By Brandi O. Brown, J.D.
The plaintiff’s intake questionnaire was sufficient as a charge, and his untimely verification related back to his timely original filing.
Reversing a federal district court decision announced in a one-sentence opinion, the Fifth Circuit revived the ADA claim of an employee who was fired at the end of disability leave related to an on-the-job heart attack. At issue was whether the intake questionnaire he submitted through his attorney constituted a charge, and whether the employee had timely verified it. Concluding that, under controlling precedent, the questionnaire was a charge, and that the employee’s late verification related back, the appeals court reversed and remanded (EEOC v. Vantage Energy Services, Inc., April 3, 2020, per curiam).
Fired after heart attack. The employee suffered a heart attack while working on a deep-water drillship. He was sent home after treatment and placed on short-term disability leave. On the day he was due to return to work he was fired, allegedly because of poor performance.
Attorney files charge. The employee hired an attorney, who submitted a letter to the EEOC on his behalf contending that the employer violated the ADA. Along with the letter, the attorney submitted an EEOC intake questionnaire. At the end of the questionnaire, the attorney checked the box indicating that the employee wanted to file a discrimination charge and authorized the EEOC to look into the claim. The attorney signed on the employee’s behalf and the questionnaire was not verified.
EEOC notifies employer. The EEOC sent a notice of charge to the employer, but stated that “no action” would be required until the charging party provided “[a] perfect charge (EEOC Form 5).” It took approximately eight months between the questionnaire’s submission and the EEOC’s receipt of the verified Form 5. At that point, the employer was informed of the charge and submitted a position statement contending, among other things, that the filing was untimely. The EEOC conducted an investigation and determined there was reasonable cause to believe the employer had violated the ADA.
After conciliation efforts failed, the agency filed an enforcement action on the employee’s behalf. The employer moved to dismiss, arguing that the employee failed to exhaust administrative remedies. In what the appeals court described as a “terse, one-sentence judgment,” the district court dismissed the case with prejudice.
Contrary to precedent. On appeal, the primary issue was whether the later-verified intake questionnaire initially filed by the employee (by his counsel) constituted a “charge” in satisfaction of the ADA’s exhaustion requirement. The employer’s arguments to the contrary, which the district court accepted, were “all contrary to considerable precedent.” In Fed. Express Corp. v. Holowecki the U.S. Supreme Court held that a questionnaire could qualify as a charge if it satisfied the agency’s charge-filing requirements and if it could be construed as a request that the agency take remedial action on the employee’s behalf. Although Holowecki dealt with the ADEA, every circuit faced with the question (including the Fifth Circuit) has extended it to the ADA (and Title VII).
Charge requirements were met. In this case, the questionnaire qualified as a charge under Holowecki. With the exception of the verification requirement, it “easily satisfied” the requirement under 29 C.F.R. sec. 1601.12(b) that it be “sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” It also met the “additional request-to-act condition” found in Holowecki. The second box of the questionnaire was checked, indicating that the employee wanted to file a charge and authorized the EEOC to look into the matter.
Although the employer contended that the questionnaire’s content was overly sparse, the court noted that the questionnaire included those elements described in 29 C.F.R. 1601.12(a)(3), i.e., it contained a clear, concise statement of the facts, including dates, that constituted the alleged unlawful acts. The EEOC’s “ambiguous” treatment of the questionnaire—for example, stating that it was not verified yet assigning a charge number—was not dispositive.
Relation back of verification. The employer’s primary complaint, though, was that the intake questionnaire was not verified within the filing period and was therefore fatally defective. However, Supreme Court precedent again provided the answer. In Edelman v. Lynchburg College, the High Court made clear that verification of a charge can occur outside of the filing period, thus affirming the EEOC’s regulation allowing for technical amendments to relate back to the original filing date. Relation back has been applied to the regulations’ verification and signature requirements, the appeals court explained.
The court rejected the employer’s other arguments and concluded that the intake questionnaire was sufficient as a charge and that the verification, although it occurred outside of the filing period, related back and was timely.
Harsh words for counsel. Although the result for the employee in this case was a positive one, the appeals court noted that the “dilatory response” of employee’s counsel was “inexcusable,” and said the fact that someone represented by counsel could benefit from such leniency was “unfortunate.”
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