Bland v. Fairfax County Virginia
Filing
116
MEMORANDUM OPINION re: Defendant Fairfax County, Virginia's mid-trial motion to dismiss Plaintiff's case as time barred. Signed by District Judge James C. Cacheris on 6/29/2011. (tche)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MARY GETTS BLAND,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
FAIRFAX COUNTY, VIRGINIA,
Defendant.
1:10cv1030 (JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendant Fairfax
County, Virginia’s (the “Defendant” or the “County”), mid-trial
motion to dismiss Plaintiff’s case as time barred (the
“Motion”).
For the following reasons, the Court will deny
Defendant’s Motion.
I.
A.
Background
Factual Background
This case arises out of alleged incidents of sexual
harassment by a male firefighter in the Fairfax County Fire and
Rescue Department against a female firefighter.
Plaintiff Mary
Getts Bland (“Plaintiff” or “Bland”) alleges that by allowing
Lieutenant Timothy Young (“Young”) to harass her, the County
violated Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e to e17 (“Title VII”).
1
B.
Procedural Background
Plaintiff filed suit against the County on September
15, 2010.
[Dkt 1.]
Jury trial began on May 23, 2011.
Defendant made its Motion orally on May 24, 2011, after the
close of Plaintiff’s case.1
Defendant then filed a corresponding
written motion.
With leave of the Court, both
[Dkt. 70.]
Plaintiff, [Dkt. 72], and Defendant, [Dkt. 70], filed written
briefs and, after oral argument on the Motion, supplemental
briefing, [Dkts. 78, 80, 85].
Defendant’s Motion is before the Court.
II.
Standard of Review
In its motion under Federal Rule of Civil Procedure
Rule 50(a) for judgment as a matter of law2, the County argued
that Plaintiff’s case should be dismissed as untimely as a
matter of law because Plaintiff is precluded from using any
alleged sexual harassment incidents that occurred more than 300
days before the filing of Plaintiff’s charge to the Equal
Employment Opportunity Commission (the “EEOC”) and the Virginia
Council on Human Rights (the “EEOC charge”).
The County argued
that because filing of a timely EEOC charge is a jurisdictional
prerequisite, the Court cannot hear Plaintiff’s case.
1
Defendant raised the Motion in the context of its motion for judgment as a
matter of law pursuant to Federal Rule of Civil Procedure 50(a).
2
In Open Court, the Court denied Defendant’s Rule 50(a) motion as to all
issues but the time-bar issues addressed herein.
2
As a general matter, a plaintiff’s failure to exhaust
his or her administrative remedies, such as filing a timely
charge of employment discrimination with the EEOC, deprives a
Court of subject matter jurisdiction to address his or her
claim.
See, e.g., Jones v. Calvert Group, Ltd., 551 F.3d 297,
300 (4th Cir. 2009) (“[A] failure by the plaintiff to exhaust
administrative remedies concerning a Title VII claim deprives
the federal courts of subject matter jurisdiction over the
claim.”)
As this Court recently stated in Edwards v. Murphy-
Brown, L.L.C., --- F.Supp.2d ----, 2011 WL 124209 (E.D. Va. Jan.
4, 2011), “‘[f]ailure to exhaust” arguments in Title VII cases
are to be distinguished from the situation where a specific
charge of discrimination is filed with the EEOC, but it is
allegedly untimely because the event occurred more than 300 days
before the date the charge was filed.”
Id.
Significantly,
“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.”
Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982).
Under Title VII, an employee must initially file a
charge with the EEOC before bringing a civil suit in court.
Edwards, 2011 WL 124209, at *8.
Typically, a charge must be
“filed within one hundred and eighty days after the alleged
3
unlawful employment practice occurred.”
5(e)(1).
42 U.S.C. § 2000e-
The 180 day period, however, is extended to 300 days
“‘when state law proscribes the alleged employment practice and
the charge has initially been filed with a state deferral
agency.’”
Id. (quoting Tinsley v. First Union Nat'l Bank, 155
F.3d 435, 439 (4th Cir. 1998)).
Because Virginia is a “deferral state.”
Id. at *9
(citing Tinsley, 155 F.3d at 440), where, as here, an employee
challenges an employment practice of in Virginia, he or she has
300 days from the last date of alleged discrimination to file a
charge with the EEOC. Id. (citing Edelman v. Lynchburg Coll.,
300 F.3d 400, 404 (4th Cir. 2002)).
If the 300-day “statutory
time period elapses between the allegedly discriminatory
incident3 and the filing of the EEOC charge, the litigant is
forever barred from Title VII relief.”
