Victoria Tillbery v. Kent Island Yacht Club, Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cv-02956-CCB Copies to all parties and the district court/agency. [998768241].. [10-1730]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1730

VICTORIA L. TILLBERY,
Plaintiff - Appellant,
v.
KENT ISLAND YACHT CLUB, INC.,
Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:09-cv-02956-CCB)

Argued:

September 20, 2011

Decided:

January 19, 2012

Before WILKINSON, NIEMEYER, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.
dissenting opinion.

Judge Floyd wrote a

Joyce E. Smithey, RIFKIN, LIVINGSTON, LEVITAN & SILVER, LLC,
Annapolis, Maryland, for Appellant.
Craig Forrest Ballew,
FERGUSON, SCHETELICH & BALLEW, PA, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
After enduring unwanted, sexually-laden harassment by the
general manager and a member of the board of the Kent Island
Yacht Club, Inc., Victoria Tillbery, a waitress at the Yacht
Club, complained to the EEOC on April 22, 2009, by filling out
an online questionnaire.

In the questionnaire, Tillbery stated

that she was hired on July 1, 2006, and that the allegedly
improper conduct took place on July 1, 2006.

Naming Kevin Damas

and Bob Schober as the persons responsible, she described their
conduct:

“Sexual

language

used;

propositioned

for

money;

display of doll for sexual purposes” and “Money for sex; just
wanted sex.”

When Tillbery filled out the questionnaire, she

was represented by an attorney, who later wrote the Kent Island
Yacht Club, demanding that the Club cease and desist in its
sexual harassment of Tillbery.
Less than two weeks later, Tillbery filled out another EEOC
questionnaire, but this time in person in the Baltimore office
of the EEOC, giving essentially the same information that she
had given on April 22, 2009.
EEOC

sent

the

Kent

Island

In response to this complaint, the
Yacht

Club

a

notice

of

the

discrimination claim.
Finally, on June 27, 2009, Tillbery filed a formal charge
with the EEOC, which she signed under the penalty of perjury.
The charge stated:
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On July 1, 2006, I was hired by the above referenced
employer as a waitress.
On this same date I was
subjected to sexual harassment by Kevin Damass [sic]
(General
Manager)
and
Bob
Shober
[sic]
(Rear
Commodore).
Sexual
language
was
used,
I
was
propositioned for money, and there was a display of a
doll for sexual purposes.
In response to the charge, the EEOC sent Tillbery a right to sue
letter on August 8, 2009, stating, “Your charge was not timely
filed with the EEOC; in other words, you waited too long after
the date of the alleged discrimination to file your charge.”
Tillbery commenced this action under Title VII of the Civil
Rights

Act

November

6,

of

1964

2009.

against
In

her

the

Kent

Island

complaint,

she

Yacht

Club

alleged

on

sexual

harassment by both Damas and Schober, but she claimed that it
took place between October 2008 and April 2009.

The complaint

also alleged that from May 2009 through October 2009, the Kent
Island Yacht Club retaliated against her because of her EEOC
complaint.
On Kent Island Yacht Club’s motion to dismiss or, in the
alternative, for summary judgment, the district court dismissed
the

complaint

for

lack

of

subject

matter

jurisdiction,

concluding that Tillbery had not exhausted her administrative
remedies by first filing a charge with the EEOC with respect to
the

harassment

2009.

that

occurred

between

October

2008

and

April

See Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th

Cir. 2009) (holding that a plaintiff’s “failure . . . to exhaust
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administrative remedies concerning a Title VII claim deprives
the

federal

claim”).
and

courts

of

subject

matter

jurisdiction

over

the

The court pointed out that in her EEOC questionnaires

formal

charge,

Tillbery

described

sexual

harassment

that

took place on July 1, 2006, leading the agency to conclude that
the charge was untimely.
in

this

case,

however,

The conduct alleged in the complaint
was

described

as

having

taken

place

between October 2008 and April 2009, and a charge about that
conduct

was

never

filed

with

the

EEOC

for

investigation

and

possible administrative resolution.
Responding to Tillbery’s contention that her use, in the
EEOC

questionnaires,

of

the

July

1,

2006

date

was

merely

a

clerical error that had been repeated without correction in the
formal charge, the court acknowledged that Tillbery was probably
right.

