USEEOC v. Calumet Photographic, Inc.

• Decision Date: 08 June 1988
• Docket Number: No. 88 C 1702.,88 C 1702.
• Citation: 687 F. Supp. 1249
• Parties: UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CALUMET PHOTOGRAPHIC, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

687 F. Supp. 1249

UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. CALUMET PHOTOGRAPHIC, INC., Defendant.

No. 88 C 1702.

United States District Court, N.D. Illinois, E.D.

June 8, 1988.

Mary B. Manzo, Kathleen Mulligan, John P. Rowe, E.E.O.C., Chicago, Ill., for plaintiff.

James D. Fiffer, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for defendant.

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

Plaintiff, the Equal Employment Opportunity Commission ("the EEOC" or "the Commission") filed this Title VII action¹ against defendant Calumet Photographic, Inc. ("Calumet") for allegedly retaliating against Ms. Patricia Clark ("Clark") because she filed a charge of discrimination against Calumet. Calumet has moved for summary judgment — originally to dismiss, but the parties have consented to a conversion pursuant to Fed.R.Civ.P. 12 — on the grounds that this court lacks subject matter jurisdiction over this action. For the reasons set forth below, the motion will be denied.

FACTS

For the purposes of this motion, the relevant facts are not in dispute. On January 21, 1985, Clark went to the Chicago District Office of the EEOC without an attorney and, after completing and signing EEOC Form 283 ("the Intake Questionnaire"), met with Investigator Reinaldo Lugo ("Lugo"). During the meeting, Lugo reviewed the Intake Questionnaire and determined that it was sufficient to constitute a Title VII charge. Clark said that she wanted to file a charge against Calumet at that time. Lugo had Clark sign the interview notes of the meeting, and told Clark that her charge would be filed. Lugo also told Clark that a formal EEOC charge form would be mailed to her for her review and signature.

After the interview, Lugo completed EEOC Form 155 ("Charge and Complaint Analysis"), noting on it that Clark's charge was received by the EEOC on January 21, 1985, and was ready for processing. In the following weeks, Lugo served Calumet with formal notice of the charge. Upon receiving this notice, Calumet terminated Clark.

Lugo also mailed to Clark a letter and a typed draft of her charge on a formal charge form for her to sign. Clark thereafter spoke with Lugo, explaining to him that she wanted to make some changes in the charge. Lugo told her to write the charge however she wanted it. Clark did so, and mailed her new version to Lugo in late March. Although Clark signed her name at the bottom of the letter, she did not sign the formal charge form, which states that the signature is given under oath or affirmation.

On September 25, 1987, after having determined that there was reasonable cause to believe that Calumet had violated Title VII, the EEOC issued a Letter of Determination and sought conciliation with Calumet. These efforts were unsuccessful, and on April 14, 1988, the EEOC filed this lawsuit.

Calumet subsequently learned that Clark had never verified under oath or affirmation any of her written correspondences with the EEOC. It thus moved to dismiss under Federal Rules 12(b)(1) and 12(b)(6) on the grounds that, without such a verified charge, the EEOC, and therefore this court, had no jurisdiction over Clark's Title VII claims. The EEOC insisted in a letter to Calumet that a verified charge was not a jurisdictional prerequisite and that the signed but unverified Intake Questionnaire constituted a charge under Title VII. It also had Clark verify her original Intake Questionnaire, and provided a copy of this verified form to Calumet. Nevertheless, Calumet contends that the amended version comes to late, and stands on its argument that this court lacks subject matter jurisdiction over this case.

DISCUSSION

Calumet bases its argument that Clark's failure to initially file a verified charge deprives this court of jurisdiction on a recent decision of Judge Shadur. In Proffit v. Keycom Electronic Publishing, 625 F.Supp. 400 (N.D.Ill.1985), Judge Shadur ruled that a private plaintiff was barred from bringing a Title VII action in district court because she had not filed a timely verified charge with the EEOC. Because Judge Shadur's ruling has been cited with approval by the Seventh Circuit, Gilardi v. Schroeder, 833 F.2d 1226 (7th Cir.1987) (expressly declining to decide whether Intake Questionnaire can suffice as a charge), and because the meaning of his opinion is complicated by his modification of it following a motion for reconsideration, his ruling merits a careful examination here.