Id. (citing National
Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 109 (“A claim
is time barred if it is not filed within these time limits.”)).
III.
Analysis
Plaintiff filed her EEOC charge on December 18, 2008.
[See Dkt. 59-1.]
The County argues that Plaintiff has not
alleged any events occurring after November 25, 2007, the date
of the pike pole/fire hose incident (further described in this
3
Plaintiff argued in Open Court that her EEOC charge was timely because a May
2008 incident brings this case within the “continuing violation doctrine.”
Because of the Court’s disposition of this Motion, the Court does not address
that argument.
4
Court’s May 3, 2011 Memorandum Opinion [Dkt. 34]).
Thus,
according to the County, Plaintiff’s was required to file her
EEOC charge no later than September 20, 2008.
Memorandum (“Supp.”) [Dkt. 78] at 2.)
(Supplemental
Because Plaintiff filed
her charge in December 2008, her EEOC charge was untimely filed
and the case must be dismissed.
A.
Waiver
Regardless of when Plaintiff filed her EEOC charge and
when the last alleged incident occurred, Defendant first raised
this time-bar defense in its Federal Rule of Civil Procedure
50(a) motion at trial, after Plaintiff had presented her case to
the jury.
An affirmative defense raised at this late stage in a
case raises the possibility that the County waived its time-bar
defense.
Defendant originally argued that, because the 300-day
deadline is a jurisdictional bar, the time-bar defense cannot be
waived.
Defendant later walked-back this jurisdictional
argument, but reiterated in Open Court that the requirement is
“effectively jurisdictional.”
The Supreme Court addressed this premise directly in
Zipes v. Trans World Airlines, Inc., holding 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 limitation, is subject to
waiver, estoppel, and equitable tolling.”
5
455 U.S. 385, 393
(1982) (emphasis added).
So not only is this time-bar issue not
a jurisdictional one, it can be waived.
Federal Rule of Civil Procedure 8(c)(1) requires that,
“[i]n responding to a pleading, a party must affirmatively state
any . . . affirmative defense,” including “statute of
limitations.” (emphasis added).
The Fourth Circuit has stated
that “[i]t is well settled that the defense of limitations is
waived unless asserted promptly by way of answer or motion.”
Peterson v. Air Line Pilots Ass’n, Int’l, 759 F.2d 1161, 1164
(4th Cir. 1985)).
Waiver is not automatic, but where there is
“a showing of prejudice or unfair surprise,” a defense may be
waived.
Id.
That is precisely the situation here.
Nowhere in this
case’s then-69 docket entries spanning eight months was a word
spoken on this issue until after the Plaintiff presented her
case to the jury and rested.
Defendant failed to raise anything
resembling this issue in its Answer.
Defendant failed to raise
it in its lengthy summary judgment motion or in its lengthy
reply and supplemental briefs.
Defendant failed to raise it in
its three motions in limine, including its motion in limine
raising the issue of failure of exhaustion of EEOC
administrative remedies as bar to the admissibility of certain
evidence.
Indeed, Defendant even failed to raise the issue
despite this Court recently dismissing a case involving the
6
County and the same plaintiff’s counsel for failure to exhaust
administrative remedies.
See Sydnor v. Fairfax Cnty., No.
1:10cv934, 2011 WL 1086388 (E.D. Va. Mar. 23, 2011).
Instead, Defendant first raised this issue at trial,
after the conclusion of Plaintiff’s case.
surprise, nothing is.
If that is not unfair
Indeed, when the Court asked the County
in Open Court after it raised this issue why it had not waived
this defense, the County had no response.
Responding to the Court’s waiver question in its
supplemental reply memorandum, the County cites Peterson v. Air
Line Pilots Association, International, 759 F.2d 1161, 1164 (4th
Cir. 1985), for the unremarkable proposition that “in cases
where, from the very outset, no cloud obscured the right of the
defendant to plead limitations, courts have permitted defendants
to raise limitations even though not asserted as a defense in
the original answer.”
That statement is all well and good, but
it does no work for the County, particularly since, as stated
above, Peterson reiterates that “[i]t is well settled that the
defense of limitations is waived unless asserted promptly by way
of answer or motion,” and that waiver requires a “showing of
prejudice or unfair surprise.”
Id.
As stated above, the
County’s Motion was not promptly raised by way of answer or
motion, and if, in a heavily litigated case such as this one,
waiting to raise a time-bar affirmative defense until after the
7
conclusion of a plaintiff’s case is not unfair surprise, then
nothing is.
