TABLE OF AUTHORITIES.......................................................................... iii

STATEMENT OF INTEREST........................................................................ 1

STATEMENT OF THE ISSUE....................................................................... 2

STATEMENT OF THE CASE....................................................................... 2

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

B. District Court’s Decision...................................................................... 5

ARGUMENT.................................................................................................. 6

The District Court Erred in Ruling That Carlson’s CIS was not a Valid Charge Under the ADA, Holowecki, and the EEOC’s Regulations....................................... 6

A. The statutory and regulatory framework............................................... 6

B. The district court incorrectly applied the EEOC’s regulations and the lessons of Holowecki........................................................................................................ 10

1. Carlson’s CIS contained sufficient factual detail................................ 11

2. The CIS objectively manifests an intent to activate the remedial machinery of the EEOC......................................................................................................... 16

3. Carlson submitted a verified charge................................................... 21

CONCLUSION............................................................................................. 23

CERTIFICATE OF COMPLIANCE............................................................ 25

CERTIFICATE OF DIGITAL SUBMISSION & PRIVACY REDACTIONS 26

CERTIFICATE OF SERVICE....................................................................... 27

Table of Authorities

Page(s)

Cases

Agolli v. Office Depot, Inc.,
548 F. App’x 871 (4th Cir. 2013)....................................................... 14, 16

Edelman v. Lynchburg College,
535 U.S. 106 (2002)......................................................................... 9, 10, 23

EEOC v. Shell Oil Co.,
466 U.S. 54 (1984).............................................................................. passim

EEOC v. Watkins Motor Lines, Inc.,
553 F.3d 593 (7th Cir. 2009).................................................................... 21

Enoch v. Becton, Dickinson & Co.,
2012 WL 2371049 (D. Md. June 22, 2012).............................................. 15

Federal Express Corp. v. Holowecki,
552 U.S. 389 (2008)............................................................................ passim

Hildebrand v. Allegheny County,
757 F.3d 99 (3d Cir. 2014)....................................................................... 17

Holowecki v. Federal Express Corp.,
440 F.3d 558 (2d Cir. 2006)..................................................................... 19

Jallow v. Office of Court Administration,
2012 WL 4044894 (S.D.N.Y. Sept. 4, 2012)............................................ 15

McKenzie v. Illinois Department of Transportation,
92 F.3d 473 (7th Cir. 1996)................................................................ 14, 15

Palmer v. Southwest Airlines,
2009 WL 3462043 (N.D. Ill. Oct. 23, 2009)............................................. 18

Philbin v. General Electric Capital Auto Lease, Inc.,
929 F.2d 321 (7th Cir. 1991)...................................................................... 8

Stone v. Academy, Ltd.,
2016 WL 164116 (S.D. Tex. Jan. 12, 2016).............................................. 17

Tucker v. Howard University Hospital,
764 F. Supp. 2d 1 (D.D.C. 2011).............................................................. 15

Valenzisi v. Stamford Board of Education,
948 F. Supp. 2d 227 (D. Conn. 2013)...................................................... 14

Williams v. CSX Transportation Co.,
643 F.3d 502 (6th Cir. 2011).................................................................... 23

Statutes

42 U.S.C. § 12101 et seq.......................................................................... passim

42 U.S.C. § 2000e-5(b).............................................................................. 7, 13

42 U.S.C. § 2000e-5(e)(1)...................................................................... 3, 6, 22

42 U.S.C. § 12117(a)........................................................................................ 7

Regulations

29 C.F.R. § 1601.3(a)................................................................................. 9, 22

29 C.F.R. § 1601.7(a)..................................................................................... 22

29 C.F.R. § 1601.9........................................................................................... 9

29 C.F.R. § 1601.12(a)............................................................................ passim

29 C.F.R. § 1601.12(b)............................................................................ passim

Rules and Other Authorities

Fed. R. App. P. 29(a)....................................................................................... 1

Fed. R. Civ. P. 8(a)(2)................................................................................... 16

EEOC Uniform Intake Questionnaire, http://www.eeoc.gov/form/upload/Uniform-Intake-Questionnaire.pdf 17

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “the Commission”) is charged with the interpretation, enforcement, and administration of the Americans with Disabilities Act of 1990, 42 U.S.C.

