, 1 Age Discrimination § 6.37 at 6-229 (2d ed. 1994); see also Oscar Mayer, 441 U.S. at 755 ("Congress intended through [Title VII] to screen from the federal courts those problems of civil rights that could be settled to the satisfaction of the grievant in a voluntary and localized manner.") (internal quotations and citations omitted).

More generally, the law often imputes a requirement of good faith to the performance of obligations. Given the importance of voluntary cooperation to the enforcement of federal antidiscrimination laws, it seems reasonable that so many courts have imputed a requirement of good faith in the filing and prosecution of a charge with the EEOC. A claimant who files a charge and then totally fails to cooperate with the EEOC has not complied with this requirement. Thus, while our holding is driven by precedent, the holding is also consistent with public policy.

1. Statutory Text

The EEOC argues that the text of the ADEA specifies only a handful of administrative requirements that a private sector plaintiff must fulfill before bringing a discrimination lawsuit. The statute is silent as to whether a plaintiff must cooperate with the EEOC during its investigation of his or her claim. Thus, the EEOC argues that cooperation cannot be required as a prerequisite to suit.

It is true that the Supreme Court has refused to read into the ADEA procedural prerequisites to suit that are not expressly provided in the text of the statute. For example, Oscar Mayer refuses to read into 29 U.S.C. § 633 (the ADEA provision requiring plaintiffs to commence state administrative proceedings before filing suit) an additional requirement that the state charge be timely filed under state law. 441 U.S. at 758-65.

However, Oscar Mayer is distinguishable from the case at bar. If Oscar Mayer had adopted a rule requiring plaintiffs to commence state proceedings in a timely fashion under state law as a prerequisite to filing suit in federal court under the ADEA, a plaintiff's ability to enforce his or her federal rights might have been foreclosed by states setting unreasonably short statutes of limitations for the filing of state charges. Thus, Oscar Mayer rests in part on concerns of one sovereign foreclosing rights guaranteed by the statutes of another. Id. at 760-61. Such concerns distinguish Oscar Mayer from the case at bar, in which the allegedly additional procedural requirements under consideration are under the control of the same sovereign guaranteeing the right.

Moreover, at issue in Oscar Mayer were completely new requirements--state statutes of limitations--not anchored to something already in the statute. 441 U.S. at 760. At issue in the case at bar is not a completely new requirement; instead, at issue is the natural implication of criteria already in the statute. The need for cooperation with the EEOC is inherent in the EEOC filing requirements already in the statute and is integral to the overall structure of the statute. Such cooperation is necessary to ensure that a charge is not a sham and that it instead provides enough information to make conciliation attempts meaningful. Thus Oscar Mayer is distinguishable from the case at bar.

Our conclusion that Oscar Mayer is distinguishable from the case at bar draws support from the way that we and other courts have construed Title VII. The Supreme Court has noted that Title VII, like the ADEA, specifies "with precision" the administrative requirements that a private sector plaintiff must satisfy before bringing a discrimination lawsuit. Alexander, 415 U.S. at 47. The Court has stated that the prerequisites to suit under Title VII, like the ADEA, are only those contained in the statutory text. See McDonnell Douglas, 411 U.S. at 798 (noting that the prerequisites to filing a Title VII suit are filing a timely charge and acting after receiving a notice of right to sue). And the Court has rejected attempts to read requirements into Title VII, like the ADEA, beyond those expressly provided by Congress. See, e.g., Mohasco Corp. v. Silver, 447 U.S. 807, 816 n.19 (1980) (striking down a judicially-created requirement that a Title VII plaintiff initiate state proceedings within 180 days of the alleged discrimination); McDonnell Douglas, 411 U.S. at 798-99 (rejecting the argument that a plaintiff could not initiate a Title VII lawsuit unless the EEOC had found reasonable cause on the claim).

Nevertheless, following these decisions, we and other courts have ruled that a claimant must cooperate with the EEOC in order to exhaust his or her administrative remedies under Title VII. See, e.g., Khader, 1 F.3d at 971; see also McBride, 281 F.3d at 1107 (addressing the ADA). That is, courts have held that Title VII contains a cooperation requirement, despite the Supreme Court's admonition that no requirements beyond those in the statute should be imposed. Thus, it is clear that we and other courts have viewed the need for cooperation as implicit in Title VII, and not as an additional requirement beyond those provided in the statute itself.⁽⁵⁾

1. EEOC Concerns

1. Degree of Deference

The EEOC states in its amicus brief that it "does not agree that a charging party's failure to cooperate during the administrative process precludes him from later proceeding against his employer in court." Rather, the EEOC argues that "if the charging party has satisfied the express prerequisites to suit [laid out in the text of the ADEA], he has the right to sue his employer, based on the charge, and have a court determine the merits of his discrimination claim."

