Table of Authorities............................................................................... iii
Introduction............................................................................................. 1
Argument................................................................................................. 3
I. Vantage misunderstands the ADA’s
charge-filing standards and
EEOC’s enforcement process....................................................... 3
A. At the charge-filing stage, the
requirements and administrative
procedures are identical,
regardless of whether EEOC or a
private party may sue later................................................... 4
B. Vantage misconstrues the ten-day
notice provision.......... 7
II. EEOC’s averment that “all conditions
precedent” were met
satisfied the general pleading
requirement of Rule 9(c).......... 9
III. Poston’s intake questionnaire
constituted a charge of
discrimination under Holowecki
and Edelman........................ 14
A. Holowecki applies to
Title VII and the ADA.................... 14
1. Holowecki’s
reasoning is not tied to the ADEA.......... 15
2. Holowecki applies
notwithstanding the ADA’s
verification
requirement............................................. 16
3. Melgar does not
dictate a different result................... 19
4. Holowecki applies
to EEOC suits................................. 20
B. Poston’s intake questionnaire
satisfies Holowecki............... 21
C. Under Edelman, Poston’s
intake questionnaire was
timely verified as a charge
before Vantage was required
to respond.............................................................................. 26
IV. This case does not raise due process
concerns...................... 34
Conclusion.............................................................................................. 37
Certificate of Compliance................................................................... C-1
Certificate of Service............................................................................ C-2
Table of Authorities
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2007)......................................... 9, 12, 13, 14
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007).............................................. 9, 13, 14
Carlson v. Christian Bros.
Servs.,
840 F.3d 466 (7th Cir. 2016).......................................... 25
Conner v. Louisiana Dep’t of
Health & Hosps.,
247 F. App’x 480 (5th Cir. 2007).................................. 18
Edelman v. Lynchburg Coll.,
535 U.S. 106 (2002)................................................. passim
EEOC v. Airguide Corp.,
539 F.2d 1038 (5th Cir. 1976).............................. 8, 31, 32
EEOC v. Klingler Elec.,
636 F.3d 104 (5th Cir. Unit A Feb. 1981) (per curiam)........................................................................................ 12
EEOC v. Magnolia Elec. Power Ass’n,
635
F.2d 375 (5th Cir. 1981).......................................... 35
EEOC v. Serv. Temps, Inc.,
No. 3:08-CV-1552-D, 2010 WL 1644909 (N.D.
Tex. April 22, 2010)............................................ 14
EEOC v. Shell Oil Co.,
466 U.S. 54 (1984).............................................. 4, 5, 8, 27
EEOC v. Simbaki Ltd.,
767 F.3d 475 (5th Cir. 2014).......................................... 24
EEOC v. Standard Forge &
Axle Co.,
496 F.2d 1392 (5th Cir. 1974).............................. 9, 10, 14
EEOC v. Times-Picayune Pub.
Corp.,
500 F.2d 392 (5th Cir. 1974) (per curiam)................... 10
EEOC v. U.S. Steel Corp.,
No. 10-cv-1284, 2012 WL 3017869 (W.D. Pa. 2012).... 13
Federal Express Corp. v.
Holowecki,
552 U.S. 389 (2008)................................................. passim
Fort Bend Cty. v. Davis,
139
S. Ct. 1843 (2019)...................................................... 7
Hamilton v. Geithner,
743 F. Supp. 2d 1 (D.D.C. 2010)................................... 13
Hildebrand v. Allegheny Cty.,
757 F.3d 99 (3d Cir. 2014)....................................... 13, 24
Hoffman v. Boeing,
596 F.2d 683 (5th Cir. 1979).................................... 11, 12
Ledbetter v. Goodyear Tire
& Rubber Co.,
550 U.S. 618 (2007).................................................. 28, 29
Mach Mining, LLC v. EEOC,
135 S. Ct. 1645 (2015).................................................... 35
Melgar v. T.B. Butler Publ’g
Co.,
931 F.3d 375 (5th Cir. 2019)................................... passim
Occidental Life Ins. Co. v.
EEOC,
432 U.S. 355 (1977).......................................... 4, 6, 35,
36
Patton v. Jacobs,
874 F.3d 437 (5th Cir. 2017).................................... 18, 19
Price v. Sw. Bell Tel. Co.,
687 F.2d 74 (5th Cir. 1982).............................................. 5
Reyes v. Tidewater Inc.,
No. CV-17-17739, 2018 WL 4739671 (E.D. La. Oct. 2, 2018)............................................................................... 19
Tuchman v. DSC Commc’ns Corp.,
14 F.3d 1061 (5th Cir. 1994).................................... 10, 11
United States v. Nava-Perez,
242 F.3d 277 (5th Cir. 2001).......................................... 19
Weeks v. S. Bell Tel. &
Tel. Co.,
408 F.2d 228 (5th Cir. 1969).......................................... 29
Zipes v.
