Victoria Tillbery v. Kent Island Yacht Club, Inc. , 461 F. App'x 288 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1730
VICTORIA L. TILLBERY,
Plaintiff - Appellant,
v.
KENT ISLAND YACHT CLUB, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:09-cv-02956-CCB)
Argued: September 20, 2011 Decided: January 19, 2012
Before WILKINSON, NIEMEYER, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Floyd wrote a
dissenting opinion.
Joyce E. Smithey, RIFKIN, LIVINGSTON, LEVITAN & SILVER, LLC,
Annapolis, Maryland, for Appellant. Craig Forrest Ballew,
FERGUSON, SCHETELICH & BALLEW, PA, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After enduring unwanted, sexually-laden harassment by the
general manager and a member of the board of the Kent Island
Yacht Club, Inc., Victoria Tillbery, a waitress at the Yacht
Club, complained to the EEOC on April 22, 2009, by filling out
an online questionnaire. In the questionnaire, Tillbery stated
that she was hired on July 1, 2006, and that the allegedly
improper conduct took place on July 1, 2006. Naming Kevin Damas
and Bob Schober as the persons responsible, she described their
conduct: “Sexual language used; propositioned for money;
display of doll for sexual purposes” and “Money for sex; just
wanted sex.” When Tillbery filled out the questionnaire, she
was represented by an attorney, who later wrote the Kent Island
Yacht Club, demanding that the Club cease and desist in its
sexual harassment of Tillbery.
Less than two weeks later, Tillbery filled out another EEOC
questionnaire, but this time in person in the Baltimore office
of the EEOC, giving essentially the same information that she
had given on April 22, 2009. In response to this complaint, the
EEOC sent the Kent Island Yacht Club a notice of the
discrimination claim.
Finally, on June 27, 2009, Tillbery filed a formal charge
with the EEOC, which she signed under the penalty of perjury.
The charge stated:
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On July 1, 2006, I was hired by the above referenced
employer as a waitress. On this same date I was
subjected to sexual harassment by Kevin Damass [sic]
(General Manager) and Bob Shober [sic] (Rear
Commodore). Sexual language was used, I was
propositioned for money, and there was a display of a
doll for sexual purposes.
In response to the charge, the EEOC sent Tillbery a right to sue
letter on August 8, 2009, stating, “Your charge was not timely
filed with the EEOC; in other words, you waited too long after
the date of the alleged discrimination to file your charge.”
Tillbery commenced this action under Title VII of the Civil
Rights Act of 1964 against the Kent Island Yacht Club on
November 6, 2009. In her complaint, she alleged sexual
harassment by both Damas and Schober, but she claimed that it
took place between October 2008 and April 2009. The complaint
also alleged that from May 2009 through October 2009, the Kent
Island Yacht Club retaliated against her because of her EEOC
complaint.
On Kent Island Yacht Club’s motion to dismiss or, in the
alternative, for summary judgment, the district court dismissed
the complaint for lack of subject matter jurisdiction,
concluding that Tillbery had not exhausted her administrative
remedies by first filing a charge with the EEOC with respect to
the harassment that occurred between October 2008 and April
2009. See Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th
Cir. 2009) (holding that a plaintiff’s “failure . . . to exhaust
3
administrative remedies concerning a Title VII claim deprives
the federal courts of subject matter jurisdiction over the
claim”). The court pointed out that in her EEOC questionnaires
and formal charge, Tillbery described sexual harassment that
took place on July 1, 2006, leading the agency to conclude that
the charge was untimely. The conduct alleged in the complaint
in this case, however, was described as having taken place
between October 2008 and April 2009, and a charge about that
conduct was never filed with the EEOC for investigation and
possible administrative resolution.
