787 F.3d 1032 (10th Cir. 2015), 14-3050, Gad v. Kansas State Univ.

Docket Nº:14-3050
Citation:787 F.3d 1032
Opinion Judge:TYMKOVICH, Circuit Judge.
Party Name:SABREEN GAD, Plaintiff - Appellant, v. KANSAS STATE UNIVERSITY, Defendant - Appellee
Attorney:Danielle N. Davey (Alan V. Johnson with her on the briefs), Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, Kansas, for Appellant. Peter J. Paukstelis, Office of General Counsel, Kansas State University, Manhattan, Kansas, for Appellee.
Judge Panel:Before TYMKOVICH, GORSUCH, and BACHARACH, Circuit Judges.
Case Date:May 27, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

Plaintiff-appellant Sabreen Gad filed a complaint with the Equal Employment Opportunity Commission against Kansas State University, alleging she was discriminated against in her effort to obtain a tenure-track position. Despite the EEOC sending her a formal charge document to sign and verify, as both Title VII and EEOC regulations required, she never did so. The EEOC elected not to pursue her... (see full summary)

 
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787 F.3d 1032 (10th Cir. 2015)

SABREEN GAD, Plaintiff - Appellant,

v.

KANSAS STATE UNIVERSITY, Defendant - Appellee

No. 14-3050

United States Court of Appeals, Tenth Circuit

May 27, 2015

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. NO. 2:12-CV-02375-EFM).

Danielle N. Davey (Alan V. Johnson with her on the briefs), Sloan, Eisenbarth, Glassman, McEntire & Jarboe, L.L.C., Topeka, Kansas, for Appellant.

Peter J. Paukstelis, Office of General Counsel, Kansas State University, Manhattan, Kansas, for Appellee.

Before TYMKOVICH, GORSUCH, and BACHARACH, Circuit Judges.

OPINION

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TYMKOVICH, Circuit Judge.

Sabreen Gad filed a complaint with the Equal Employment Opportunity Commission against Kansas State University, alleging that she was discriminated against in her effort to obtain a promotion to a tenure-track faculty position. Although the EEOC sent her a formal charge document to sign and verify, as both Title VII and EEOC regulations require, she never did so. Nevertheless, after the EEOC elected not to pursue her case, she brought a Title VII suit against KSU.

This appeal requires us to decide whether Title VII's requirement that a claimant verify the charges against an employer is a jurisdictional prerequisite to suit. If that is the case, the district court correctly concluded that it lacked Article III subject-matter jurisdiction and dismissed the complaint. If, on the other hand, the verification

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requirement is a non-jurisdictional condition precedent to suit, it can be waived without defeating our jurisdiction. In that case, the requirement does not affect our subject-matter jurisdiction and federal courts are free to entertain the complaint and the defenses to it.

We conclude this verification requirement is non-jurisdictional and does not divest the federal courts of subject-matter jurisdiction. Title VII does not make the verification requirement jurisdictional, and the failure to comply with the requirement is not a conclusive impediment to suit. Like other conditions precedent, verification can be asserted as a defense to a claim by the defendant. But it cannot take away our power as federal courts to resolve live cases or controversies under Article III.

Consequently, exercising jurisdiction under 28 U.S.C. § 1291, we REVERSE the district court's contrary decision and REMAND for further proceedings.

I. Background

KSU hired Professor Gad in 2010 as a part-time assistant professor in the geology department. She subsequently requested that KSU either promote her to a full-time professorship position or promote her to membership on the graduate faculty. She never received either promotion, however, and she believed KSU discriminated against her by creating and giving similar positions to other individuals.

Consequently, in March 2012, Gad filed a claim with the EEOC, alleging religious, sex, and national-origin discrimination. She completed the required EEOC intake questionnaire form and prepared a letter to the EEOC summarizing her claims. She signed both the form and the letter, but never " verified" either by affirming them under penalty of perjury or before a person authorized to administer oaths, as EEOC regulations require. See 29 C.F.R. § 1601.3.1

An EEOC investigator assigned to the case later spoke with Gad regarding her discrimination claims. He " told her [he] would send her a charge for signature." App. 105. That charge--EEOC Form 5--includes a box for the complainant to sign under penalty of perjury, which satisfies the verification requirement. On the same day, the investigator mailed Gad Form 5 along with a letter that explained what the form meant and the next steps in the EEOC's investigation. The letter contained two directions pertinent here. First, it informed Gad that if the EEOC did not " receive [her] signed charge within 30 days, [it would be] authorized to dismiss [her] charge and issue [her] a right to sue letter." Id. at 107. Second, it informed her that " proper handling of this action by the Commission" required her to " sign and date the charge" and " [r]eturn the signed charge to this office." Id. The only place to sign the charge was a blank directly below the words, " I declare under penalty of perjury that the above is true and correct." Id. at 109. According to Gad, she never signed or returned the form because the investigator " mentioned something that I don't have to return . . . the signing form." Id. at 89-90.

