Equal Emp't Opportunity Comm'n v. Vantage Energy Servs., Inc.

• Citation: 954 F.3d 749
• Decision Date: 03 April 2020
• Docket Number: No. 19-20541,19-20541
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant v. VANTAGE ENERGY SERVICES, INCORPORATED; Vantage Drilling International, formerly known as Offshore Group Investment Limited; Vantage International Management Company Pte. Limited, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

954 F.3d 749

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant

v.VANTAGE ENERGY SERVICES, INCORPORATED; Vantage Drilling International, formerly known as Offshore Group Investment Limited; Vantage International Management Company Pte. Limited, Defendants-Appellees

No. 19-20541

United States Court of Appeals, Fifth Circuit.

FILED April 3, 2020

Anne Noel Occhialino, U.S. Equal Employment Opportunity Commission, Office of General Counsel/Appellate Services, Washington, DC, Connie Wilhite Gatlin, U.S. Equal Employment Opportunity Commission, Houston District Office, Houston, TX, for Plaintiff-Appellant.

Michael James Golden, Tanya DeMent, Boulette Golden & Marin, L.L.P., Austin, TX, for Defendant-Appellee.

Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.

PER CURIAM:

The Equal Employment Opportunity Commission ("EEOC") brought an enforcement action against the defendants-appellees ("Vantage") on behalf of David Poston, alleging that Vantage discriminated against Poston in violation of the Americans with Disabilities Act ("ADA"). Vantage moved to dismiss for failure to state a claim, arguing, inter alia , that the EEOC failed to exhaust administrative remedies. In a one-sentence judgment, the district court agreed and dismissed the case with prejudice. In so holding, however, the district court failed to follow controlling Supreme Court authority permitting the enforcement action. We publish this opinion to clarify the reach of our previous precedent, and REVERSE and REMAND for further proceedings.

BACKGROUND

David Poston worked for Vantage on a deep-water drillship off the coast of Equatorial Guinea. While working on the ship, he suffered a heart attack, was airlifted to Israel, then South Africa for treatment, and sent home. Vantage placed Poston on short-term disability leave. On the day Poston was due to return to work—October 2, 2014—Vantage fired him, allegedly on account of his poor work performance.

Poston viewed the termination differently and hired counsel to pursue legal action. Poston’s attorney submitted a letter to the EEOC on February 20, 2015, asserting that Vantage violated, inter alia , the ADA when it fired Poston. Along with the letter, counsel submitted an EEOC intake questionnaire. The questionnaire included Poston’s name, Vantage’s name and address, the nature of the discrimination claim, and Vantage’s stated reason for the termination. At the end of the questionnaire, Poston was presented with two options: He could either check a box indicating that he "want[ed] to talk to an EEOC employee before deciding whether to file a charge," or he could check a box stating that he wanted "to file a charge of discrimination" and "authoriz[ing] the EEOC to look into the discrimination" claim. Poston checked the latter box. The questionnaire was signed "s/David Poston" but was unverified.¹ The transmittal letter stated that Poston had given his attorneys authority to sign the questionnaire. The EEOC’s date stamp indicates receipt of the letter and intake questionnaire on February 20, 2015, and a "charge number" is handwritten at the top. The charge number remained the same in future correspondence.

Five days later, the EEOC sent Poston two letters, one acknowledging receipt of his "charge" and the other requesting that Poston supplement the questionnaire with his address and phone number. That same day, the EEOC sent Vantage a "Notice of Charge of Discrimination." The notice stated that a "charge of employment discrimination" under the ADA had been filed based on a discharge occurring on October 2, 2014, but informed Vantage that "no action" was currently required and that "[a] perfected charge (EEOC Form 5)" would be mailed once received from the charging party.

On May 21, 2015, the EEOC sent Poston’s attorney a letter stating that although it had notified Vantage of the initiation of "the charge filing process," it required a verified charge from Poston before beginning its investigation. Three months later, the EEOC reached out to Poston’s attorney again, notifying him that it had still not received Poston’s verified charge and requesting that Poston sign and return an EEOC Form 5 charge. Finally, on October 13, the EEOC received Poston’s Form 5 charge, which was signed under penalty of perjury and dated September 7. In November, the EEOC informed Vantage of Poston’s charge and requested a position statement. Vantage submitted the position statement, asserting that it fired Poston for poor work performance and that his filing was untimely. After conducting an investigation, the EEOC determined that there was reasonable cause to believe that Vantage violated the ADA. Conciliation efforts were unsuccessful, leading to the filing of an enforcement action.

