Gad v. Kansas State University
Filing
42
MEMORANDUM AND ORDER granting 28 Motion for Summary Judgment. Signed by District Judge Eric F. Melgren on 2/11/2014. (smg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SABREEN GAD,
Plaintiff,
vs.
Case No. 12-2375-EFM
KANSAS STATE UNIVERSITY,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Sabreen Gad brings an employment discrimination claim on the basis of gender
against Defendant Kansas State University. Defendant seeks summary judgment asserting that
(1) Plaintiff failed to exhaust her administrative remedies, (2) Plaintiff fails to make a prima facie
case of gender discrimination, and (3) even if Plaintiff could establish a prima facie case, she
cannot demonstrate pretext. Because the Court finds that Plaintiff failed to submit a verified
charge of discrimination to the EEOC, Plaintiff failed to exhaust her administrative remedies.
Thus, the Court is without subject matter jurisdiction.
Plaintiff’s case.
Accordingly, the Court dismisses
I.
Factual and Procedural Background1
On March 14, 2012, Plaintiff Sabreen Gad contacted the Equal Employment Opportunity
Commission (“EEOC”). She submitted an unverified intake questionnaire with an unverified
letter. She claimed that she was discriminated against on the basis of her religion, national
origin, and gender.2
EEOC records indicate that investigator Lynus Becker conducted an
interview with Plaintiff on March 16, 2012. At the conclusion of Plaintiff’s interview with the
EEOC investigator, the investigator told her that he would send her a charge for signature.
Plaintiff received the charge from the investigator, EEOC Form 5, but she never returned it.
Plaintiff testified that she understood the investigator to have advised her that she did not have to
return the charge form.
On March 16, 2012, Defendant received from the EEOC a “Notice of the Charge of
Discrimination,” which stated “No action is required by you at this time.”3 On April 19, 2012,
Defendant received from the EEOC a Dismissal and Notice of Plaintiff’s Right to Sue. These
two documents are the only documents from the EEOC received by Defendant prior to Plaintiff
filing this lawsuit.
1
In accordance with summary judgment procedures, the Court has set forth the uncontroverted facts, and
they are related in the light most favorable to the non-moving party. The Court has not set forth many of the facts
asserted in Defendant’s motion for summary judgment. Instead, the Court has only set forth the relevant facts.
2
Plaintiff alleged that in December 2011, Defendant did not take action on her application for graduate
faculty membership. She also alleged that in February 2012, Defendant discriminated against her when it denied her
an appointment as a tenure track or full-time term assistant professor.
3
This Notice provided Plaintiff’s name and stated that Plaintiff alleged discrimination on the basis of
gender. No other particulars were set forth in the Notice, and the Notice stated: “This is to notify you that an
unperfected charge of discrimination has been filed with EEOC. You should receive a copy of the perfected charge
of discrimination within 45 days.”
-2-
On June 15, 2012, Plaintiff filed this lawsuit alleging gender and religious
discrimination.4 She claims that Defendant discriminated against her on the basis of gender
when it did not increase her part-time employment to full-time and did not consider her request
to be part of the graduate faculty. Defendant now seeks summary judgment.
II.
Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is no
genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.5
A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the
proffered evidence permits a reasonable jury to decide the issue in either party’s favor.6 The
movant bears the initial burden of proof, and must show the lack of evidence on an essential
element of the claim.7 The nonmovant must then bring forth specific facts showing a genuine
issue for trial.8 These facts must be clearly identified through affidavits, deposition transcripts,
or incorporated exhibits—conclusory allegations alone cannot survive a motion for summary
judgment.9 The Court views all evidence and reasonable inferences in the light most favorable to
the party opposing summary judgment.10
4
Plaintiff abandoned her religious discrimination claim after discovery. See Pretrial Order, Doc. 31, p. 6.
5
Fed. R. Civ. P. 56(c).
6
Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1219 (10th Cir. 2006).
7
Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)).
8
Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005).
9
Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197 (10th Cir. 2000) (citing Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
10
LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).
-3-
III.
Discussion
Defendant asserts that the Court should grant summary judgment on Plaintiff’s
employment discrimination claim for three reasons. First, Defendant asserts that Plaintiff failed
to exhaust her administrative remedies; thus, she cannot maintain her discrimination claim in this
Court.
Defendant next asserts that even if the Court considers Plaintiff’s employment
discrimination claim, she cannot establish a prima facie case of gender discrimination. Finally,
Defendant contends that even if the Court finds that Plaintiff could establish a prima facie case,
she cannot demonstrate pretext. The Court will only address Defendant’s first argument as it is
dispositive.
