Buck v. Hampton Sch Dist ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-30-2006
Buck v. Hampton Sch Dist
Precedential or Non-Precedential: Precedential
Docket No. 05-2373
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2373
KATHLEEN BUCK,
Appellant
v.
THE HAMPTON TOWNSHIP SCHOOL DISTRICT;
LAWRENCE C. KORCHNAK, DR.
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 04-cv-00837)
District Judge: Honorable Joy F. Conti
Argued May 16, 2006
Before: RENDELL, VAN ANTWERPEN and WEIS,
Circuit Judges.
(Filed June 30, 2006)
Steven D. Irwin
David V. Weicht [ARGUED]
Leech, Tishman, Fuscaldo & Lampl
525 William Penn Place
30 th Floor, Citizens Bank Building
Pittsburgh, PA 15219
Counsel for Appellant
Susan T. Roberts
Frank G. Adams [ARGUED]
Peacock, Keller & Ecker
70 East Beau Street
Washington, PA 15301
Counsel for Appellees
OPINION OF THE COURT
RENDELL, Circuit Judge.
This case requires us to address, for the first time, the
circumstances under which a plaintiff’s employment
discrimination claims should be dismissed for failure to properly
verify a charge before the Equal Employment Opportunity
Commission. We read Title VII and its accompanying
regulations to require a plaintiff to verify her charge before an
employer receives notice of, or is required to respond to, the
charge. However, we conclude that the verification requirement
is not jurisdictional, and, where, as here, the employer responds
to the merits of the charge without raising the plaintiff’s failure
2
to verify her charge before the EEOC, it has waived its right to
assert that defense in later federal court proceedings. We will
accordingly reverse the District Court’s order dismissing
plaintiff’s claims.
I.
Plaintiff Kathleen Buck worked as a secretary to the
Superintendent of the Hampton School District from 1993 until
October 23, 2002.1 From 1993 until 2000, the Superintendent
was Dr. Kenneth Scholtz, with whom Buck enjoyed a good
working relationship. During Scholtz’s tenure, Buck often
received verbal and financial commendations for her job
performance.
Buck was diagnosed with, and began treatment for, major
depression in 1997. Her psychiatrist sent a letter to the School
District informing it that she needed to take a one-month leave
to seek treatment for her condition. Thereafter, Scholtz and Dr.
Lawrence Korchnak, who became Superintendent of the School
District in 2000, regularly granted Buck leave from work to
attend doctor’s appointments. Thus, the School District and
Korchnak were aware of Buck’s condition.
1
The facts are recited as alleged in Buck’s complaint.
Because we are reviewing an order granting a motion to dismiss,
we must accept all of Buck’s allegations as true and view the
facts in the light most favorable to her. U.S. Express Lines Ltd.
v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
3
Buck’s work environment changed when Korchnak
became Superintendent. According to Buck, Korchnak
scrutinized and criticized her job performance on a daily basis,
to the point that she began to feel “incompetent, stupid and
worthless” and “inadequate and less of a human being.” Pl.’s
Compl. at 4, ¶¶ 21-22. He told her on several occasions that
members of the school board wanted to “get rid of her.” As a
result, Buck began to lose the ability to concentrate and
complete tasks that she was assigned. Her depression
intensified, and she became concerned about her job security.
She received her first unfavorable performance review under
Korchnak’s tenure and, in 2002, was denied a pay raise because
of performance concerns.
Korchnak also engaged in behavior that Buck deemed
inappropriate. He routinely rubbed his genitals in her presence,
despite her repeated pleas for him to stop. In the spring of 2002,
Korchnak asked Buck to kiss him after a dispute involving a
parent of a student at the school. Buck complied in fear of
losing her job.
Buck met with Korchnak, members of the school board
and the School District’s Title IX officer on several occasions
to voice her concerns about Korchnak’s harassing behavior and
its impact on her job performance. She requested
accommodations, in the form of changes in Korchnak’s
behavior, to help her perform her job appropriately, but the
School District took no action. In October of 2002, Korchnak
told Buck that she would be terminated if she did not resign.