Responding to Tillbery’s contention that her use, in the
EEOC questionnaires, of the July 1, 2006 date was merely a
clerical error that had been repeated without correction in the
formal charge, the court acknowledged that Tillbery was probably
right. But the court observed that the effect of the error was
substantive, frustrating the scheme designed by Congress for
resolving such claims. As the court stated:
The requirement that a claimant inform the EEOC of the
date(s) of the alleged discriminatory activity is not
merely a technicality. Rather, such information
notifies the agency of the scope of its investigation,
and ultimately, the scope of a plaintiff’s right to
file a federal law suit is determined by the [EEOC]
charge’s contents. Moreover, among the reasons
Congress enacted Title VII’s exhaustion requirement
was that the EEOC administrative process is typically
better suited to ending discrimination than the
ponderous pace of formal litigation, because the EEOC
undertakes detailed investigations into potential
discrimination claims before any suit is filed, both
4
preserving judicial economy . . . and helping
prospective plaintiffs build their case.
(Internal quotation marks and citations omitted).
In short, Tillbery’s charge filed with the EEOC described
sexual harassment on July 1, 2006, leading the EEOC to dismiss
that charge as untimely. Yet in the complaint filed in this
case, she alleged sexual harassment occurring during the period
from October 2008 to April 2009, for which she never filed a
charge with the EEOC, thereby denying the EEOC the opportunity
to investigate and mediate the claim. Because she failed to
exhaust her administrative remedies with respect to the 2008-09
conduct, the district court concluded that it was without
subject matter jurisdiction.
While the assumed clerical error is regretful, it was
compounded by additional conduct. At the time Tillbery filed
her complaint with the EEOC, she was represented by counsel.
Moreover, she repeated the error in her second filing and again
in her formal EEOC charge, where she stated under oath that the
sexual harassment occurred on July 1, 2006. Finally, after the
EEOC notified Tillbery and her counsel of the untimeliness of
her claim, she still did not seek to correct the alleged error
in her filings with the EEOC. See 29 C.F.R. § 1601.12 (allowing
the correction of “technical defects or omissions” and providing
5
that these corrections will “relate back to the date the charge
was first received”).
The dissent concludes that the EEOC failed to perform its
duty to investigate Tillbery’s charge after receiving it and
that even a “minimal investigation” in this case would have
“exposed the scrivener’s error” that Tillbery now claims
occurred when she stated that the discrimination occurred in
July 2006 rather than October 2008 and April 2009.
While we agree with our good colleague that the EEOC is
given the task of investigating discrimination charges, we
cannot agree that it needed to conduct more of an investigation
than it did in this case. It was given no inkling of reason to
question Tillbery’s claim that the discrimination occurred in
July 2006, and without any reason to doubt the facts as claimed
multiple times by Tillbery, even when represented by counsel, we
cannot conclude that the EEOC’s investigation was not
reasonable. From its point of view, the EEOC received a charge
of discrimination occurring in July 2006 and reasonably
concluded that because the charge for that discrimination was
filed more than two years later, it was untimely. The dissent’s
proposal to have the EEOC conduct a more expansive investigation
would in principle require the EEOC to investigate independently
even undisputed facts on every charge that it receives. This is
6
clearly not required by law and, moreover, would be completely
impractical, bringing the EEOC to its knees.
Having reviewed the record carefully and considered
Tillbery’s arguments on appeal, we affirm for the reasons given
by the district court in its thorough opinion. We do note,
however, the possibility of some relief from the ill effects of
the alleged clerical error, as Tillbery assures us that she has
pending timely state court actions, which allege the same
misconduct. We trust that she will pursue those so as to be
able to present the merits of her claim for resolution.
AFFIRMED
7
FLOYD, Circuit Judge, dissenting:
I respectfully dissent.
Victoria L. Tillbery filed suit against Kent Island Yacht
Club, Inc. (KIYC), alleging discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 2000e to 2000e-17 (Title VII), and Article 49B of the
Maryland Code, recodified effective October 1, 2009, as Md. Code
Ann. State Gov’t §§ 20-101 to 20-1203. Tillbery’s claims also
included retaliation under Title VII and Article 49B, negligent
retention and supervision, and intentional infliction of
emotional distress.