§§ 12101 et seq. (“ADA”). In this ADA case, the district court held that the plaintiff, Jacquelyn Carlson, did not file a charge of discrimination within 300 days of her termination. In reaching this conclusion, the court held that a Complainant Information Sheet, which was filed by Carlson’s attorney with the Illinois Department of Human Rights within 300 days of Carlson’s termination, was not a charge pursuant to the EEOC’s regulations and Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008).

This case raises an important question about the appropriate standard for determining what a document must contain to constitute a properly filed charge under the EEOC’s regulations and Holowecki. Because the answer to this question will impact the EEOC’s ability to enforce the ADA and other anti-discrimination statutes, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE [1]

Did Carlson’s Complainant Information Sheet constitute a charge of discrimination pursuant to the ADA, the EEOC’s regulations, and Holowecki, where it: (1) described generally the alleged discriminatory act; (2) objectively manifested her desire for remedial action; and (3) was subsequently verified?

STATEMENT OF THE CASE

A. Statement of Facts

Carlson worked as a Senior Customer Service Representative for defendant Christian Brothers Services (“CBS”) from 1992 to 2012. (Appendix (“App.”) 23-24). Carlson alleges in this litigation that she was terminated on February 1, 2012, because of her “perceived disability in violation of the ADA.” (App. 2). On July 31, 2012—within 300 days of the allegedly discriminatory termination—Carlson’s attorney submitted a Complainant Information Sheet (“CIS”) to the Illinois Department of Human Rights (“IDHR”) on Carlson’s behalf. (App. 13-16). The CIS provided Carlson’s full name, telephone numbers, and address. (App. 13.) It also gave the name, address, and telephone number of CBS, as well as a statement that CBS employs more than 15 employees. Id.

When it came to discussing the alleged discrimination, Carlson wrote on the CIS that she was “fired” after a “severe car accident” that caused her to “walk with a limp” and “use[ ] a cane at work.” (App. 14). As the alleged
“basis” for her termination, Carlson identified her “perceived physical disability” and cited “retaliation” for “taking time off from work and for using [her] health insurance to pay for the severe car accident.” Id.[2]

In the text above the signature line, the CIS states, in relevant part, “I understand that: 1) IDHR will also file my charge of discrimination with EEOC, and I authorize EEOC to look into the discrimination alleged above if it has jurisdiction.” (App. 15). Further, the CIS makes clear above the signature line that, by signing, the complainant consents to the disclosure of her identity and personal information to the “named Respondent(s).” Id. As noted, Carlson’s attorney signed the CIS on Carlson’s behalf. Id.

On February 27, 2013—391 days after she was terminated—Carlson filed jointly with the EEOC and the IDHR an EEO-5 form, labeled a “Charge of Discrimination.” (App. 23-24). Carlson signed the EEO-5 form under penalty of perjury and had it notarized. (App. 23). This form contained much the same information regarding the alleged discrimination as did the CIS. (App. 23-24).[3]

On November 4, 2014, the EEOC issued a Dismissal and Notice of Rights form to Carlson, stating that the EEOC was unable to conclude that a violation of the ADA had occurred. (App. 26). Carlson then filed a Complaint alleging, among other things, that she was terminated in violation of the ADA because CBS “regarded and perceived” her as “being disabled.” District Court Docket (“Dkt.”) No. 23 ¶¶ 9, 16 (Amended Complaint). CBS moved for summary judgment, arguing that Carlson’s claim could not proceed because the CIS did not constitute a timely filed charge. Dkt. No. 42 at 2-6 (Def.’s Mem. in Supp. of Summ. J.).

B. District Court’s Decision

The district court granted CBS’s motion. The court began by observing what Holowecki makes clear: that, to constitute a charge, a filing must “be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.” (App. 5) (quoting Holowecki, 552 U.S. at 402) (internal quotation marks omitted). In connection with this requirement, the district court concluded that the CIS did not include “any hint that Carlson was requesting action on the part of the EEOC.” (App. 9). Moreover, the court found that Carlson’s CIS was deficient because—in the court’s view—it did not satisfy the EEOC’s regulations that describe what a document must contain in order to constitute a charge. (App. 8-9). Nor was the CIS, according to the district court, properly “verified” as that term is defined by the regulations. (App. 9). And, in support of its decision to grant summary judgment, the district court made two additional observations: (1) that “neither the IDHR nor the EEOC notified CBS of any ‘charge’ as a result of the CIS”; and (2) that “the CIS is not labeled as a charge.” (App. 8). “Under the[se] circumstances,” said the district court, Carlson’s “claim may not proceed.” (App. 9).