The EEOC is the principal arm of the federal government charged with eradicating employment discrimination, see Reorg. Plan No. 1 of 1978, 3 C.F.R. 321 (1979), and the ADEA vests the EEOC with full power to issue legislative rules. See 29 U.S.C. § 628. This suggests that the EEOC's interpretations of the ADEA may bind courts' interpretation of the statute. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).

However, "amicus briefs, opinion letters, and policy guidances do not reflect the deliberate exercise of interpretive authority that regulations and guidelines demonstrate." Rebecca Hanner White, The EEOC, the Courts, and Employment Discrimination Policy: Recgnizing the Agency's Leading Role in Statutory Interpretation, 1995 Utah L. Rev. 51, 105. Thus, the Supreme Court has not afforded Chevron deference to EEOC "interpretations" promulgated only in such materials. See Gregory v. Ashcroft, 501 U.S. 452 (1991) (refusing to defer to EEOC conclusion articulated only in the course of litigation, rather than in a deliberative exercise of interpretive authority)⁽⁶⁾; Skidmore v. Swift & Co., 323 U.S. 134, 138-40 (1944) (giving limited deference to FLSA administrator's interpretations issued in interpretive bulletin, opinion letters, and amicus brief).

In this case, the EEOC simply asserts its position in an amicus brief.⁽⁷⁾ Thus we are not bound by the agency's interpretation of the prerequisites to suit under the ADEA. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) ("We have never applied [Chevron deference] to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice.").

Moreover, the agency's position is not particularly persuasive. See Skidmore, 323 U.S. at 140 ("The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control."). The EEOC's brief provides no indication of whether the agency has been thorough in its consideration of the issue, and it appears that the agency's position has not been subjected to any sort of public scrutiny. The agency's interpretation is not one adopted contemporaneously with the passage of the ADEA. See General Elec. Co. v. Gilbert, 429 U.S. 125, 142 (1976). Moreover, the agency's position is directly contrary to the numerous well-supported opinions from the Supreme Court and various courts of appeals highlighting the importance of voluntary cooperation to the enforcement of the federal antidiscrimination statutes generally, and the ADEA in particular.

Thus, we need not and do not afford significant deference to the EEOC's litigation position. 2. Effect of EEOC Conduct on Judicial Review

The EEOC also argues that requiring a charging party to cooperate with the EEOC is in tension with a long line of cases holding that the EEOC's conduct during the administrative process does not affect the charging party's right to a de novo judicial determination of the merits of his complaint. (EEOC Br. at 18.) See, e.g., Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991); Associated Dry Goods Corp. v. EEOC, 720 F.2d 804, 809 & 812 (4th Cir. 1983); Ward v. EEOC, 719 F.2d 311, 313-14 (9th Cir. 1983). The EEOC's principal concern is that if it dismisses cases based upon an EEOC determination of a claimant's failure to cooperate, courts will not be able to make a true de novo interpretation of whether cooperation really occurred. The EEOC argues that a district court will not be able to make a de novo determination of whether a plaintiff's non-cooperation constitutes a failure to exhaust without giving some effect to the EEOC's handling of the charge. As a result, the EEOC believes its "investigators may feel constrained to retain charges . . . even though that means devoting less time to charges that, in the investigator's judgment, would otherwise warrant more extensive treatment."

The EEOC's argument ignores the reality that the district court's review is of the conduct that gave rise to the agency's decision to dismiss, not the agency's decision itself. See McBride, 281 F.3d at 1105-06 ("It is for the district court to determine whether the plaintiff has complied with the regulatory requirements when the defendant raises the issue of failure to exhaust administrative remedies."). We have evaluated Shikles' cooperation with the EEOC without relying on the EEOC's decision to dismiss his charge.⁽⁸⁾

1. Application

In this case, Shikles failed to cooperate with the EEOC at all. Shikles failed to make himself available for a telephone interview. He failed to provide the EEOC with the documents that it requested, or to explain why he could not provide such documents. His attorney did not respond at all to several of the EEOC's attempts to contact him. While we do not hold that any of these facts, on its own, conclusively determines that Shikles failed to cooperate with the EEOC, the combination indicates the total lack of a good faith effort at cooperation. Thus, because Shikles failed to make a good faith effort to cooperate with the EEOC and provide the agency with information sufficient to evaluate the merits of his claim, he failed to exhaust his administrative remedies under the ADEA.⁽⁹⁾ See Khader, 1 F.3d at 971.