Buck resigned on October 28, 2002, losing her benefits and
suffering a 15% penalty on her pension.
4
On April 16, 2003, Buck filed general and ADA intake
questionnaires with the Equal Employment Opportunity
Commission, alleging employment discrimination on account of
her sex and disability. The EEOC’s Pittsburgh Area Office
scheduled an appointment for Buck to come to the office and
file a charge of discrimination with a supporting affidavit.
Rather than attend the meeting, Buck filed a detailed, eight-page
charge of discrimination, signed by her attorney, on July 2,
2003. On July 9, 2003, the EEOC sent Korchnak and the School
District a “Notice of Charge of Discrimination,” with a copy of
Buck’s charge attached, and requested a response by July 31.
The School Board and Korchnak filed a joint “Answer and
Position Statement” on September 2, 2003, responding to the
individual counts in Buck’s charge and providing a general
“response to the charge” denying that they discriminated against
Buck and claiming that she “voluntarily resigned.” Buck then
filed a rebuttal. The EEOC chose not to pursue Buck’s charge
any further, and issued her a right to sue letter on March 10,
2004.
Buck filed suit against Korchnak and the School District
in the United States District Court for the Western District of
Pennsylvania. She alleged five counts: harassment (count I),
disparate treatment (count II), failure to accommodate (count
III) and retaliation (count IV), all under the federal Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq., and a violation
of the Pennsylvania Human Relations Act (count V). Korchnak
and the School District moved to dismiss the suit under Federal
Rule of Civil Procedure 12(b)(6) based on Buck’s failure to
verify her charge with the EEOC and the Pennsylvania Human
5
Relations Commission.2 The District Court granted the motion
with respect to Buck’s federal law claims, and dismissed the
remaining state law claim for lack of subject matter jurisdiction.
Buck now appeals.
II.
The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1367. Our jurisdiction over Buck’s appeal from the
District Court’s final order dismissing her complaint arises
under 28 U.S.C. § 1291.
We review a district court’s decision granting a party’s
motion to dismiss de novo. In reviewing a motion to dismiss,
we accept all factual allegations in the complaint as true and
view them in the light most favorable to the plaintiff. We may
not dismiss a complaint for failure to state a claim upon which
relief can be granted unless we find that the plaintiff can prove
no set of facts that would entitle her to relief. Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 559 (3d Cir. 2002). In
evaluating a motion to dismiss, we may consider documents that
are attached to or submitted with the complaint, id. at 560, and
any “matters incorporated by reference or integral to the claim,
items subject to judicial notice, matters of public record, orders,
[and] items appearing in the record of the case.” 5B Charles A.
Wright & Arthur R. Miller, Federal Practice & Procedure §
1357 (3d ed. 2004).
2
The defendants also moved to dismiss on several other
grounds, which the District Court did not address and are not
before us on appeal.
6
III.
A.
Plaintiffs bringing employment discrimination charges
under the ADA must comply with the procedural requirements
set forth in Title VII of the Civil Rights Act of 1964, as
amended, at 42 U.S.C. § 2000e-5. See 42 U.S.C. § 12117(a).
That provision requires a complainant to file a “charge” with the
EEOC, and states that such “[c]harges shall 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). Pertinent EEOC regulations state that a charge “shall be
in writing and shall be verified,” 42 C.F.R. § 1601.9, and define
the term “verified” as “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). EEOC
regulations further authorize plaintiffs to amend their charges
“to cure technical defects or omissions, including failure to
verify the charge[s],” and provide that such amendments “will
relate back to the date the charge was first received.” 29 C.F.R.
§ 1601.12(b).