KIYC subsequently filed a motion to dismiss or, in the
alternative, for summary judgment. The district court dismissed
Tillbery’s federal claims for lack of subject matter
jurisdiction, finding that she had failed to exhaust her
administrative remedies. I think that this was in error. Thus,
for the reasons set forth below, I would vacate the district
court’s order and remand for further proceedings.
I.
The underlying facts of this case, as cogently set forth by
the distinguished district court, are as follows:
KIYC is a private yacht club located in Maryland
that hosts a marina, a club house, and a restaurant
for its patrons. In July 2006, Ms. Tillbery began
8
working at KIYC as a waitress and bartender. Her
duties included taking orders and serving food and
beverages to patrons at the KIYC restaurant. Ms.
Tillbery alleges she became the victim of sexual
harassment in the fall of 2008, after KIYC hired Kevin
Demas as General Manager in July 2008. As General
Manager, Mr. Demas was Ms. Tillbery’s direct
supervisor, and he is alleged to have sexually
harassed Ms. Tillbery on numerous occasions. Ms.
Tillbery further alleges that, beginning in November
2008, Bob Schober, KIYC Rear Commodore and Board
Member, began harassing her as well. At the time this
complaint was filed, Ms. Tillbery continued to work at
KIYC. In her motion for leave to amend the complaint,
however, Ms. Tillbery alleges that she was
constructively discharged on April 23, 2010.
Without going into exhaustive detail here, the
facts alleged in Ms. Tillbery’s complaint are
troubling. Ms. Tillbery alleges that, between October
2008 and April 2009, Mr. Demas sent her over fifty
inappropriate text messages, including requests for
sexual considerations and descriptions of sexual acts
that he wanted to perform on her. Mr. Demas is also
alleged to have left similarly inappropriate notes in
her paychecks. Ms. Tillbery further alleges that Mr.
Demas repeatedly asked her to spend time with him
outside of work, and once said “Everyone knows that
you don’t sleep with your husband” when she declined.
In addition, he allegedly made at least twenty
sexually inappropriate comments to Ms. Tillbery when
she bent over to stock the refrigerator, including
such statements as “Man you got the nicest ass. I
could grab it right now[,”] and “Oh baby oh baby.”
Mr. Demas’s harassment of Ms. Tillbery is alleged
to have included touching as well. In January 2009
Mr. Demas allegedly approached Ms. Tillbery from
behind and began rubbing her shoulders, saying “You
deserve to be treated better. Do you know how
beautiful you are?” Then he apparently grabbed each
side of her face with his hands and attempted to
forcibly kiss her, while saying “Just give me a kiss.”
Later, in the spring of 2009, Mr. Demas allegedly hung
up a rag doll with blonde hair wearing a bikini in the
kitchen at KIYC. Ms. Tillbery has blonde hair and,
along with the doll, Mr. Demas apparently posted a
9
sign that read “Vikalicious[.”] When another employee
approached Mr. Demas about the doll, he allegedly
responded “It’s Vickie” and “I can do what I want.”
Moreover, Ms. Tillbery alleges that she was
harassed not only by her direct supervisor, Mr. Demas,
but also by KIYC Board Member and Rear Commodore, Mr.
Schober, beginning in November 2008. Mr. Schober
allegedly offered Ms. Tillbery money if she would have
sex with him. According to Ms. Tillbery, he made this
offer two to three times per week. Ms. Tillbery also
alleges that he made other inappropriate comments to
her, including “My wife isn’t able to satisfy me, and
I think you would be the one that could if you know
what I mean[,”] and “I know you need the money because
I always see you working all the time. So if I give
you $500, would you sleep with me?” On April 10,
2009, Mr. Schober apparently came to Ms. Tillbery’s
home, which frightened her because she did not know
how he learned where she lived. Mr. Schober allegedly
said that he wanted a haircut, and tried to open the
screen door to Ms. Tillbery’s home. Ms. Tillbery
asked him to leave, which he eventually did.