But the court observed that the effect of the error was

substantive,

frustrating

resolving such claims.

the

scheme

designed

by

Congress

As the court stated:

The requirement that a claimant inform the EEOC of the
date(s) of the alleged discriminatory activity is not
merely a technicality.
Rather, such information
notifies the agency of the scope of its investigation,
and ultimately, the scope of a plaintiff’s right to
file a federal law suit is determined by the [EEOC]
charge’s contents.
Moreover, among the reasons
Congress enacted Title VII’s exhaustion requirement
was that the EEOC administrative process is typically
better suited to ending discrimination than the
ponderous pace of formal litigation, because the EEOC
undertakes
detailed investigations
into
potential
discrimination claims before any suit is filed, both
4

for

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preserving judicial economy . . .
prospective plaintiffs build their case.

and

helping

(Internal quotation marks and citations omitted).
In short, Tillbery’s charge filed with the EEOC described
sexual harassment on July 1, 2006, leading the EEOC to dismiss
that charge as untimely.

Yet in the complaint filed in this

case, she alleged sexual harassment occurring during the period
from October 2008 to April 2009, for which she never filed a
charge with the EEOC, thereby denying the EEOC the opportunity
to investigate and mediate the claim.

Because she failed to

exhaust her administrative remedies with respect to the 2008-09
conduct,

the

district

court

concluded

that

it

was

without

subject matter jurisdiction.
While

the

assumed

clerical

compounded by additional conduct.

error

is

regretful,

it

was

At the time Tillbery filed

her complaint with the EEOC, she was represented by counsel.
Moreover, she repeated the error in her second filing and again
in her formal EEOC charge, where she stated under oath that the
sexual harassment occurred on July 1, 2006.

Finally, after the

EEOC notified Tillbery and her counsel of the untimeliness of
her claim, she still did not seek to correct the alleged error
in her filings with the EEOC.

See 29 C.F.R. § 1601.12 (allowing

the correction of “technical defects or omissions” and providing

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that these corrections will “relate back to the date the charge
was first received”).
The dissent concludes that the EEOC failed to perform its
duty to investigate Tillbery’s charge after receiving it and
that

even

“exposed

a
the

“minimal

investigation”

scrivener’s

error”

in

that

this

case

would

Tillbery

now

have

claims

occurred when she stated that the discrimination occurred in
July 2006 rather than October 2008 and April 2009.
While we agree with our good colleague that the EEOC is
given

the

task

of

investigating

discrimination

charges,

we

cannot agree that it needed to conduct more of an investigation
than it did in this case.

It was given no inkling of reason to

question Tillbery’s claim that the discrimination occurred in
July 2006, and without any reason to doubt the facts as claimed
multiple times by Tillbery, even when represented by counsel, we
cannot

conclude

reasonable.
of

that

the

EEOC’s

investigation

was

not

From its point of view, the EEOC received a charge

discrimination

occurring

in

July

2006

and

reasonably

concluded that because the charge for that discrimination was
filed more than two years later, it was untimely.

The dissent’s

proposal to have the EEOC conduct a more expansive investigation
would in principle require the EEOC to investigate independently
even undisputed facts on every charge that it receives.

6

This is

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clearly not required by law and, moreover, would be completely
impractical, bringing the EEOC to its knees.
Having

reviewed

the

record

carefully

and

considered

Tillbery’s arguments on appeal, we affirm for the reasons given
by the district court in its thorough opinion.

We do note,

however, the possibility of some relief from the ill effects of
the alleged clerical error, as Tillbery assures us that she has
pending

timely

misconduct.

state

court

actions,

which

allege

the

same

We trust that she will pursue those so as to be

able to present the merits of her claim for resolution.

AFFIRMED

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FLOYD, Circuit Judge, dissenting:
I respectfully dissent.
Victoria L. Tillbery filed suit against Kent Island Yacht
Club, Inc. (KIYC), alleging discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 2000e

to

2000e-17

(Title

VII),

and

Article

49B

of

the

Maryland Code, recodified effective October 1, 2009, as Md. Code
Ann. State Gov’t §§ 20-101 to 20-1203.

