Topic: Employment Discrimination Charge Verification and Filing
Audience: Employers, Plaintiffs
Summary: The standards for filing an Equal Employment Opportunity Commission (EEOC) employment discrimination charge in the Eleventh Circuit include the requirement that the charge be verified. Yet, Supreme Court precedent has called that into question. This case emphasizes that in the federal district for the Northern District of Georgia, the filing of an EEOC employment discrimination charge must be verified and timely.
In October 2004, Plaintiff, Cynthia F. Chesnut (“Chesnut”) began working at Defendant Ethan Allen Retail, Inc. (“Ethan Allen”)’s store in Peachtree City, Georgia. She was promoted three times and eventually earned the title of design center manager, a position that oversaw the operations of the store until May 1, 2012.
In both 2007 and 2009, Chesnut acquired injuries on the job that impaired her general mobility. However, she continued to perform the essential functions of her job. In 2009, Chesnut was informed by her supervisor that the Ethan Allen corporate office flagged a coworker’s file after an on-the-job shoulder injury was reported. When this coworker wanted to return to work after six months of leave, Chesnut’s district manager told her that Ethan Allen no longer allowed employees injured on the job to return to work until they were fully recovered and could lift 50 pounds.
In October 2011, Chesnut damaged her knee on the job and her injury resulted in surgery in January 2012. This knee injury impaired her mobility and Ethan Allen was aware of her injury.
On February 21, 2012, Chesnut's supervisor notified her she would be replaced as design center manager based on a list of her performance deficiencies. He stated that although he disagreed with these alleged deficiencies, “corporate is on my back” and “you are considered an HR risk.” Prior to this list, there was no indication that Chesnut’s performance as design center manager was deficient, and written evaluations and bonuses she earned were contrary to this assertion.
On March 28, 2012, Chesnut was notified that her demotion would be effective on May 1, 2012. Her new position was less prestigious and did not possess the same amount of responsibility or authority as her former position. Her compensation was now commission-based whereas before the demotion it was salary-based and eligible for bonuses. Chesnut was informed that if she did not accept being “stepped down”, then her employment would be terminated.
Chesnut resigned on April 30, 2012 and cited the following reasons for doing so: (1) the inferior status of her new position; (2) her inability to perform the essential functions of the new position with her disability; and (3) to avoid being fired. Her resignation was accepted on May 1, 2012.
On September 28, 2012, Chesnut filed an intake questionnaire with the Equal Opportunity Employment Commission alleging Ethan Allen discriminated against her on the basis of her disability. On November 30, she filed an EEOC charge of discrimination against Ethan Allen.
On July 9, 2013, Chesnut brought suit in federal court against Ethan Allen, alleging that the retailer terminated her “based on her disability and/or record of disability, and/or perceived disability” in violation of the Americans with Disabilities Act (“ADA”). Ethan Allen argued that Chesnut failed to file a timely charge of discrimination within the meaning of the ADA.
Chesnut’s intake questionnaire and EEOC charge of discrimination against Ethan Allen are central to her disability discrimination claim. Neither party disputed the authenticity or filing dates of these documents. The parties disagreed only as to whether these documents were legally sufficient to constitute a charge of discrimination within the meaning of the ADA and were timely filed.
Chesnut contends her EEOC intake questionnaire was timely filed and constitutes a “charge” under the Supreme Court's decision in Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). The Holowecki court held that for a document to be a charge, it must include, as required by the EEOC regulations, “an allegation and the name of the charged party” and “be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.” Id. at 402. Additionally, in the Eleventh Circuit, Wilkerson v. Grinnell Corp., 270 F.3d 1314 (11th Cir.2001)held that an intake questionnaire constitutes a “charge” within the meaning of the ADA if it is: (1) written, (2) verified, (3) includes at least the information required by the EEOC regulations, and (4) can “convince a reasonable person that the charging party manifested her intent to activate the administrative process by filing the intake questionnaire with the EEOC.” Id. at 1320–21.
Chesnut argues that she included the information required by EEOC regulations and expressed a desire to file a charge by checking a box on the intake questionnaire indicating that she wanted to file a charge. Thus, she argues that she reasonably requested that the EEOC take remedial action. However, Chesnut’s intake questionnaire was not verified (i.e., written under oath or declared true under penalty of perjury), and therefore, does not pass the Wilkerson test. Therefore, the Northern Georgia District Court ruled it does not constitute a charge of discrimination under the ADA.
Chesnut further argued that even if her intake questionnaire does not constitute a “charge”, her later charge of discrimination, which was verified, citing the Supreme Court’s decision in Edelman v. Lynchburg College, 535 U.S. 106 (2002), amplifies or clarifies her intake questionnaire if it “spells out in greater detail [her] original allegations.”
In the intake questionnaire, Chesnut alleges that she was discriminated against on two occasions: first, when she was presented with an allegedly pretextual list of performance deficiencies on February 21, 2013; and second, when she was informed of her demotion on March 28, 2012. However, the intake questionnaire does not allege that she resigned on April 30, 2012 because of discrimination, and the charge of discrimination on November 30, 2012 does not spell out in greater detail her original allegations. Therefore, the District Court ruled that her claims do not constitute a charge of discrimination under the ADA.
Ethan Allen argues that Chesnut did not complete the EEOC intake questionnaire within 180 days of the discriminatory acts she alleges, as required by the ADA. EEOC’s ADA regulations specify that a charge of discrimination must be filed within 180 days of the alleged unlawful employment practice, in this case her claim of termination based on disability. Chesnut was terminated on May 1, 2012 and therefore, she needed to file a claim within 180 days of that date. Chesnut did file the EEOC intake questionnaire within 180 days of May 1, 2012, but the Court held that it did not constitute a claim. The District Court held that Chesnut's verified charge of discrimination (referring to the November 30, 2012 filing) was untimely because it was filed 213 days after the March 28, 2012 notification of demotion. The issue whether Chestnut filed her claims timely however is moot because the Court held that her filings were insufficient to constitute a claim.
The Court held that neither Chesnut’s intake questionnaire and/or her claim of discrimination constituted a charge within the meaning of the ADA, and that she did not bring a timely claim against Ethan Allen.
This case is significant because the District Court used the Eleventh Circuit’s Wilkerson test to hold that Chesnut’s intake questionnaire did not constitute a charge of discrimination under the ADA because it was not verified. This is important because the more recent Supreme Court case of Holowecki does not require a charge of discrimination to be verified to satisfy the procedural requirements of filing a charge in a discrimination case. The District Court does not follow Holowecki because it was an Age Discrimination in Employment Act charge with different procedural requirements. Therefore, the District Court’s reliance upon Wilkerson requires an ADA plaintiff to file a verified charge of discrimination within the Northern District of Georgia.
Additionally, for the purposes of the above analyses, the Court assumed that Chesnut's intake questionnaire was timely because it was filed within 180 days of her alleged termination. However, the correct standard, which the Court notes, is that her intake questionnaire must be filed within 180 days of when she became aware of the act that forms the basis of her disability discrimination allegation. Chesnut's intake questionnaire alleges discriminatory acts on two dates: February 21, 2012 (list of alleged performance deficiencies); and March 28, 2012 (informed of her demotion). For her intake questionnaire to have been timely, it must have been filed by September 24, 2012, which is 180 days from the last alleged discriminatory act. Chesnut filed her intake questionnaire on September 28, 2012, four days late. Thus, it is important that these filing dates are calculated accurately and not estimated as the plaintiff may have done.