Employee's Failure to Verify EEOC Charge is Waivable Condition Precedent Not Jurisdictional Defect: Tenth Circuit | Practical Law

Employee's Failure to Verify EEOC Charge is Waivable Condition Precedent Not Jurisdictional Defect: Tenth Circuit | Practical Law

In Gad v. Kansas State Univ., the US Court of Appeals for the Tenth Circuit held that the Title VII requirement that a claimant verify the charges against an employer (by signing an Equal Employment Opportunity Commission (EEOC) formal charge document) is non-jurisdictional and does not divest the federal courts of subject-matter jurisdiction. Failure to comply with the verification requirement is not a conclusive impediment to suit. Like other conditions precedent, verification can be asserted as a defense to a claim.

Employee's Failure to Verify EEOC Charge is Waivable Condition Precedent Not Jurisdictional Defect: Tenth Circuit

by Practical Law Labor & Employment
Published on 09 Jun 2015 • USA (National/Federal)
In Gad v. Kansas State Univ., the US Court of Appeals for the Tenth Circuit held that the Title VII requirement that a claimant verify the charges against an employer (by signing an Equal Employment Opportunity Commission (EEOC) formal charge document) is non-jurisdictional and does not divest the federal courts of subject-matter jurisdiction. Failure to comply with the verification requirement is not a conclusive impediment to suit. Like other conditions precedent, verification can be asserted as a defense to a claim.
On May 27, 2015, in Gad v. Kansas State Univ., the US Court of Appeals for the Tenth Circuit held that the Title VII requirement that a claimant verify the charges against an employer (by signing an EEOC formal charge document) is non-jurisdictional and does not divest the federal courts of subject-matter jurisdiction. Failure to comply with the verification requirement is not a conclusive impediment to suit. Like other conditions precedent, verification can be asserted as a defense to a claim. (No. 14-3050, (10th Cir. May 27, 2015).)

Background

KSU hired Professor Sabreen Gad in 2010 as a part-time assistant geology professor. Gad subsequently requested that KSU promote her either to:
  • A full-time professorship position.
  • Graduate faculty membership.
Gad did not receive either promotion. Therefore, in March 2012, Gad:
  • Filed an EEOC claim, alleging religious, sex and national-origin discrimination.
  • Completed and signed:
    • the required EEOC intake questionnaire form; and
    • a letter to the EEOC summarizing her claims.
  • Did not, as EEOC regulations require, verify the form or letter by affirming them either:
    • under penalty of perjury; or
    • before a person authorized to administer oaths.
An EEOC investigator later told Gad he would send her Form 5, a form which includes a box to sign under penalty of perjury, to satisfy the verification requirement. On the same day, the investigator mailed Gad:
  • Form 5.
  • A letter explaining the meaning of Form 5, the next steps in the EEOC's investigation and containing two pertinent directions informing Gad that:
    • if the EEOC did not receive her signed charge within 30 days, it would be authorized to dismiss her charge and issue her a right to sue letter; and
    • proper handling of this action by the EEOC required her to sign and date the charge and return the signed charge to this office.
The only place to sign the charge was a blank directly below the words, "I declare under penalty of perjury that the above is true and correct." Gad stated that she never signed or returned the form because the investigator "mentioned something that I don't have to return . . . the signing form." The investigator also mailed notice to KSU informing them that:
  • Gad had filed an "unperfected" charge of discrimination.
  • "[n]o action is required by you at this time."
Next:
  • In early April, the EEOC investigator told Gad that:
    • "further investigation will unlikely result in a violation;" and
    • if so, the EEOC would issue her a "Dismissal and Notice of the Right to Sue."
  • On April 19, the EEOC issued Gad the right-to-sue notice, copying KSU.
  • In June, Gad sued KSU in federal district court.
KSU's answer stated:
  • Generally that Gad had failed to exhaust her administrative remedies.
  • Nothing specifically about Gad's failure to verify.
After filing its answer but before it moved for summary judgment, KSU obtained a copy of Gad's unverified Form 5. In its motion for summary judgment, KSU argued that the court lacked jurisdiction because Gad failed to exhaust her administrative remedies by not verifying her EEOC charge. The district court:
  • Agreed, noting the Tenth Circuit's holding in Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1317 (10th Cir. 2005) that exhaustion of administrative remedies is a jurisdictional prerequisite to suit.
  • Relying on the principle in Shikles, concluded that:
    • Gad's failure to satisfy the Title VII verification requirement was a failure to exhaust administrative remedies; and
    • it therefore lacked jurisdiction.
Gad appealed the district court's grant of summary judgment.

