Shempert v. Harwick Chemical Corp.

• Decision Date: 31 July 1998
• Docket Number: No. 97-1634,97-1634
• Citation: 151 F.3d 793
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 615, 74 Empl. Prac. Dec. P 45,630 Brenda SHEMPERT, Plaintiff-Appellant, v. HARWICK CHEMICAL CORPORATION and Tom Breckenridge, Individually; Defendant-Appellee, Lynne Gibel, Movant-Appellant. Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 793

151 F.3d 793

78 Fair Empl.Prac.Cas. (BNA) 615,

74 Empl. Prac. Dec. P 45,630

Brenda SHEMPERT, Plaintiff-Appellant, v. HARWICK CHEMICAL CORPORATION and Tom Breckenridge, Individually; Defendant-Appellee, Lynne Gibel, Movant-Appellant.

Equal Employment Opportunity Commission, Amicus Curiae.

No. 97-1634.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 19, 1997.

Decided July 31, 1998.

Ronald Scott Waddell, Jonesboro, AR, for Appellant.

Dean Westman, Cleveland, OH (Lisa A. Kainec and Kent J. Rubens, on the brief), for Appellee.

Before McMILLIAN and WOLLMAN, Circuit Judges, and STEVENS, ¹ District Judge.

McMILLIAN, Circuit Judge.

Brenda Shempert appeals from a final order issued in the United States District Court ² for the Eastern District of Arkansas granting summary judgment in favor of defendants Harwick Chemical Corporation (Harwick) and Tom Breckenridge, individually, and denying Lynne Gibel's motion to intervene. Shempert v. Harwick Chem. Corp., No. H-C-96-37 (E.D.Ark. Dec. 27, 1996) (Order) (hereinafter "slip op."). The district court dismissed Shempert's claim of sexual harassment employment discrimination under 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), holding that Shempert failed to file an administrative charge within 180 days of the last alleged discriminatory incident as required by 42 U.S.C. § 2000e-5(e)(1). Slip op. at 6. For reversal, Shempert argues that the district court erred in holding that (1) her Intake Questionnaire, submitted to the Equal Employment Opportunity Commission (EEOC) within 180 days, did not constitute a valid administrative charge, and, alternatively, (2) the doctrine of equitable tolling did not apply to save her claim even if she failed to file an administrative charge within the 180- day filing period. For the reasons discussed below, we affirm the judgment of the district court.

Jurisdiction

Jurisdiction in the district court was proper based upon 28 U.S.C. § 1331. Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Rule 4(a) of the Federal Rules of Appellate Procedure.

Background

Shempert worked as a Senior Customer Service Representative for Harwick from 1983 until she resigned on May 7, 1996. She alleges that during 1994 and 1995 her supervisor, Breckenridge, repeatedly subjected her to unwelcome sexual advances, physical touching, verbal harassment, and other sexually explicit activities. She claims that despite repeated complaints to both Breckenridge and corporate officials at Harwick the harassment continued and no corrective action was taken. Shempert claims that the acts of sexual harassment put her in fear of her personal health and safety, forced her to take a medical leave of absence, and compelled her to seek the care of a physician.

Shempert obtained legal assistance on October 11, 1995. Her attorney discussed with her the procedures for filing an Intake Questionnaire or Charge Information Form provided by the EEOC. On October 30, 1995, Shempert went to her attorney's office where she was assisted in filling out an Intake Questionnaire, which she signed, but not under oath or affirmation. She alleged in the Intake Questionnaire that her employer's last act of discrimination occurred on May 15, 1995. The date of this alleged act of discrimination marked the beginning of the 180-day filing period in which she could file a valid administrative charge. The filing period, therefore, expired on November 11, 1995.

The EEOC received Shempert's completed and signed Intake Questionnaire on November 2, 1995. On November 9, 1995, the EEOC sent Shempert a letter and requested that she sign and date the attached Charge of Discrimination (Charge) form prepared for her. The letter warned her that a failure to respond within 30 days could result in the dismissal of her charges. In addition, the letter warned that the Charge had to be filed within the time limits imposed by law and, therefore, should be returned to the EEOC as soon as possible. Upon receipt of the letter, Shempert contacted her attorney. She signed the Charge form on November 16, 1995, and returned it to the EEOC on November 27, 1995. Three days later, on November 30, 1995, the EEOC received the Charge form.