Ms. Tillbery claims that she told Mr. Demas of
Mr. Schober’s advances toward her on at least three
occasions, but that there was no informal or formal
sexual harassment policy in place at KIYC. The
situation was particularly uncomfortable, she points
out, because Mr. Demas was her direct supervisor, and
Mr. Schober, as a member of the KIYC Board, was
essentially Mr. Demas’s supervisor. Unable to stand
the harassment any longer, Ms. Tillbery submitted her
resignation in writing on February 18, 2009. Mr.
Demas allegedly promised her that the harassment would
stop if she would agree to withdraw her resignation,
which she reluctantly did, writing at the bottom of
her resignation letter, “after speaking with Kevin, I
[am hoping] that this situation will resolve itself.
If the situation continues I will go to the labor
board as I need this job to support my family.”
Eventually, Ms. Tillbery contacted the Equal
Employment Opportunity Commission (“EEOC”) by filling
out an online intake questionnaire on April 22, 2009.
A notice of Ms. Tillbery’s charge, dated May 7, 2009,
was sent to KIYC, and she filled out another
questionnaire on May 4, 2009. Ms. Tillbery signed a
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formal EEOC charge under penalty of perjury on June
27, 2009. By this time, Ms. Tillbery had hired an
attorney, Cecile Weich, who apparently sent a letter
to KIYC requesting that Mr. Demas and Mr. Schober
“cease and desist from your sexual harassment of her
. . . and requests for sex for money.” On April 27,
2009, Ms. Weich sent a follow-up letter to members of
KIYC stating that “the General Manager and Rear
Commodore S[c]hober . . . have been sexually harassing
Victoria Tillbery.”
Furthermore, in May 2009, Ms. Tillbery went to
the Queen Anne’s County Sheriff’s Department. As a
result of that meeting the Sheriff’s Department
pursued criminal charges against Mr. Schober. Mr.
Schober apparently was later convicted of solicitation
for prostitution and sentenced on October 8, 2009, to
probation before judgment, supervised until April 8,
2012. He agreed to stay away from Ms. Tillbery,
resigned from the KIYC board, and relinquished his
membership in the club.
Ms. Tillbery alleges that in May 2009,
immediately after she filed charges with the EEOC and
the Sheriff’s Department, she became the victim of
retaliation. Mr. Demas allegedly told her that she
could no longer arrive at work at 4:00 p.m. to perform
her setup duties, therefore forcing her to perform
them during the time that she could have been waiting
tables and earning tips. On May 18, 2009, Ms.
Tillbery also received a letter from KIYC’s attorney
complaining of a performance issue. Ms. Tillbery
claims the letter was the only negative feedback she
ever received during her tenure at KIYC.
According to Ms. Tillbery, her attorney again
sent a letter to KIYC on May 19, 2009, this time
explaining that Ms. Tillbery was suffering
retaliation, and on May 21, 2009, Ms. Tillbery
apparently provided a written statement to KIYC
summarizing the harassing conduct by Mr. Demas. But
Ms. Tillbery alleges the retaliatory conduct did not
stop. Instead, she claims that on July 4, 2009, the
busiest evening of the year at the KIYC restaurant,
Mr. Demas ordered her to train a busser to be a
waitress simply so that Ms. Tillbery would have to
split her tips for the evening. On July 6, 2009, Ms.
Tillbery allegedly complained in writing via her
11
attorney, Ms. Weich, that she was still forced to
serve Mr. Schober. She apparently complained of
retaliatory treatment again in writing on July 10,
2009, describing how she was forced to train a busser
and was prohibited from clocking in until 4:30. On
July 24, 2009, counsel for KIYC wrote to Ms. Weich
stating, “The Club has implemented safeguards to
ensure that Ms. Tillbery is not required to serve Mr.