World Airlines, Inc.,
455
U.S. 385 (1982).......................................................... 7
Statutes
42 U.S.C. § 2000e-5(b)................................................ passim
42 U.S.C. § 2000e-5(e)(1)............................................. 4, 6,30
42 U.S.C. § 2000e-5(f)(1).............................................. 4, 5, 7
42 U.S.C. § 2000e-16(c)...................................................... 11
Regulations
29 C.F.R. § 1601.7(a)................................................. 7, 30, 33
29 C.F.R. § 1601.9............................................................... 33
29 C.F.R. § 1601.12........................................................... 2, 7
29 C.F.R. § 1601.12(a)......................................................... 22
29 C.F.R. § 1601.12(b).................................................. passim
29 C.F.R. § 1601.14(a)..................................................... 7, 30
Rules
5th Cir. R. 25.2.10............................................................... 34
Fed. R. Civ. P. 8(a)........................................................ 10,
13
Fed. R. Civ. P. 9(b)............................................................. 11
Fed. R. Civ. P. 9(c)....................................................... passim
Fed. R. Civ. P. 12(b)(6)............................................. 9, 11, 12
As explained in EEOC’s opening brief, a
straightforward application of two Supreme Court cases leads to the conclusion
that Poston’s timely-filed intake questionnaire constitutes an ADA charge. In Federal Express Corp. v. Holowecki, 552
U.S. 389 (2008), an ADEA case, the Court
held that an intake questionnaire satisfying EEOC’s charge regulation and requesting
remedial action is a charge. In Edelman
v. Lynchburg College, 535 U.S. 106 (2002), the Court held that a Title VII charge may be verified after the
filing period. Here, Poston’s intake questionnaire satisfies Holowecki’s
dual requirements, and he later submitted a verified Form 5 charge that related
back to his intake questionnaire under Edelman.
Therefore, Poston satisfied the ADA’s charge-filing requirements.
Vantage’s response turns this straightforward
analysis on its head by alternately ignoring and misrepresenting the governing
legal standards. At the outset, Vantage disregards Federal Rule of Civil Procedure 9(c), contending
that EEOC failed to plead with specificity that Poston timely filed his charge
or that EEOC served notice of it. Under Rule
9(c), however, the satisfaction of conditions precedent may be alleged
generally.
Next, Vantage distorts the holding of Holowecki and wrongly insists it applies
only to the ADEA. As EEOC pointed out,
this Court and others have applied Holowecki
to Title VII and ADA cases, notwithstanding the verification
requirement. Vantage then reads into Edelman
a requirement that the Court never hinted at: that charges may be verified post-filing
period, but only shortly after the filing period ends. Vantage cites no
authority for this novel proposition, which cannot be squared with Edelman or its progeny.
Vantage also contends that even if Holowecki applies to ADA cases, Poston’s intake questionnaire is
not a charge. This argument is refuted by a review of the intake questionnaire,
which contains the information required by 29
C.F.R. § 1601.12. It also checks “Box 2,” indicating Poston wanted to
“file a charge of discrimination.” It is hard to imagine a more unambiguous manifestation
of Poston’s intent to file a charge.
Finally, this Court should reject Vantage’s vague
argument that it was somehow deprived of due process. As Vantage admitted, EEOC
promptly notified it of Poston’s timely-filed intake questionnaire and of his
formal Form 5 charge, and it can point to no prejudice it suffered from any
delay. This case should therefore be remanded for a determination on the merits
of EEOC’s ADA claim.
EEOC’s opening brief set out the relevant charge-filing standards.
EEOC-Br.1-4. While acknowledging that the ADA
incorporates Title VII’s procedures, Vantage-Br.9 (citing 42 U.S.C. § 12117(a)), Vantage misunderstands
these procedures and their purposes. Vantage maintains that these administrative
requirements vary depending on whether EEOC or an individual later sues—even
though, at this stage, no lawsuit has occurred, will occur, or may occur at all
for quite some time. Vantage-Br.29, 32. Given this confusion, we briefly review
the statutory framework and applicable standards.
Title VII
sets out “‘an integrated, multistep enforcement procedure’ that enables the
Commission to detect and remedy instances of discrimination.” EEOC v. Shell Oil Co., 466 U.S. 54, 62
(1984) (quoting Occidental Life Ins.
Co. v. EEOC, 432 U.S. 355, 359 (1977)). That process begins with the filing
of a charge of discrimination. Id.;
see 42 U.S.C. § 2000e-5(b). Charges
typically must be filed within 300 days of an unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). Once a charge is
filed, EEOC must “serve a notice of the charge (including the date, place, and
circumstances of the alleged unlawful employment practice)” within ten days. 42 U.S.C. § 2000e-5(b). EEOC then must investigate
the charge. Id. If EEOC determines
there is reasonable cause to believe the charge is true, it must attempt
conciliation. Id.
If conciliation fails, EEOC may bring an
enforcement action in court. 42 U.S.C. § 2000e-5(f)(1);
see generally Occidental Life, 432
U.S. at 359-60 (describing multistep enforcement procedure). Where EEOC is
unable to find reasonable cause, or opts not to file a lawsuit after the
failure of conciliation, it issues a notice of right to sue to the charging
party, who may then file suit. See 42
U.S.C. § 2000e-5(f)(1) (charging party may also request early right-to-sue
notice).
Title VII
“prescribes only minimal requirements pertaining to the form and content of
charges of discrimination.” Shell Oil,
466 U.S. at 67. Charges must “be in writing under oath or affirmation and shall
contain such information and be in such form as the Commission requires.” 42 U.S.C. § 2000e-5(b). As Vantage
acknowledges (Vantage-Br.20), EEOC’s procedural regulation at 29 C.F.R. § 1601.12(b) provides that a charge
“is sufficient when the Commission receives … a written statement sufficiently precise
to identify the parties, and to describe generally the action or practices
complained of.” See EEOC-Br.2-4 (describing charge requirements). These “minimal
requirements” accord with the purpose of the charge-filing requirement, which
is simply “to place the EEOC on notice that someone … believes that an employer
has violated” the statute. Shell Oil,
466 U.S. at 67, 68; see also Price v.
Sw. Bell Tel. Co., 687 F.2d 74, 78 (5th Cir. 1982) (principal charge function
is to provide “an adequate factual basis for the Commission’s initiation of the
investigatory and conciliatory procedures”).