1. Exhaustion as a Jurisdictional Prerequisite to Suit

It is well-established that Title VII requires a plaintiff to exhaust his or her administrative remedies before filing suit. See Ingels v. Thiokol Corp., 42 F.3d 616, 624-25 (10th Cir. 1994); Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996). The ADEA's exhaustion requirement is somewhat less well-established in this circuit, but it is nonetheless clear that such a requirement exists. See Foster, 365 F.3d at 1194.

Unlike many other circuits, we have held that a plaintiff's exhaustion of his or her administrative remedies is a jurisdictional prerequisite to suit under Title VII--not merely a condition precedent to suit. See Jones, 91 F.3d at 1399 n.1. Because the ADEA and Title VII have virtually identical requirements with respect to the filing of EEOC charges, see Foster, 365 F.3d at 1194, our holdings on the jurisdictional effect of Title VII filings determine the jurisdictional effect of ADEA filings. See In re Smith, 10 F.3d at 724. As a result, we hold that a plaintiff's exhaustion of his or her administrative remedies is a jurisdictional prerequisite to suit under the ADEA.

In this case, Shikles failed to exhaust his administrative remedies. Thus, the district court lacked subject matter jurisdiction over his claim.

1. Proper Disposition of the Case

"In general . . . summary judgment is an inappropriate vehicle for raising a question concerning the court's subject-matter jurisdiction . . . . Therefore, although some courts have entered summary judgment on jurisdictional grounds, the general rule is that it is improper for a district court to enter judgment under Rule 56 for defendant because of a lack of jurisdiction." Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2713, at 235 (citations omitted); see Thompson v. United States, 291 F.2d 67, 68 (10th Cir. 1961). When a district court correctly determines that it lacks subject matter jurisdiction over a case, but incorrectly determines that the lack of subject matter jurisdiction justifies the entry of summary judgment, we have vacated the judgment and remanded the case to the district court for entry of an order dismissing the case. See Thompson, 291 F.2d at 68.

Thus, in this case, while the district court correctly determined that Shikles was required to cooperate with the EEOC in order to exhaust his administrative remedies, and correctly determined that Shikles' exhaustion of administrative remedies was a jurisdictional prerequisite to his ADEA suit, the court erred in granting summary judgment to Sprint. Rather, the district court should have dismissed Shikles' case based on a lack of subject matter jurisdiction.

For the foregoing reasons, we VACATE the district court's judgment in favor of Sprint and REMAND the case to the district court with instructions to dismiss the case for lack of subject matter jurisdiction.

^*. The Honorable Stephen P. Friot, District Court Judge, Western District of Oklahoma, sitting by designation.

^1.Specifically, in a June 17, 2002 letter the EEOC investigator assigned to Shikles' case, Michael Katz, requested that Shikles participate in a telephone interview so that the EEOC could determine whether to investigate his claim further. Katz advised Shikles' attorney that because the EEOC's ability to make an appropriate processing decision depended on the agency's obtaining information from Shikles, if the interview with Shikles were not conducted within thirty days, Katz would recommend that the EEOC cease processing the charge based on Shikles' failure to cooperate.

On June 27, Katz scheduled a telephone interview with Shikles for July 10, 2002. In a July 2 follow-up letter to Shikles' attorney confirming the interview, Katz asked Shikles to forward detailed information in advance of the interview on his claim that he had been denied promotional opportunities. Shikles did not submit the requested information, and asked the EEOC to reschedule the interview from July 10 to July 19, 2002. The July 19 interview was cancelled at Shikles' attorney's request. Katz attempted to contact Shikles' attorney by telephone four times after July 19 to reschedule the interview, but received no response.

On August 1, 2002, Katz sent both Shikles and Shikles' attorney a letter, warning that if Shikles did not participate in a telephone interview by August 19, 2002, Katz would recommend that Shikles' charge be dismissed. On August 6, 2002, Katz and Shikles arranged a telephone interview for August 16, 2002. On August 16, Shikles' attorney cancelled the interview.

