Diez v. Minnesota Min. and Mfg. Co.

• Citation: 88 F.3d 672
• Decision Date: 12 July 1996
• Docket Number: No. 95-2790,95-2790
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 383 Donald E. DIEZ, Appellant, v. MINNESOTA MINING AND MANUFACTURING COMPANY, a Delaware corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 672

88 F.3d 672

71 Fair Empl.Prac.Cas. (BNA) 383

Donald E. DIEZ, Appellant, v. MINNESOTA MINING AND MANUFACTURING COMPANY, a Delaware corporation, Appellee.

No. 95-2790.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 15, 1996.

Decided July 12, 1996.

Richard T. Wylie, Minneapolis, MN, argued, for appellant.

Kathleen Maray Hahoney, St. Paul, MN, argued (Thomas P. Kane, David M. Wilk and Christine A. Kucera, on the brief), for appellee.

Before HANSEN, LAY and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Donald E. Diez appeals from the summary judgment entered against him in his Age Discrimination in Employment Act claim against Minnesota Mining and Manufacturing Co., known as 3M. The district court ¹ held that Diez had not filed an administrative charge with the Minnesota Department of Human Rights within 300 days of the act of discrimination, as he was required to do under 29 U.S.C. § 626(d)(2) (1994). Diez appeals, arguing that he filled out an agency questionnaire within the required time and that the questionnaire was by law a "charge." We affirm the judgment of the district court.

Diez worked for 3M from 1962 to August 1, 1992, when he retired at the age of fifty-eight. He alleged in his complaint that 3M began discriminating against him in favor of younger workers when he was forty-eight years old. He was demoted in 1990 and his former position was filled by a younger person, but Diez was required to continue functioning at the higher management level without commensurate pay. He requested that his job be re-evaluated so that he could be paid in accordance with the work he was actually doing; 3M began a formal process to consider his request. At the same time his request was pending, in April 1992, 3M announced a reduction in force would take place in the tape department, where Diez worked. 3M offered tape department employees a voluntary severance pay plan if they retired or otherwise resigned before the end of July 1992. Diez had to choose whether to retire voluntarily and receive the severance payment or take his chance that he would survive the reduction in force without being laid off. Diez alleged that he asked 3M's managers whether he would be kept on after the reduction in force and that they gave him no assurance. He alleged that a vice-president of 3M told him "that there were few or no opportunities for employees in their mid-fifties or older."

Diez elected to take early retirement to get the severance pay. He filled out an application for retirement on June 1, 1992. He modified 3M's form by writing in the words "under duress" and gave his retirement date as December 31, 1992, instead of the July 31 date specified in the severance pay plan.

On June 25, 3M told Diez that his job had been upgraded as he requested, but by this time Diez had already applied for retirement. Diez alleged that 3M gave the upgraded job to a "materially younger" person.

3M rejected Diez's pending application for early retirement because of the December date and the "under duress" language Diez had added to the form. On July 7, 1992 Diez completed another application without the "under duress" language and with a retirement date of August 1, 1992. Both applications were on a 3M form that said, "Please process my retirement/resignation with an effective date of ______ subject to approval by 3M." (emphasis added). The record is silent as to when 3M conveyed its approval of Diez's application, but Diez retired on August 1, 1992. Diez contends he was constructively discharged as of August 1, so the alleged adverse action took place no later than August 1.

On May 19, 1993 Diez visited the offices of the Minnesota Department of Human Rights and received an intake questionnaire. The Minnesota Department of Human Rights has a worksharing agreement with the EEOC by which each agency designates the other as its agent for the purpose of receiving charges. See 29 C.F.R. § 1626.10(c) (1995). In his responses to the questionnaire, Diez detailed his complaints and the names of the people at 3M whom he claimed discriminated against him. He signed the questionnaire on May 20 and returned it to the MDHR on May 21, 1993. The information in the questionnaire was reduced to a verified "Charge of Discrimination" on a MDHR form, which Diez executed and filed on June 10, 1993. The MDHR then notified 3M of the charge for the first time. After 3M responded, the MDHR dismissed Diez's charge on the ground that further use of the department's resources pursuing Diez's claim was not warranted.

