Glapion-Pressley v. City and County of Denver ( 2022 )

Appellate Case: 21-1223 Document: 010110671023 Date Filed: 04/14/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 14, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
MELEAHA R. GLAPION-PRESSLEY,
Plaintiff - Appellant,
v. No. 21-1223
(D.C. No. 1:19-CV-02806-RM-MEH)
CITY AND COUNTY OF DENVER; (D. Colo.)
DEPARTMENT OF HUMAN SERVICES,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, KELLY, and CARSON, Circuit Judges.
_________________________________
Meleaha R. Glapion-Pressley appeals pro se from the district court’s dismissal
of her employment discrimination suit and denial of post-judgment relief. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Glapion-Pressley worked for the City & County of Denver, Department of
Human Services (City) from April 2016 until December 2018, when she was fired.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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In 2019, she filed a discrimination complaint with the Equal Employment
Opportunity Commission (EEOC), concluding with the following declaration:
Pursuant to 28 U.S.C. §[]1746, I, Meleaha Ruth Glapion-Pressley,
declare preparing herein June 12, 2019 (Wednesday) Filed Formal
Complaint Charges of Discrimination (26 pages) truthfully and to the
best of my ability.
R., vol. 3 at 99 (bolding and underlining omitted). The EEOC notified the City of the
complaint but indicated no response was required at that time because “[a] perfected
charge (EEOC Form 5) [would] be mailed to [the City] once it [had] been received
from the Charging Party.” Id. at 35 (emphasis added). The EEOC interviewed
Glapion-Pressley and required that she review and sign a formal charge by July 31,
2019. She apparently never signed it, however, because on August 23, the EEOC
notified her it had not received the charge and therefore no further action would
be taken in her case. The EEOC deemed this its final action and provided
Glapion-Pressley with a right-to-sue letter. She then initiated this suit.1
The district court determined the third-amended complaint, which was the
operative complaint, alleged three claims under Title VII, see 42 U.S.C. §§ 2000e to
2000e-17, and a fourth claim under state law. The City moved to dismiss, arguing
that the Title VII claims were unexhausted because Glapion-Pressley failed to file a
1
Although Glapion-Pressley initiated this action pro se, the district court
appointed her counsel, who filed the operative complaint on her behalf.
2
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verified EEOC charge.2 Glapion-Pressley responded that her EEOC complaint was
verified because she referred to 28 U.S.C. § 1746 in her declaration. Adopting a
magistrate judge’s report and recommendation, the district court dismissed the Title
VII claims for failure to satisfy the verification requirement.3 Glapion-Pressley
moved to vacate the dismissal under Fed. R. Civ. P. 60(b), but the district court
denied her motion. This appeal followed.
II
We first consider the scope of this appeal. The district court entered judgment
on October 14, 2020, and Glapion-Pressley filed her Rule 60(b) motion seven days
later. The district court denied the Rule 60(b) motion on May 28, 2021, from which
Glapion-Pressley filed her notice of appeal on June 15, though she designated only
the denial of her Rule 60(b) motion. Because she designated only the denial of the
Rule 60(b) motion in her notice of appeal, the City contends this appeal encompasses
only the order denying the Rule 60(b) motion, not the underlying dismissal. But the
Rule 60(b) motion tolled the time to appeal because it was filed within 28 days of the
entry of judgment. See Fed. R. App. P. 4(a)(4)(A)(vi). Although it designated only
the denial of Rule 60(b) relief, we decline to limit this appeal for “hypertechnical
2
EEOC regulations define “verified” as being affirmed before persons
authorized to administer oaths or an unsworn written declaration made under penalty
of perjury. See 29 C.F.R. § 1601.3(a).
3
The district court declined to exercise supplemental jurisdiction over the
state-law claim. Glapion-Pressley does not address that ruling on appeal, and we do
not consider it.
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reasons” when the Rule 60(b) motion tolled the time to appeal, the notice of appeal
was timely, and Glapion-Pressley clearly aimed to challenge the underlying
dismissal. Cheney v. Moler, 285 F.2d 116, 118 (10th Cir. 1960) (internal quotation
marks omitted); see Sundance Energy Okla., LLC v. Dan D. Drilling Corp., 836 F.3d
1271, 1275 n.2 (10th Cir. 2016) (“A notice of appeal designating a ruling on a
postjudgment motion is typically sufficient to appeal the judgment itself.”). Thus, we
consider both the underlying dismissal and the denial of post-judgment relief.