ARGUMENT

The District Court Erred in Ruling That Carlson’s CIS was not a Valid Charge Under the A DA, Holowecki, and the EEOC’s Regulations.

A. The statutory and regulatory framework

As the district court recognized, plaintiffs suing under the ADA must, as a prerequisite to filing suit, exhaust administrative remedies by timely filing a charge of discrimination. See 42 U.S.C. § 2000e-5(e)(1) (stating, inter alia, that a “charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred”).[4] The ADA also requires a charge to “be in writing under oath or affirmation” and to “contain such information and be in such form” as the EEOC requires. Id. § 2000e-5(b).

With respect to what information must be included in a charge, there are two relevant provisions: 29 C.F.R. § 1601.12(a) and 29 C.F.R. § 1601.12(b). As the district court observed, 29 C.F.R. § 1601.12(a) provides, in relevant part, that:

Each charge should contain the following: (1) The full name, address and telephone number of the person making the charge[;] (2) The full name and address of the person against whom the charge is made[;] (3) A clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices[;] (4) If known, the approximate number of employees of the respondent employer[;] and (5) A statement disclosing whether proceedings involving the alleged unlawful employment practice have been commenced before a State or local agency charged with the enforcement of fair employment practice laws[.]

29 C.F.R. § 1601.12(a) (emphasis added).

Subsection (b) of the same regulation qualifies subsection (a), stating that “[n]otwithstanding the provisions of [§ 1601.12(a)],” a charge suffices so long as it is a “written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” Id. § 1601.12(b). Therefore, although charges ideally “should” include all of the information suggested by § 1601.12(a) because such information facilitates EEOC investigations, charges are nonetheless valid so long as they satisfy § 1601.12(b). See Philbin v. Gen. Elec. Capital Auto Lease, Inc., 929 F.2d 321, 323 n.2 (7th Cir. 1991) (“In § 1601.12(b), the EEOC relaxed the requirements [of § 1601.12(a)] by declaring that notwithstanding § 1601.12(a) a charge was sufficient if it was a written statement precise enough to identify the parties and generally describe the complained of practices.”); cf. EEOC v. Shell Oil Co., 466 U.S. 54, 67 (1984) (holding that Title VII “prescribes only minimal requirements pertaining to the form and content of charges”).

The EEOC’s regulations not only describe what factual content a document must contain to qualify as a charge, they also set out what it means for a charge to be “under oath or affirmation.” In particular, 29 C.F.R. § 1601.9 says that a charge “shall be verified.” And 29 C.F.R. § 1601.3(a) defines the term “verified,” in relevant part, as “sworn to or affirmed before a notary public” or “supported by an unsworn declaration in writing under penalty of perjury.” The regulations go on to add, however, that even if a submission is not verified when it is first filed, it “may be amended to cure technical defects or omissions, including failure to verify,” and any such amendment “will relate back to the date the charge was first received.” 29 C.F.R. § 1601.12(b); see also Edelman v. Lynchburg Coll., 535 U.S. 106, 118 (2002) (deeming “the EEOC’s relation-back regulation,” § 1601.12(b), “an unassailable interpretation of” Title VII).

Also, in Holowecki the Supreme Court held that to constitute a charge a submission not only must comply with the aforementioned EEOC regulations, but also must, when viewed objectively, evince a request for remedial action from the EEOC or another anti-discrimination agency. See 552 U.S. at 402 (clarifying that a filing is a charge only if, “from the standpoint of an objective observer . . . the filer requests the agency to activate its machinery and remedial processes”). Therefore, to count as a charge: a document must be in writing, identify the parties, describe generally the alleged discrimination, request agency remedial action, and—either at the time of filing or later—be “verified.” Id.; Edelman, 535 U.S at 113 (concluding that an employee need not verify a charge when s/he first files it, but must do so by the time the employer is obligated to respond).