The County also cites to Pierce v. County of Oakland,
652 F.2d 671 (6th Cir. 1981), for support.
Setting aside that
Pierce is not controlling in this Circuit, that case is
inapposite.
In Pierce, unlike here, “it was apparent from the
face of the complaint that the three-year statute of limitations
had run.”
652 F.2d at 671.
Also, again unlike here, the
defendants in Pierce “apparently mentioned at one [pre-trial]
conference that they intended to raise a jurisdictional
defense.”
Id.
More importantly, the Pierce defendants moved on
the day of trial for dismissal based on statute of limitations,
id., not, as here, after the plaintiff had put on her case to a
jury.
Had the County raised the limitations issue in one of its
motions in limine that the Court heard on the morning before
trial began, the issue may not have been waived.
The County did
not do so, and instead waited until after Plaintiff had rested.
Defendant also cites Pierce for the argument that
because Plaintiff “did not forego other avenues of relief in
reliance on defendants’ failure to raise the defense,” 652 F.2d
at 673, the County has not waived its time-bar defense.
[Dkt. 85] at 15.)
(Reply
This argument goes to prejudice, and although
it may be true that Plaintiff has not suffered prejudice in this
manner, an affirmative defense may be waived due to “prejudice
8
or unfair surprise.”
Peterson, 759 F.2d at 1164.
As stated
above, the Court finds that Defendant’s delay in raising this
defense results in unfair surprise.
The County makes an additional, factual, argument
against waiver.
In its supplemental reply memorandum, the
County argues that the fault is with Plaintiff, because although
she received her EEOC file on August 20, 2010, she did not
provide her EEOC file to the County until February 3, 2011.
(Reply [Dkt. 85] at 14, n.2.)
Had Plaintiff provided her EEOC
file earlier, with her required initial disclosures, argues the
County, then “it would have been apparent early in the
proceedings that Bland’s EEOC charge was not timely filed.”
This argument is nonsense.
Id.
Even granting, arguendo, that the
County could have done nothing until it received Bland’s EEOC
file, the County received the file on February 3, 2011, nearly
four months before it moved for dismissal based on the time-bar
issue.
Moreover, the County believed (incorrectly) that the
time-bar issue was jurisdictional until the Court directed the
parties to Zipes, so it surely did not feel constrained by any
timing considerations to move for dismissal, given it argued
(correctly) that a jurisdictional issue may be raised at any
time.
On its terms, the County should have raised this issue
sometime after February 11, 2011, well before trial, not after
the close of Plaintiff’s case.
9
The County also makes much of the fact that although
Plaintiff’s intake questionnaire states that the pike-pole
incident occurred in November 2008, it occurred in 2007.
[Dkt. 85] at 13-14.)
(Reply
Defendant argues that this misled the
EEOC, which otherwise would have found Plaintiff’s EEOC charge
untimely and dismissed it.4
Id.
Plaintiff’s counsel represented
in Open Court that November 2008 was a typographical error,
citing Plaintiff’s intake questionnaire, which provides the
November 2007 date, and stating that the County’s response to
Plaintiff’s EEOC charge corrected the date from November 2008 to
November 2007.
It is not entirely clear to what end the County
makes this argument, but assuming the County is arguing that
some confusion in the date of the pike-pole incident caused the
EEOC to determine wrongly, in Defendant’s view, that Plaintiff’s
EEOC charge was timely, and the EEOC’s determination of
timeliness prevented Defendant from raising its time-bar
defense, that argument is unavailing.5
Even assuming, arguendo,
that the EEOC’s determination of timeliness excuses Defendant
from making its own determination as to its own affirmative
4
If the EEOC had dismissed Plaintiff’s claim as untimely, that in and of
itself would not have prevented Plaintiff from bringing suit. 42 U.S.C. §
2000e-5(f) (“If a charge filed with the Commission pursuant . . . is
dismissed by the Commission . . . the Commission . . . shall so notify the
person aggrieved and . . . a civil action may be brought against the
respondent named in the charge.”).
5
To the extent the County is arguing that, due to the 2007/2008 date issue,
the Court should disregard the EEOC’s timeliness determination for purposes
of determining whether Plaintiff’s intake questionnaire can be deemed to be a
charge, as addressed below, that argument is of no consequence to the Court’s
analysis, as the Court does not rely here on the EEOC’s timeliness
determination.
