Montes v. Vail Clinic, Inc.

• Decision Date: 14 August 2007
• Docket Number: No. 05-1385.,05-1385.
• Citation: 497 F.3d 1160
• Parties: Ana Patricia MONTES, Nely Davila, Margarita Erazo, Eva Escobedo, Ernesto Garcia, Willie Mae Hopkins, Elizabeth Jaramillo, and Mervyn D. Vargas, on behalf of themselves and all other interested and similarly situated parties, Plaintiffs-Appellants, and Josefa C. Diaz, and Angelica Nunez, on behalf of themselves and all other interested and similarly situated parties, Plaintiffs, v. VAIL CLINIC, INC., Defendant-Appellee, and Servicemaster Management Services Limited Partnership, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

497 F.3d 1160

Ana Patricia MONTES, Nely Davila, Margarita Erazo, Eva Escobedo, Ernesto Garcia, Willie Mae Hopkins, Elizabeth Jaramillo, and Mervyn D. Vargas, on behalf of themselves and all other interested and similarly situated parties, Plaintiffs-Appellants, and Josefa C. Diaz, and Angelica Nunez, on behalf of themselves and all other interested and similarly situated parties, Plaintiffs, v. VAIL CLINIC, INC., Defendant-Appellee, and Servicemaster Management Services Limited Partnership, Defendant.

No. 05-1385.

United States Court of Appeals, Tenth Circuit.

August 14, 2007.

David Sandoval, Sandoval Law Firm, Santa Fe, NM, for Plaintiffs-Appellants.

Andrew M. Low (Janet A. Savage and Catherine L. Guzelian, with him on the brief), Davis Graham & Stubbs LLP, Denver, CO, for Defendant-Appellee.

Before LUCERO, MURPHY, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Eight former employees of the Vail Clinic, Inc., a hospital in Vail, Colorado, appeal the district court's grant of summary judgment to the Clinic on their Title VII claims. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII" or the "Act"). With respect to five of the appealing plaintiffs, we conclude that they fail to establish, as they must, the timeliness of their claims. With respect to the remaining three plaintiffs, we are able to address the substance of their appeal but, like the district court, conclude that they have not adduced facts from which a reasonable jury could find a violation of Title VII. On these bases, we affirm.¹

I

Summary judgment follows when a moving party points to the absence of factual support on an element essential to the non-movant's case, and on which the non-movant bears the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Clinic argues that the plaintiffs in this case have failed to present record evidence sufficient to suggest that they filed timely Title VII charges with the federal Equal Employment Opportunity Commission ("EEOC"), and that proof of such a timely charge is a condition precedent to bringing suit. Viewing the facts in the light most favorable to plaintiffs and the parties' legal arguments de novo, Young v. Dillon Cos., Inc., 468 F.3d 1243, 1249 (10th Cir.2006), we are constrained to agree with respect to five of the eight plaintiffs before us.

A

An employee wishing to challenge an employment practice under Title VII must first "file" a "charge" of discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1); Ledbetter v. Goodyear Tire & Rubber Co., ___ U.S. ___, 127 S.Ct. 2162, 2166-67, 167 L.Ed.2d 982 (2007). Because Title VII seeks to avoid "the pressing of stale claims," it requires aggrieved persons to file any such charge within certain specified periods after the allegedly unlawful conduct occurred. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (quotation omitted). If the employee does not submit a timely EEOC charge, he or she may not proceed to court. Ledbetter, 127 S.Ct. at 2166-67. While the applicable deadline for filing a charge with the EEOC depends on a variety of circumstances, the latest possible filing date is 300 days after the last allegedly unlawful act. See 42 U.S.C. § 2000e-5(e)(1).

Here, the last alleged violation of Title VII for each plaintiff coincided with his or her termination date.² And the undisputed facts reveal that five of the eight plaintiffs before us (Nely Davila, Margarita Erazo, Willie Mae Hopkins, Elizabeth Jaramillo, and Mervyn Vargas), filed their charges with the EEOC more than 300 days after their respective terminations. Under our precedents and those of the Supreme Court, this combination of facts would seem to require dismissal of the claims of these particular plaintiffs. See Holmes v. Utah, Dep't of Workforce Servs., 483 F.3d 1057, 1061-62 (10th Cir. 2007) (dismissing allegations which did not occur within the 300 day filing period); see also Ledbetter, 127 S.Ct. at 2166-68.