Simply put, charge-filing occurs at the beginning
of the administrative process; a lawsuit, if one is to occur, happens at the end.
It would have made no sense for Congress to impose different requirements for
charges based on conjecture about far-off lawsuits—which is why,
notwithstanding Vantage’s contrary arguments (Vantage-Br.29, 32), Congress did
not do so. As the Supreme Court noted in Occidental
Life, EEOC’s charge-handling procedures were included in Title VII in 1964 and were retained
essentially intact after the 1972 amendments that first gave EEOC litigation
authority. 432 U.S. at 368. No variants
emerged with the advent of EEOC suits or thereafter.
As Vantage itself notes, Vantage-Br.10, both EEOC
and private suits under Title VII require a timely-filed charge to proceed. See 42 U.S.C. §§ 2000e-5(b), (e)(1) (timely
charge required), § 2000e-5(f)(1)
(authorizing EEOC or private suits); see 29 C.F.R. § 1601.12 (charge
requirements). Suit or no suit, EEOC must notify the employer, investigate,
and, if appropriate, conciliate the charge. 42
U.S.C. § 2000e-5(b). Insofar as Vantage suggests that something more is
required of a charge when EEOC sues, that suggestion is baseless.
Vantage also contends that EEOC failed to
satisfy the ten-day notice requirement, providing an alternative basis for
dismissal. Vantage-Br.7, 9, 34. As discussed infra at 30-32, Vantage is
incorrect, but we note, first, that its arguments are premised on two
misconceptions about the notice requirement. First, Vantage wrongly suggests (Vantage-Br.34)
that the notice must include the charging party’s name, which neither the
statute nor EEOC’s procedural regulations require. See 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.14(a) (“notice may
include” name of filer); see also § 1601.7(a)
(charge filed on behalf of other “need not identify by name the person on whose
behalf it is made”). As the Supreme Court observed, the statute’s requirement
that the notice indicate the “date, place and circumstances” was merely
“designed to ensure that the employer was given some idea of the nature of the
charge.” Shell Oil, 466 U.S. at 75.
When EEOC notified Vantage of the intake questionnaire (without Poston’s name),
EEOC said Vantage need not respond “at this time.” ROA.76. Only after EEOC sent
Poston’s Form 5 charge, identifying him by name, did EEOC request a response. ROA.80 (notice), ROA.77 (response).
Second, Vantage repeatedly suggests that EEOC’s
failure to supply notice within ten days bars an EEOC enforcement action.
Vantage-Br.11 (“EEOC can only sue if a charge is timely filed and served.”).
Not so. This Court and others have held that
absent bad faith or prejudice, EEOC’s failure to serve notice within ten days
is not a bar to suit. See Shell Oil,
466 U.S. at 66 n.16 (citing cases); EEOC
v. Airguide Corp., 539 F.2d 1038, 1042 (5th Cir. 1976) (no per se bar). Here,
EEOC satisfied the notice requirement, but even if it had not, this suit could
proceed because Vantage did not show prejudice or bad faith.
Vantage argues that dismissal under Rule 12(b)(6) was appropriate because EEOC
failed to plead specifically that Poston timely filed his charge or that EEOC
provided notice. Vantage-Br.9-14 (relying on Ashcroft v. Iqbal, 556 U.S. 662 (2007),
and Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007)). Vantage misunderstands the applicable pleading requirements.
As explained in EEOC’s opening brief (EEOC-Br.34
n.4), timely filing of a charge is a condition precedent to suit. It is
therefore governed by Rule 9(c), which provides,
in relevant part, that “[i]n pleading conditions precedent, it suffices to allege
generally that all conditions precedent have occurred or been performed.”
Here, as
Vantage acknowledges, EEOC’s complaint pled that “[a]ll conditions precedent to
the institution of this lawsuit have been fulfilled.” ROA.9; Vantage-Br.12. This
averment satisfied Rule 9(c). This Court
held as much in EEOC v. Standard Forge
& Axle Co., 496 F.2d 1392 (5th Cir. 1974). In Standard Forge, the EEOC filed a complaint
alleging that more than thirty days prior to suit, charges had been filed, and
that “[a]ll conditions precedent to the institution of
this lawsuit have been fulfilled.” The employer argued under Rule 8(a) that EEOC had “to state completely and exactly
compliance with each statutory …
requirement—timely
charge, notice, investigation, reasonable cause
determination, conciliation and timeliness of suit.” Id. at
1393 (emphasis added). This Court disagreed, holding that the “complaint fully complied with the
requirements of Rule 9(c).” Id. at 1395; see also EEOC v.
Times-Picayune Pub. Corp.,
500 F.2d 392, 392 (5th Cir. 1974) (per curiam) (EEOC complaint sufficient where
it pled “all conditions precedent … have been fulfilled”).
Inexplicably, Vantage never once cites Rule 9(c). Instead, it cites Tuchman v. DSC Communications Corp., 14
F.3d 1061, 1067 (5th Cir. 1994), to support its assertion that the allegation
“all conditions precedent” were met is “a legal conclusion that does not meet
the 12(b)(6) standard.” Vantage-Br.12. Vantage’s reliance on Tuchman is misplaced.
In Tuchman,
a securities fraud case, this Court explained that “Federal Rule of Civil Procedure 9(b) imposes a
“heightened level of pleading for fraud claims,” which must be pled with
“‘particularity.’” Tuchman, 14 F.3d
at 1067 (emphasis added). Applying that “heightened” pleading standard, this
Court affirmed the district court’s Rule
12(b)(6) dismissal of the plaintiffs’ fraud claims. But, unlike Tuchman, this case involves no fraud
claims, and accordingly the general pleading standard of Rule 9(c) controls.