10
defenses, Plaintiff’s Complaint, [Dkt. 1], filed on September
15, 2010, states the pike-pole incident occurred in November
2007, and the County received Plaintiff’s EEOC file itself on
February 3, 2011.
So, regardless of any confusion of the
November 2007 date before then, the County had what it needed at
least as of February 3 to determine whether to raise the timebar defense.
Accordingly, for the reasons set forth above, this
Court will deny Defendant’s motion as waived.
B.
The Intake Questionnaire Deemed a Charge
Though, for the reasons set forth above, the County
has waived its time-bar defense, the Court finds an alternative
and independent basis to deny the Motion.
Plaintiff argues that her EEOC charge was timely even
assuming the last act contributing to the hostile work
environment occurred November 25, 2007, because she went to the
EEOC on July 17, 2008 and completed an intake questionnaire that
is sufficient to constitute a charge.
[Dkt. 72] at 1.)
(Opposition (“Opp.”)
Defendant counters that the intake
questionnaire cannot be considered a charge because it was not
verified or sworn under oath, and because it did not ask the
EEOC to take action to vindicate Plaintiff’s rights.
(Supplemental Memorandum [Dkt. 78] at 3.)
The Supreme Court recently held in Federal Express
Corp. v. Holowecki, 552 U.S. 389 (2008), that an EEOC intake
11
questionnaire constitutes a charge if it contains the
information required by the agency’s regulations, see 29 C.F.R.
§ 1626.8, and it can reasonably be 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.”
Holowecki, 552 U.S. at 402.
Whether a filing is
a request must be determined “from the standpoint of an
objective observer.”
Id.
This Court recently addressed Holowecki’s application
to a Title VII time-bar defense in Taylor v. Oce Imagistics,
Inc., No. 3:07-CV-792, 2008 WL 2148557 (E.D. Va. 2008).
Judge
Spencer noted that:
in Holowecki the Court decided that a filing that
(1) contained the names, addresses, and telephone
numbers of the aggrieved employee and her
employer, an allegation that she was a victim of
“age discrimination,” the number of people
employed by the employer, and a statement that
she had not sought help from any government
agency about her dispute; [and] (2) included an
affidavit asking the EEOC to force the employer
to stop engaging in age discrimination
constituted a charge.
Id. at *2 (citing Holowecki, 552 U.S. at 404).
Judge Spencer
further noted that the Supreme Court reached that conclusion
“even though the filing was not called a charge, stated that it
was intended to facilitate ‘pre-charge counseling,’ was not
assigned a charge number, and did not prompt the EEOC to notify
the employee’s employer or initiate proceedings against the
employer.”
Id. (citing Holowecki, 552 U.S. at 408).
12
Judge
Spencer then turned to the document at issue in that case,
noting that the questionnaire that the plaintiff filed with the
EEOC “was drafted in accordance with 42 U.S.C. § 2000e-5 and 29
U.S.C. § 626, the statutes that govern charges of discrimination
under Title VII and the ADEA, respectively,” stated “that if it
is ‘the only timely written statement of alleged discrimination,
the [EEOC] will . . . consider it to be a sufficient charge of
discrimination under the relevant statute(s),’” and contained
the plaintiff’s and the defendant’s names, addresses, and phone
numbers, and contained allegations that the defendant
discriminated against the plaintiff.
Id.
Judge Spencer then held that on the basis of these
facts, the questionnaire “can reasonably be construed as a
request for the EEOC to take action to protect [the plaintiff’s]
rights or to settle a dispute between her and [the defendant]”
and that, “[a]ccordingly, the Court regard[ed] the
[q]uestionnaire as a charge of discrimination.”
Id.
Significantly, the Court then held that “[s]ince [the
questionnaire] was filed within three hundred days of [the
defendant’s] allegedly discriminatory conduct, the Court has
jurisdiction over [the plaintiff’s] claims.”
The same analysis applies here.
Id.
Plaintiff’s EEOC
intake questionnaire names Plaintiff and the County, with
addresses and phones numbers.
(Opp. Ex. 1 [Dkt. 72-1].)
13
It
lists substantially the claims made in this case.
Id.
The
questionnaire states that “[t]he purpose of this questionnaire
is . . . to enable the [EEOC] to act on matters within its
jurisdiction.”
Id.
It further states that “[w]hen this form
constitutes the only timely written statement of allegations of
employment discrimination, the Commission will . . . consider it
to be a sufficient charge of discrimination under the relevant
statute(s).”
Id.