The investigator also mailed a notice to KSU that Gad had filed an " unperfected" charge of discrimination. Id. at 167. The notice informed KSU that " [n]o action is required by you at this time." Id.

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In early April, the EEOC investigator and Gad spoke again. The investigator's notes of the conversation report that he told Gad that " further investigation will unlikely result in a violation" and that, if so, the EEOC would issue her a " Dismissal and Notice of the Right to Sue." Id. at 169. On April 19, the EEOC issued Gad the right-to-sue notice, on which KSU was carbon copied.

In June, Gad sued KSU in federal district court. KSU's answer stated generally that Gad had failed to exhaust her administrative remedies, but said nothing specifically about Gad's failure to verify. After filing its answer but before summary judgment, KSU obtained Gad's EEOC file, which contained a copy of Gad's unverified Form 5.

In its motion for summary judgment, KSU argued the court lacked jurisdiction because Gad failed to exhaust her administrative remedies by not verifying her EEOC charge. The district court agreed, noting our holding in Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1317 (10th Cir. 2005), that exhaustion of administrative remedies is a jurisdictional prerequisite to suit. Relying on that principle, the court concluded that Gad's failure to satisfy Title VII's verification requirement was a failure to exhaust administrative remedies and that it thus lacked jurisdiction.2

II. Analysis

KSU argues that a plaintiff's failure to satisfy the verification requirement divests us of subject-matter jurisdiction and cannot be waived. As we discuss below, we conclude otherwise.

A. Subject-Matter Jurisdiction

The federal courts are courts of limited subject-matter jurisdiction. Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1225 (10th Cir. 2004). And since we have limited jurisdiction, we " may only hear cases when empowered to do so by the Constitution and by act of Congress." Id. (internal quotation marks omitted). Our subject-matter jurisdiction is a constitutional prerequisite to hearing a case and " because it involves a court's power to hear a case, can never be forfeited or waived." Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Thus, we always have an independent obligation--no matter the stage of litigation--to consider whether a case creates a live case or controversy and belongs in federal court.

In this case, the question is whether Title VII's verification requirement is a prerequisite to our subject-matter jurisdiction. Title VII specifically gives us subject-matter jurisdiction as a general matter in 42 U.S.C. § 2000e-5(f)(3).3 But as a

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condition to filing suit in federal court, Title VII also requires claimants to submit a " charge" to the EEOC. That submission must " be in writing under oath or affirmation" and " contain such information and be in such form as the [EEOC] requires." 42 U.S.C. § 2000e-5(b). EEOC regulations interpreting the statute reiterate that a charge " shall be in writing and signed and shall be verified." 29 C.F.R. § 1601.9. And the regulations clarify that " verified" means " 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.

Is this verification requirement a jurisdictional prerequisite to a Title VII suit? The law is not clear. In several cases analyzing other aspects of Title VII, we have concluded that some Title VII requirements are not jurisdictional prerequisites to suit. For example, in Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1167 (10th Cir. 2007), we held that § 2000e-5's " mandatory time limit for filing charges with the EEOC is not a jurisdictional prerequisite" and is " thus subject to waiver, estoppel, and tolling when equity requires." See also EEOC v. JBS USA, LLC, 794 F.Supp.2d 1188, 1201 (D. Colo. 2011) (noting that " not every defect in the administrative process defeats jurisdiction" ).

But we said in Shikles that " a plaintiff's exhaustion of his or her administrative remedies is a jurisdictional prerequisite to suit under Title VII--not merely a condition precedent to suit." Shikles, 426 F.3d at 1317. Exhaustion requires " the filing of a charge of discrimination with the EEOC," Jones v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007), and charges must be verified. Thus, one might conclude a plaintiff has not complied with Title VII's required prerequisites to suit--i.e., he has not fully exhausted--until he verifies. That might appear to require the conclusion that verification is necessarily jurisdictional. But see Green v. Donahoe, 760 F.3d 1135, 1140 (10th Cir. 2014) (noting that " the untimeliness of an administrative claim, although an exhaustion issue . . . is not jurisdictional" ), cert. granted, 135 S.Ct. 1892, 191 L.Ed.2d 762, 2015 WL 1879779 (2015). Thus, our cases provide no dispositive answer.

Nor has the Supreme Court...

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