Donald E. Diez v. MN Mining & Mfg. Co. ( 1996 )

___________
No. 95-2790
___________
Donald E. Diez, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Minnesota Mining and * District of Minnesota.
Manufacturing Company, a *
Delaware corporation, *
*
Appellee. *
___________
Submitted: February 15, 1996
Filed: July 12, 1996
___________
Before HANSEN, LAY, and JOHN R. GIBSON, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Donald E. Diez appeals from the summary judgment entered against him
in his Age Discrimination in Employment Act claim against Minnesota Mining
and Manufacturing Co., known as 3M. The district court1 held that Diez had
not filed an administrative charge with the Minnesota Department of Human
Rights within 300 days of the act of discrimination, as he was required to
do under 29 U.S.C. § 626(d)(2) (1994). Diez appeals, arguing that he
filled out an agency questionnaire within the required time and that the
questionnaire was by law a "charge." We affirm the judgment of the
district court.
1
The Honorable James M. Rosenbaum, United States District
Judge for the District of Minnesota.
Diez worked for 3M from 1962 to August 1, 1992, when he retired at
the age of fifty-eight. He alleged in his complaint that 3M began
discriminating against him in favor of younger workers when he was forty-
eight years old. He was demoted in 1990 and his former position was filled
by a younger person, but Diez was required to continue functioning at the
higher management level without commensurate pay. He requested that his
job be re-evaluated so that he could be paid in accordance with the work
he was actually doing; 3M began a formal process to consider his request.
At the same time his request was pending, in April 1992, 3M announced a
reduction in force would take place in the tape department, where Diez
worked. 3M offered tape department employees a voluntary severance pay
plan if they retired or otherwise resigned before the end of July 1992.
Diez had to choose whether to retire voluntarily and receive the severance
payment or take his chance that he would survive the reduction in force
without being laid off. Diez alleged that he asked 3M's managers whether
he would be kept on after the reduction in force and that they gave him no
assurance. He alleged that a vice-president of 3M told him "that there
were few or no opportunities for employees in their mid-fifties or older."
Diez elected to take early retirement to get the severance pay. He
filled out an application for retirement on June 1, 1992. He modified 3M's
form by writing in the words "under duress" and gave his retirement date
as December 31, 1992, instead of the July 31 date specified in the
severance pay plan.
On June 25, 3M told Diez that his job had been upgraded as he
requested, but by this time Diez had already applied for retirement. Diez
alleged that 3M gave the upgraded job to a "materially younger" person.
3M rejected Diez's pending application for early retirement because
of the December date and the "under duress" language Diez
-2-
had added to the form. On July 7, 1992 Diez completed another application
without the "under duress" language and with a retirement date of August
1, 1992. Both applications were on a 3M form that said, "Please process
my retirement/resignation with an effective date of ______ subject to
approval by 3M." (emphasis added). The record is silent as to when 3M
conveyed its approval of Diez's application, but Diez retired on August 1,
1992. Diez contends he was constructively discharged as of August 1, so
the alleged adverse action took place no later than August 1.
On May 19, 1993 Diez visited the offices of the Minnesota Department
of Human Rights and received an intake questionnaire. The Minnesota
Department of Human Rights has a worksharing agreement with the EEOC by
which each agency designates the other as its agent for the purpose of
receiving charges. See 29 C.F.R. § 1626.10(c) (1995). In his responses
to the questionnaire, Diez detailed his complaints and the names of the
people at 3M whom he claimed discriminated against him. He signed the
questionnaire on May 20 and returned it to the MDHR on May 21, 1993. The
information in the questionnaire was reduced to a verified "Charge of
Discrimination" on a MDHR form, which Diez executed and filed on June 10,
1993. The MDHR then notified 3M of the charge for the first time. After
3M responded, the MDHR dismissed Diez's charge on the ground that further
use of the department's resources pursuing Diez's claim was not warranted.
Diez filed suit in federal court, claiming 3M violated the ADEA, 29
U.S.C. § 623 (1994), and the Minnesota Human Rights Act, Minn. Stat. Ann.
§ 363.06 (1991), and that it committed fraud.