As in Oce Imagistics, the EEOC intake
questionnaire “can [thus] reasonably be construed as a request
for the EEOC to take action to protect [Plaintiff’s] rights or
to settle a dispute between her and [Defendant].”
2148557, at *3.
2008 WL
The EEOC intake questionnaire is dated July 17,
2008, and appears to have been sent via fax on July 22, 2008.
300 days from July 22, 2008 (assuming the later date) is
September 26, 2007.
Because the last alleged incident is
November 25, 2007, Plaintiff’s intake form constituting a charge
was timely.
Defendant argues that this Court should follow a morerecent case from this Court, Graves v. Industrial Power
Generating Corp., No. 3:09cv717, 2011 WL 63696 (E.D. Va. Jan. 5,
2011) (Lauck, Mag. J.).
5.)
(Supplemental Memorandum [Dkt. 78] at
In Graves, this Court stated that “[t]he Holowecki Court
held that an intake questionnaire accompanied by an affidavit
could be construed as a timely filed charge.”
14
Id. at *8 n.19.
Because of this, Graves found that an “intake questionnaire
[that is] an unsworn document . . . cannot be considered a
charge under the Holowecki standard.”
Id.
Graves and Oce
Imagistics, thus, appear to be in conflict.
This Court finds that Oce Imagistics has the better of
this issue, because Graves misreads Holowecki.
First, the
holding in Holowecki is clear and does not, by its terms,
require an accompanying affidavit or that the intake
questionnaire be sworn:
We conclude as follows: In addition to the
information required by the regulations, i.e., an
allegation and the name of the charged party, if
a filing is to be deemed a charge it must 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.
552 U.S. at 402.
Moreover, a review of the Supreme Court’s
analysis of the form at issue in Holowecki illustrates that an
attached affidavit is not a necessary prerequisite to an intake
questionnaire constituting a charge.
The Supreme Court’s analysis of the intake form at
issue began by stating that “[h]aving determined that the [EEOC]
acted within its authority in formulating the rule that a filing
is deemed a charge if the document reasonably can be construed
to request agency action and appropriate relief on the
employee’s behalf, the question is whether the filing here meets
this test.”
Id. at 404.
Then Court then reviewed the intake
15
form, noting it contained all of the information required by the
EEOC regulations.
Id.
After this review, the Court turned to
petitioner’s argument that “the filing was still deficient
because it contained no request for the agency to act.”
Id. at
405.
In that context, the Court stated that “were the
Intake Questionnaire the only document before us we might agree
its handwritten statements do not request action.”
Id.
The
Court noted that “[t]he design of the [intake] form in use in
2001 [when respondent filed the intake form], moreover, does not
give rise to the inference that the employee requests action
against the employer.”
Id.
The intake form was “not labeled a
‘Charge of Discrimination,’” and its wording suggested that it
was not a charge, stating “that the form’s purpose is to
facilitate ‘pre-charge filing counseling’ and to enable the
agency to determine whether it has jurisdiction over ‘potential
charges.’”
Because the attached affidavit, however, “asked the
agency to the agency to ‘[p]lease force [the employer] to end
their age discrimination,’” the intake questionnaire taken with
the affidavit was “properly construed as a request for the
agency to act.”
Id.
Here, the intake form is materially different from
that in Holowecki.
Plaintiff’s intake questionnaire provides
that “[w]hen this form constitutes the only timely written
16
statement of allegations of employment discrimination, the
Commission will . . . consider it to be a sufficient charge of
discrimination under the relevant statute(s).”
(emphasis added).)
(Opp. Ex. 1
The intake questionnaire form also states
that its purpose “is to solicit information in an acceptable
form consistent with statutory requirements to enable the
Commission to act on matters within its jurisdiction.”
(emphasis added).
Id.
The Court finds this language is reasonably
construed as a request for the agency to take remedial action to
protect the Plaintiff’s rights or otherwise settle a dispute
between the employer and the employee.
402.
Holowecki, 552 U.S. at
Plaintiff’s intake questionnaire appears substantially
similar to that considered by Judge Spencer in Oce Imagistics,
discussed above.
Accord Tucker v. Howard University Hosp., ---
F.Supp.2d ----, No. 10–756, 2011 WL 52863, at *4 (D.D.C. Jan. 7,
2011) (stating that language like that in this intake form and
that in the Oce Imagistics intake form “leads to the reasonable
conclusion that completing the Intake Questionnaire alone can
amount to a request for agency action, and therefore a ‘charge’
under Holowecki” and concluding that “even without the
accompanying letter from counsel, the Intake Questionnaires can
reasonably be construed as requests for agency action”).
