Table of Contents

Table of Authorities.............................................................................. ii

Statement of Interest............................................................................. 1

Statement of the Issue........................................................................... 2

Statement of the Case........................................................................... 2

A. Statement of Facts...................................................................... 2

B. District Court’s Decision........................................................... 4

Argument

The district court erred in dismissing Guelache’s Title VII complaint for failure to satisfy administrative prerequisites to suit because, pursuant to well-established law, an individual who fails to verify a timely Title VII charge may do so nunc pro tunc at a later date............................................................................ 6

Conclusion............................................................................................. 9

Certificate Regarding Viruses

Certificate of Service

Table of Authorities

Cases

Brooks v. Midwest Heart Grp., 655 F.3d 796 (8th Cir. 2011)................. 8

Edelman v. Lynchburg Coll., 535 U.S. 106 (2002)....................... 1, 2, 6-9

Patillo v. Sysco Foods of Ark. LLC, 704 F. App’x 612 (8th Cir. 2017)

(per curiam)........................................................................................... 8

Rush v. State Ark. DWS, 876 F.3d 1123 (8th Cir. 2017) (per curiam) 2, 8

Statutes

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.... 1

§ 2000e-5(b).................................................................................. 6

§ 2000e-5(e)(1).............................................................................. 6

§ 2000e-12(a)............................................................................ 1, 7

Rules and Regulations

29 C.F.R. § 1601.3(a).............................................................................. 7

29 C.F.R. § 1601.9................................................................................... 7

29 C.F.R. § 1601.12(b)................................................................ 1, 2, 7, 9

29 C.F.R. § 1601.80................................................................................. 6

Fed. R. App. P. 29(a)(2)......................................................................... 2

Other Authority

Brief for the U.S. as Amicus Curiae Supporting Respondent, Fort Bend Cnty. v. Davis, 139 S. Ct. 1843 (2019) (No. 18-525), 2019 WL 1489048................................................................................................... 5

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with administering and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., including by issuing procedural regulations. 42 U.S.C. § 2000e-12(a). The EEOC’s regulations provide that an individual may swear or affirm that the allegations in a charge of discrimination are true subsequent to the filing of the charge, and also provide that the verification will relate back, nunc pro tunc, to the filing date. 29 C.F.R. § 1601.12(b). The Supreme Court upheld this relation-back regulation in Edelman v. Lynchburg College, 535 U.S. 106 (2002). The district court overlooked this binding law and held that Plaintiff-Appellant William Guelache had not satisfied administrative prerequisites to suit because he did not verify his charge until after the charge-filing period had passed.

The EEOC has an interest in ensuring that courts properly interpret and apply its regulations. It also has an interest in seeing that claims of employment discrimination not be erroneously dismissed. Accordingly, the EEOC files this brief pursuant to Federal Rule of Appellate Procedure 29(a)(2).

Statement of the Issue[1]

Did Guelache satisfy Title VII’s charge-verification requirement by verifying his charge after the charge-filing period had expired, in light of EEOC regulations, Supreme Court precedent, and Circuit law allowing him to do so?

· 29 C.F.R. § 1601.12(b)

· Edelman v. Lynchburg Coll., 535 U.S. 106 (2002)

· Rush v. State Ark. DWS, 876 F.3d 1123 (8th Cir. 2017) (per curiam)

Statement of the Case

A. Statement of Facts

William Guelache, a Black man from Cameroon, began working as an hourly employee in 2014 in Conagra Brand’s manufacturing plant in Russellville, Arkansas. R. Doc. 65, at 2-3. In 2017, someone complained that Guelache had been harassing and intimidating other employees.

R. Doc. 65, at 26-27. During the course of the ensuing investigation, several employees stated that, while at work, Guelache was loaning money to individuals at high interest rates and then creating a negative atmosphere for them based on their indebtedness. R. Doc. 65, at 27, 30. The investigation revealed that another employee, Herlindo Lopez, was assisting Guelache with this “loan sharking.” R. Doc. 65, at 31. Conagra Brands determined that the loan sharking violated the company’s Code of Conduct and Employment Guide, and that Guelache’s behavior also violated the terms of a Last Chance Agreement he was on for previous misconduct. R. Doc. 65, at 38.