Tillbery’s claims also

included retaliation under Title VII and Article 49B, negligent
retention

and

supervision,

and

intentional

infliction

of

emotional distress.
KIYC

subsequently

filed

a

motion

alternative, for summary judgment.
Tillbery’s

federal

jurisdiction,

claims

finding

administrative remedies.

that

for
she

to

dismiss

or,

in

the

The district court dismissed
lack
had

of

failed

subject
to

matter

exhaust

I think that this was in error.

her
Thus,

for the reasons set forth below, I would vacate the district
court’s order and remand for further proceedings.

I.
The underlying facts of this case, as cogently set forth by
the distinguished district court, are as follows:
KIYC is a private yacht club located in Maryland
that hosts a marina, a club house, and a restaurant
for its patrons.
In July 2006, Ms. Tillbery began
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working at KIYC as a waitress and bartender.
Her
duties included taking orders and serving food and
beverages to patrons at the KIYC restaurant.
Ms.
Tillbery alleges she became the victim of sexual
harassment in the fall of 2008, after KIYC hired Kevin
Demas as General Manager in July 2008.
As General
Manager,
Mr.
Demas
was
Ms.
Tillbery’s
direct
supervisor, and he is alleged to have sexually
harassed Ms. Tillbery on numerous occasions.
Ms.
Tillbery further alleges that, beginning in November
2008, Bob Schober, KIYC Rear Commodore and Board
Member, began harassing her as well. At the time this
complaint was filed, Ms. Tillbery continued to work at
KIYC. In her motion for leave to amend the complaint,
however,
Ms.
Tillbery
alleges
that
she
was
constructively discharged on April 23, 2010.
Without going into exhaustive detail here, the
facts
alleged
in
Ms.
Tillbery’s
complaint
are
troubling. Ms. Tillbery alleges that, between October
2008 and April 2009, Mr. Demas sent her over fifty
inappropriate text messages, including requests for
sexual considerations and descriptions of sexual acts
that he wanted to perform on her.
Mr. Demas is also
alleged to have left similarly inappropriate notes in
her paychecks.
Ms. Tillbery further alleges that Mr.
Demas repeatedly asked her to spend time with him
outside of work, and once said “Everyone knows that
you don’t sleep with your husband” when she declined.
In addition, he allegedly made at least twenty
sexually inappropriate comments to Ms. Tillbery when
she bent over to stock the refrigerator, including
such statements as “Man you got the nicest ass. I
could grab it right now[,”] and “Oh baby oh baby.”
Mr. Demas’s harassment of Ms. Tillbery is alleged
to have included touching as well.
In January 2009
Mr. Demas allegedly approached Ms. Tillbery from
behind and began rubbing her shoulders, saying “You
deserve to be treated better.
Do you know how
beautiful you are?”
Then he apparently grabbed each
side of her face with his hands and attempted to
forcibly kiss her, while saying “Just give me a kiss.”
Later, in the spring of 2009, Mr. Demas allegedly hung
up a rag doll with blonde hair wearing a bikini in the
kitchen at KIYC.
Ms. Tillbery has blonde hair and,
along with the doll, Mr. Demas apparently posted a
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sign that read “Vikalicious[.”] When another employee
approached Mr. Demas about the doll, he allegedly
responded “It’s Vickie” and “I can do what I want.”
Moreover, Ms. Tillbery alleges that she was
harassed not only by her direct supervisor, Mr. Demas,
but also by KIYC Board Member and Rear Commodore, Mr.
Schober, beginning in November 2008.
Mr. Schober
allegedly offered Ms. Tillbery money if she would have
sex with him. According to Ms. Tillbery, he made this
offer two to three times per week. Ms. Tillbery also
alleges that he made other inappropriate comments to
her, including “My wife isn’t able to satisfy me, and
I think you would be the one that could if you know
what I mean[,”] and “I know you need the money because
I always see you working all the time.
So if I give
you $500, would you sleep with me?”
On April 10,
2009, Mr. Schober apparently came to Ms. Tillbery’s
home, which frightened her because she did not know
how he learned where she lived. Mr. Schober allegedly
said that he wanted a haircut, and tried to open the
screen door to Ms. Tillbery’s home.
Ms. Tillbery
asked him to leave, which he eventually did.
Ms. Tillbery claims that she told Mr. Demas of
Mr. Schober’s advances toward her on at least three
occasions, but that there was no informal or formal
sexual harassment policy in place at KIYC.
The
situation was particularly uncomfortable, she points
out, because Mr. Demas was her direct supervisor, and
Mr. Schober, as a member of the KIYC Board, was
essentially Mr. Demas’s supervisor.
Unable to stand
the harassment any longer, Ms. Tillbery submitted her
resignation in writing on February 18, 2009.
Mr.
Demas allegedly promised her that the harassment would
stop if she would agree to withdraw her resignation,
which she reluctantly did, writing at the bottom of
her resignation letter, “after speaking with Kevin, I
[am hoping] that this situation will resolve itself.
If the situation continues I will go to the labor