3M moved for summary judgment on the theory that Diez did not file
an administrative charge against it within 300 days, as provided by 29
U.S.C. § 626(d) (1994). The court granted summary judgment to 3M on the
ADEA claim, relying on Hodges v. Northwest Airlines, Inc., 990 F.2d 1030
(8th Cir. 1993), in which we stated
-3-
that an unverified intake questionnaire could not serve as an
administrative charge under Title VII. The district court did not find it
necessary to determine the date on which 3M's alleged act of discrimination
occurred, because the formal charge was filed more than 300 days from the
date of Diez's retirement, August 1, 1992, which was the latest possible
date for the act of discrimination. Because there was no longer any
federal claim pending before the court, it declined to exercise
jurisdiction over the state claims, citing 28 U.S.C. § 1367(c) (1994).
On appeal, Diez contends that the questionnaire he lodged with the
MDHR satisfied the requirement that he file an administrative charge within
300 days of the act of discrimination.
We review the district court's entry of summary judgment de novo.
Barry v. Barry, 78 F.3d 375, 379 (8th Cir. 1996). We must affirm if the
evidence, taken in the light most favorable to Diez, shows that there is
no genuine issue of material fact and that 3M is entitled to judgment as
a matter of law. Id.
The issue of whether EEOC and state agency intake questionnaires can
serve as administrative charges has been widely litigated.2
2
See, e.g., Park v. Howard Univ., 71 F.3d 904, 908-09 (D.C.
Cir. 1995), petition for cert. filed (May 10, 1996) (No. 95-
1832); Downes v. Volkswagen, 41 F.3d 1132, 1137-39 (7th Cir.
1994); Early v. Bankers Life & Cas. Co., 959 F.2d 75 (7th Cir.
1992); Philbin v. General Elec. Capital Auto Lease, Inc., 929
F.2d 321 (7th Cir. 1991) (per curiam); Peterson v. City of
Wichita, 888 F.2d 1307 (10th Cir. 1989), cert. denied, 495 U.S.
932 (1990); Clark v. Coats & Clark, Inc., 865 F.2d 1237, 1239-41
(11th Cir. 1989); Steffen v. Meridian Life Ins. Co., 859 F.2d
534, 541-44 (7th Cir. 1988), cert. denied, 491 U.S. 907 (1989);
Casavantes v. California State Univ., 732 F.2d 1441 (9th Cir.
1984); Price v. Southwestern Bell Tel. Co., 687 F.2d 74 (5th Cir.
1982).
-4-
The leading case in our circuit is Hodges, 990 F.2d at 1032, a Title
VII case, in which we stated that an intake questionnaire "did not
constitute a valid charge under Title VII for purposes of the statute of
limitations until [Hodges] signed it under oath . . . ."3 Id.; accord Park
v. Howard Univ., 71 F.3d 904, 909 (D.C. Cir. 1995), petition for cert.
filed (May 10, 1996) (No. 95-1832). But see Whitekiller v. Campbell Soup,
Inc., 925 F. Supp. 614 (W.D. Ark. 1996).
In Title VII cases, intake questionnaires do not satisfy the
statutory requirements for a charge because they are not verified. See 42
U.S.C. § 2000e-5(b) (1994) ("Charges shall be in writing under oath or
affirmation and shall contain such information and be in such form as [the
EEOC] requires."). But cf. 29 C.F.R. § 1601.12 (1995) ("A charge may be
amended to cure technical defects or omissions, including failure to verify
the charge . . . .").4
3
The EEOC in Hodges applied the 300-day time limitation, but
we mentioned in a footnote that the proper period was 180 days in
that case; even Hodges's questionnaire (not to mention his
verified charge) would have been untimely under the 180-day
deadline. 990 F.2d at 1032 n.4.
4
Despite the failure of the questionnaires to meet the Title
VII criteria for a charge, some courts have held that the
questionnaire can serve as a charge to satisfy the Title VII
filing requirement. Courts have used a variety of theories to
save claims in which the plaintiff filed a questionnaire, but not
a formal charge, in time. The Ninth Circuit has expressed the
opinion that the intake questionnaire satisfies the requirement
of an administrative charge. Casavantes, 732 F.2d at 1443 ("We
note initially that federal regulations governing EEOC procedures
make clear that the Intake Questionnaire, as completed by
Casavantes, was sufficient to constitute a charge," citing 29
C.F.R. 1601.12(b)); see also Clark, 865 F.2d at 1240-41 (goals of
ADEA fulfilled where claimant completed questionnaire and EEOC
notified employer within statutory time period, even though
formal charge not filed until after limitations period expired).
Some courts have permitted the formal charge to relate back
to the date the plaintiff lodged the questionnaire. Philbin, 929
F.2d at 324, held that later filed documents could be considered
amendments to an unverified questionnaire, which would relate
back to the time the plaintiff lodged the questionnaire.