S[c]hober. . . .”
The retaliation is alleged to have escalated,
however, on October 12, 2009, when Ms. Tillbery was
called into a meeting with Mr. Demas and Jack Caddy, a
KIYC Board Member. Mr. Caddy told Ms. Tillbery that
KIYC had received some complaints about her, although
he provided no information as to the nature of the
complaints, who made them, or when they were made.
Ms. Tillbery alleges that soon thereafter, on October
21, 2009, she received a letter from KIYC stating that
“employees may not clock in more than seven (7)
minutes before their shift is scheduled to start[,”]
and that “it has been recorded that on Thursday, Oct.
15, 2009, you clocked in fourteen (14) minutes before
your shift was scheduled to start and on Friday, Oct.
16, 2009, you clocked in twenty-five (25) minutes
before your scheduled start time; both without
consulting management.” Ms. Tillbery alleges that
other employees who had engaged in similar conduct did
not receive a warning about the new policy and
continued to clock in early.
Ms. Tillbery also alleges that Mr. Demas
continues to retaliate against her by refusing to
speak to her and constantly watching her. He
allegedly instructed another bartender to watch Ms.
Tillbery and document everything that she does. She
claims that other employees have observed his unfair
treatment of her and that, as a result of the
harassment she has experienced at KIYC, she has
suffered a loss of income, extreme and emotional
distress, and mental anxiety.
On August 6, 2009, the EEOC notified Ms. Tillbery
that it had dismissed her charge of discrimination as
untimely and that she had a right to sue. On November
6, 2009, Ms. Tillbery filed the present action against
KIYC alleging sexual harassment in violation of Title
VII and Article 49B (Counts I & II), negligent
12
retention and supervision (Count III), intentional
infliction of emotional distress (Count IV), and
retaliation in violation of Title VII and Article 49B
(Counts V & VI).
Tillbery v. Kent Island Yacht Club, Inc., Civ. No. CCB-09-2956,
2010 WL 2292499, at *1-4 (D. Md. June 4, 2010) (footnotes
omitted) (citations omitted).
On two EEOC questionnaires Tillbery completed, she stated
that the alleged sexual harassment occurred on July 1, 2006. An
EEOC representative drafted the EEOC charge and also listed the
harassment as occurring on July 1, 2006. Both Tillbery and the
EEOC representative wrote on the forms that KIYC hired Tillbery
on that same date, July 1, 2006. Subsequently, as noted above,
on August 6, 2009, the EEOC closed its file on Tillbery’s charge
without conducting any investigation, informing her that her
“charge was not timely filed with the EEOC; in other words, you
waited too long after the date(s) of the alleged discrimination
to file your charge.” In her complaint, Tillbery has clearly
alleged that, in fact, July 1, 2006, was the date of her hiring,
but that the sexual harassment occurred from October 2008 to
April 2009.
Upon motion by KIYC, the district court dismissed
Tillbery’s federal claims for lack of subject matter
jurisdiction, finding that “[t]he allegations in Ms. Tillbery’s
13
present complaint . . . exceed the scope of her administrative
charge and have not been properly exhausted.” Id. at *6.
II.
Before filing suit pursuant to Title VII, the plaintiff
must file a charge of discrimination with the EEOC. Jones v.
Calvert Grp., 551 F.3d 297, 300 (4th Cir. 2009). The charge
must be “‘sufficiently precise to identify the parties, and to
describe generally the action or practices complained of.’ The
scope of the plaintiff’s right to file a federal lawsuit is
determined by the charge’s contents.” Id. (citation omitted)
(quoting Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir.