board as I need this job to support my family.”
Eventually, Ms. Tillbery contacted the Equal
Employment Opportunity Commission (“EEOC”) by filling
out an online intake questionnaire on April 22, 2009.
A notice of Ms. Tillbery’s charge, dated May 7, 2009,
was sent to KIYC, and she filled out another
questionnaire on May 4, 2009.
Ms. Tillbery signed a
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formal EEOC charge under penalty of perjury on June
27, 2009.
By this time, Ms. Tillbery had hired an
attorney, Cecile Weich, who apparently sent a letter
to KIYC requesting that Mr. Demas and Mr. Schober
“cease and desist from your sexual harassment of her
. . . and requests for sex for money.”
On April 27,
2009, Ms. Weich sent a follow-up letter to members of
KIYC stating that “the General Manager and Rear
Commodore S[c]hober . . . have been sexually harassing
Victoria Tillbery.”
Furthermore, in May 2009, Ms. Tillbery went to
the Queen Anne’s County Sheriff’s Department. As a
result of that meeting the Sheriff’s Department
pursued criminal charges against Mr. Schober. Mr.
Schober apparently was later convicted of solicitation
for prostitution and sentenced on October 8, 2009, to
probation before judgment, supervised until April 8,
2012.
He agreed to stay away from Ms. Tillbery,
resigned from the KIYC board, and relinquished his
membership in the club.
Ms.
Tillbery
alleges
that
in
May
2009,
immediately after she filed charges with the EEOC and
the Sheriff’s Department, she became the victim of
retaliation.
Mr. Demas allegedly told her that she
could no longer arrive at work at 4:00 p.m. to perform
her setup duties, therefore forcing her to perform
them during the time that she could have been waiting
tables and earning tips.
On May 18, 2009, Ms.
Tillbery also received a letter from KIYC’s attorney
complaining of a performance issue.
Ms. Tillbery
claims the letter was the only negative feedback she
ever received during her tenure at KIYC.
According to Ms. Tillbery, her attorney again
sent a letter to KIYC on May 19, 2009, this time
explaining
that
Ms.
Tillbery
was
suffering
retaliation, and on May 21, 2009, Ms. Tillbery
apparently provided a written statement to KIYC
summarizing the harassing conduct by Mr. Demas.
But
Ms. Tillbery alleges the retaliatory conduct did not
stop.
Instead, she claims that on July 4, 2009, the
busiest evening of the year at the KIYC restaurant,
Mr. Demas ordered her to train a busser to be a
waitress simply so that Ms. Tillbery would have to
split her tips for the evening. On July 6, 2009, Ms.
Tillbery allegedly complained in writing via her
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attorney, Ms. Weich, that she was still forced to
serve Mr. Schober.
She apparently complained of
retaliatory treatment again in writing on July 10,
2009, describing how she was forced to train a busser
and was prohibited from clocking in until 4:30. On
July 24, 2009, counsel for KIYC wrote to Ms. Weich
stating, “The Club has implemented safeguards to
ensure that Ms. Tillbery is not required to serve Mr.
S[c]hober. . . .”
The retaliation is alleged to have escalated,
however, on October 12, 2009, when Ms. Tillbery was
called into a meeting with Mr. Demas and Jack Caddy, a
KIYC Board Member. Mr. Caddy told Ms. Tillbery that
KIYC had received some complaints about her, although
he provided no information as to the nature of the
complaints, who made them, or when they were made.
Ms. Tillbery alleges that soon thereafter, on October
21, 2009, she received a letter from KIYC stating that
“employees may not clock in more than seven (7)
minutes before their shift is scheduled to start[,”]
and that “it has been recorded that on Thursday, Oct.
15, 2009, you clocked in fourteen (14) minutes before
your shift was scheduled to start and on Friday, Oct.
16, 2009, you clocked in twenty-five (25) minutes
before
your
scheduled
start
time;
both
without
consulting management.”
Ms. Tillbery alleges that
other employees who had engaged in similar conduct did
not receive a warning about the new policy and
continued to clock in early.
Ms.
Tillbery
also
alleges
that
Mr.
Demas
continues to retaliate against her by refusing to
speak to her and constantly watching her.
He
allegedly instructed another bartender to watch Ms.
Tillbery and document everything that she does.
She
claims that other employees have observed his unfair
treatment of her and that, as a result of the
harassment she has experienced at KIYC, she has
suffered a loss of income, extreme and emotional
distress, and mental anxiety.
On August 6, 2009, the EEOC notified Ms. Tillbery
that it had dismissed her charge of discrimination as
untimely and that she had a right to sue. On November
6, 2009, Ms. Tillbery filed the present action against
KIYC alleging sexual harassment in violation of Title
VII and Article 49B (Counts I & II), negligent
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retention and supervision (Count III), intentional
infliction of emotional distress (Count IV), and
retaliation in violation of Title VII and Article 49B
(Counts V & VI).
Tillbery v. Kent Island Yacht Club, Inc., Civ. No. CCB-09-2956,
2010