On January 24, 1996, the EEOC issued a "Notice of Right to Sue" letter and Shempert filed this action in federal district court against Harwick and Breckenridge on March 26, 1996. On November 27, 1996, Gibel, a former bookkeeper employed at Harwick, filed a motion to intervene. Defendants then filed a motion for summary judgment and the district court granted the motion, holding that Shempert's unverified Intake Questionnaire could not serve as an administrative charge for purposes of the 180-day statute of limitations. Slip op. at 6 (citing Diez v. Minnesota Mining & Mfg. Co., 88 F.3d 672, 675 (8th Cir.1996) (Diez ), and Hodges v. Northwest Airlines, Inc., 990 F.2d 1030, 1032 (8th Cir.1993) (Hodges )). The district court also rejected Shempert's assertion that equitable tolling applied to preserve her claim. Id. at 8 n. 2. Because Shempert could not maintain her Title VII action, the district court also denied Gibel's motion to intervene. Id. at 9-10. This appeal followed.

Discussion

We review a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.1992); St. Paul Fire & Marine Ins. Co. v FDIC, 968 F.2d 695, 699 (8th Cir.1992). Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir.1990).

Under Title VII, an administrative charge must be filed within 180 days of the alleged discriminatory incident. ³ 42 U.S.C. § 2000e-5(e)(1). In order to be valid, Title VII requires that "[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the [EEOC] requires." Id. § 2000e5(b). There is no dispute that the last alleged incident of discrimination occurred on May 15, 1995. The last day for Shempert to file a valid charge, therefore, was November 11, 1995. The parties also do not dispute that Shempert filed an Intake Questionnaire on October 30, 1995, within the 180-day filing period, and that she signed the Charge under affirmation or oath on November 16, 1995, after the 180-day filing period had expired. The only dispute in this case, therefore, is whether the Intake Questionnaire qualified as an administrative charge under the particular circumstances of this case.

Shempert contends that the district court should not have granted summary judgment on her Title VII claim because she filed an Intake Questionnaire within the 180-day filing period. ⁴ She argues that her Intake Questionnaire qualified as an administrative charge because it was a precise statement identifying the parties and describing the discriminatory activities, as required by 29 C.F.R. § 1601.12(b). ⁵ She further argues that, even though she did not sign the Intake Questionnaire under oath or affirmation, 29 C.F.R. § 1601.12(b) allows her to amend the Intake Questionnaire with the Charge signed on November 16, 1995, and, therefore, cure any defect by relating back to October 30, 1995. ⁶

The case law in the Eighth Circuit is well settled on this issue. Intake Questionnaires which are neither signed under oath nor verified do not satisfy the statutory requirement for an administrative charge. See Lawrence v. Cooper Communities, Inc., 132 F.3d 447, 450 (8th Cir.1998) (Lawrence ); Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455, 458 (8th Cir.1998) (Schlueter ); Diez, 88 F.3d at 675. Title 42 U.S.C. § 2000e-5(b) requires that all administrative charges be "in writing under oath or affirmation." Only when an Intake Questionnaire is signed under oath can it "constitute a valid charge under Title VII for purposes of the statute of limitations." Lawrence, 132 F.3d at 450 (quoting Hodges, 990 F.2d at 1032). Shempert's Intake Questionnaire was never signed under oath or verified. The verification requirement of 42 U.S.C. § 2000e-5(b), as construed by this circuit, requires us to hold that Shempert's Intake Questionnaire did not constitute a valid charge under Title VII. ⁷ Because Shempert's Intake Questionnaire did not constitute a charge under Title VII, her verified Charge of November 16, 1995, can not relate back to the filing of the Intake Questionnaire. See Lawrence, 132 F.3d at 450 (noting that an Intake Questionnaire is not a charge and 29 C.F.R. § 1601.12(b) only allows an amendment to relate back to the date a charge was first received); Schlueter, 132 F.3d at 458 (same).

Shempert urges us to apply the Diez test for distinguishing between questionnaires that are preliminary to an administrative charge and questionnaires that function as a charge. Diez, 88 F.3d at 676 (adopting the Seventh Circuit test from Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 542 (7th Cir.1988) (Steffen ), cert. denied, 491 U.S. 907, 109 S.Ct. 3191, 105 L.Ed.2d 699 (1989)). Shempert argues that she intended to satisfy the statutory filing requirement by submitting the Intake Questionnaire and, therefore, we should consider it an administrative charge. The Steffen court proceeded from the premise that the claimant's Intake Questionnaire fit within the statutory and regulatory descriptions of a charge and concluded that the claimant's intent to "activate the...