The company terminated Guelache and Lopez on December 4, 2017. R. Doc. 65, at 39. Both of them filed union grievances seeking reinstatement. R. Doc. 65, at 41. On May 4, 2018, the grievance panel denied Guelache’s reinstatement. R. Doc. 65, at 42. Conagra Brands and the union agreed to reinstate Lopez pursuant to a Last Chance Agreement. R. Doc. 65, at 43.

On June 1, 2018—which was 179 days after Guelache’s termination—Guelache sent an email to the EEOC, attaching a letter regarding his termination and the failure to reinstate him. R. Doc. 20, at 3. The letter alleged, inter alia, discrimination based on “origin race [sic].”[2] Id.

On July 2, 2018, an EEOC investigator e-mailed Guelache a formal charge and asked him to sign and return it. R. Doc. 20, at 6. Three days later, Guelache returned the formal EEOC charge alleging that Conagra Brands had discharged him on December 4, 2017, because of discrimination on the bases of race and national origin. R. Doc. 20, at 7. He signed this charge under penalty of perjury. Id. The EEOC issued a notice of right to sue, R. Doc. 1, at 4, and this lawsuit followed.

B. District Court’s Decision

The district court granted summary judgment to Conagra Brands.

R. Doc. 70, at 1. The court held, in relevant part, that Guelache “failed to timely exhaust [his] administrative remedies” with respect to his discriminatory termination claim.[3] R. Doc. 70, at 3. Title VII requires individuals to file a charge within 180 days of the alleged adverse action, the court explained, but Guelache did not file a charge until July 5, 2018—beyond the statutory charge-filing period. R. Doc. 70, at 3-4. “Guelache asserts that he actually initiated the charge of discrimination with the EEOC on June 1, 2018,” the court said, “but only when a charge is ‘signed under oath can it constitute a valid charge under Title VII for purposes of the statute of limitations.’” R. Doc. 70, at 4 (quoting Shempert v. Harwick Chem. Corp., 151 F.3d 793, 796 (8th Cir. 1998)) (internal quotation marks and citation omitted).

Argument

Title VII requires employees to file a charge with the EEOC within 180 days of the alleged discrimination.[4] 42 U.S.C. § 2000e-5(e)(1). Separately, the statute requires charges to be “in writing under oath or affirmation,” a provision known as the “verification” requirement.

42 U.S.C. § 2000e-5(b). The charge-filing provision does not indicate that the charge must be verified when filed, and the verification provision does not indicate when the verification must take place. “Neither provision incorporates the other so as to give a definition by necessary implication.” Edelman v. Lynchburg Coll., 535 U.S. 106, 112 (2002); see also id. at 112-13 (discussing different objectives of the two provisions and critiquing lower court’s reading of them as one).

EEOC regulations, promulgated pursuant to express statutory authority, 42 U.S.C. § 2000e-12(a), provide that a charge may be “sworn to or affirmed before a notary public, designated representative of the Commission, or other person duly authorized by law to administer oaths and take acknowledgements, or supported by an unsworn declaration in writing under penalty of perjury.” 29 C.F.R. § 1601.3(a); see also 29 C.F.R. § 1601.9 (requiring charge to be “verified”).

The regulations further provide that verification need not be contemporaneous with the filing of a charge. 29 C.F.R. § 1601.12(b). “A charge may be amended to cure technical defects or omissions, including failure to verify the charge . . . .” Id. Subsequent verification “will relate back to the date the charge was first received.” Id.

The Supreme Court sustained this relation-back regulation in Edelman, 535 U.S. at 114 (“We find the EEOC rule not only a reasonable one, but the position we would adopt even if there were no formal rule and we were interpreting the statute from scratch.”). Since then, this Court has repeatedly applied the relation-back rule, in both published and unpublished decisions. See Rush v. State Ark. DWS, 876 F.3d 1123, 1124-25 (8th Cir. 2017) (per curiam) (subsequent verification valid even after EEOC issued notice of right to sue); Brooks v. Midwest Heart Grp., 655 F.3d 796, 801 (8th Cir. 2011) (noting that an otherwise timely charge may be verified after expiration of the limitations period); Patillo v. Sysco Foods of Ark. LLC, 704

F. App’x 612, 612-13 (8th Cir. 2017) (per curiam) (ordering district court to reconsider whether intake questionnaire constituted a valid charge in light of Edelman).