WL

2292499,

at

*1-4

(D.

Md.

June

4,

2010)

(footnotes

omitted) (citations omitted).
On two EEOC questionnaires Tillbery completed, she stated
that the alleged sexual harassment occurred on July 1, 2006.

An

EEOC representative drafted the EEOC charge and also listed the
harassment as occurring on July 1, 2006.

Both Tillbery and the

EEOC representative wrote on the forms that KIYC hired Tillbery
on that same date, July 1, 2006.

Subsequently, as noted above,

on August 6, 2009, the EEOC closed its file on Tillbery’s charge
without

conducting

any

investigation,

informing

her

that

her

“charge was not timely filed with the EEOC; in other words, you
waited too long after the date(s) of the alleged discrimination
to file your charge.”

In her complaint, Tillbery has clearly

alleged that, in fact, July 1, 2006, was the date of her hiring,
but that the sexual harassment occurred from October 2008 to
April 2009.
Upon
Tillbery’s

motion
federal

by

KIYC,
claims

the
for

district
lack

of

court

dismissed

subject

matter

jurisdiction, finding that “[t]he allegations in Ms. Tillbery’s

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present complaint . . . exceed the scope of her administrative
charge and have not been properly exhausted.”

Id. at *6.

II.
Before filing suit pursuant to Title VII, the plaintiff
must file a charge of discrimination with the EEOC.
Calvert Grp., 551 F.3d 297, 300 (4th Cir. 2009).

Jones v.
The charge

must be “‘sufficiently precise to identify the parties, and to
describe generally the action or practices complained of.’

The

scope of the plaintiff’s right to file a federal lawsuit is
determined by the charge’s contents.”

Id. (citation omitted)

(quoting Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir.
2005)).

“Whenever a charge is filed by or on behalf of a person

claiming to be aggrieved, . . . the Commission shall serve a
notice

of

the

charge

(including

the

date,

place

and

circumstances of the alleged unlawful employment practice) on
such

employer

investigation

.

.

.

within

ten

42

U.S.C.

thereof.”

days,
§

and

shall

2000e-5(b).

make
The

an
only

claims that the plaintiff may bring in a subsequent complaint
are “those discrimination claims stated in the initial charge,
those reasonably related to the original complaint, and those
developed
complaint.”

by

reasonable

investigation

of

the

original

Jones, 551 F.3d at 300 (quoting Evans v. Tech.

Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996))
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(internal

Date Filed: 01/19/2012

quotation

marks

Page: 15 of 23

omitted).