B. The district court incorrectly applied the EEOC’s regulations and the lessons of H olowecki.

Carlson’s CIS meets all of these criteria. As a preliminary matter, however, we note that the district court misapplied the pertinent EEOC regulations. In particular, the court focused on 29 C.F.R. § 1601.12(a), which sets forth what a charge “should contain.” In so doing, it overlooked § 1601.12(b), which provides that a charge suffices so long as it is a “written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of”—“[n]otwithstanding the provisions of [§ 1601.12(a)].” Therefore, the district court’s decision rests on a faulty premise—that the information § 1601.12(a) suggests for inclusion in a charge is “required.” (App. 8).

1. Carlson’s CIS contained sufficient factual detail.

The district court also erred in finding that the CIS “fail[ed] to convey the circumstances of the discrimination[.]” Id. Specifically, under the section of the CIS entitled “DESCRIPTION OF THE EMPLOYMENT HARM AND BASES THE IDHR IS BEING REQUESTED TO INVESTIGATE,” Carlson wrote: “Fired. In March of 2011 I was in a severe car accident in which I broke both my femurs and my pelvis. I now walk with a limp. I used a cane at work.” (App. 14). Under “BASIS,” Carlson wrote on the CIS: “Perceived Physical Disability.” Id. Below the section entitled “SECOND ISSUE OF HARM OR EMPLOYMENT ACTION TAKEN AGAINST YOU BY RESPONDENT (If applicable),” Carlson wrote: “Fired for taking time off from work and for using my health insurance to pay for the severe car accident I was in in March 2011.” Id. She cited “retaliation” as the “basis” for this action. Id. Carlson also completed the section asking for the “reason given by [CBS] for the action taken against [her],” explaining that Diane Engstrom, a CBS claims manager, told her that her termination was based on the “quality of [her] performance and for slamming a door.” Id.

The CIS makes clear, in other words, that the complained-of action is Carlson’s termination. Carlson also communicated in the CIS that she believed that her termination was based on her perceived (or “regarded-as”) disability, and that it constituted retaliation for “taking time off from work and for using [her] health insurance to pay” for medical expenses. This is a “clear and concise statement of the facts,” 29 C.F.R. § 1601.12(a)(3); and it is enough to “describe generally the action or practices complained of.” 29 C.F.R. § 1601.12(b); see generally Holowecki, 552 U.S. at 402, 406 (describing standard as “permissive” and instructing that “[d]ocuments filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies”); see also Shell Oil Co., 466 U.S. at 62 n.11 (rejecting earlier court decisions interpreting Title VII to require aggrieved individuals “to set forth the facts upon which the charge is based”) (internal quotation marks, citations, and alterations omitted).

As the Supreme Court said in Shell Oil Co., Title VII has never required aggrieved individuals to set out extensive factual detail in the charge. 466 U.S. at 62 n.11. Indeed, instead of permitting courts to prescribe the level of detail required in a charge, Congress expressly left this to the EEOC. See 42 U.S.C. § 2000e-5(b) (“Charges . . . shall contain such information and be in such form as the Commission requires.”). And, as noted, the EEOC adopted a regulation providing that a charge is sufficient if it “describe[s] generally the action or practices complained of.” 29 C.F.R. § 1601.12(b).[5]

The conclusion that Carlson’s CIS is sufficient also follows from a core holding of Holowecki: “a charge can be a form, easy to complete, or an informal document, easy to draft.” 552 U.S. at 403. It fits as well with the principle, articulated by this Court, that an “[ADA] plaintiff need not allege in an EEOC charge each and every fact that combines to form the basis of each claim in her complaint.” McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 482 (7th Cir. 1996) (internal citation and quotation marks omitted).

