Maillet v. TD Bank U.S. Holding Co.

• Citation: 981 F.Supp.2d 97
• Decision Date: 08 November 2013
• Docket Number: Civil Action No. 13–cv–10168–PBS.
• Parties: Tina MAILLET, Plaintiff, v. TD BANK U.S. HOLDING COMPANY, Defendant.
• Court: U.S. District Court — District of Massachusetts

981 F.Supp.2d 97

Tina MAILLET, Plaintiff,

v.TD BANK U.S. HOLDING COMPANY, Defendant.

Civil Action No. 13–cv–10168–PBS.

United States District Court, D. Massachusetts.

Nov. 8, 2013.

Joseph P. Casale, Middletown, RI, for Plaintiff.

Eric J. Uhl, Sarah E. Mullen, Fisher & Phillips LLP, Portland, ME, for Defendant.

MEMORANDUM AND ORDER

SARIS, Chief Judge.

I. INTRODUCTION

Plaintiff Tina Maillet brings this action pursuant to Title VII, 42 U.S.C. § 2000e–3 and Mass. Gen. Laws ch. 151B §§ 4(4), 4(4A), against her former employer, TD Bank U.S. Holding Co. (“TD Bank”), alleging that it retaliated against her for defending herself against a sexual discrimination charge brought by another employee. Defendant has moved to dismiss the Second Amended Complaint (Docket No. 22), arguing that plaintiff (i) failed to exhaust administrative remedies prior to bringing this action because she did not verify the Intake Questionnaire, and (ii) did not engage in activity protected under Title VII or Chapter 151B. The Court concludes that plaintiff has failed to exhaust her administrative remedies and stays the case to give her the opportunity to correct this.

II. FACTUAL AND PROCEDURAL BACKGROUND

The following alleged facts—culled from the Second Amended Complaint unless otherwise noted—are taken to be true for purposes of this motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 667, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Plaintiff began working for TD Bank as a bank teller on April 4, 1994. In July of 2011, she was informed by her supervisor that another employee at TD Bank had filed a formal sexual discrimination charge against her with the Massachusetts Commission Against Discrimination (“MCAD”). In an internal investigation of these allegations that continued into September 2011, plaintiff answered questions and gave statements to defendant's attorneys in weekly telephone calls. The MCAD complaint was subsequently resolved without any agency proceedings.

Shortly after, plaintiff's supervisor told her that she would not be awarded her quarterly bonus for outstanding sales performance because of the time defendant had spent to investigate the MCAD charge. In December 2011, plaintiff was reprimanded for sending particular work emails—despite the fact that she had never been informed not to do so—and was told soon thereafter that she must either take a demotion or resign. Plaintiff left her position at TD Bank.

On or about June 29, 2012, plaintiff described defendant's alleged retaliation in an Equal Employment Opportunity Commission (“EEOC”) Intake Questionnaire, which she signed, although it was not verified under oath or penalty of perjury. See Second Am. Compl., Att. # 1 at 3–6 (“Pl.'s Intake Questionnaire”). Nowhere does the Intake Questionnaire state that allegations must be verified. See id. Plaintiff's attorney filed the Intake Questionnaire with the EEOC Boston office on July 9, 2012. The EEOC did not request further information from either plaintiff or defendant. Instead, on October 31, 2012, the EEOC dismissed the case and issued plaintiff a right-to-sue letter without making a finding as to whether defendant violated federal law. See Second Am. Compl., Att. # 1 at 8–9 (“EEOC Right–to–Sue Letter”). Plaintiff then filed a Verified Complaint (Docket No. 1) in federal court on January 28, 2013.

III. DISCUSSION

Defendant argues that plaintiff failed to exhaust her administrative remedies under Title VII because she never verified her charge in the agency proceedings. “Title VII requires exhaustion of administrative remedies as a condition precedent to suit in federal district court.” Jensen v. Frank, 912 F.2d 517, 520 (1st Cir.1990) (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)). To fulfill exhaustion requirements, a plaintiff must timely file a verified charge with an administrative body, either the EEOC or MCAD, and receive a right-to-sue letter. See Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34, 41 (1st Cir.2013). Title VII requires that “[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the [EEOC] requires.” 42 U.S.C. § 2000e–5(b). EEOC regulations require complainants to verify their administrative allegations, meaning that they are “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), 1601.9. Administrative regulations, however, also allow for amended verification: if an initial EEOC filing is unverified, a complainant can later swear an oath that “relates back” to confirm the allegations in the initial filing. 29 C.F.R. § 1601.12(b). No statutory provision or EEOC regulation sets a deadline for filing an amended charge containing a verification. However, issuance of a right-to-sue letter normally terminates the processing of an administrative charge. See29 C.F.R. §§ 1601.28(a)(3), 1601.12(b); see also EEOC Right–to–Sue Letter (“The Commission's processing of this charge has been concluded.”). The EEOC may issue a right-to-sue letter without requesting any response from an employer. See29 C.F.R. § 1601.28(b)(3) (EEOC will issue right-to-sue letter if it has dismissed a charge under 29 C.F.R. § 1601.18, which does not always require investigation or employer response).