2005)). “Whenever a charge is filed by or on behalf of a person
claiming to be aggrieved, . . . the Commission shall serve a
notice of the charge (including the date, place and
circumstances of the alleged unlawful employment practice) on
such employer . . . within ten days, and shall make an
investigation thereof.” 42 U.S.C. § 2000e-5(b). The only
claims that the plaintiff may bring in a subsequent complaint
are “those discrimination claims stated in the initial charge,
those reasonably related to the original complaint, and those
developed by reasonable investigation of the original
complaint.” Jones, 551 F.3d at 300 (quoting Evans v. Tech.
Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996))
14
(internal quotation marks omitted). Claims raised in the
district court but not with the EEOC are barred unless they
“would naturally have arisen from an investigation” of the
administrative complaint. Dennis v. Cnty. of Fairfax, 55 F.3d
151, 156 (4th Cir. 1995).
“[E]xperience teaches that strict adherence to the
procedural requirements specified by the legislature is the best
guarantee of evenhanded administration of the law.” Mohasco
Corp. v. Silver, 447 U.S. 807, 826 (1980). We cannot, however,
visit the effects of the EEOC’s failure to carry out its
statutory duty to perform a reasonable investigation on the
plaintiff. Zambuto v. Am. Tel. & Tel. Co., 544 F.2d 1333, 1336
(5th Cir. 1977). Furthermore, we must resolve any ambiguity as
to whether a plaintiff satisfied a procedural requirement in the
plaintiff’s favor to effectuate the purposes of Title VII.
Title VII is remedial in character and should be
liberally construed to achieve its purposes. . . .
For this reason, courts confronted with procedural
ambiguities in the statutory framework have, with
virtual unanimity resolved them in favor of the
complaining party. That approach reflects not only
the manifest importance of Title VII rights to
complaining parties, but also the broad national
commitment to eliminating such discrimination and the
importance of private suits in fulfilling that
commitment.
Garner v. E. I. Du Pont De Nemours & Co., 538 F.2d 611, 614 (4th
Cir. 1976) (citation omitted) (quoting Coles v. Penny, 531 F.2d
609, 615 (D.C. Cir. 1976)) (internal quotation marks omitted).
15
III.
KIYC contends that the district court was correct in
holding that Tillbery neglected to file a charge with the EEOC
with respect to the alleged sexual harassment that occurred
between October 2008 and April 2009. Thus, according to KIYC
and the district court, Tillbery failed to exhaust her
administrative remedies prior to filing suit against KIYC. I
disagree.
According to the district court, the allegations contained
in Tillbery’s complaint “were outside the scope of her EEOC
charge due to an apparent error in the dates listed on the
charge.” Tillbery, 2010 WL 2292499, at *4 n.4. But, from my
careful review of the record, I am of the opinion that the
allegations in Tillbery’s complaint were not outside the scope
of her EEOC charge. That is so because both Tillbery’s
complaint and her EEOC charge concerned the alleged October 2008
to April 2009 harassment, even though, as the district court
observed, the date is incorrect on her EEOC charge. In fact,
later in its opinion, the district court recognized as much when
it wrote the following:
Ms. Tillbery argues that the July 1, 2006 date in the
EEOC charge was merely a clerical error by the EEOC
representative who drafted the form, and that all of
the facts alleged in her judicial complaint occurred
within 300 days of June 27, 2009 [the date Tillbery
filed her EEOC charge]. Assuming the truth of the
facts alleged in the complaint, it appears likely that
16
Ms. Tillbery’s EEOC charge did contain the wrong date,
as Mr. Demas was not even hired by KIYC until July
2008.
Id. at *5. Thus, drawing all inferences in favor of Tillbery at
this stage of litigation, as we are required to do, I credit her
explanation of the date as a scrivener’s error in her EEOC
documents. See Risk v. Ford Motor Co., 48 F. Supp. 2d 1135,
1146 (S.D. Ind. 1999) (dismissing claims on other grounds, but
stating that it was “inclined to credit [the plaintiff’s]
explanation of the inaccuracy in her EEOC charge, especially
when drawing inferences in her favor at this stage of the
litigation”). Consequently, I would allow the case to go
forward.