-5-
Unlike Title VII, the ADEA does not require that a charge be
verified. The only statutory reference to what might be necessary in a
charge comes in 29 U.S.C. § 633(b) (1994), which states: "If any
requirement for the commencement of such proceedings is imposed by a State
authority other than a requirement of the filing of a written and signed
statement of the facts upon which the proceeding is based, the proceeding
shall be deemed to have been commenced for the purposes of this subsection
at the time such statement is sent by registered mail to the appropriate
State authority." This section literally refers to statements sent by
registered mail. The record in this case does not indicate that Diez sent
his questionnaire to the MDHR by registered mail. However, section 633(b)
at least implies that charges in general shall be subject only to the
minimal requirements that they be written and signed statements of the
relevant facts.
The EEOC's regulations are consistent with this understanding. Under
29 C.F.R. § 1626.6:
A charge shall be in writing and shall name the
prospective respondent and shall generally allege the
Therefore, the claim could be considered timely under Title VII.
Accord Peterson, 888 F.2d at 1308; Casavantes, 732 F.2d at 1443.
Other courts have held in particular cases that the EEOC
waived the Title VII verification requirement. In Price, 687
F.2d at 79, the EEOC notified the employer of a claim after the
claimant had completed a questionnaire, but before the claimant
filed the verified charge. Price held that the verification
requirement was non-jurisdictional and therefore subject to
equitable considerations. Price concluded that there was a
triable issue of fact as to whether the EEOC had waived the
verification requirement in that case, and reversed the district
court's holding that the claim was time-barred. Cf. Anderson v.
Unisys Corp., 47 F.3d 302, 306-07 (8th Cir.) (applying equitable
tolling where MDHR misled plaintiff as to limitation period),
cert. denied, 116 S. Ct. 299 (1995).
-6-
discriminatory act(s). Charges received in person or by
telephone shall be reduced to writing.
Another regulation, 29 C.F.R. § 1626.8, sets out in more detail what should
appear in a charge, but specifically provides that the charge is legally
sufficient and effective so long as it complies with the minimal
requirements of section 1626.6.
Even though the intake questionnaires literally satisfy the statutory
and regulatory requirements for a charge, a fuller examination of the
regulations and the printed language on the intake questionnaire forms
shows that the EEOC does not intend the questionnaires to routinely
function as a charge.
In Steffen v. Meridian Life Insurance Co., 859 F.2d 534, 542 (7th
Cir. 1988), cert. denied, 491 U.S. 907 (1989), the Seventh Circuit
recognized that the intake questionnaires fit within the statutory and
regulatory descriptions of a charge, but nevertheless refused to say that
this was sufficient for the questionnaire to be treated as a charge. The
court stated:
[T]he EEOC's regulations make clear that, while a charge is
``sufficient' if it names the respondent and generally alleges
discrimination, not all documents containing such information
are charges. There is no other way to explain the distinction
in the EEOC's regulations between a ``complaint' and a ``charge.'
A ``complaint' is defined to ``mean information received from any
source, that is not a charge, which alleges that a named
prospective defendant has engaged in or is about to engage in
actions in violation of the [ADEA] . . . .' 29 C.F.R. § 1626.3
(emphasis added). As noted above, a charge is sufficient under
the regulation if it names the respondent and generally alleges
a discriminatory act. Thus, under these regulations, any
document that names a prospective respondent and alleges a
violation of the Act falls within the definition of either a
complaint or a charge. The regulations, however, only provide
that the Commission shall promptly notify a respondent that a
charge has been filed. 29 C.F.R. § 1626.11. The only
plausible reason why the EEOC would consider one communication
of information to be a ``complaint' and
-7-
another to be a ``charge' is that a ``charge' is submitted under
circumstances that would lead the EEOC to believe that the
complaining party sought to ``activate the Act's machinery.'
Moreover, there is no other plausible reason why the EEOC
labels certain forms as ``Intake Questionnaires' and other forms
as ``Charges of Discrimination.'
Id. at 542. The court decided that Steffen's intake questionnaire was
completed under circumstances that indicated Steffen intended to "activate
the machinery" of the ADEA, because the EEOC employee who took Steffen's
questionnaire told Steffen that the EEOC would treat the questionnaire as
a charge (although the EEOC did not actually do so). Id. at 544.