Moreover, the district court’s conclusion—that the CIS “fail[ed] to convey the circumstances of the discrimination”—clashes with other decisions which have, in the wake of Holowecki, deemed submissions with relatively bare-bones allegations adequate “charges.” See, e.g., Agolli v. Office Depot, Inc., 548 F. App’x 871, 876 (4th Cir. 2013) (holding that plaintiff “did what was required by providing a written statement specific enough to ascertain the parties and to explain generally her race discrimination and retaliation claims”); Valenzisi v. Stamford Bd. of Educ., 948 F. Supp. 2d 227, 235 (D. Conn. 2013) (rejecting employer’s argument that letter the plaintiff sent to the EEOC was “not detailed enough” where the letter set forth the plaintiff’s “name (and contact information) as well as that of his employer” and “explain[ed] that . . . he was terminated after working for 35 years because of religious discriminatory practices”); Jallow v. Office of Court Admin., No. 10- 8575, 2012 WL 4044894, at *7 (S.D.N.Y. Sept. 4, 2012) (finding submission sufficient because plaintiff “briefly set forth the specific factual details of his claims”); Enoch v. Becton, Dickinson & Co., No. 11-3551, 2012 WL 2371049, at *6 (D. Md. June 22, 2012) (holding that plaintiff’s submission contained adequate description of the discrimination where it alleged that plaintiff was terminated and “replaced by a white man”). Thus, the district court’s ruling is incompatible with decisions of the Supreme Court such as Shell Oil and Holowecki, decisions of this Court such as McKenzie, and decisions of other jurisdictions applying these principles. Indeed, it is telling that Carlson’s EEO-5 form, which even CBS does not argue lacks sufficient detail, contains much the same information as the CIS with regard to the alleged discrimination.^{^[6]}

2. The CIS objectively manifests an intent to activate the remedial machinery of the EEOC.

Contrary to the district court’s holding, the CIS satisfied Holowecki’s requirement that, to qualify as a charge, a document must articulate a desire for agency remedial action. The district court stated that the CIS “failed [to] include a request for action, explicit or implicit[.]” (App. 8). This is incorrect because it ignores the text above the signature line in the CIS. That text reads, in relevant part: “I understand that: 1) IDHR will also file my charge of discrimination with EEOC, and I authorize EEOC to look into the discrimination alleged above if it has jurisdiction.” (App. 15).

Such language is similar to that contained in the EEOC’s form Intake Questionnaire, which permits would-be charge filers to check a box, commonly referred to as “Box 2,” which reads, in relevant part, “I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above.” See EEOC Uniform Intake Questionnaire, available at http://www.eeoc.gov/form/upload/Uniform-Intake-Questionnaire.pdf (last visited June 8, 2016). After Holowecki, several courts have recognized that a would-be charge filer who “checks Box 2” of the Intake Questionnaire “unquestionably files a charge.” Hildebrand v. Allegheny Cty., 757 F.3d 99, 113 (3d Cir. 2014); see also Stone v. Acad., Ltd., --- F. Supp. 3d ----, 2016 WL 164116, at *4 (S.D. Tex. Jan. 12, 2016) (finding that the plaintiff “requested agency action by checking Box 2”).

The district court’s ruling, therefore, is correct only if the text above the signature line in the CIS evinces a desire for agency action to a lesser extent than checking Box 2 of the Intake Questionnaire. But this conclusion has no basis in common sense or precedent. Indeed, both the signature line in the CIS and Box 2 of the EEOC’s form Intake Questionnaire expressly “authorize” the “EEOC to look into the discrimination” alleged. And until the district court did so here, no court had suggested, let alone held, that the language in the CIS is insufficient to objectively manifest a desire for remedial action. Therefore, signing the CIS should carry the same legal significance as checking Box 2 of the form Intake Questionnaire.

Palmer v. Southwest Airlines, No. 08-6158, 2009 WL 3462043 (N.D. Ill. Oct. 23, 2009), upon which the district court relied, is not to the contrary. In that case, the plaintiff filed an intake questionnaire with form language stating that if the questionnaire “constitutes the only timely written statement of allegations of employment discrimination, the Commission will . . . consider it to be a sufficient charge.” Palmer, 2009 WL 3462043, at *1, *7. This language, according to the Palmer court, “constituted a request by the filer to activate the EEOC’s remedial processes.” Id. at *7 (citations omitted). If, as the district court apparently agrees, the form language in Palmer signifies a desire for agency action, so too does the CIS. If anything, the language here, informing complainants that a signature would automatically trigger the filing of a charge and an EEOC investigation, more concretely manifests a request for agency action than the language in Palmer, which merely indicated that the agency would treat the questionnaire as a charge if no other writing was timely submitted.