Allowing charging parties to verify their charges at a later date does not prejudice employers. The purpose of the verification requirement is to “protect[] employers from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury.” Edelman, 535 U.S. at 113. As the Edelman Court recognized, “the EEOC’s standard practice is 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. at 115 n.9 (citing Brief for United States et al. as Amici Curiae on Pet. for Cert.). Indeed, Conagra Brands has not argued that the EEOC required it to respond to Guelache’s allegations until after July 5, signaling that the purpose underlying the verification requirement was satisfied here.

Inexplicably, Conagra Brands argued below that Guelache did not verify his allegations even in his formal, July 5 charge. R. Doc. 7, at 3 & n.4. This assertion is demonstrably untrue, as Guelache signed the July 5 charge “under penalty of perjury.” R. Doc. 7-1, at 2. Although Guelache did not verify his termination claims until thirty-three days beyond the charge-filing period, his July 5 verification related back, nunc pro tunc, to his timely June 1 letter. 29 C.F.R. § 1601.12(b); Edelman, 535 U.S. at 109, 114. Thus, the July 5 verification cured the initial verification defect.

Conclusion

For the foregoing reasons, the EEOC respectfully asks this Court to vacate the award of summary judgment on Guelache’s termination claim and remand for further proceedings.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

s/ Gail S. Coleman

GAIL S. COLEMAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2920

gail.coleman@eeoc.gov

July 1, 2022

Certificate Regarding Viruses

I certify that I have scanned this brief for viruses with Microsoft Windows Defender, and that the brief is virus-free.

s/ Gail S. Coleman

GAIL S. COLEMAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 921-2920

gail.coleman@eeoc.gov

Certificate of Service

I certify that on this 1st day of July, 2022, I electronically filed the foregoing brief in PDF format with the Clerk of the Court via the appellate CM/ECF system. I certify that all counsel of record and the pro se Plaintiff-Appellant are registered CM/ECF users, and service will be accomplished via the appellate CM/ECF system.

s/ Gail S. Coleman

GAIL S. COLEMAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 920-2921

gail.coleman@eeoc.gov

Certificate of Service of Paper Copies

I certify that on this 6th day of July, 2022, I caused ten paper copies of the foregoing brief to be sent via Federal Express for overnight delivery with the Clerk of the Court. I further certify that on this day of July, 2022, I caused one paper copy of the foregoing brief to be sent via Federal Express for overnight delivery to the following counsel of record and to the pro se Plaintiff-Appellant, at the following addresses:

William Guelache

28 Mockingbird Lane

Pine Bluff, AR 71603

Brittany M. Falkowski

Scott Daniel Meyers

Danielle Jean Reid

HUSCH & BLACKWELL

190 Carondelet Plaza

St. Louis, MO 63105-3441

Carolyn B. Witherspoon

CROSS & GUNTER

500 President Clinton Ave., Suite 200

Little Rock, AR 72201

s/ Gail S. Coleman

GAIL S. COLEMAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 920-2921

gail.coleman@eeoc.gov

[1] The EEOC takes no position on any other issue in this appeal.

[2] The first page of Exhibit A to Guelache’s opposition to summary judgment contains a screen shot of his email to the EEOC, together with a screen shot of the attached letter. R. Doc. 20, at 3. The screen shot of the attached letter mentions “my origin race.” Id. The second page of Exhibit A contains a free-standing copy of the letter, which does not include “my origin race,” and which appears to be an early draft of the version that Guelache ultimately submitted to the EEOC. R. Doc. 20, at 4.

[3] We note that the district court was incorrect to characterize charge filing as an “exhaustion of administrative remedies” requirement. See R. Doc. 70, at 3. Because the EEOC has no power to issue decisions adjudicating private-sector claims or awarding relief, charges simply give the agency the right of first refusal before individuals file their own de novo actions in court. See generally Brief for the U.S. as Amicus Curiae Supporting Respondent at 26-27, Fort Bend Cnty. v. Davis, 139 S. Ct. 1843 (2019) (No. 18-525), 2019 WL 1489048 (explaining why the charge-filing requirement is not an “exhaustion” requirement).

[4] In a jurisdiction with a state or local law prohibiting the alleged unlawful employment practice, and where the EEOC has certified a state or local agency to address employment discrimination claims, the deadline is 300 days. 42 U.S.C. § 2000e-5(e)(1). The EEOC has not certified any such agency in Arkansas. See 29 C.F.R. § 1601.80 (listing designated agencies).