Outcome

The Tenth Circuit held that the Title VII verification requirement is non-jurisdictional and does not divest the federal courts of subject-matter jurisdiction. Failure to comply with the verification requirement is not a conclusive impediment to suit. Like other conditions precedent, verification can be asserted as a defense to a claim.
The Tenth Circuit reversed the district court's contrary decision and remanded for the district court to determine whether the verification requirement was waived.
The Tenth Circuit noted that:
  • EEOC regulations interpreting Title VII:
    • reiterate that a charge "shall be in writing and signed and shall be verified" (29 C.F.R. § 1601.9); and
    • clarify that "verified" means "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 acknowledgments, or supported by an unsworn declaration in writing under penalty of perjury" (29 C.F.R. § 1601.3(a)).
  • The law is not clear on whether the verification requirement is a jurisdictional prerequisite to a Title VII suit. In cases analyzing other aspects of Title VII, the Tenth Circuit has concluded that some Title VII requirements are not jurisdictional prerequisites to suit, but these cases provide no dispositive answer. For example, see:
    • Montes v. Vail Clinic, Inc., holding that Section 2000e-5's "mandatory time limit for filing charges with the EEOC is not a jurisdictional prerequisite" and is "thus subject to waiver, estoppel, and tolling when equity requires" (497 F.3d 1160, 1167 (10th Cir. 2007));
    • EEOC v. JBS USA, LLC, noting that "not every defect in the administrative process defeats jurisdiction" (794 F. Supp. 2d 1188, 1201 (D. Colo. 2011));
    • Shikles, holding that "a plaintiff's exhaustion of his or her administrative remedies is a jurisdictional prerequisite to suit under Title VII, not merely a condition precedent to suit" (426 F.3d at 1317);
    • Jones v. U.P.S., Inc., holding that exhaustion requires "the filing of a charge of discrimination with the EEOC" and charges must be verified (502 F.3d 1176, 1183 (10th Cir. 2007)); and
    • Green v. Donahoe, noting that "the untimeliness of an administrative claim, although an exhaustion issue . . . is not jurisdictional" (760 F.3d 1135, 1140 (10th Cir. 2014)).
The Tenth Circuit then considered that the US Supreme Court has provided the principles necessary to resolve this jurisdictional question in several instructive cases, for example:
  • Zipes v. Trans World Airlines, Inc. considered whether compliance with the statutory time limit for filing EEOC charges was "a jurisdictional prerequisite to bringing a Title VII suit in federal court" or "subject to waiver and estoppel." The court concluded that it was subject to waiver and estoppel noting that:
    • "[t]he provision granting district courts jurisdiction under Title VII (42 U.S.C. § 2000e-5(f)(3)) does not limit jurisdiction to those cases in which there has been a timely filing; and
    • restrictive readings of Title VII are "particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process."
    (455 U.S. 385 (1982).)
  • In Edelman v. Lynchburg College, the court upheld an EEOC regulation "permitting an otherwise timely filer to verify a charge after the time for filing has expired," and permitting an individual to amend a charge "to cure technical defects or omissions, including failure to verify the charge." (29 C.F.R. § 1601.12(b).) The court noted that:
    • the verification and timely filing requirements are located in different subsections and have separate purposes, reemphasizing the importance of examining the precise location of a Title VII provision to determine its meaning;
    • the verification requirement is intended to protect employers and coworkers "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" but that purpose "demands an oath only by the time the employer is obliged to respond to the charge, not at the time an employee files it with the EEOC"; and
    • it reiterated the importance of considering the purpose of Title VII as a "remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process" and the need to protect the layperson from "forfeiting his rights inadvertently."
    (535 U.S. 106 (2002).)
  • US v. Kwai Fun Wong, in which the court reiterated its framework for analyzing jurisdictional claims, holding that "[P]rocedural rules . . . cabin a court's power only if Congress has 'clearly state[d]' as much," and "in applying that clear statement rule," courts employ "traditional tools of statutory construction" to determine whether "Congress imbued" a requirement "with jurisdictional consequences." (135 S. Ct. 1625 (2015)).
The Tenth Circuit distilled the following key principles from these Supreme Court cases:
  • A Title VII statutory requirement's classification as jurisdictional or non-jurisdictional depends on whether it is located in Title VII's jurisdictional subsection (42 U.S.C. § 2000e-5(f)(3)).
  • Courts should use caution in interpreting procedural rules to cause inadvertent forfeiture of rights (especially when non-lawyers are initiating Title VII actions).
  • Verification should protect employers from the burden of responding to frivolous claims or claims of which they were not given notice.
  • Failure to verify as required by a federal rule will not render the document in question fatally defective.
The Tenth Circuit concluded that, applying these principles to the Title VII verification requirement, it is not jurisdictional because:
  • The statutory text and the structure of Title VII fail to provide a "clear statement" that jurisdiction turns on verification.
  • This conclusion:
    • follows the principle disfavoring interpretations that might lead to inadvertent forfeiture of Title VII rights by non-lawyers initiating Title VII actions; and
    • does not hinder the purpose of the verification rule protecting employers and co-workers from frivolous claims, as a complainant must be serious enough to support his or her claim by oath.
  • Because verification is a non-jurisdictional requirement under Title VII, an employer is not prevented from raising a plaintiff's failure to satisfy the requirement as a defense. However, if an employer files a response on the merits without identifying a known verification defect, he waives the protection that the requirement provides (Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 263 (3d Cir. 2006)).
  • If a federal rule or statute requires verification, failure to verify will not "render the document fatally defective" (Edelman, 535 U.S. at 116 n.12).

Practical Implications

An employer that fails to raise a known verification defect in an EEOC Charge and responds on the merits may use the issue as a potential defense in later federal court proceedings.