Vantage also cites Hoffman v. Boeing, 596 F.2d 683 (5th Cir.
1979), which affirmed the dismissal of the plaintiff’s discrimination complaint
against the Navy for failure to allege exhaustion of administrative remedies.
Vantage-Br.13. Hoffman too is inapposite.
Unlike private-sector employees (like Poston), federal-sector employees must pursue
administrative remedies at their federal agency prior to filing suit in federal
district court. See generally 42 U.S.C.
§ 2000e-16(c). The plaintiff in Hoffman
failed to plead, even generally, that he exhausted these administrative
remedies by seeking pre-charge counseling or by filing “a formal complaint with
the agency.” Hoffman, 596 F.2d at
686. This Court therefore affirmed dismissal. Id. at 685 (“A judicial complaint that
fails to allege exhaustion of administrative remedies” is properly dismissed).
Vantage next argues that EEOC’s reliance on EEOC v. Klingler Electric, 636 F.3d 104
(5th Cir. Unit A Feb. 1981) (per curiam), is somehow misplaced. Vantage-Br.13. It
is not. As EEOC’s opening brief explained, Klingler
held that EEOC satisfied Rule 9(c) by
pleading (as here) that “all conditions precedent” were satisfied. EEOC-Br.34
n.4. Vantage maintains that Klingler
is inapposite because the condition precedent at issue was conciliation rather
than charge-filing. Vantage-Br.13. But this makes no difference because both
conciliation and the timely filing of a charge are conditions precedent governed
by Rule 9(c)—and Vantage offers no
explanation otherwise.
Vantage adds, “in light of Iqbal and Twombly's holdings that
legal conclusions do not suffice under Rule
12(b)(6), Klingler cannot be good
law on this point anyway.” Vantage-Br.13. Vantage cites no circuit authority
for this point (other than citing generally to Hoffman, which was decided decades before Iqbal and Twombly). To our knowledge, there is none,
and for good reason.
Iqbal and
Twombly construed the general pleading standard under Rule 8(a), not Rule 9(c)’s specific standard for pleading
conditions precedent. Accordingly, courts have recognized that Iqbal and Twombly do not apply to Rule 9(c). See, e.g., Hildebrand v. Allegheny County, 757 F.3d 99, 112 (3d Cir. 2014) (Iqbal
and Twombly do not override Rule 9(c); the
district court therefore “erred by
applying Iqbal and Twombly to Hildebrand’s pleading of the
conditions precedent to filing suit under the ADEA”);
see also Hamilton v.
Geithner, 743 F. Supp. 2d 1, 8 (D.D.C. 2010) (same in Title VII suit).
Courts have reached the same result in EEOC
actions. In EEOC v. U.S. Steel Corp., No. 10-cv-1284, 2012 WL 3017869
(W.D. Pa. 2012), the defendant
argued that EEOC’s claim should be dismissed under Iqbal and Twombly because EEOC had failed to plead
specifically that it had met its statutory pre-suit obligations to investigate,
issue reasonable cause findings, and conciliate its claims. Id. at *8. The district court rejected
that argument, stating that “Twombly
and Iqbal cannot be applied in a
way which overrides the language of Rule 9(c), since they involved the interpretation of a
different rule.” Id.; see also EEOC v. Serv. Temps, Inc., No. 3:08-CV-1552-D,
2010 WL 1644909, at *4 (N.D. Tex. April 22, 2010) (post-Iqbal/Twombly
case concluding that “EEOC’s general allegation
that all conditions precedent to filing suit have been fulfilled complies with Rule 9(c)”).
Vantage adds that EEOC failed to plead specifically
that it provided notice within ten days. Vantage-Br.14. This argument fails for
the reason stated above: conditions precedent may be alleged generally
under Rule 9(c). See Standard Forge, 496 F.2d at 1393
(rejecting employer’s argument that EEOC needed to plead specifically that it
gave “notice”).
In Holowecki,
the Supreme Court held that intake questionnaires can be charges if they
satisfy EEOC’s regulation and the request-to-act requirement. See EEOC-Br.20-22.
Vantage responds by arguing, variously, that Holowecki is limited only to ADEA cases, it cannot apply to statutes with
verification requirements, this Court effectively rejected Holowecki in Melgar v. T.B. Butler Publishing Co., 931
F.3d 375 (5th Cir. 2019), or Holowecki
does not apply when EEOC is the plaintiff. None of these arguments is
persuasive.
Repeating Holowecki’s
“cautionary preference” that rules applicable to one statute are not
necessarily applicable to other statutes, Vantage suggests that Holowecki’s
holding is limited to ADEA cases. Vantage-Br.25-26.
In EEOC’s opening brief, we acknowledged this cautionary language, and we explained
why “careful and critical examination” of Title VII’s statutory and regulatory
scheme supports this Court’s application of Holowecki
to Title VII and the ADA. See EEOC-Br.24-25 (discussing statutory
and regulatory similarities as to charge requirements).
Holowecki
itself did not limit its holding to the ADEA,
and nothing about its logic or reasoning is unique to the ADEA. As EEOC explained, except for the
verification requirement, discussed further below, the charge-filing
requirements are essentially identical under the ADEA and Title
VII. EEOC-Br.24-25 (comparing the statutes and regulations). Vantage does not point
to any other different requirements, nor any other reason why Holowecki would not apply to Title VII. Vantage-Br.25-26.
Nor does Vantage refute that it would “be both
confusing and highly inconsistent to construe the same document as constituting
a ‘charge’ under one statute but not the other(s).” EEOC-Br.26. Charging
parties, who are frequently unrepresented by counsel, often complain of
discrimination under more than one statute. Here, for instance, Poston alleged
discrimination under the ADA and the ADEA. ROA.70. Given that, as explained supra
at p. 5, the purpose of a charge is simply to initiate an investigation, it is
particularly nonsensical to create a rule by which the same document passes
muster under one statute but not the other.