III
We review de novo the district court’s dismissal for failure to exhaust. See
Gad v. Kan. State Univ., 787 F.3d 1032, 1036-38 (10th Cir. 2015) (treating Title
VII’s verification requirement as a non-jurisdictional exhaustion requirement); Smith
v. Cheyenne Ret. Invs. L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (reviewing district
court’s exhaustion ruling de novo).4 Although we afford pro se pleadings a liberal
construction, we will not act as Glapion-Pressley’s attorney by searching the record
and crafting arguments on her behalf. See Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005).
A charge of discrimination filed with the EEOC must “‘be in writing under
oath or affirmation containing such information and in such form as the [EEOC]
4
To the extent Glapion-Pressley contends the district court erred by reviewing
material outside the operative complaint, the City was entitled (and obliged) to object
to the verification defect immediately in its motion to dismiss. See Gad, 787 F.3d
at 1039 (“[A]ny objection to the failure to comply with a verification requirement
must be raised immediately or not at all.” (internal quotation marks omitted)).
4
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requires.’” Edelman v. Lynchburg Coll., 535 U.S. 106, 112 (2002) (quoting
42 U.S.C. § 2000e-5(b)) (brackets and ellipses omitted). “EEOC regulations
interpreting the statute reiterate that a charge ‘shall be in writing and signed and shall
be verified.’” Gad, 787 F.3d at 1036 (quoting 29 C.F.R. § 1601.9). “‘[V]erified’
means ‘sworn to or affirmed before a notary public, designated representative of the
[EEOC], 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.’” Id. (emphasis added) (quoting 29 C.F.R. § 1601.3); see also id. at 1034(recognizing a claimant can satisfy the verification requirement by signing a
declaration under penalty of perjury). Although the verification requirement is not
jurisdictional, see id. at 1039, it is a condition precedent to suit, see id. at 1042.
Indeed, verification serves 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; see also
Peterson v. City of Wichita, 888 F.2d 1307, 1309 (10th Cir. 1989) (“[T]he purpose of
the verification requirement . . . is to protect an employer from frivolous claims.”).
Glapion-Pressley fails to show the district court erred in dismissing her claims
for failure to satisfy Title VII’s verification requirement. Her declaration cited
§ 1746, but as the district court correctly observed, she did not sign it “under penalty
of perjury.” See Price v. Philpot, 420 F.3d 1158, 1167 (10th Cir. 2005) (recognizing
the “‘under penalty of perjury’ language [is] specifically required by 28 U.S.C.
§ 1746”). Although Glapion-Pressley suggests she satisfied the verification
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requirement by submitting an initial EEOC intake questionnaire, which she says was
verified, we decline to consider this argument because Glapion-Pressley failed to
preserve it in the district court, and she makes no attempt to show plain error on
appeal. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011)
(distinguishing waived from forfeited arguments and explaining that “we will reverse
a district court’s judgment on the basis of a forfeited theory only if failing to do so
would entrench a plainly erroneous result”).
Glapion-Pressley asserts she did preserve this issue, but her pleadings refute
her assertion. She argued in response to the motion to dismiss that she satisfied the
verification requirement—not by submitting an intake questionnaire—but by citing
§ 1746 in her declaration. See R., vol. 3 at 70. She also relied on her reference to
§ 1746 in her objections to the magistrate judge’s report and recommendation,
arguing that “[b]y invoking Section 1746, expressly by name, the Plaintiff’s
declaration must be viewed as incorporating and adopting all of the language of the
statute itself, including the ‘under penalty of perjury’ language.” Id. at 126. And in
her Rule 60(b) motion, she argued that an amended EEOC charge that she filed just
days before the district court dismissed her case constituted new evidence justifying
post-judgment relief. She insisted under Edelman that her amended EEOC charge
related back to the time she filed her EEOC complaint and cured the verification
defect. Although her Rule 60(b) motion included a sentence suggesting that an
intake questionnaire can serve as an EEOC charge, see id. at 143, her argument was
that her amended EEOC charge should relate back to cure her unverified EEOC
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complaint. See id. at 142-43. She repeated this argument in her Rule 60(b) reply
brief, in which she distinguished an intake questionnaire from an amended EEOC
charge, which she relied upon. See id. at 159-60. Her pleadings thus confirm that
she failed to preserve this issue.5
Neither must we consider another new argument in which Glapion-Pressley
contends the magistrate judge was biased against her. See Richison, 634 F.3d
at 1127-28. Although she indicates that she “explicitly conveyed, verbally and in
writing, reasonably questioning [the magistrate judge’s] impartiality to Pro Bono
Counsel along with mentioning how she had previously filed a Motion for Recusal,”
Aplt. Br. at 6, she apparently never raised these concerns with the district court.
Indeed, the district court docket sheet does not reflect a motion for recusal, and while
the parties declined consent to proceed before a magistrate judge, Glapion-Pressley
provides no record citation demonstrating that she moved for recusal. See Garrett,
425 F.3d at 840-41 (noting an appellant’s brief must provide citations to “parts of the
record on which the appellant relies”).