Claims

raised

in

the

district court but not with the EEOC are barred unless they
“would

naturally

have

arisen

administrative complaint.

from

an

investigation”

of

the

Dennis v. Cnty. of Fairfax, 55 F.3d

151, 156 (4th Cir. 1995).
“[E]xperience

teaches

that

strict

adherence

to

the

procedural requirements specified by the legislature is the best
guarantee of evenhanded administration of the law.”
Corp. v. Silver, 447 U.S. 807, 826 (1980).
visit

the

statutory
plaintiff.

effects
duty

to

of

the

perform

EEOC’s
a

We cannot, however,

failure

reasonable

Mohasco

to

carry

out

its

on

the

investigation

Zambuto v. Am. Tel. & Tel. Co., 544 F.2d 1333, 1336

(5th Cir. 1977).

Furthermore, we must resolve any ambiguity as

to whether a plaintiff satisfied a procedural requirement in the
plaintiff’s favor to effectuate the purposes of Title VII.
Title VII is remedial in character and should be
liberally construed to achieve its purposes. . . .
For this reason, courts confronted with procedural
ambiguities in the statutory framework have, with
virtual unanimity resolved them in favor of the
complaining party.
That approach reflects not only
the manifest importance of Title VII rights to
complaining parties, but also the broad national
commitment to eliminating such discrimination and the
importance
of
private
suits
in
fulfilling
that
commitment.
Garner v. E. I. Du Pont De Nemours & Co., 538 F.2d 611, 614 (4th
Cir. 1976) (citation omitted) (quoting Coles v. Penny, 531 F.2d
609, 615 (D.C. Cir. 1976)) (internal quotation marks omitted).
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III.
KIYC

contends

that

the

district

court

was

correct

in

holding that Tillbery neglected to file a charge with the EEOC
with

respect

to

the

alleged

sexual

harassment

between October 2008 and April 2009.
and

the

district

court,

Tillbery

that

occurred

Thus, according to KIYC
failed

to

exhaust

her

administrative remedies prior to filing suit against KIYC.

I

disagree.
According to the district court, the allegations contained
in

Tillbery’s

complaint

“were

outside

the

scope

of

her

EEOC

charge due to an apparent error in the dates listed on the
charge.”

Tillbery, 2010 WL 2292499, at *4 n.4.

But, from my

careful review of the record, I am of the opinion that the
allegations in Tillbery’s complaint were not outside the scope
of

her

EEOC

charge.

That

is

so

because

both

Tillbery’s

complaint and her EEOC charge concerned the alleged October 2008
to April 2009 harassment, even though, as the district court
observed, the date is incorrect on her EEOC charge.

In fact,

later in its opinion, the district court recognized as much when
it wrote the following:
Ms. Tillbery argues that the July 1, 2006 date in the
EEOC charge was merely a clerical error by the EEOC
representative who drafted the form, and that all of
the facts alleged in her judicial complaint occurred
within 300 days of June 27, 2009 [the date Tillbery
filed her EEOC charge].
Assuming the truth of the
facts alleged in the complaint, it appears likely that
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Date Filed: 01/19/2012

Page: 17 of 23

Ms. Tillbery’s EEOC charge did contain the wrong date,
as Mr. Demas was not even hired by KIYC until July
2008.
Id. at *5.

Thus, drawing all inferences in favor of Tillbery at

this stage of litigation, as we are required to do, I credit her
explanation

of

the

date

as

a

scrivener’s

error

in

her

EEOC

documents.

See Risk v. Ford Motor Co., 48 F. Supp. 2d 1135,

1146 (S.D. Ind. 1999) (dismissing claims on other grounds, but
stating

that

it

was

“inclined

to

credit

[the

plaintiff’s]

explanation of the inaccuracy in her EEOC charge, especially
when

drawing

litigation”).

inferences

in

Consequently,

her

favor

at

this

I

would

allow

stage

the

case

of
to

the
go

forward.
Inasmuch as everyone agrees that the EEOC charge contained
a

scrivener’s

error

in

regards

to

the

date

that

the

sexual

harassment occurred, and, as the D.C. Circuit has observed, the
“filing period begins on the date ‘the alleged unlawful practice
occurred’—not the date listed in the charge itself,”

Carter v.

Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 (D.C. Cir.
2007) (quoting 42 U.S.C. § 2000e-5(e)(1)), I cannot concur that
it was proper in this instance for the EEOC to reject Tillbery’s
charge without first hearing from the parties.

See 42 U.S.C. §

2000e-5(b) (stating that the EEOC “shall make an investigation”
of claims of discrimination).
from

the

documents

before

What seemed evident to the EEOC
it—that
17

Tillbery’s

charge

was

Appeal: 10-1730

Document: 22

untimely—was
investigation

an

Date Filed: 01/19/2012

error

would

instead,

have

an

revealed,

being repeatedly compounded.

Page: 18 of 23

error
and

an

that
error

a

reasonable

that

is

now

I respectfully suggest that it is

within our province finally to correct it.
It is beyond dispute that,
among
the
reasons
Congress
enacted
Title
VII’s
exhaustion
requirement
was
that
the
EEOC
administrative process is typically better suited to
ending discrimination than the “ponderous pace of
formal litigation[,”] because the EEOC “undertakes
detailed investigations into potential discrimination
claims before any suit is filed, both preserving
judicial economy . . . and helping prospective
plaintiffs build their case.”
Tillbery, 2010 WL 2292499, at *6 (omission in original) (quoting
Chacko, 429 F.3d at 510).

But, it is also beyond dispute, as I

have already noted, that there is a “broad national commitment
to eliminating such discrimination and the importance of private
suits in fulfilling that commitment.”
(quoting

Coles,

omitted).

531

F.2d

at

615)

Garner, 538 F.2d at 614
(internal

quotation

marks

In this instance, KIYC asks us to allow procedural

formalism to trump this commitment.

To this proposition I will

not lend my assent.
As observed above, the law requires that the EEOC “shall
make an investigation” of all charges.

42 U.S.C. § 2000e-5(b).

It also requires claimants to be specific in their charges so
that the EEOC can properly investigate and, hopefully, resolve
the matter.

See Jones, 551 F.3d at 300.
18

When no investigation

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Date Filed: 01/19/2012

Page: 19 of 23

occurs, however, I think that it is improper for us to bar a
plaintiff from her day in court.

But, that is what happened

here.
Even a minimal investigation into Tillbery’s charge would
have

exposed

the

scrivener’s

error

and

revealed

that

the

complained of sexual harassment occurred between October 2008
and April 2009.

Yet the error passed unnoticed because of the

EEOC’s failure to conduct any investigation.

Accordingly, I am

unable to agree that we should require Tillbery to suffer from
the negative consequences of the law—being unable to assert any
claims in federal court except those that the EEOC investigated—
even

though

the

EEOC

failed

to

conduct

any

investigation.

Although we ought not endeavor to instruct the EEOC on how
to

perform

its

duties,

we

decisions when it does not.

also

ought

not

be

bound

by

its

On the whole, the problems that

KIYC complains of are not so much deficiencies in the charge as
they are the EEOC’s failure to carry out its duties as required
by Title VII.

See Edelman v. Lynchburg Coll., 300 F.3d 400, 404

(4th Cir. 2002).
Here, Tillbery was unquestionably harmed by the EEOC not
performing the simplest of investigations.

“Once a valid charge

has been filed, a simple failure by the EEOC to fulfill its
statutory

duties

regarding

plaintiff’s Title VII claim.”

the

charge

Id.
19

does

not

preclude

a

Thus, I disagree with KIYC

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Date Filed: 01/19/2012

Page: 20 of 23

that we should, in effect, “visit the effects of the EEOC’s
erroneous practice on [Tillbery].”

Zambuto, 544 F.2d at 1336.

IV.
As

an

alternative

basis

for

finding

that

the

conduct

Tillbery alleged in her complaint did not exceed the scope of
her EEOC charge, that her charge was timely, and that she has
properly exhausted her administrative remedies, I would look to
her April 22, 2009, EEOC questionnaire.

There can be no dispute

that the April 22, 2009, questionnaire, as well as Tillbery’s
other

EEOC

harassers.

forms,

stated

that

Demas

was

one

of

the

alleged

Moreover, there appears to be no disagreement that

both parties were aware that he began working at the restaurant,
at the earliest, on July 1, 2008.

