452 F.3d 256 (3rd Cir. 2006), 05-2373, Buck v. Hampton Tp. School Dist.

Docket Nº:05-2373.
Citation:452 F.3d 256
Party Name:Kathleen BUCK, Appellant v. The HAMPTON TOWNSHIP SCHOOL DISTRICT; Lawrence C. Korchnak, Dr.
Case Date:June 30, 2006
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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452 F.3d 256 (3rd Cir. 2006)

Kathleen BUCK, Appellant



No. 05-2373.

United States Court of Appeals, Third Circuit.

June 30, 2006

Argued May 16, 2006

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.

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[Copyrighted Material Omitted]

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Steven D. Irwin, David V. Weicht [ARGUED], Leech, Tishman, Fuscaldo & Lampl Counsel for Appellant

Susan T. Roberts, Frank G. Adams [ARGUED], Peacock, Keller & Ecker Counsel for Appellees

Before: RENDELL, VAN ANTWERPEN and WEIS, Circuit Judges.


RENDELL, Circuit Judge.

This case requires us to address, for the first time, the circumstances under which a plaintiff's employment discrimination claim s 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 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.


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.

Buck's work environment changed when Korchnak became Superintendent. According

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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.

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 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.

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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).



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) (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 preprinted statement: "I hereby verify that the statements contained in this complaint

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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 unverified intake questionnaire allegedly filed with the EEOC does not satisfy statutory "charge" requirement).


The question, then, is what consequences flow from Buck's failure to...

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