Applying these provisions, we have little difficulty
concluding that Buck’s charge was not “verified” as defined by
the regulation we quote above. The record contains three
documents which, if verified, might satisfy the statutory
requirement: the two intake questionnaires, see, e.g., Wilkerson
v. Grinnell Corp., 270 F.3d 1314, 1321 (11th Cir. 2001)
7
(holding that a “verified intake questionnaire . . . may constitute
a charge for purposes of . . . Title VII”); Kuper v. Colonial Penn
Ins. Co., No. 99-172, 1999 WL 317077, at *3 (E.D. Pa. May 18,
1999) (holding that an EEOC “questionnaire signed under
penalty of perjury” may satisfy “Title VII’s oath or affirmation
requirement”), and the formal charge itself.3 Each of these
documents was signed by an attorney on Buck’s behalf; the two
intake questionnaires were signed under the following pre-
printed statement: “I hereby verify that the statements contained
in this complaint are true and correct to the best of my
knowledge, information and belief.” However, none of the
documents was signed “under penalty of perjury” as the statute
and its accompanying regulations require. Accordingly, Buck’s
charge does not satisfy the statute’s literal “verification”
requirement.4 Cf. Ricciardi v. Consol. Rail Corp., No. 98-3420,
2000 WL 1456736, at *3 (E.D. Pa. Sept. 29, 2000) (signed, but
3
Buck did not attempt to amend her charge to include
verification while it was pending before the EEOC.
4
We note that a charge may be filed “by or on behalf of” a
claimant, 42 U.S.C. § 2000e-5(b), so that, arguably, the
attorney’s filing of Buck’s claim was permissible. However, the
attorney did not “verify” the charge according to the regulatory
definition. Buck urges that her attorney’s statement as to the
truth and correctness of the charge, according to the best of her
“knowledge, information and belief” should be deemed a
satisfactory verification. Because we decide that the verification
requirement was in any event waived, we need not decide this
issue.
8
unverified intake questionnaire allegedly filed with the EEOC
does not satisfy statutory “charge” requirement).
B.
The question, then, is what consequences flow from
Buck’s failure to properly verify her charge. As the District
Court observed, cases construing the statutory verification
requirement and associated regulations have typically held that
“a private litigant cannot maintain a Title VII or ADA claim
where her EEOC charge was not verified prior to the issuance
of a right to sue letter,” based on two reasons.
First, the plain language of the statute, which provides
that a charge “shall be in writing under oath or affirmation,” 42
U.S.C. § 2000e-5(b) (emphasis added), indicates that the
verification requirement is mandatory, see, e.g., Vason v. City of
Montgomery, 240 F.3d 905, 907 (11th Cir. 2001); Danley v.
Book-of-the-Month Club, Inc., 921 F. Supp. 1352, 1354 (M.D.
Pa. 1996); EEOC v. Calumet Photographic, Inc., 687 F. Supp.
1249, 1252 (N.D. Ill. 1988) (reasoning that “[a] charge which is
neither filed under oath or affirmation, nor subsequently
amended to cure this defect, fails, it seems, to satisfy th[e]
statutory mandate”).
Second, construing the verification requirement as a
prerequisite to filing suit gives effect to the purpose of the
statutory verification requirement, “to protect the employer from
having to respond to frivolous charges.” Balazs v. Liebenthal,
32 F.3d 151, 157 (4th Cir. 1994). Such “protection is lost once
the right to sue letter issues and the employer is served with a
9
lawsuit. At that point the employer’s only choice is to defend
the suit . . . .” Id. See also Danley, 921 F. Supp. at 1354.
In some cases, courts have denied plaintiffs the right to
amend their charges to include a verification after the EEOC
issues a right to sue letter. While the EEOC has adopted a
regulation that authorizes amendments to cure what it describes
as “technical defects or omissions,” including “failure to verify
the charge[s],” 29 C.F.R. § 1601.12(b), courts have reasoned
that the amendment serves no purpose once the right to sue letter
has issued:
[A] reasonable construction of the EEOC’s
regulation[, 29 C.F.R. § 1601.12(b),] would
simply allow charges to be verified and to relate
back only so long as the charge is a viable one in
the EEOC’s files, but that where, as here, 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. This construction of
the regulation imparts certainty to the proceeding
which is helpful to the parties and to the court,
and at the same time it complies with the statutory
requirement of verification without undermining
the EEOC regulation.
Balazs, 32 F.3d at 157. See also Bacon v. Allstate Ins. Co., No.