Less than 300 days later, on

April 22, 2009, Tillbery completed her first EEOC questionnaire.
Thus, even if the alleged sexual harassment began as early as
July 1, 2008, the date that Demas began working at KIYC, and
allowing the EEOC intake questionnaire to serve as a charge for
purposes of the exhaustion requirement, I am of the opinion that
the spirit of Title VII is better served by holding that the
timeliness
claims.

requirement
See

questionnaire

Carter,
with

an

was

met

503

F.3d

incorrect

as

to

at
date

Tillbery’s

146
to

(allowing
constitute

Title

VII

an

EEOC

a

timely

charge of discrimination); Edelman, 300 F.3d. at 405 (allowing a
20

Appeal: 10-1730

letter

Document: 22

to

the

objection,

Date Filed: 01/19/2012

EEOC

although

to
the

serve

as

plaintiff

Page: 21 of 23

a
was

valid

charge,

represented

by

without
counsel

during the relevant time period); Waiters v. Robert Bosch Corp.,
683 F.2d 89, 91 (4th Cir. 1982) (allowing an affidavit to serve
as

an

EEOC

charge

although

the

plaintiff

was

represented

by

counsel during the relevant time period).

V.
Even

if

I

assumed

that

Tillbery

failed

to

exhaust

her

administrative remedies on the basis of an incorrect date on her
EEOC forms, in light of the fact that Title VII is a remedial
statute to be liberally construed in favor of the victims of
discrimination, I would grant Tillbery an opportunity to amend
her EEOC charge.

As the majority mentioned,

[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 and amendments alleging additional acts
which constitute unlawful employment practices related
to or growing out of the subject matter of the
original charge will relate back to the date the
charge was first received.
29 C.F.R. § 1601.12(b).
regulation

nor

Supreme

Neither the plain language of this
Court

precedent

limit

during which a plaintiff can amend a charge.
Lynchburg

Coll.,

535

U.S.

106,

116-17

(2002)

the

time

frame

See Edelman v.
(finding

that

allowing the verification of a charge after the expiration of

21

Appeal: 10-1730

Document: 22

Date Filed: 01/19/2012

Page: 22 of 23

the time for filing has expired was consistent with the plain
language of the statute).
either.

For

that

We need not impose such a limitation

reason,

even

if

I

agreed

with

KIYC

that

Tillbery failed to exhaust her administrative remedies based on
the erroneous date on her EEOC charge, I would, at a minimum,
remand the matter to the district court to stay the proceedings
so Tillbery could request from the EEOC an opportunity to amend
her charge.

VI.
Finally,

KIYC

makes

much

of

the

fact

that

Tillbery

was

represented by counsel and, thus, that she should be held to a
higher standard in regards to making certain that the date on
her charge was correct.
Tillbery’s

attorney

present predicament.

As the argument goes, I assume, it is

who

is

really

to

blame

for

Tillbery’s

I am unpersuaded.

First, and most importantly, it is of no moment whether
Tillbery was represented by counsel.

The fact remains that the

EEOC should have conducted an investigation before it dismissed
her

charge.

That

is

a

substantial

reason

for

her

present

predicament.
Second, to agree with KIYC and dismiss this matter based on
the action or inaction of Tillbery’s counsel is like aiming at
the

attorney,

but

shooting

the
22

client

instead.

It

is

also

Appeal: 10-1730

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Date Filed: 01/19/2012

Page: 23 of 23

counter to the law of this circuit as to Title VII claims.
Garner, 538 F.2d at 614 (“Title VII is remedial in character and
should be liberally construed to achieve its purposes.” (quoting
Coles, 531 F.2d at 615) (internal quotation marks omitted)).
The fact that Tillbery was represented by counsel changes
neither

the

remedial

nature

nor

the

purpose

of

the

statute,

which is to stamp out the insidious practice of discrimination.
See Garner, 538 F.2d at 614.

It is this purpose, not a desire

to penalize counsel, that must guide our interpretation of this
statute.

VII.
Upon this record, I am unconvinced that Tillbery failed to
exhaust

her

administrative

remedies

erroneous date on her EEOC documents.

on

the

basis

of

the

But, if she did, I would

give her an opportunity to amend her complaint pursuant to 29
C.F.R. § 1601.12(b).

Accordingly, I must respectfully dissent.

23