Inasmuch as everyone agrees that the EEOC charge contained
a scrivener’s error in regards to the date that the sexual
harassment occurred, and, as the D.C. Circuit has observed, the
“filing period begins on the date ‘the alleged unlawful practice
occurred’—not the date listed in the charge itself,” Carter v.
Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 (D.C. Cir.
2007) (quoting 42 U.S.C. § 2000e-5(e)(1)), I cannot concur that
it was proper in this instance for the EEOC to reject Tillbery’s
charge without first hearing from the parties. See 42 U.S.C. §
2000e-5(b) (stating that the EEOC “shall make an investigation”
of claims of discrimination). What seemed evident to the EEOC
from the documents before it—that Tillbery’s charge was
17
untimely—was an error instead, an error that a reasonable
investigation would have revealed, and an error that is now
being repeatedly compounded. I respectfully suggest that it is
within our province finally to correct it.
It is beyond dispute that,
among the reasons Congress enacted Title VII’s
exhaustion requirement was that the EEOC
administrative process is typically better suited to
ending discrimination than the “ponderous pace of
formal litigation[,”] because the EEOC “undertakes
detailed investigations into potential discrimination
claims before any suit is filed, both preserving
judicial economy . . . and helping prospective
plaintiffs build their case.”
Tillbery, 2010 WL 2292499, at *6 (omission in original) (quoting
Chacko, 429 F.3d at 510). But, it is also beyond dispute, as I
have already noted, that there is a “broad national commitment
to eliminating such discrimination and the importance of private
suits in fulfilling that commitment.” Garner, 538 F.2d at 614(quoting Coles, 531 F.2d at 615) (internal quotation marks
omitted). In this instance, KIYC asks us to allow procedural
formalism to trump this commitment. To this proposition I will
not lend my assent.
As observed above, the law requires that the EEOC “shall
make an investigation” of all charges. 42 U.S.C. § 2000e-5(b).
It also requires claimants to be specific in their charges so
that the EEOC can properly investigate and, hopefully, resolve
the matter. See Jones, 551 F.3d at 300. When no investigation
18
occurs, however, I think that it is improper for us to bar a
plaintiff from her day in court. But, that is what happened
here.
Even a minimal investigation into Tillbery’s charge would
have exposed the scrivener’s error and revealed that the
complained of sexual harassment occurred between October 2008
and April 2009. Yet the error passed unnoticed because of the
EEOC’s failure to conduct any investigation. Accordingly, I am
unable to agree that we should require Tillbery to suffer from
the negative consequences of the law—being unable to assert any
claims in federal court except those that the EEOC investigated—
even though the EEOC failed to conduct any investigation.
Although we ought not endeavor to instruct the EEOC on how
to perform its duties, we also ought not be bound by its
decisions when it does not. On the whole, the problems that
KIYC complains of are not so much deficiencies in the charge as
they are the EEOC’s failure to carry out its duties as required
by Title VII. See Edelman v. Lynchburg Coll., 300 F.3d 400, 404
(4th Cir. 2002).
Here, Tillbery was unquestionably harmed by the EEOC not
performing the simplest of investigations. “Once a valid charge
has been filed, a simple failure by the EEOC to fulfill its
statutory duties regarding the charge does not preclude a
plaintiff’s Title VII claim.” Id. Thus, I disagree with KIYC
19
that we should, in effect, “visit the effects of the EEOC’s
erroneous practice on [Tillbery].” Zambuto, 544 F.2d at 1336.
IV.
As an alternative basis for finding that the conduct
Tillbery alleged in her complaint did not exceed the scope of
her EEOC charge, that her charge was timely, and that she has
properly exhausted her administrative remedies, I would look to
her April 22, 2009, EEOC questionnaire. There can be no dispute
that the April 22, 2009, questionnaire, as well as Tillbery’s
other EEOC forms, stated that Demas was one of the alleged
harassers. Moreover, there appears to be no disagreement that
both parties were aware that he began working at the restaurant,
at the earliest, on July 1, 2008. Less than 300 days later, on
April 22, 2009, Tillbery completed her first EEOC questionnaire.