Diez filed suit in federal court, claiming 3M violated the ADEA, 29 U.S.C. § 623 (1994), and the Minnesota Human Rights Act, Minn.Stat.Ann. § 363.06 (1991), and that it committed fraud.

3M moved for summary judgment on the theory that Diez did not file an administrative charge against it within 300 days, as provided by 29 U.S.C. § 626(d) (1994). The court granted summary judgment to 3M on the ADEA claim, relying on Hodges v. Northwest Airlines, Inc., 990 F.2d 1030 (8th Cir.1993), in which we stated that an unverified intake questionnaire could not serve as an administrative charge under Title VII. The district court did not find it necessary to determine the date on which 3M's alleged act of discrimination occurred, because the formal charge was filed more than 300 days from the date of Diez's retirement, August 1, 1992, which was the latest possible date for the act of discrimination. Because there was no longer any federal claim pending before the court, it declined to exercise jurisdiction over the state claims, citing 28 U.S.C. § 1367(c) (1994).

On appeal, Diez contends that the questionnaire he lodged with the MDHR satisfied the requirement that he file an administrative charge within 300 days of the act of discrimination.

We review the district court's entry of summary judgment de novo. Barry v. Barry, 78 F.3d 375, 379 (8th Cir.1996). We must affirm if the evidence, taken in the light most favorable to Diez, shows that there is no genuine issue of material fact and that 3M is entitled to judgment as a matter of law. Id.

The issue of whether EEOC and state agency intake questionnaires can serve as administrative charges has been widely litigated. ²

The leading case in our circuit is Hodges, 990 F.2d at 1032, a Title VII case, in which we stated that an intake questionnaire "did not constitute a valid charge under Title VII for purposes of the statute of limitations until [Hodges] signed it under oath...." ³ Id.; accord Park v. Howard Univ., 71 F.3d 904, 909 (D.C.Cir.1995), petition for cert. filed (May 10, 1996) (No. 95-1832). But see Whitekiller v. Campbell Soup, Inc., 925 F.Supp. 614 (W.D.Ark.1996).

In Title VII cases, intake questionnaires do not satisfy the statutory requirements for a charge because they are not verified. See 42 U.S.C. § 2000e-5(b) (1994) ("Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as [the EEOC] requires."). But cf. 29 C.F.R. § 1601.12 (1995) ("A charge may be amended to cure technical defects or omissions, including failure to verify the charge...."). ⁴

Unlike Title VII, the ADEA does not require that a charge be verified. The only statutory reference to what might be necessary in a charge comes in 29 U.S.C. § 633(b) (1994), which states: "If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority." This section literally refers to statements sent by registered mail. The record in this case does not indicate that Diez sent his questionnaire to the MDHR by registered mail. However, section 633(b) at least implies that charges in general shall be subject only to the minimal requirements that they be written and signed statements of the relevant facts.

The EEOC's regulations are consistent with this understanding. Under 29 C.F.R. § 1626.6:

A charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act(s). Charges received in person or by telephone shall be reduced to writing.

Another regulation, 29 C.F.R. § 1626.8, sets out in more detail what should appear in a charge, but specifically provides that the charge is legally sufficient and effective so long as it complies with the minimal requirements of section 1626.6.

Even though the intake questionnaires literally satisfy the statutory and regulatory requirements for a charge, a fuller examination of the regulations and the printed language on the intake questionnaire forms shows that the EEOC does not intend the questionnaires to routinely function as a charge.

In Steffen v. Meridian Life Insurance Co., 859 F.2d 534, 542 (7th Cir.1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3191, 105 L.Ed.2d 699 (1989), the Seventh Circuit recognized that the intake questionnaires fit within the statutory and regulatory descriptions of a charge, but nevertheless refused to say that this was sufficient for the questionnaire to be treated as a charge. The court stated:

[T]he EEOC's regulations make clear that, while a charge is 'sufficient' if it names the respondent and generally alleges discrimination, not all documents containing such information are charges. There is no other way to explain the distinction in the EEOC's regulations between a 'complaint' and a 'charge.' A 'complaint' is defined to 'mean information received from any source, that is not a charge, which alleges that a named prospective defendant has engaged in or is about to engage in actions in violation of the [ADEA]....' 29 C.F.R. § 1626.3 (emphasis added). As noted above, a charge is sufficient under the...