ADEA aside,
Vantage’s principal argument is that “Holowecki
doesn’t apply here because the ADA
requires verification of a charge[.]” Vantage-Br.18, 25. This argument fails
under Edelman. As EEOC explained, Edelman upheld 29 C.F.R. § 1601.12(b), which permits
verification of a charge to occur after the filing period. EEOC-Br.22-23.
In other words, verification is not the sine qua non of a charge. See
Holowecki, 552 U.S. at 404 (describing
Edelman as “rejecting the argument
that a charge is not a charge until the filer satisfies Title VII’s oath or
affirmation requirement”). Given that verification within the filing period is not
a charge requirement (Edelman), and
intake questionnaires can be charges (Holowecki),
it follows inexorably that an unverified intake questionnaire can be a charge
under the ADA, with its verification
occurring later.
Vantage suggests that Edelman applies only to unverified Form 5 charges.
Vantage-Br.32-33. This argument is groundless. Nothing in Edelman suggests the Court was announcing
a rule that verification can relate back under 29
C.F.R. § 1601.12(b) only to Form 5 charges. Moreover, the Court’s reference to
a party’s “original filing”—instead of “Form 5 charge”—refutes Vantage’s novel
interpretation. Edelman, 535 U.S.
at 115. As Vantage notes, the plaintiff in Edelman
submitted a letter to EEOC, not a Form 5 charge. Edelman, 535 U.S. at 109. To be sure, the Edelman Court did not decide whether the
letter constituted a charge. Id. at
118-19. But if the Court believed verification can relate back only to formal
charges, as Vantage says, it would have had no need to consider the validity of
the relation-back provision.
Vantage’s argument also cannot be squared with Conner v. Louisiana Department of Health &
Hospitals, 247 F. App’x 480, 481 (5th Cir. 2007). As EEOC’s brief stated
(EEOC-Br.29-30), Conner cited Edelman to hold that the plaintiff’s
verified formal charge related back to her intake questionnaire. Vantage
fails to address Conner. Nor does
it acknowledge that in Melgar, 931
F.3d at 380 n.4, this Court held that the plaintiff’s failure to “sign[] the intake
questionnaire” was “not fatal” because 29
C.F.R. § 1601.12(b) permits technical defects to be cured by amendment.
Next, Vantage falsely accuses EEOC of dismissing
or distorting Patton v. Jacobs, 874
F.3d 437, 443 (5th Cir. 2017). Vantage-Br.26. EEOC explained why Patton should not be read as holding that
unverified intake questionnaires cannot be charges. EEOC-Br.30-31. Patton did not cite Edelman,
much less purport to overrule it. See United States v. Nava-Perez, 242 F.3d 277,
279 (5th Cir. 2001) (“[W]e cannot overrule Supreme Court precedent.”).
And this Court has never cited Patton
for the principle that an unverified document cannot be a charge. Thus, although
some district courts may be relying, erroneously, on Patton to hold that unverified filings are
not charges under the ADA, Vantage-Br.27,
these decisions are irreconcilable with Edelman. If anything, they suggest that this
Court may need to clarify its holding in Patton.
Vantage next maintains that, based on its
misreading of Melgar, “the intake
questionnaire is not a charge.” Vantage-Br.15. As explained in EEOC’s opening
brief, Melgar is generally
consistent with Holowecki (although
it did not cite it). EEOC-Br.32-34. Based on Melgar’s description of the
undated intake questionnaire (which “checked the boxes for retaliation and
discrimination based on national origin,” but seemingly lacked other details),
the questionnaire apparently failed to satisfy the regulatory requirements for
a charge, as Holowecki requires.
Vantage seizes on Melgar’s statement that
the intake questionnaire “was not treated as a charge.” 931 F.3d at 380. This may have fortified this
Court’s conclusion that it was not a charge. But Holowecki held that EEOC’s treatment of a
filing has no bearing on whether it constitutes a charge. 552 U.S. at 404 (stating that it “would be
illogical and impractical to make the definition of charge dependent upon a
condition subsequent over which the parties have no control”). Rather, Holowecki adopted an objective standard:
the filing is a charge if it satisfies EEOC’s charge requirements and can be
viewed as requesting EEOC take remedial action. As explained above, this
standard was met here.
Vantage argues that Holowecki
is inapplicable because “EEOC is the plaintiff.” Vantage-Br.29. It cites no
authority for this proposition. There is none. As discussed supra at pp.
1-6, the definition of “charge” under Title
VII is the same whether a private party or EEOC eventually sues (or never
sues). See 42 U.S.C.
§ 2000e-5(b) (requiring charges be “in writing under oath or affirmation,”
without imposing extra charge requirements where EEOC sues). The ten-day notice
requirement is also the same. What EEOC does after receiving a charge is
filed—including whether it ever files suit—has no bearing on whether what it
received was a charge. See generally Holowecki,
552 U.S. at 406 (stating that “[p]ostfiling conduct does not nullify an
earlier, proper charge”).
Vantage asserts: “this Court has never indicated
that Holowecki deems an unverified
intake questionnaire as a charge under Title
VII or the ADA.” Vantage-Br.28. But EEOC
never suggested otherwise. Rather, we said, in order to constitute a charge, an
intake questionnaire must satisfy Holowecki’s two-step test. EEOC-Br.27. Contrary to Vantage’s
arguments, Poston’s intake questionnaire easily meets Holowecki’s dual
requirements: (1) it satisfies EEOC’s charge regulations; and (2) it can
reasonably be construed as requesting EEOC to take remedial action. 552 U.S. at 402.