^2.When the ADEA was first enacted, this authority was vested in the Secretary of Labor, but it was later transferred to the EEOC. See Reorg. Plan No. 1 of 1978 § 2, 3 C.F.R. 321 (1979), reprinted in 92 Stat. 3781 (1978) and 5 U.S.C.A. app. 458 (West 1996).

^3.Oscar Mayer addressed the ADEA's requirements for filing a charge with state authorities, not the ADEA's requirements for filing a charge with the EEOC that are applicable in this case. However, because Foster and Zipes address the ADEA's charge-filing requirements more generally, and do not focus on those provisions dealing with cross-filings with state authorities, those cases make clear that the logic of Oscar Mayer extends to other ADEA provisions setting out requirements for filing charges. See Foster, 365 F.3d at 1194 (addressing whether plaintiffs' EEOC charges were sufficient to exhaust their failure to hire claims); Zipes, 455 U.S. at 395 n.11 (addressing whether filing a charge with the EEOC is a jurisdictional prerequisite to suit).

^4.Cf. Brown v. Tomlinson, 383 F. Supp. 2d 26, 29 (D. D.C. 2005) (finding that the plaintiff failed to exhaust his administrative remedies as required by Title VII by failing to comply with EEOC procedures, submitting incomplete and tardy discovery responses, and initiating his own discovery efforts only half-heartedly); Smith v. Koplan, 362 F. Supp. 2d 266, 268 (D. D.C. 2005) (stating, in the context of a Title VII claim, that "[c]ourts equate cases of failing to cooperate with the agency as cases where a plaintiff has failed to exhaust her administrative remedies").

^5.Even if Oscar Mayer were not distinguishable, because Oscar Mayer was decided before McBride and Khader, the Tenth Circuit cases control. In re Smith, 10 F.3d at 724.

^6.In a separate opinion, Justice White stated that EEOC's litigating position not expressed in any formal issuance from the agency, such as a regulation, guideline, policy statement, or administrative adjudication, is entitled to little if any deference.

Gregory, 501 U.S. at 485 n.3 (White, J., concurring in part, dissenting in part, and concurring in the judgment).

^7.To the extent that the EEOC argues that its position is laid out in its Dismissal and Notice of Rights form and in regulations found at 29 C.F.R. §§ 1601.18, 1601.28, and 1626.18, see (EEOC Br. at 16-17.), and therefore is entitled to greater deference, the EEOC's contention is without merit. There is no indication that the EEOC's form represents the sort of "deliberative conclusions as to the meaning of [the] laws" the EEOC is charged with enforcing that would entitle such a form to deference. NationsBank of N.C., N. A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 256-57 (1995). Moreover, the general phraseology of both the form and the regulations cited by the EEOC does not support the specific proposition that the EEOC advances in this litigation.

^8.The EEOC also argues that it is odd to say that because Shikles did not withdraw from the EEOC proceeding sixty days after its inception by filing suit--as under the statute he permissibly could have done--he should be barred from bringing an action based on the EEOC's dismissal of his case some thirty-one days later. (EEOC Br. at 24-25.) However, Shikles is barred from bringing suit, not because the EEOC determined approximately ninety-one days after he filed suit that he was not cooperative, but rather because he was not cooperative at any time after he filed a charge--including the first sixty days after filing. Thus, we would reach the same result if Shikles had filed suit immediately after the sixty-day period had expired.

^9.There is no need to limit our examination of Shikles' cooperativeness to the sixty day period during which the EEOC had exclusive jurisdiction over his charge. Rather, we look to the entire time during which the EEOC's investigation of Shikles' complaint was ongoing because during that time the EEOC continued to attempt to gather the information necessary to resolve this dispute. Only when the EEOC brought that process to an end by dismissing Shikles' complaint was his further non-cooperation excused.

Of course, Shikles also could have brought that process to an end by filing suit after sixty days. If a plaintiff ceases cooperating with the EEOC after he or she files suit, that subsequent non-cooperation would not result in the plaintiff failing to exhaust his or her administrative remedies, provided he or she has fulfilled all the other prerequisites to suit under the ADEA. This is because at the point that the plaintiff files suit, the usefulness of the EEOC's efforts to divert the case from the courts ends.

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