In addition, by signing the CIS on her behalf, Carlson’s attorney consented to the disclosure of Carlson’s identity to her former employer. This is further indication that Carlson wished to activate the administrative process. Indeed, in the Second Circuit’s Holowecki decision, which the Supreme Court affirmed, the panel concluded that the complainant’s consent to the disclosure of her identity to her former employer “demonstrate[d] [her] desire to move the investigatory and conciliatory process forward.” Holowecki v. Fed. Express Corp., 440 F.3d 558, 568 (2d Cir. 2006). The Supreme Court agreed, ruling that the plaintiff’s decision to “check[ ] a box . . . giving consent for the agency to disclose her identity to the employer” helped “bring the entire filing within the definition of [a] charge.” Holowecki, 552 U.S. at 406. The same reasoning applies here.

Carlson’s decision to have an attorney sign and submit the CIS on her behalf constitutes still more evidence that she sought to remedy what she believed to be unlawful discrimination. In Holowecki, the Supreme Court distinguished between “information requests” and those submissions that are “enforcement requests,” noting that the EEOC serves an “‘educational function’” as well as an enforcement role. 552 U.S. at 400-01. The CIS here should fall into the “enforcement request” category because an objective reader of the document would see that Carlson had engaged an attorney, and thus rationally conclude that she was beyond the point of seeking information about her rights and wished instead to enforce the law.

The district court stated that its conclusion that the CIS did not include a request for agency action was “bolstered by the fact that neither the IDHR nor the EEOC notified CBS of any ‘charge’ as a result of the CIS.” (App. 8). However, this reasoning is foreclosed by Holowecki. There, the employer argued that the definition of a charge should be conditioned “upon the EEOC’s fulfilling its mandatory duty to notify the charged party.” 552 U.S. at 403. The Supreme Court rejected this position, reasoning that “[i]t would be illogical and impractical to make the definition of a charge dependent upon a condition subsequent over which the parties have no control.” Id. at 404.

Nor is it significant that the CIS is not labeled a charge. (See App. 8) (observing that “the CIS is not labeled as a charge – indeed, it expressly states that it is “NOT A CHARGE”). The district court’s reasoning in this regard runs contrary to precedent holding that what is relevant to this inquiry is not a document’s label, but rather whether it manifests a desire for agency action. See EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593, 597-98 (7th Cir. 2009) (“We know from [Holowecki] that a document may be a ‘charge’ even if it lacks an appropriate caption and charging language. A piece of paper that alleges discrimination and asks the agency to take remedial action suffices.”); see also Holowecki, 552 U.S. at 405 (holding that intake questionnaire was a charge even though it was “not labeled a ‘Charge of Discrimination,’” and “[i]n fact the wording of the questionnaire suggest[ed] the opposite”). Contrary to the district court’s ruling, therefore, the CIS may reasonably be construed as a request for agency action even though it “is not labeled as a charge.”

3. Carlson submitted a verified charge.

The district court was also incorrect in finding that Carlson failed to “verify” her charge. It is true, as the district court observed, that Carlson did not sign the CIS. Rather, her attorney signed it on her behalf. However, as noted above, Title VII expressly contemplates that a charge may be filed “on behalf of the person aggrieved” by, for example, her attorney. 42 U.S.C. § 2000e-5(e)(1). Likewise, the Commission’s regulations permit attorneys to file charges on behalf of their clients. See 29 C.F.R. § 1601.7(a) (“A charge that any person has engaged in or is engaging in an unlawful employment practice within the meaning of . . . the ADA . . . may be made by or on behalf of any person claiming to be aggrieved.”) (emphasis added).

In addition, although the CIS itself was neither “sworn to or affirmed” nor “supported by an unsworn declaration in writing under penalty of perjury,” see 29 C.F.R. § 1601.3(a) (defining the term “verify”), § 1601.12(b) provides that a charge “may be amended to cure technical defects or omissions, including failure to verify the charge,” and under such circumstances “the verified charge relates back to the date the charge was first received.” That provision applies here because Carlson submitted a verified EEO-5 form 391 days after she was fired.