The Seventh Circuit has continued to apply the test from Steffen to
distinguish between questionnaires that are preliminary to a charge and
those that function as a charge: do the circumstances indicate that the
claimant intended to activate the machinery of the ADEA by lodging the
questionnaire with the agency? Relevant facts include what the claimant
and the EEOC personnel said to each other, see Steffen, 859 F.2d at 544,
what the questionnaire form said, see Park, 71 F.3d at 908, and what the
EEOC actually did in response to receipt of the questionnaire, see Downes
v. Volkswagen, 41 F.3d 1132, 1138 (7th Cir. 1994) ("[W]hile it is relevant
that the EEOC treated the questionnaire as a charge, we have also held that
inaction by the EEOC should not, for time limit purposes, bar an ADEA
suit.").
The purpose of distinguishing questionnaires meant to activate the
machinery of the ADEA from those that are merely preliminary to a charge
is not to keep plaintiffs out of court, but to assure that the ADEA works
as it is supposed to. If the EEOC or state agency understands the
claimant's lodging of the questionnaire to be
-8-
preliminary, it does not notify the employer of the charge.5 This
frustrates a major goal of the ADEA, which is to encourage pre-litigation
resolution of claims. See Steffen, 859 F.2d at 542; Early v. Bankers Life
& Cas. Co., 959 F.2d 75, 80 (7th Cir. 1992); see also Park, 71 F.3d at 909
(Title VII context); see generally Kloos v. Carter-Day Co., 799 F.2d 397,
400 (8th Cir. 1986).
Diez's affidavit gives us no information about what he and the MDHR
personnel said. Diez states in his affidavit:
I contacted the MN Department of Human Rights on or about
May 19, 199[3],6 and completed its "Employment Discrimination
Questionnaire," Exhibit G, on or about May 20, 199[3] and filed
it on May 21, 199[3] with the Department. I signed the charge
of discrimination on June 10, 199[3], the date on which it was
given to me.
Diez does not aver that the MDHR led him to believe he had done all
that was necessary once he returned the questionnaire. The fact that Diez
later filled out a formal charge indicates that he understood the
questionnaire to be preliminary. Further, the questionnaire itself
indicated that it was preliminary to a charge; it said: "Please fill out
this questionnaire to the best of your ability. The Department will need
specific information to determine if your claim can be processed as a
charge and to investigate the charge if it is accepted." 3M asserts,
without contradiction, that MDHR did not notify 3M of the claim until Diez
5
29 U.S.C. § 626(d) provides: "Upon receiving such a charge
[alleging unlawful discrimination], the Commission shall promptly
notify all persons named in such charge as prospective defendants
in the action and shall promptly seek to eliminate any alleged
unlawful practice by informal methods of conciliation,
conference, and persuasion." Minn. Stat. § 363.06 requires the
MDHR to notify the employer within ten days of the filing of the
administrative charge.
6
The date given in the quoted paragraph of the affidavit
appears to be off by a year, since the affidavit gives the year
1992, yet the documents are all dated 1993.
-9-
filed the charge in June.
Diez has not presented any evidence to prove the questionnaire was
intended to function as a charge in his case. The only evidence in the
record supports the conclusion that the MDHR justifiably considered the
questionnaire as preliminary, rather than a legally effective invocation
of the ADEA. Diez has simply not produced the evidence needed to avoid
summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Diez also argues that the formal charge filed on June 10 should
relate back under 29 C.F.R. § 1626.8(c), which provides:
A charge may be amended to clarify or 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.
We reject this argument because the regulation says, "A charge may be
amended . . . ." (emphasis added). Since we have decided that the
questionnaire was not a charge, the regulation is not applicable. To treat
a subsequently filed charge as an amendment, and thereby backdate the
charge, would deprive the employer of the timely notice to which he is
entitled. Cf. Kloos, 799 F.2d at 400 (purposes of charge requirement are
to allow agency to attempt informal resolution of claim and to give
employer notice of claim). Rejecting this relation-back theory is
consistent with Hodges. See 990 F.2d at 1032. But see Whitekiller v.
Campbell Soup, Inc., 925 F. Supp. 614 (W.D. Ark. 1996).
We therefore affirm the judgment of the district court.7
7
3M also argues that the date of the act of discrimination
should be fixed at an earlier date than the date of Diez's
retirement, citing Delaware State College v. Ricks, 449 U.S. 250
(1980) and Chardon v. Fernandez, 454 U.S. 6 (1981). In light of
our holding that the intake questionnaire was not a charge, we
need not decide whether the date of the unlawful act was earlier
than the date of Diez's retirement, since the claim is time-
barred in any case.
-10-
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-11-