Thus, even if the alleged sexual harassment began as early as
July 1, 2008, the date that Demas began working at KIYC, and
allowing the EEOC intake questionnaire to serve as a charge for
purposes of the exhaustion requirement, I am of the opinion that
the spirit of Title VII is better served by holding that the
timeliness requirement was met as to Tillbery’s Title VII
claims. See Carter, 503 F.3d at 146 (allowing an EEOC
questionnaire with an incorrect date to constitute a timely
charge of discrimination); Edelman, 300 F.3d. at 405 (allowing a
20
letter to the EEOC to serve as a valid charge, without
objection, although the plaintiff was represented by counsel
during the relevant time period); Waiters v. Robert Bosch Corp.,
683 F.2d 89, 91 (4th Cir. 1982) (allowing an affidavit to serve
as an EEOC charge although the plaintiff was represented by
counsel during the relevant time period).
V.
Even if I assumed that Tillbery failed to exhaust her
administrative remedies on the basis of an incorrect date on her
EEOC forms, in light of the fact that Title VII is a remedial
statute to be liberally construed in favor of the victims of
discrimination, I would grant Tillbery an opportunity to amend
her EEOC charge. As the majority mentioned,
[a] charge may be amended to cure technical defects or
omissions, including failure to verify the charge, or
to clarify and amplify allegations made therein. Such
amendments and amendments alleging additional acts
which constitute unlawful employment practices related
to or growing out of the subject matter of the
original charge will relate back to the date the
charge was first received.
29 C.F.R. § 1601.12(b). Neither the plain language of this
regulation nor Supreme Court precedent limit the time frame
during which a plaintiff can amend a charge. See Edelman v.
Lynchburg Coll., 535 U.S. 106, 116-17 (2002) (finding that
allowing the verification of a charge after the expiration of
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the time for filing has expired was consistent with the plain
language of the statute). We need not impose such a limitation
either. For that reason, even if I agreed with KIYC that
Tillbery failed to exhaust her administrative remedies based on
the erroneous date on her EEOC charge, I would, at a minimum,
remand the matter to the district court to stay the proceedings
so Tillbery could request from the EEOC an opportunity to amend
her charge.
VI.
Finally, KIYC makes much of the fact that Tillbery was
represented by counsel and, thus, that she should be held to a
higher standard in regards to making certain that the date on
her charge was correct. As the argument goes, I assume, it is
Tillbery’s attorney who is really to blame for Tillbery’s
present predicament. I am unpersuaded.
First, and most importantly, it is of no moment whether
Tillbery was represented by counsel. The fact remains that the
EEOC should have conducted an investigation before it dismissed
her charge. That is a substantial reason for her present
predicament.
Second, to agree with KIYC and dismiss this matter based on
the action or inaction of Tillbery’s counsel is like aiming at
the attorney, but shooting the client instead. It is also
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counter to the law of this circuit as to Title VII claims.
Garner, 538 F.2d at 614 (“Title VII is remedial in character and
should be liberally construed to achieve its purposes.” (quoting
Coles, 531 F.2d at 615) (internal quotation marks omitted)).
The fact that Tillbery was represented by counsel changes
neither the remedial nature nor the purpose of the statute,
which is to stamp out the insidious practice of discrimination.
See Garner, 538 F.2d at 614. It is this purpose, not a desire
to penalize counsel, that must guide our interpretation of this
statute.
VII.
Upon this record, I am unconvinced that Tillbery failed to
exhaust her administrative remedies on the basis of the
erroneous date on her EEOC documents. But, if she did, I would
give her an opportunity to amend her complaint pursuant to 29
C.F.R. § 1601.12(b). Accordingly, I must respectfully dissent.
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