Curiously, Vantage claims that EEOC admitted
the intake questionnaire does not satisfy the charge requirements of 29 C.F.R. § 1601.12(a). This is simply
untrue. See EEOC-Br.36. Vantage next contends—for the first time—that
the intake questionnaire does not satisfy the more general charge requirements
of 29 C.F.R. § 1601.12(b) because it lists
the job location as “Gulf of Mexico” and states that Poston worked in
“Equatorial Guinea.” Vantage-Br.20. But it is uncontested that Poston’s ship
was off the coastal waters of Equatorial Guinea when he had his heart attack,
Vantage-Br.2, and the record shows that the ship sails through the Gulf of
Mexico to get there. See ROA.78 (claimants fired “while working in … Equatorial
Guinea or during the vessel’s transition back to the Gulf of Mexico”). Vantage
fails to demonstrate how these statements negate the conclusion that the intake
questionnaire was “sufficiently precise to identify the parties, and to
describe generally the action or practice complained of.” 29 C.F.R. § 1601.12(b).
Vantage also argues that the intake
questionnaire was “substantively deficient” under 29 C.F.R. § 1601.12(b) because it named
“Vantage Drilling Co.,” which was not actually Poston’s employer. Vantage-Br.20-21.
This argument is meritless. EEOC’s regulation requires only that charges be “sufficiently
precise to identify the parties.” 29
C.F.R. § 1601.12(b). Poston’s intake questionnaire more than satisfied this
minimal requirement. It lists Vantage’s address as “777 Post Oak Blvd. Ste.
800, Houston, TX,” and EEOC sent notice five days later to Vantage’s Human
Resources representative at this same address. ROA.69, ROA.76. Vantage admits
it received this notice. ROA.77. Vantage’s position statement references the
charge against “Vantage Drilling Company” and explains Poston was actually
employed by “Vantage International Management Company Pt. Ltd. (Vantage),”
which is a subsidiary of “Offshore Group Investment Limited.” ROA.77. As this
Court has recognized, because Vantage received actual notice of Poston’s charge
and had the opportunity to engage in conciliation, “the purpose of the
named-party requirement has been accomplished, and the charge is sufficient to
confer jurisdiction over” Vantage. EEOC
v. Simbaki Ltd., 767 F.3d 475, 483 (5th Cir. 2014) (internal citation and
quotation marks omitted); see also id.
at 484 (recognizing “actual notice” and sufficient identity-of-interest
exceptions to Title VII’s naming requirement).
Vantage contends that the intake questionnaire
does not satisfy Holowecki’s request-to-act requirement. This argument
is baseless. As EEOC explained, Poston checked “Box 2” on the intake
questionnaire, which expressed his intent to “file a charge” and “authorize
the EEOC to look into the discrimination.” EEOC-Br.37 (citing ROA.72)
(emphasis added). Poston could not have made his intent any clearer. Inexplicably,
Vantage does not acknowledge that Poston checked “Box 2.” Nor does it address Hildebrand, 757 F.3d at 113, which held
that an individual who completes the intake questionnaire and “checks Box 2
unquestionably files a charge of discrimination.”
Vantage also misrepresents the record by
asserting that the attorneys’ letter accompanying Poston’s questionnaire
“merely ask[ed] the EEOC to review the questionnaires.” Vantage-Br.23. Far from
it, the letter accused Vantage of engaging in “a systematic pattern of
discriminatory practices” and referred to the intake questionnaires as “claims”
and “complaints of employment discrimination against Vantage.” ROA.67-68.
Contrary to Vantage’s suggestion, an individual need not, as in Holowecki, attach a six-page affidavit to
an intake questionnaire to have it objectively express an intent for EEOC to
take remedial action.
Vantage relies on Carlson v. Christian Brothers Services,
840 F.3d 466 (7th Cir. 2016) to argue that Poston’s submission does not satisfy
the request-to-act requirement. Carlson supports EEOC, not Vantage. In Carlson the plaintiffs timely completed a
“complaint information sheet” (CIS) at a local fair employment practice agency.
The court noted that the CIS “requested no relief”and stated “THIS IS NOT A
CHARGE,” followed by the statement that “if [the agency] accepts your
claim, we will send you a charge form for signature.” Id. at 468. On these facts, the Seventh
Circuit held that the CIS failed Holowecki’s “request-to-act”
requirement. Here, in contrast, Poston checked “Box 2,” and the intake
questionnaire states it can be a charge. EEOC-Br.37.
Vantage asserts: “Edelman never holds that an intake
questionnaire is a charge.” Vantage-Br.30. EEOC never suggested that it did.
Rather, EEOC correctly relied on Edelman
for its uncomplicated holding that under 29 C.F.R.
§ 1601.12(b), a timely-filed charge can be verified after the filing period.
Although it does not state so explicitly, Vantage
appears to argue that Edelman
permits verification to relate back only when a charge is verified shortly
after the 300-day filing period. Vantage-Br.31. In other words, Vantage says
(and the district court seemed to agree) that Edelman does not control here because in
that case verification occurred on day 313 while here it occurred on day 376.
EEOC addressed this argument, EEOC-Br.42-43, pointing out that nothing in Edelman suggests its holding hinged upon
the number of days that passed between the end of the filing period and
verification. Rather, Edelman’s
reasoning focused on the different purposes underlying the timely-filing
requirement (to avoid stale claims), and the verification requirement (to
“protect[] employers from the disruption and expense of responding to a claim
unless a complaint is serious enough and sure enough to support it by oath
subject to liability for perjury”). Edelman,
535 U.S. at 113; see also Shell Oil,
466 U.S. at 76 n.32 (oath’s function “is to impress upon its taker an awareness
of his duty to tell the truth”).