The Supreme Court addressed the importance of the verification requirement to the administrative process in Edelman v. Lynchburg College, 535 U.S. 106, 113, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002). A complaint to the EEOC “starts the agency down the road to investigation, conciliation and enforcement, and it is no small thing to be called on to respond.” Id. at 115, 122 S.Ct. 1145. The verification provision “is meant to provide some degree of insurance against catchpenny claims of disgruntled, but not necessarily aggrieved, employees.” Id. EEOC regulations therefore protect the “employer's interest by refusing to call for any response to an otherwise sufficient complaint until the verification has been supplied.” Id. Meanwhile, the Supreme Court emphasized that Title VII is a remedial scheme wherein lay employees, “who may not know enough to verify on filing, will not risk forfeiting [their] rights inadvertently” once provided with the safety net of the verification amendment process. Id. To balance both parties' interests, the Court held that verification is required “by the time an employer is obliged to respond to the charge, not at the time an employee files it with the EEOC.” Id. at 113, 122 S.Ct. 1145. The Court specifically noted:

The general practice of Commission staff members is to prepare a formal charge of discrimination for the complainant to review and to verify, once the allegations have been clarified. The complainant must submit a verified charge before the agency will require a response from the employer ... [O]ur understanding is that the EEOC's standard practice is to caution complainants that if they fail to follow up on their initial unverified charge, the EEOC will not proceed further with the complaint.

Id. at 115 n. 9, 122 S.Ct. 1145 (citations omitted).

Six years later, the Supreme Court held that an Intake Questionnaire can stand in place of a formal EEOC charge form if it can “be reasonably construed as a request for the agency to take remedial action to protect the employee's rights.” Federal Express Corp. v. Holowecki, 552 U.S. 389, 402, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) (involving age discrimination claim). Although an Intake Questionnaire must be verified under Title VII, it can be amended after the initial filing to meet the verification requirement. See Aly, 711 F.3d at 44 (holding that intake questionnaire amended to meet verification requirement related back to earlier filed unverified complaint and satisfied statutory and regulatory requirements under federal law).

The Supreme Court has never set a deadline for an amendment to verify an initial complaint other than that verification must occur before the “employer is obliged to respond” to the EEOC charge. Edelman, 535 U.S. at 113, 122 S.Ct. 1145;see generally 4 Larson on Employment Discrimination § 70.04[3] (2013). As the First Circuit later explained, the verification requirement has “a distinct objective, namely, to protect employers from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury.” Aly, 711 F.3d at 42 (citation and internal quotation marks omitted).

In the wake of Edelman and Holowecki, the EEOC Intake Questionnaire has became a trap for the unwary litigant. Because the signature block at the end of the EEOC Intake Questionnaire does not include an oath or perjury statement, this document alone does not satisfy administrative exhaustion requirements. ¹ Nowhere on the Intake Questionnaire does the EEOC state that allegations must be verified under the pains and penalties of perjury. Indeed, the EEOC website does not clarify that the Intake Questionnaire is not a bona fide charge without verification. Yet, as it did in response to plaintiff's Intake Questionnaire in this case, the EEOC may promptly issue a “right-to-sue” letter, brooming out the proceedings without giving a complainant the advance notice envisioned by the Supreme Court that amended verification is necessary for an Intake Questionnaire to satisfy exhaustion requirements. See Edelman, 535 U.S. at 115 n. 9, 122 S.Ct. 1145.² Right-to-sue in this context is a misnomer since a plaintiff has no right to sue if she has not met the statutory verification requirement.

Potential complainants attempting to engage the EEOC process through the Commission's national website are first directed to fill out an Intake Questionnaire, which is...