93 C 1701, 1995 U.S. Dist. LEXIS 8168, at *25-26 (N.D. Ill.
Jun. 14, 1995).
10
We view these cases as instructive on the limited issue of
whether a post-right to sue letter amendment is permissible, not
as controlling on the issue before us, namely, the plaintiff’s right
to bring suit after an employer has received and answered an
unverified charge, without raising the lack of verification,
before the EEOC. 5 We agree that the language regarding the
filing of the charge and its verification is mandatory and that the
policy of protecting employers from having to respond to
5
The cases cited above (and relied on by the District Court) do
not address this issue. In three of those five cases, the employer
did not learn of the charge pending against it until after the
EEOC issued a right to sue letter; two of those cases, Balazs and
Danley, explicitly considered that fact in their analysis. See
Vason, 240 F.3d at 906; Balazs, 32 F.3d at 158; Danley, 921 F.
Supp. at 1354. The employer in the fourth case received a
general “Notice of Charge of Discrimination” while the EEOC’s
investigation was pending, but no copy of the charge was
attached, and the notice form did not identify the claimant or the
circumstances of the alleged violation. See Bacon, 1995 U.S.
Dist. LEXIS 8168, at *6. To the extent that the remaining case,
Calumet Photographic, can be read to stand for the broader
proposition that Title VII’s verification requirement bars later
suit regardless of whether, or when, the employer received
notice of the charge, see 687 F. Supp. at 1249-50, 1252
(speculating that plaintiff who failed to verify charge would
have been barred from suing employer that received notice of
charge while it was pending before the EEOC and participated
in EEOC conciliation proceedings), we note that it is not binding
on us and we respectfully disagree.
11
frivolous claims supports mandatory verification. However, we
are presented here with a different fact pattern. In this case, the
employer received a notice and copy of the charge, and filed a
lengthy and detailed response on the merits, without mentioning
the plaintiff’s failure to verify the charge, all before the EEOC
issued its right to sue letter. We must decide whether, under
these circumstances, the plaintiff should be barred from
maintaining her suit, or whether the employer, by failing to raise
the issue in the agency proceedings, has waived the right to
assert the plaintiff’s failure to verify her charge as a bar to suit
in federal court.
Although section 2000e-5(b)’s verification requirement
is a statutorily required element of an EEOC charge, it is not a
jurisdictional prerequisite for suit, as such, i.e., a plaintiff’s
failure to satisfy the requirement does not divest a federal court
of jurisdiction. See Price v. Sw. Bell Tel. Co., 687 F.2d 74, 79
(5th Cir. 1982). The Supreme Court, in Zipes v. Trans World
Airlines, Inc., 455 U.S. 385 (1982), held that an analogous
provision, Title VII’s mandatory time limit for filing charges
with the EEOC, is “not a jurisdictional prerequisite to filing a
Title VII suit, but a requirement subject to waiver as well as
tolling when equity so requires.” Id. at 398. In so holding, it
observed that “[t]he provision granting district courts
jurisdiction under Title VII, 42 U.S.C. §§ 2000e-5(e) and (f),
does not limit jurisdiction to those cases in which there has been
a timely filing with the EEOC.” Id. at 393. Nor does that
section limit jurisdiction to cases in which the charge before the
12
EEOC has been properly verified.6 Like the “provision
specifying the time for filing charges with the EEOC,” id. at
394, the provision requiring such charges to be “in writing under
oath or affirmation,” 42 U.S.C. § 2000e-5(b), “appears as an
entirely separate provision, and it does not speak in
jurisdictional terms or refer in any way to the jurisdiction of the
6
Title VII’s jurisdiction-granting provision, 42 U.S.C. §
2000e-5(f)(3), reads:
Each United States district court and each United
States court of a place subject to the jurisdiction
of the United States shall have jurisdiction of
actions brought under this subchapter. Such an
action may be brought in any judicial district in
the State in which the unlawful employment
practice is alleged to have been committed, in the
judicial district in which the employment records
relevant to such practice are maintained and
administered, or in the judicial district in which
the aggrieved person would have worked but for
the alleged unlawful employment practice, but if
the respondent is not found within any such
district, such an action may be brought within the
judicial district in which the respondent has his
principal office. For purposes of sections 1404
and 1406 of Title 28, the judicial district in which
the respondent has his principal office shall in all
cases be considered a district in which the action
might have been brought.