In his original opinion, Judge Shadur pointed to statutory language alone in holding that an unverified Intake Questionnaire could not serve as a charge under Title VII. 42 U.S.C. § 2000e-5(b) ("subsec. 5(b)") states in pertinent part:

Charges shall be in writing under oath or affirmation and shall contain such information and shall be in such form as the Commission requires.

At the same time, 42 U.S.C. § 2000e-5(e) ("subsec. 5(e)") provides in part:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred....²

Judge Shadur reasoned that, since subsec. 5(b) defines a charge as a verified writing, and subsec. 5(e) requires that the charge be filed within 180 days of the alleged Title VII violation, the plaintiff's failure to file a verified charge within 180 days barred her action. Proffit v. Keycom Electronic Publishing, 625 F.Supp. at 403.

In so holding, Judge Shadur noted that EEOC regulations suggested a different result. Section 1601.12(b) of the Regulations, 42 C.F.R. § 1601.12(b) ("subsec. 1601.12(b)"), provides in pertinent part:

Notwithstanding the provisions of paragraph (a) of this section which sets forth what a charge "should contain"³, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.

A charge may be amended to cure technical defects or omissions, including failure to verify the charge or to clarify and amplify allegations made therein. Such amendments ... will relate back to the date the charge was first received. (Emphasis added.)

Judge Shadur acknowledged that plaintiff's Intake Questionnaire sufficed to satisfy subsec. 1601.12(b)'s definition of a charge. He also noted that plaintiff had subsequently filed a formal verified charge which, although outside the limitation period, would have cured the defect in the original charge and related back to the date of that charge under the regulations. Nevertheless, the judge ruled that the regulations were inconsistent with the statutory definition of a charge, and therefore that they could not rescue plaintiff's case. Because the plaintiff's original Intake Questionnaire was unverified, the judge ruled, she had not filed a "charge" within the statute's limitation period. Id.

Judge Shadur next dealt with the Supreme Court's clear holding in Zipes v. TWA, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982), that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel and equitable tolling." He held that, because the EEOC had not treated the plaintiff's filing of her Intake Questionnaire as a charge, and because plaintiff had had plenty of time to file a formal verified charge but had neglected to do so, the limitation period was not tolled. 625 F.Supp. at 404. Accordingly, Judge Shadur ruled that plaintiff's suit was barred by the statute of limitations.

Calumet relies on Judge Shadur's ruling to argue that Clark failed to file a statutory "charge" within the limitation period, and that her subsequent amendment of her Intake Questionnaire could not cure this defect. Calumet does not, however, attempt to distinguish Proffit from the instant case with respect to the tolling issue; instead, by moving to dismiss for lack of jurisdiction, rather than asserting the statute of limitations as an affirmative defense, Calumet seems to ignore an important part of Judge Shadur's ruling.

Nevertheless, Calumet does have a reasonable basis for its approach. In Bullard v. Sercon Corporation, 846 F.2d 463 (1988), the Seventh Circuit held that, although the failure to file a timely charge provides the defendant with a statute of limitations affirmative defense, the failure to file any charge at all is jurisdictional in nature. In this case, at the time the EEOC filed its action, Clark had not yet "amended" her Intake Questionnaire, so if Judge Shadur's conclusion — i.e. a written allegation simply is not a charge if it is unverified — is correct, then Clark, at least, would be unable to bring a lawsuit against Calumet.

Yet, another glaring problem with Calumet's reliance on Judge Shadur's ruling cannot be so easily remedied by this court. Although Calumet relied on Judge Shadur's reasoning in his original opinion, 625 F.Supp. at 400-409, Judge Shadur subsequently revised that opinion. 625 F.Supp. 409-411.

Following a motion to reconsider by the plaintiff, Judge Shadur noted that neither of the parties had previously cited to him the Seventh Circuit's opinion in Choate v. Caterpillar Tractor Company, 402 F.2d 357 (7th Cir.1968). Proffit v. Keycom Electronic Publishing, 625 F.Supp. at 409. In Choate, the Court had held that the plaintiff's failure to verify an EEOC charge against the defendant did not deprive the district court of jurisdiction over her lawsuit because the oath requirement applied only to the administrative portion of the statute, and the EEOC had waived compliance with that requirement by accepting the plaintiff's written but unverified allegations as a charge.

With the benefit of Choate⁴, Judge Shadur amended his earlier opinion, though not his result. He determined that the plaintiff was still barred from bringing her lawsuit because, although the EEOC...