The argument is meritless in any event. “To demonstrate a violation of due
process because of judicial bias, a claimant must show either actual bias or an
appearance of bias.” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010) (internal
5
We also note that Glapion-Pressley’s opening brief on appeal fails to
adequately develop this issue; it merely asserts she satisfied the verification
requirement by submitting an initial intake questionnaire. See Aplt. Br. at 8. Absent
any developed argument, we decline to construct arguments on her behalf. See
Garrett, 425 F.3d at 840.
7
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quotation marks omitted). “Adverse rulings alone do not demonstrate judicial bias.”
Id. Yet adverse rulings are the sole basis of Glapion-Pressley’s allegations in which
she avers that the magistrate judge issued adverse rulings against her in other Title
VII suits she previously has brought. See Aplt. Br. at 6 (arguing that the magistrate
judge “presided over appealed Title VII civil actions and granted summary judgments
to pro se Appellant’s previous federal employers”); id. at 16 (same).
Additionally, Glapion-Pressley faults the EEOC for closing her case. While
her argument is not entirely clear, she seems to contend the EEOC lacked jurisdiction
to close her case because the Department of Justice has sole authority to prosecute
discrimination claims involving local municipalities. See id. at 11. Once again,
however, we need not consider this issue because Glapion-Pressley failed to preserve
it in the district court. See Richison, 634 F.3d at 1127-28. We also note that she
waived this issue on appeal by failing to explain how the EEOC’s closure of her case
suggests any error on the part of the district court. See Nixon v. City & Cnty. of
Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an appellant is to
explain to us why the district court’s decision was wrong. Recitation of a tale of
apparent injustice may assist in that task, but it cannot substitute for legal
argument.”); see also id. at 1369-70 (invoking waiver where appellant failed to
explain how district court erred). We therefore affirm the district court’s dismissal.
IV
Finally, Glapion-Pressley challenges the denial of her Rule 60(b) motion. “We
review the district court’s denial of a Rule 60(b) motion for abuse of discretion.”
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Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). “A district
court abuses its discretion when it commits legal error.” Dronsejko v. Thornton,
632 F.3d 658, 664 (10th Cir. 2011). There was no abuse of discretion here.
Shortly before the district court entered judgment on October 14, 2020,
Glapion-Pressley executed an amended, notarized EEOC charge under penalty of
perjury on October 9. See R., vol. 3 at 146-47. Following entry of judgment, she
returned to the district court and filed a Rule 60(b) motion, arguing that her amended
EEOC charge was new evidence warranting relief from the judgment. She claimed
her amended EEOC charge should relate back to her EEOC complaint filed on June
12, 2019, to cure the verification defect. See Edelman, 535 U.S. at 109 (upholding
29 C.F.R. § 1601.12(b), which “permit[s] an otherwise timely filer to verify a charge
after the time for filing has expired”); see also Peterson, 888 F.2d at 1309 (same).
The district court denied the motion, ruling that because the EEOC had already
issued a right-to-sue letter and closed the case, the amended charge was too late.
Glapion-Pressley is correct that Edelman permits an amended EEOC charge to
relate back to verify an original charge, but we have found no case—and she cites
none—permitting such an amendment once the EEOC has closed the case and issued
a right-to-sue letter. As Edelman observed, the object of verification is to protect
employers from frivolous claims, but “[t]his object . . . demands an oath only by the
time the employer is obliged to respond to the charge.” 535 U.S. at 113. Once the
EEOC issues a right-to-sue letter and the claimant files suit, there is no pending
EEOC charge to verify. The Fourth Circuit recognized as much when it held that an
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amended EEOC charge may relate back to the time the charge was filed to cure a
verification defect “only so long as the charge is . . . viable . . . in the EEOC’s files,
but [once] a right[-]to[-]sue letter has issued, a suit has been instituted and the EEOC
has closed its file, there is no longer a charge pending before the EEOC which is
capable of being amended.” Balazs v. Liebenthal, 32 F.3d 151, 157 (4th Cir. 1994).
Here, the EEOC issued a right-to-sue letter, Glapion-Pressley initiated suit,
the City filed its motion to dismiss based on the verification defect, and the
magistrate judge recommended that the motion to dismiss be granted for lack of
verification. Only then—just days before the district court’s entry of judgment—did
Glapion-Pressley file an amended EEOC charge in an attempt to cure the verification
defect. But because the EEOC had long since issued her right-to-sue letter and
closed the case, her belated attempt to cure the verification defect was too late and
did not justify granting the Rule 60(b) motion. Consequently, the district court acted
within its discretion in denying the motion.
V
The district court’s judgment is affirmed.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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