Defendant argues that Plaintiff failed to file a verified charge of discrimination with the
EEOC and because of this failure, the Court lacks jurisdiction to hear Plaintiff’s claim. Title VII
requires a plaintiff to exhaust her administrative remedies prior to filing suit.11 In the Tenth
Circuit, “a plaintiff’s exhaustion of his or her administrative remedies is a jurisdictional
prerequisite to suit under Title VII—not merely a condition precedent to suit.”12 “The first step
to exhaustion is the filing of a charge of discrimination with the EEOC.”13 Title VII requires that
a charge “shall be in writing under oath or affirmation and shall contain such information and be
in such form as the Commission requires.”14 “[T]he term verified shall mean sworn to or
11
Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005).
12
Id. “The Tenth Circuit is the only circuit in which EEOC exhaustion is still considered jurisdictional.
Nevertheless, ‘we cannot overrule the judgment of another panel of this court,’ and ‘are bound by the precedent of
prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.’ ” Logsdon v.
Turbines, Inc., 399 F. App’x 376, 378 n. 2 (10th Cir. 2010) (citing In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)).
13
Jones v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007).
14
42 U.S.C. § 2000e-5(b). See also 29 C.F.R. § 1601.9 (stating that “[a] charge shall be in writing and
signed and shall be verified) (emphasis added).
-4-
affirmed before a notary public, designated representative of the Commission, or other person
duly authorized by law to administer oaths and take acknowledgements, or supported by an
unsworn declaration in writing under penalty of perjury.”15
It is undisputed that Plaintiff only filed an unverified intake questionnaire with the EEOC
and did not file a verified charge. There is no Tenth Circuit authority specifically on the issue of
verification.16 Defendant contends that the failure to file a verified charge is fatal to Plaintiff’s
case and urges the Court to follow decisions from the Fourth and Eleventh Circuits of Appeal.
Those circuits have determined that verification of the charge is a mandatory prerequisite for
bringing a lawsuit in federal court.17
15
29 C.F.R. § 1601.3(a).
16
The Court notes that the Tenth Circuit has addressed whether an EEOC intake questionnaire can suffice
to operate as a charge. See Jones, 502 F.3d 1176; Semsroth v. City of Wichita, 304 F. App’x 707 (10th Cir. Dec. 22,
2008) (unpublished). In Jones, the Tenth Circuit found that the plaintiff’s EEOC intake questionnaire satisfied the
minimum requirements of being in writing, signed, and verified. Jones, 502 F.3d at 1184. In addition, (1) the
intake questionnaire satisfied the requirements of 29 C.F.R. § 1601.12, (2) the evidence showed that the plaintiff
sought to activate the EEOC’s administrative process, and (3) the EEOC treated the questionnaire as a charge. Id. at
1184-85. In Jones, however, there was no question of whether the plaintiff had verified the charge. The Tenth
Circuit specifically noted that the plaintiff verified his questionnaire when he signed it under the penalty of perjury.
502 F.3d at 1184, n. 3.
In Semsroth, the Tenth Circuit found that two of the three plaintiffs’ EEOC intake questionnaires
constituted a charge for purposes of Title VII. Semsroth, 304 F. App’x at 712. With regard to these two plaintiffs,
the Tenth Circuit noted that (1) the intake questionnaire satisfied the requirements of 29 C.F.R. § 1601.12; (2) and
viewing the document from an objective viewpoint, the filing constituted the plaintiff’s request for remedial action.
Id. at 713. In addition, although the plaintiffs did not have to demonstrate that the EEOC treated the document as a
charge, the EEOC’s subsequent conduct was relevant as to whether the plaintiffs took the necessary steps to start the
EEOC process. Id. at 714. In the Semsroth decision, there was no discussion regarding verification of the EEOC
intake questionnaire.
17
See Vason v. City of Montgomery, Ala, 240 F.3d 905, 907 (11th Cir. 2001) (finding that verification of a
charge under 42 U.S.C. § 2000e-5(b) was a mandatory requirement for bringing suit); EEOC v. Appalachian Power
Co., Inc., 568 F.2d 354, 355 (4th Cir. 1978) (stating that verification of a charge of discrimination was a mandatory
requirement). See also Balazs v. Liebenthal, 32 F.3d 151 (4th Cir. 1994) (finding that a sworn charge of
discrimination was a mandatory prerequisite to a valid charge and the plaintiff’s attempt to amend the charge after
the EEOC issued a right to sue letter was insufficient to cure the failure to verify).
-5-
Plaintiff’s EEOC intake questionnaire is not verified.18
There is no place on the
questionnaire providing that Plaintiff signed it under the penalty of perjury or under oath and
before a notary. Thus, this document is not a verified charge as required under 42 U.S.C. §
2000e-(5)(b) or 29 C.F.R. § 1601.9. And although Plaintiff indicated on the intake questionnaire
that she wanted to file a charge of discrimination, she did not respond to the EEOC’s letter
requesting her to sign and return the charge of discrimination, EEOC Form 5, to the EEOC.19
Thus, Plaintiff did not submit a verified charge to the EEOC.