To be
sure, as Vantage notes, Edelman
acknowledged the employer’s concern that permitting verification to relate back
will prejudice employers because there will be “no deadline for verifying a
charge.” Id. at 115 n.9 (but
stating that “this is not our case, which simply challenges relation back per
se”). Whatever the outer limits of Edelman’s holding might be,
however, this Court need not address them. As in Edelman, in this case verification
occurred shortly after the filing period. In Edelman, it occurred thirteen days later;
here it occurred seventy-six days later. By any objective measure, this is not
a case involving an inordinate verification delay.
Inordinate verification delays are unlikely to
arise in any event. As Vantage observed, Edelman
noted that EEOC’s longstanding practice has been to “caution complainants that
if they fail to follow up on their initial unverified charge, the EEOC will not
proceed further with the complaint.” Id. Such was the case here. After
EEOC transferred Poston’s charge to the Houston District Office, it sent his attorneys
a Form 5 charge for him to sign and return. ROA.161-62, ROA.195. When the Form
5 charge was not returned, EEOC sent a letter warning that “[u]nder EEOC
procedures, if we do not hear from you within 30 days or receive your signed
charges within 30 days, we are authorized to dismiss the charges and issue
you a right to sue letter.” ROA.196 (emphasis added). EEOC’s longstanding practice
of dismissing charges that go unverified provides a backstop against employers
having to defend against stale charges that took years to be verified.
Vantage advances the puzzling argument that
EEOC’s interpretation of Edelman is
“inconsistent” with Ledbetter v.
Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Vantage-Br.31 n.12. But
Ledbetter was not about the
relation-back provision of 29 C.F.R. §
1601.12(b), nor about whether intake questionnaires can be charges. Rather, the
issue in Ledbetter was when an
unlawful employment practice occurred for purposes of starting the charge-filing
period. See Ledbetter, 550 U.S. at
621 (clock starts when pay-setting decision made). Nothing in Ledbetter hints that the Supreme Court was
overruling its unanimous precedent in Edelman.
Significantly,
Vantage does not respond to EEOC’s argument that the purpose underlying the
verification requirement was served here. EEOC-Br.44-45. As Edelman recognized, that purpose is to
protect employers against having to respond to claims until individuals support
them “by oath subject to liability for perjury.” Edelman, 535 U.S. at 113. Where, as here,
an employer is called upon to respond to a charge only after its
verification and no prejudice results, the verification requirement has served
its purpose. See Weeks v. S.
Bell Tel. & Tel. Co., 408 F.2d 228, 231 (5th Cir. 1969) (verification purpose
satisfied where verification occurred after the filing period but before EEOC
investigation and stating, “the employer here was in no way bothered or
prejudiced by the unsworn charge”).
Vantage has not established any prejudice from
verification occurring seventy-six days late. There was none. Poston submitted
his intake questionnaire on February 20, 2015. ROA.69-72. Within five days,
EEOC notified Vantage that an ADA charge
had been filed alleging discriminatory “discharge” on “10-02-2014” and identifying
“Donald A. Mau, Attorney” as filing the charge “on behalf of other(s).” ROA.76.
This notice substantively complied with Title
VII as well as EEOC’s notice regulation, which does not require disclosure of
the individual on whose behalf a charge is filed. See 42 U.S.C. § 2000e-5(e)(1) (notice shall
include “date, place and circumstances”); 29
C.F.R. § 1601.14(a) (same, but adding that it “may include the identity of
the person … filing the charge”); see also 29 C.F.R. § 1601.7(a) (“on behalf of” charge
“need not identify by name the person on whose behalf it is made”).
Moreover, Vantage admitted it “received notice
that Mr. Poston had filed a charge of discrimination on February 25, 2015.”
ROA.77. While it is true that Vantage did not receive notice of Poston’s name
until after the charge-filing period, it received notice of the allegation of
discriminatory discharge occurring on October 2, 2014.
In any event, Vantage has not identified any
prejudice resulting from the delay in learning Poston’s identity. EEOC sent
notice of Poston’s Form 5 charge on November 9, 2015. ROA.80. Poston could have
filed his charge as late as day 300 (July 29, 2015), and EEOC could have sent
notice up to ten days later (August 8, 2015). The delay in learning Poston’s
name (even if required) was 93 days. While Vantage complains generally of the
three-month delay, Vantage-Br.33-35, it does not identify any specific lost
opportunity to gather and preserve evidence. See
generally Airguide Corp., 539 F.2d at 1042 (finding “district court’s statement that ‘(w)here
an employer does not receive notification that he has been charged with
discrimination in hiring until well after the event in question, relevant forms
will in all likelihood have been destroyed’ … is speculative and unpersuasive,”
and stating it “was not shown that such forms have been destroyed or, if so,
whether Airguide was prejudiced by such destruction”).
Vantage vaguely asserts it was harmed by the
five years that elapsed between Poston’s termination and today. Vantage-Br.35
n.14. Its timeline is skewed. The notice delay it complains of was, at
most, 93 days. Vantage does not suggest that this three-month delay is why “relevant
decision makers … [a]re no longer employed at Vantage.” Id. Nor does it assert that it is unable
to contact these decisionmakers.