Specifically, the record before us reflects that most of the plaintiffs departed the Clinic between November 1998 and May 1999; beginning approximately six months later, on November 3, 1999, and proceeding at various dates through April 2000, they filed sworn charges with the EEOC. The following chart summarizes the exact dates on which each plaintiff was terminated and filed his or her charge with the EEOC:³

                                     Date of          Date of
                Plaintiff Termination EEOC Charge
                Nely Davila          April 28, 1999       April 4, 2000
                Margarita Erazo      April 16, 1999       April 10, 2000
                Eva Escobedo         Nov. 11, 1999        March 17, 2000
                Ernesto Garcia       May 30, 1999         March 17, 2000
                

                Willie Mae Hopkins   Nov. 6, 1998         Nov. 3, 19994
                Elizabeth Jaramillo  April 19, 19995  April 4, 2000
                Ana Patricia Montes  Aug. 2, 1999         March 20, 2000
                Mervyn Vargas        May 11, 1999         March 20, 2000
                

As the chart reflects, all but Ms. Escobedo, Mr. Garcia and Ms. Montes, filed charges with the EEOC more than three hundred days after their termination-a delay that would seemingly prove fatal to their effort to challenge the Clinic's conduct in court.

B

Plaintiffs suggest that this case is more complicated because they "filed charges" within the meaning of Title VII even before the dates reflected above. In support of this contention, plaintiffs submit that, long before they presented formal charges to the EEOC, they contacted the Colorado Civil Rights Division ("CCRD") — first by letter from their counsel on August 17, 1999, and then, shortly thereafter, by completing "intake forms" with the division. These contacts with the CCRD, they contend, suffice to qualify as the "filing" of "charges" with the EEOC under Title VII. Defendants, meanwhile, emphasize that no evidence reflecting or regarding these contacts with the CCRD exists in the record before us and urge that this deficiency is dispositive. We must agree. The viability of plaintiffs' argument can be assessed only with a review of the content of their submissions to the CCRD; without counsel's letter or the intake forms (all materials that are uniquely within plaintiffs' control), we are unable to do more than speculate whether they qualified as "charges" or whether they were "filed" within the time period prescribed by law. And speculate we may not do. See Bones v. Honeywell Intern., Inc., 366 F.3d 869, 875 (10th Cir.2004) ("To defeat a motion for summary judgment, evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.").

Indeed, to ascertain whether plaintiffs' materials might or might not qualify as "filed charges" with the EEOC is not the straightforward task it might at first blush seem. The question what sort of documents suffice to qualify as "charges" under Title VII is surprisingly unresolved, see, e.g., Ledbetter, 127 S.Ct. at 2166 n. 1; Edelman v. Lynchburg College, 535 U.S. 106, 118-19, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002), and has generated a circuit split.⁶ Some courts suggest that an informal intake questionnaire filed with a state entity like the CCRD⁷ or the EEOC almost always constitutes an EEOC charge; others hold that it will rarely do so; these competing positions are anchored by the Ninth and Sixth Circuits, respectively.⁸ Many circuits appear to populate some form of middle ground; while these circuits agree that a completed questionnaire must meet the EEOC's regulations prescribing the minimum contents of a charge, see 29 C.F.R. § 1601.12 (minimum contents of a Title VII charge); id. § 1626.8 (minimum contents of an ADEA charge), they differ on what more is required. Most apply some variant of the "manifestation of intent" test — asking whether a reasonable person would have known that the aggrieved person "intended to activate the Act's machinery" through his or her submission of a questionnaire — but some consider additional factors.⁹ To date, at least, our circuit has not been called to voice a view.

Plaintiffs' argument would, of course, change all that and require us to decide whether and when the completion of an informal intake form with the CCRD may qualify as a "charge" with the EEOC. But without the plaintiffs' actual CCRD filings, or even some meaningful record evidence about their contents, we would be marching into an intercircuit split unable to contribute thoughtfully to the discussion or even fairly resolve this appeal, for we could not begin to say whether plaintiffs' filings meet even the minimum required to be considered a "charge" under any of the tests advanced by the circuit courts. Taking the most permissive standard applied by courts for determining whether submission of a questionnaire with a state entity constitutes a "charge" under Title VII, a plaintiff's state filing must satisfy the charge "content" regulations promulgated by the EEOC. See, e.g., Casavantes, 732 F.2d at 1443. The applicable EEOC regulations, in turn, require "a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." See 29 C.F.R. § 1601.12(b). Although this standard is not demanding, we simply cannot know whether it is satisfied in this case without an examination of plaintiffs' submission to the CCRD. Thus, for example, Title VII requires each discrete act of discrimination (such as termination, failure to promote, denial of transfer, or refusal to hire) to be described in and the subject of a timely filed charge. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also Davidson v. Am. Online, Inc., 337 F.3d 1179, 1184 (10th Cir.2003) ("a claimant must file a charge of discrimination within the appropriate limitations period as to each such discrete act of discrimination that occurred"). That is, a plaintiff can bring a...