13
district courts,” Zipes, 455 U.S. at 394. Moreover, while not
controlling, the EEOC’s own regulation describes a plaintiff’s
failure to verify her charge as a “technical defect[] or
omission[],” 29 C.F.R. § 1601.12(b), as we noted above. We
conclude that the verification requirement, like the statute’s time
limit for filing a charge with the EEOC, should be subject to
waiver “when equity so requires.” 7 Cf. Price, 687 F.2d at 77 n.3
(“[W]e do not . . . view the verification element as jurisdictional.
. . . [C]ourts should remain flexible when reviewing failures of
persons unfamiliar with administrative complexities to comply
with procedural rules. We should not regard such rules as rigid
jurisdictional prerequisites.”).
Construing the verification requirement more flexibly, to
7
The Supreme Court’s statement, in Edelman v. Lynchburg
College, 535 U.S. 106 (2002), that the verification requirement
“demands an oath . . . by the time the employer is obliged to
respond to the charge,” id. at 113, is not to the contrary. The
Court in that case was concerned with a challenge to the validity
of the EEOC’s relation-back regulation, see id. at 109, not with
the consequences of a plaintiff’s failure to verify her charge
under the circumstances presented here. Thus, its statement
reflects the generally applicable rule; it does not address the
failure to comply with that rule, or consider whether the rule is
subject to waiver. As we discuss in more detail infra, the result
that we reach here is largely informed by the Edelman Court’s
guidance as to the remedial purpose of Title VII and its
suggestion that the verification and filing provisions of Title VII
should be construed accordingly. See id. at 115.
14
take equitable considerations into account, comports with the
broad remedial purposes of Title VII and the ADA without
compromising the verification requirement’s narrower objective.
As noted above, the statutory verification requirement “has the
. . . object of protecting 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 v. Lynchburg Coll., 535 U.S. 106, 113
(2002). Thus, the verification requirement is concerned only
with protecting an employer from responding to an unverified
charge. When an employer files a response on the merits, he
forgoes the protection that the requirement affords.
Moreover, the Supreme Court has explained that the
verification requirement must be construed in the context of
Title VII as a whole:
[T]he verification provision is meant to provide
some degree of insurance against catchpenny
claims of disgruntled, but not necessarily
aggrieved, employees. In requiring the oath or
affirmation, however, Congress presumably did
not mean to affect the nature of Title VII as “a
remedial scheme in which laypersons, rather than
lawyers, are expected to initiate the process.”
Edelman, 535 U.S. at 115 (quoting EEOC v. Commercial Office
Prods. Co., 486 U.S. 107, 124 (1988)). Where possible, then,
Title VII, and the verification requirement therein, should be
interpreted to “ensure[] that the lay complainant . . . will not risk
forfeiting his rights inadvertently.” Id. See also Zipes, 455 U.S.
15
at 397 (quoting Love v. Pullman Co., 404 U.S. 522, 527 (1972)).
The rule that the School District urges us to adopt, that a
plaintiff’s failure to verify her charge before the EEOC
constitutes an absolute bar to suit, contravenes the Supreme
Court’s advice in this regard.
The facts of this case provide a telling example. When
the School District received notice of Buck’s charge and the
EEOC’s order demanding a response, Buck’s unverified charge
was attached. At that point, the School District could have
responded that the charge was unverified and, as such, did not
warrant a response on the merits. Presumably, if Buck was
“serious enough and sure enough to support [her claims] by oath
subject to liability for perjury,” Edelman, 535 U.S. at 113, she
could then have amended her charge to include a verification
pursuant to 42 C.F.R. § 1601.12(b). If, on the other hand, Buck
declined to verify the charge even after receiving notice of the
defect, a court could reasonably conclude that her charge was
frivolous, and would be justified in dismissing any later suit.