Vantage then seems to suggest that Holowecki implicitly overruled Edelman, as the charging party in Holowecki submitted a verified affidavit with
her intake questionnaire. Vantage-Br.27, 29 (mischaracterizing Holowecki as holding an intake
questionnaire “verified by affidavit” was a charge). This argument makes
no sense. As Vantage acknowledges, the ADEA
does not require verification. Accordingly, the Court’s ruling was not
contingent upon the verified affidavit having been submitted with the intake
questionnaire. Rather, the question was whether an intake questionnaire could
be a charge. And Vantage’s suggestion that Holowecki
overruled Edelman is a non-starter,
given that Holowecki cites Edelman as “rejecting the argument that a
charge is not a charge until the filer satisfies Title VII’s” verification
requirement. Holowecki, 552 U.S. at
404.
Finally, Vantage mentions repeatedly that Poston’s
attorney typed Poston’s name on the signature line, suggesting it therefore
cannot be a charge. Vantage-Br.2-3, 15, 23-24. It is unclear whether the
gravamen of Vantage’s complaint is that Poston’s attorney submitted the intake
questionnaire or that it lacks a handwritten signature. As to the former,
EEOC’s regulations expressly permit charges to be filed, as happened here, “on
behalf of persons claiming to be aggrieved.” 29
C.F.R. § 1601.7(a); see ROA.67 (attorney letter submitting intake questionnaire
“on behalf of” Poston); ROA.76 (notifying Vantage of charge filed by attorney
“on Behalf of Other(s)”).
As to the latter, a charge must be “signed,” 29 C.F.R. § 1601.9, but nothing in EEOC’s
regulations requires a handwritten signature. Poston’s attorneys wrote in their
letter to EEOC that Poston had signed “a power-of-attorney authorizing” them to
submit the claims “as well as sign their respective names to the claim forms.”
ROA.67. His attorneys typed his name on the signature line, which is a
commonly-accepted way to sign a document. See ROA.72 (“s/David Poston”);
see also 5th Cir. R. 25.2.10
(permitting signature on electronically-filed documents to be “s/” with the
filer’s name typed in). Moreover, even if there were a hand-signature requirement
for the intake questionnaire, Poston’s signature on his Form 5 charge (ROA.63)
related back to cure that technical defect. See Melgar, 931 F.3d at 380 n.4 (although plaintiff
“had not signed the intake questionnaire … such a defect is not fatal” under 29 C.F.R. § 1601.12(b)).
Vantage intersperses its response with
references to “justice” and “due process” while raising the specter of lost
evidence, faded memories, and disappearing witnesses. Vantage-Br.10, 11. It
culminates its response with a vague argument that due process requires the
intake questionnaire not be treated as a charge. Vantage-Br.33-35. This
argument, which is a rehash of its notice argument, lacks merit.
Vantage received notice of Poston’s charge five
days after he filed his intake questionnaire, well within the filing period. It
received notice of his Form 5 charge on day 403, which was 103 days after the
filing period (or 93 days after EEOC could have timely served its ten-day
notice). This case is therefore not, as Vantage says, one in which “‘EEOC ignore[d], fail[ed] to obey or capriciously deprive[d] a
respondent of its administrative procedures.’” Vantage-Br.34-35 (quoting EEOC v. Magnolia Elec. Power Ass’n, 635
F.2d 375, 378 (5th Cir. 1981)). In any event, although Vantage does not
acknowledge it, Magnolia’s suggestion that the failure to conciliate
bars an EEOC suit was abrogated by Mach
Mining, LLC v. EEOC, 135 S. Ct. 1645, 1656 (2015), which held that if EEOC
failed to conciliate, “the appropriate remedy is to order the EEOC to undertake
the mandated efforts to obtain voluntary compliance,” not to bar EEOC’s suit.
Vantage also
cites Occidental Life. To be sure,
Occidental Life discussed the
importance of the notice requirement, which allows employers to gather and
preserve evidence. 432 U.S. at 372 n.30.
But EEOC satisfied the notice requirement here. And, even taking the Form 5
charge as the relevant notice date, nothing in Occidental Life suggests that EEOC cannot
sue if notice is delayed by three months. If anything, Occidental Life suggests the opposite
conclusion, as the Court held Title VII
imposes no limitation on EEOC’s power to sue and that the state statutes of
limitations do not apply to EEOC actions. Further, the Court suggested that any
notice deficiencies could be cured by EEOC’s reasonable cause determination. 432 U.S. at 372 n.32 (reasonable cause
determination would cure any ten-day notice deficiencies “that may result from
EEOC amendment of the claimed violation after investigation”).
While Occidental
Life allowed that “an inordinate EEOC delay in filing the action”
could prejudice an employer, this would only permit the court to “restrict or
deny back pay.” Id. at 373
(emphasis added). This appeal is not about a litigation “filing” delay. Even if
it were, Occidental says any such
delay might limit relief but would not bar EEOC’s suit.
Finally, Vantage did not show prejudice. It complains
generally that it was harmed by the five years that elapsed between Poston’s
termination and today. Be that as it may—and however much of that time may be
attributable to Vantage’s own actions or inactions—any delay attributable to
not knowing Poston’s name was, at most, ninety-three days. See supra
at pp. 31-32. Vantage fails to show what harm, if any, resulted.
For the foregoing reasons and those stated in EEOC’s
opening brief, the judgment should be reversed and the case remanded for
further proceedings.
Respectfully submitted,
SHARON FAST GUSTAFSON
General Counsel
JENNIFER S. GOLDSTEIN
Associate General
Counsel
ELIZABETH E. THERAN
Assistant General
Counsel
s/Anne Noel
Occhialino
ANNE NOEL OCCHIALINO
Senior Appellate Attorney
Equal Employment
Opportunity Commission
Office of General Counsel
131 M St. N.E., 5th
Fl.
Washington, D.C. 20507
(202) 663-4724
Annenoel.Occhialino@eeoc.gov