EEOC’s complaint pled that "all conditions precedent" to suit had been fulfilled. Vantage moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust administrative remedies. Vantage contended that the EEOC failed to plead the timeliness of Poston’s charge of discrimination, and it could not do so because the Form 5 formal charge was filed more than 300 days after his termination.² The EEOC responded that it complied with Federal Rule of Civil Procedure 9(c), which expressly permits alleging "generally that all conditions precedent have occurred or been performed." Moreover, Poston satisfied the charge-filing requirement by filing his intake questionnaire within 300 days of his termination. That the intake questionnaire was not verified was inconsequential, the EEOC contended, in light of Edelman v. Lynchburg College , 535 U.S. 106, 122 S. Ct. 1145, 152 L.Ed.2d 188 (2002), and Poston’s subsequently verified Form 5 charge.

Vantage’s reasoning persuaded the district court. In a terse, one-sentence judgment, it concluded that "[b]ecause the intake questionnaire is not a verified charge, this case is dismissed with prejudice." The EEOC filed a timely notice of appeal.

STANDARD OF REVIEW

"Appellate review of a district court’s dismissal for failure to state a claim under Rule 12(b)(6) is de novo ." Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC , 594 F.3d 383, 397 (5th Cir. 2010). Similarly, a district court’s determination that a plaintiff failed to exhaust administrative remedies is reviewed de novo . Ruiz v. Brennan , 851 F.3d 464, 468 (5th Cir. 2017).

DISCUSSION

The primary issue on appeal is whether Poston’s later-verified intake questionnaire filed with the EEOC sufficed to constitute a "charge" in satisfaction of the ADA’s requirement that a charge be filed within 300 days of the alleged unlawful employment action. See 42 U.S.C. § 2000e-5(e)(1).³ Vantage’s arguments are all contrary to considerable precedent.⁴

To begin, the Supreme Court has held that a questionnaire may qualify as a charge if it satisfies the EEOC’s charge-filing requirements,⁵ and if it can "be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee." Fed. Express Corp. v. Holowecki , 552 U.S. 389, 402, 128 S. Ct. 1147, 1158, 170 L.Ed.2d 10 (2008). As Vantage notes, the Court in Holowecki prefaced its interpretation of the Age Discrimination in Employment Act by warning against applying "rules applicable under one statute to a different statute without careful and critical examination." Id. at 393, 128 S. Ct. 1147, 1158. Nonetheless, every circuit (including this one) to have considered whether Holowecki ’s holding extends to Title VII and the ADA has determined that it does. See, e.g. , Patton v. Jacobs Engr. Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017) (ADA complaint); Carlson v. Christian Bros. Servs. , 840 F.3d 466, 467–68 (7th Cir. 2016) ; Aly v. Mohegan Council, Boy Scouts of Am. , 711 F.3d 34, 42 n.1 (1st Cir. 2013) ; Williams v. CSX Transp. Co. , 643 F.3d 502, 508 & n.2 (6th Cir. 2011). Thus, an intake questionnaire asserting claims under the ADA can qualify as a charge if it complies with Holowecki’ s minimum standards.

The next question is whether Poston’s intake questionnaire qualified as a charge under the Holowecki test. The EEOC contends that it did, and we agree. Except for the lack of initial verification, it satisfied the EEOC’s charge regulations and must reasonably be construed as requesting the EEOC to take remedial action. Holowecki , 552 U.S. at 402, 128 S. Ct. at 1158. Vantage’s arguments to the contrary are unavailing.

Vantage asserts that Poston’s intake questionnaire and attorney transmittal letter together do not satisfy the requirements of 29 C.F.R. § 1601.12(a). Apart from quibbling about Vantage’s corporate structure and whether the territorial waters of Equatorial Guinea and the Gulf of Mexico are sufficiently precise descriptions of Poston’s work location, the essence of Vantage’s critique lies in the lack of Poston’s verification of the intake questionnaire and whether the papers requested EEOC to act on Poston’s behalf. We turn to verification later. As for the specifics of Poston’s questionnaire, the regulations require only that a charge be "sufficiently precise to identify the parties, and to describe generally the action or practices complained of." Id. § 1601.12(b). Poston’s questionnaire easily satisfied this standard. See also Melgar v. T.B. Butler Pub. Co. , 931 F.3d 375, 379 (5th Cir. 2019) ("[T]he crucial element of a charge of discrimination is the factual statement contained therein." (quoting Price v. Sw. Bell Tel. Co. , 687 F.2d 74, 78 (5th Cir. 1982) )). It identifies Poston as the charging party and Vantage as the employer,⁶ states approximately how many employees Vantage has, and lists Poston’s position, salary, and dates of hire and termination. The questionnaire also asserts that Vantage discriminated against Poston when it discharged him on October 2, 2014, "immediately after [he] finished short term disability" leave for a heart attack he suffered "on the job in Equatorial...