Under these circumstances, the purposes of the statute and the
verification requirement would be served: Buck would not
forfeit her rights inadvertently, and the School District would
not be forced to respond to an unverified or frivolous charge.
Here, instead of raising Buck’s failure to verify her
charge as a defense before the EEOC, the School District
responded to her claims on the merits. It waited until the right
to sue letter had issued, and Buck’s right to amend her charge
had been cut off, to raise her failure to verify as a bar to further
proceedings. Were we to rigidly apply the verification
requirement to bar Buck under these circumstances, we would
16
deprive her of her right to sue without any assurance that the
purpose for the verification requirement is met, i.e., that her
claim is frivolous. In a case where the employer had the
opportunity to point out the plaintiff’s failure to verify the
charge, and thus challenge its sufficiency, at the EEOC
investigation stage, but declined to do so, such a result is
inequitable at best. At worst, it gives employers an incentive not
to raise a plaintiff’s failure to verify her charge before the
EEOC, in the hope that plaintiff will not discover the
“technical” error until it is too late, and that the employer will be
able to secure dismissal of any subsequent federal suit on that
basis. It neither furthers the verification requirement’s purpose
of protecting employers from having to respond to frivolous
claims nor comports with the Supreme Court’s Title VII
guidance.
At oral argument, counsel for the School District
contended that employers should not be required to raise the
verification defense before the EEOC because, in some
instances, they receive a notice that an EEOC charge has been
filed against them, but do not receive a copy of the charge itself.
See, e.g., Bacon, 1995 U.S. Dist. LEXIS 8168, at *6 (employer
received “Notice of Charge of Discrimination” identifying date,
place and basis for charge of discrimination, but not copy of
charge or information identifying claimant or circumstances of
alleged violations, before right to sue letter issued). In such
cases, the School District argued, employers do not have
sufficient information to determine whether the charge was
properly verified or not. However, the rule we adopt is flexible
enough to take such facts into account. Our decision in this case
is premised on the fact that the School District had adequate
17
information, i.e., a copy of the detailed but unverified charge, on
which to raise the issue before the EEOC.
Under the circumstances of this case, the School
District’s motion to dismiss on the basis of Buck’s failure to
verify her charge seems like “an afterthought, brought forward
at the last possible moment” to preclude “consideration of the
merits”; it can prevail “only from technical compulsion
irrespective of considerations of practical justice.” United
States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36 (1952).
Given our determination that the verification requirement is not
an inflexible bar to suit, but a statutory requirement of the initial
charge, with non-compliance amenable to equitable
considerations, we cannot countenance this result. Accordingly,
we hold that where, as here, an employer has actual notice of a
discrimination charge and chooses to respond to the merits of
the claim before the EEOC without asserting lack of verification
as a defense it waives its right to secure dismissal of the federal
court proceedings on that basis.
C.
Finally, we note that we expect the cases in which this
rule applies to be few and far between. We understand that,
generally speaking, “the EEOC looks out for the employer’s
interest by refusing to call for any response to an otherwise
sufficient complaint until the verification has been supplied.”
Edelman, 535 U.S. at 115. In a brief as amicus curiae before
the Supreme Court, the EEOC asserted that its “general
practice” is “to prepare a formal charge of discrimination for the
complainant to review and to verify, once the allegations have
18
been clarified.” Id. at 115 n.9 (citing Brief for United States et
al. as Amici Curiae 24). Thus, in the ordinary case, the
“complainant must submit a verified charge before the agency
will require a response from the employer.” Id. (citation
omitted). This reinforces our view that equitable considerations
will apply to excuse the plaintiff’s failure to verify her EEOC
charge only in the most unusual cases.
IV.
As noted above, the District Court dismissed Buck’s state
law claim for lack of subject matter jurisdiction in light of its
dismissal of the federal law claims pending in the suit. Because
we conclude that the federal law claims were improperly
dismissed, we will also reverse the District Court’s order
dismissing Buck’s state law claim.
V.
For the foregoing reasons, we will reverse the District
Court’s order dismissing Buck’s suit and remand for further
proceedings consistent with our opinion.
19