Moreover, the Court is mindful that the Supreme Court explained
in Holowecki that “[d]ocuments filed by an employee with the
17
EEOC should be construed, to the extent consistent with
permissible rules of interpretation, to protect the employee’s
rights and statutory remedies.”
552 U.S. at 406.
The Court
construes the intake questionnaire here consistent with this
guidance.
Second, requiring the intake questionnaire to be sworn
or to require an accompanying affidavit as the sine qua non of
the Holowecki standard is in conflict with the Supreme Court’s
holding in Edelman v. Lynchburg College, 535 U.S. 106 (2002).
In Edelman, the plaintiff faxed to the EEOC a letter alleging
that the defendant discriminated against him.
535 U.S. at 109.
Edelman did not make an oath or affirmation in the letter, but
Edelman’s later-submitted, untimely EEOC formal charge was
verified by oath or affirmation.
Id. at 109-10.
The Court then
agreed with the EEOC’s regulation that a later, verified charge
would relate back to the date on which the original letter was
filed.
535 U.S. at 118.
Thus, it seems inconsistent with
Edelman to say that an intake questionnaire cannot serve as a
charge solely because it was unsworn.6
Accord Palmer v.
Southwest Airlines Co., No. 08C6158, 2009 WL 3462043, at *4
(N.D. Ill. Oct. 23, 2009).
6
Moreover, Plaintiff’s formal charge states that Plaintiff “declare[d] under
penalty of perjury” as to the stated facts. [Dkt. 59-1.] “A charge is
considered ‘verified’ when it is ‘sworn to or affirmed before a notary public
. . . or supported by an unsworn declaration in writing under penalty of
perjury.” Louis v. Ruis Inventory Specialists, LLC, No. 08-2662, 2010 WL
831255, at *2 (E.D. Pa. Mar. 4, 2010) (quoting 29 C.F.R. § 1601.3(a)).
Defendant, in Open Court, conceded that Plaintiff’s EEOC charge was a sworn
document.
18
Defendant relies on a Western District7 of Virginia
case, Vaughn v. Wal-Mart, No. 4:10cv31, 2010 WL 4608403 (W.D.
Va. Nov. 12, 2010).
controlling.
That decision is persuasive here, but not
The Vaughn Court emphasized that the instruction
page at the beginning of the EEOC intake questionnaire at issue
in that case stated “[f]illing out and bringing us or sending us
this questionnaire does not mean that you have filed a charge.”
Vaughn, 2010 WL 4608403, at *4.
That language is not in the
record here, and even if it were, this Court respectfully
disagrees with Vaughn as to its import.
Holowecki does not stand for the proposition that an
intake questionnaire is a charge, but for the proposition that
in certain instances an intake questionnaire can be “deemed a
charge” if it can be “reasonably construed as a request for the
agency to take remedial action.”
Holowecki, 552 U.S. at 402.
That is, an intake questionnaire can be “deemed” a charge, i.e.,
it can function as charge, even though it is not a charge.
Thus, that the Vaughn intake form stated that “[f]illing out and
bringing us or sending us this questionnaire does not mean that
you have filed a charge,” Vaughn, 2010 WL 4608403, at *4, is not
in itself dispositive of the Holowecki analysis.
Filling out an
intake questionnaire does not mean that one has filed a charge,
but under Holowecki, in certain instances the intake
7
The County incorrectly states this case is an Eastern District of Virginia
case, from the Richmond division. (Supplemental Memorandum [Dkt. 78] at 10.)
It is from the Western District, Danville division.
19
questionnaire may be deemed to be charge despite the fact that
it is not, in fact, a charge.
Defendant argues that language on the intake
questionnaire stating “[r]emember, a charge of employment
discrimination must be filed within the time limits imposed by
law, generally within . . . 300 days of the alleged
discrimination,” (Opposition Ex. 1 [Dkt. 67-1] (emphasis in
original)), means that the intake questionnaire does not fall
under Holowecki standard.
(Reply [Dkt. 85] at 16.)
Again,
that the intake questionnaire warns that it is not, in fact, a
charge, does not affect whether it should be deemed to be a
charge under Holowecki.
Accordingly, for these reasons, the Court will find
that even if Defendant had not waived its time-bar defense,
which it has, the intake questionnaire would constitute a charge
for purposes of the 300-day time bar.
IV.
Conclusion
For these reasons, the Court will deny Defendant’s
Motion.
An appropriate Order will issue.
June 29, 2011
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
20
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