Plaintiff admits that she did not submit a verified charge to the EEOC. She argues,
however, that the intake questionnaire contained considerable detail for the EEOC to begin the
investigative process and that Defendant was provided notice of the claim. She argues that a
verified charge of discrimination is not a prerequisite for this Court’s jurisdiction, contends that
equitable principles should apply, and suggests that the Court follow decisions from the Third,
Fifth, and Ninth Circuit Courts of Appeals.
In Buck v. Hampton Township School District,20 the Third Circuit found that the
defendant received detailed notice of the plaintiff’s claims and participated in the conciliation
process before the EEOC.21 Thus, the Third Circuit concluded that although verification was
mandatory, it was not jurisdictional and equitable principals precluded defendant from raising
18
Plaintiff’s intake questionnaire appears to meet the requirements of 29 C.F.R. § 1601.12(a). And the
Court notes that 29 C.F.R. § 1601.12(b) states that “[a] charge may be amended to cure technical defects or
omissions, including failure to verify the charge . . . . Such amendments . . . will relate back to the date the charge
was first received.” In this case, there is no subsequent verification that could relate back to when the EEOC
received Plaintiff’s initial intake questionnaire.
19
This charge of discrimination had a space for her signature which she could either sign “under penalty of
perjury that the above is true and correct” or by oath or affirmation.
20
452 F.3d 256 (3d Cir. 2006).
21
Id. at 262.
-6-
the defense in federal court when the defendant did not previously assert it before the EEOC.22
The Ninth Circuit also considered equitable principals.23
It found that the EEOC charge,
although not verified, provided the defendant with “a sufficient description of the factual
allegations to put the employer on notice” and also “allow[ed] the administrative agency to
conduct a complete investigation of the charges.”24 Thus, the initial filing did not prejudice the
defendant.25 The Ninth Circuit also found that verification was a technical provision rather than
a substantive provision, so it issued a stay in the proceedings to allow the plaintiff to request
leave from the EEOC to file a late verification.26
The cases Plaintiffs rely upon are distinguishable.
In this case, Defendant did not
participate in the EEOC proceedings. The only notice that Defendant was given provided
limited information. The March 16, 2012 document simply states that Plaintiff had filed an
unperfected charge of discrimination on the basis of sex for discrimination occurring on or about
February 22, 2012. The notice told Defendant that it would receive a copy of the perfected
charge of discrimination within forty-five days. Instead of receiving a perfected charge of
discrimination setting out the particulars,27 Defendant next received the EEOC’s Notice of
Dismissal and Right to Sue, dated April 19, 2012. Defendant was not given any information as
22
Id. at 264-65. See also Price v. Sw. Bell Tele. Co., 687 F.2d 74, 77-79 (5th Cir. 1982) (finding that the
verification requirement was not jurisdictional and was subject to equitable considerations).
23
McWilliams v. Latah Sanitation, Inc., 149 F. App’x 588 (9th Cir. 2005).
24
Id. at 590.
25
Id.
26
Id. But see Balazs, 32 F.3d at 157 (determining that once the EEOC closes its file and issues a right to
sue letter, the charge is no longer before the EEOC and incapable of being amended and cannot relate back to the
initial EEOC filing).
27
There was no perfected charge of discrimination because Plaintiff did not file one.
-7-
to the discrimination Plaintiff alleged against it, and Defendant did not participate in the EEOC
conciliation process.
As the United States Supreme Court has noted, “[t]he verification
requirement has the different object of protecting 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.”28 Because Plaintiff failed to file a verified charge with the
EEOC, she failed to exhaust her administrative remedies.
Thus, the Court does not have
jurisdiction over her claim and dismisses her claim.29
IT IS ACCORDINGLY ORDERED this 11th day of February, 2014, that Defendant’s
Motion for Summary Judgment (Doc. 28) is hereby GRANTED. Because Plaintiff has failed to
exhaust her administrative remedies, the Court lacks subject matter jurisdiction.
IT IS SO ORDERED.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
28
Edelman v. Lynchburg College, 535 U.S. 106, 107 (2002) (finding that the plaintiff’s EEOC verified
charge could relate back to the date of the plaintiff’s initial document to the EEOC provided that the earlier
document satisfied the EEOC’s requirements and could operate as a charge).
29
See Shikles, 426 F.3d at 1317-18 (stating that it is improper to grant summary judgment on jurisdictional
grounds and instead a district court should dismiss the case for lack of subject matter jurisdiction).
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?