The district court recognized the pertinent regulation, but declined to apply the “relation-back” feature of § 1601.12(b) because, in its view, “the CIS . . . lacked all of the formalities of a charge (signature, verification, details), [and] it failed to include any hint that Carlson was requesting action” from the EEOC. (App. 9). For reasons already discussed, however, the district court’s findings with respect to “details” and a “request for action” are incorrect. Therefore, its bases for declining to apply § 1601.12(b) are not sustainable, and the verified EEO-5 form, which Carlson completed before CBS was obliged to respond to her allegations, is a valid “verification” of her CIS. See Edelman, 535 U.S. at 113. Thus, Carlson timely submitted a verified charge. See Williams v. CSX Transp. Co., 643 F.3d 502, 509 (6th Cir. 2011) (holding that the plaintiff timely verified her charge because she “signed her second EEOC filing . . . under penalty of perjury”).

CONCLUSION

For the foregoing reasons, the district court’s judgment should be reversed and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 4,667 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

Dated: June 9, 2016

CERTIFICATE OF DIGITAL SUBMISSION & PRIVACY REDACTIONS

I hereby certify that (1) all required privacy redactions (in this document, none) have been made to this document, (2) the hard copies to be submitted to the Court are exact copies of the version submitted electronically, and (3) the electronic submission was scanned for viruses with the most recent version of a commercial virus scanning program, Trend Micro OfficeScan, version 12.579.00 (updated June 9, 2016) and, according to that program, is free of viruses.

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

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

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

Dated: June 9, 2016

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

[2] Although Carlson’s attorney signed the CIS, it appears that Carlson filled out the substantive portions of the CIS herself. Even if not, as discussed in greater detail below, attorneys may complete and submit charges on behalf of their clients. See 42 U.S.C. § 2000e-5(e)(1) (stating that a “charge shall be filed by or on behalf of the person aggrieved”) (emphasis added). Therefore, we proceed on the assumption that Carlson completed the CIS, regardless of whether this is in fact true or whether her attorney did so for her.

[3] The EEO-5 form contained some details not included in the CIS. In particular, in her EEO-5, but not in her CIS, Carlson stated that her “work performance . . . met [CBS’s] reasonable expectations,” and she identified similarly situated comparators who were treated more favorably by CBS. (App. 23-24). On the other hand, the CIS mentioned facts omitted from the EEO-5 form. For example, in the CIS, but not in the EEO-5, Carlson asserted that an “HR rep[resentative],” of CBS, Pamela Mott, told her after her car accident that she “better not come to work with a cane or other assistive device.” (App. 14).

[4] Congress incorporated into the ADA the remedies and procedures of Title VII. See 42 U.S.C. § 12117(a) (“The powers, remedies, and procedures set forth in [Title VII] shall be the powers, remedies, and procedures” of the ADA). Therefore, Title VII’s charge-filing requirement, including its prescription as to what must be included in a charge, applies with equal measure to suits filed under the ADA.

[5] Despite the district court’s ruling to the contrary and although doing so was not required, Carlson’s CIS did specify “the approximate number of employees” employed by CBS. See (App. 7-8) (referring to item (4) of § 1601.12(a)). The CIS had a section asking whether “the respondent ha[s] a total of 15 or more people working in the United States,” to which Carlson checked the box stating “Yes.” (App. 13). The district court also faulted Carlson for not including in the CIS “[a] statement disclosing whether proceedings [had] been commenced before a State or local agency[.]” (App. 8). But this criticism is nonsensical here because the CIS was itself a filing with a state agency, the IDHR.

[6] To be sure, the complainant in Holowecki supplemented her intake questionnaire “with a detailed six-page affidavit,” see 552 U.S. at 405, but nowhere in Holowecki did the Supreme Court indicate that such an extensive description was necessary. To the contrary, the decision says “that a charge can be a form, easy to complete, or an informal document, easy to draft.” Id. at 403; see also Tucker v. Howard Univ. Hosp., 764 F. Supp. 2d 1, 7 (D.D.C. 2011) (observing that the Court’s determination in Holowecki “did not hinge upon the level of detail provided in the filing”). Also, it is well established that an EEOC charge “is not held to the same standard as a federal court complaint,” i.e., “‘a short and plain statement of the claim[.]’” Agolli, 548 F. App’x at 876 (quoting Fed. R. Civ. P. 8(a)(2) (emphasis added)); see also Shell Oil, 466 U.S. at 68 (“[A] charge of employment discrimination is not the equivalent of a complaint initiating a lawsuit.”).