Gad v. Kansas State University

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH May 27, 2015
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
SABREEN GAD,
Plaintiff - Appellant,
v. No. 14-3050
KANSAS STATE UNIVERSITY,
Defendant - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 2:12-CV-02375-EFM)
Danielle N. Davey (Alan V. Johnson with her on the briefs), Sloan, Eisenbarth,
Glassman, McEntire & Jarboe, L.L.C., Topeka, Kansas, for Appellant.
Peter J. Paukstelis, Office of General Counsel, Kansas State University,
Manhattan, Kansas, for Appellee.
Before TYMKOVICH, GORSUCH, and BACHARACH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Sabreen Gad filed a complaint with the Equal Employment Opportunity
Commission against Kansas State University, alleging that she was discriminated
against in her effort to obtain a promotion to a tenure-track faculty position.
Although the EEOC sent her a formal charge document to sign and verify, as both
Title VII and EEOC regulations require, she never did so. Nevertheless, after the
EEOC elected not to pursue her case, she brought a Title VII suit against KSU.
This appeal requires us to decide whether Title VII’s requirement that a
claimant verify the charges against an employer is a jurisdictional prerequisite to
suit. If that is the case, the district court correctly concluded that it lacked Article
III subject-matter jurisdiction and dismissed the complaint. If, on the other hand,
the verification requirement is a non-jurisdictional condition precedent to suit, it
can be waived without defeating our jurisdiction. In that case, the requirement
does not affect our subject-matter jurisdiction and federal courts are free to
entertain the complaint and the defenses to it.
We conclude this verification requirement is non-jurisdictional and does
not divest the federal courts of subject-matter jurisdiction. Title VII does not
make the verification requirement jurisdictional, and the failure to comply with
the requirement is not a conclusive impediment to suit. Like other conditions
precedent, verification can be asserted as a defense to a claim by the defendant.
But it cannot take away our power as federal courts to resolve live cases or
controversies under Article III.
Consequently, exercising jurisdiction under 28 U.S.C. § 1291, we
REVERSE the district court’s contrary decision and REMAND for further
proceedings.
-2-
I. Background
KSU hired Professor Gad in 2010 as a part-time assistant professor in the
geology department. She subsequently requested that KSU either promote her to
a full-time professorship position or promote her to membership on the graduate
faculty. She never received either promotion, however, and she believed KSU
discriminated against her by creating and giving similar positions to other
individuals.
Consequently, in March 2012, Gad filed a claim with the EEOC, alleging
religious, sex, and national-origin discrimination. She completed the required
EEOC intake questionnaire form and prepared a letter to the EEOC summarizing
her claims. She signed both the form and the letter, but never “verified” either by
affirming them under penalty of perjury or before a person authorized to
administer oaths, as EEOC regulations require. See 29 C.F.R. § 1601.3. 1
An EEOC investigator assigned to the case later spoke with Gad regarding
her discrimination claims. He “told her [he] would send her a charge for
signature.” App. 105. That charge—EEOC Form 5—includes a box for the
complainant to sign under penalty of perjury, which satisfies the verification
1
The regulations provide that “the term verified shall mean sworn to or
affirmed before a notary public, designated representative of the [EEOC], 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.” 29
C.F.R. § 1601.3.
-3-
requirement. On the same day, the investigator mailed Gad Form 5 along with a
letter that explained what the form meant and the next steps in the EEOC’s
investigation. The letter contained two directions pertinent here. First, it
informed Gad that if the EEOC did not “receive [her] signed charge within 30
days, [it would be] authorized to dismiss [her] charge and issue [her] a right to
sue letter.” Id. at 107. Second, it informed her that “proper handling of this
action by the Commission” required her to “sign and date the charge” and
“[r]eturn the signed charge to this office.” Id. The only place to sign the charge
was a blank directly below the words, “I declare under penalty of perjury that the
above is true and correct.” Id. at 109. According to Gad, she never signed or
returned the form because the investigator “mentioned something that I don’t
have to return . . . the signing form.” Id. at 89–90.
The investigator also mailed a notice to KSU that Gad had filed an
“unperfected” charge of discrimination. Id. at 167. The notice informed KSU
that “[n]o action is required by you at this time.” Id.
In early April, the EEOC investigator and Gad spoke again. The
investigator’s notes of the conversation report that he told Gad that “further
investigation will unlikely result in a violation” and that, if so, the EEOC would
issue her a “Dismissal and Notice of the Right to Sue.” Id. at 169. On April 19,
the EEOC issued Gad the right-to-sue notice, on which KSU was carbon copied.
-4-
In June, Gad sued KSU in federal district court. KSU’s answer stated
generally that Gad had failed to exhaust her administrative remedies, but said
nothing specifically about Gad’s failure to verify. After filing its answer but
before summary judgment, KSU obtained Gad’s EEOC file, which contained a
copy of Gad’s unverified Form 5.
In its motion for summary judgment, KSU argued the court lacked
jurisdiction because Gad failed to exhaust her administrative remedies by not
verifying her EEOC charge. The district court agreed, noting our holding in
Shikles v. Sprint/United Management Co., 426 F.3d 1304, 1317 (10th Cir. 2005),
that exhaustion of administrative remedies is a jurisdictional prerequisite to suit.
Relying on that principle, the court concluded that Gad’s failure to satisfy Title
VII’s verification requirement was a failure to exhaust administrative remedies
and that it thus lacked jurisdiction. 2
II. Analysis
KSU argues that a plaintiff’s failure to satisfy the verification requirement
divests us of subject-matter jurisdiction and cannot be waived. As we discuss
below, we conclude otherwise.
2
It is true that, as KSU mentions, courts “need not decide whether
exhaustion is jurisdictional [where] there is no question of waiver or forfeiture.”
McQueen ex rel. McQueen v. Colo. Springs Sch. Dist. No. 11, 488 F.3d 868, 873
(10th Cir. 2007). The district court did not choose that path, and as we discuss
below, we only address the jurisdictional question and elect not to resolve the
factual question of waiver for the first time on appeal.
-5-
A. Subject-Matter Jurisdiction
The federal courts are courts of limited subject-matter jurisdiction. Radil v.
Sanborn W. Camps, Inc., 384 F.3d 1220, 1225 (10th Cir. 2004). And since we
have limited jurisdiction, we “may only hear cases when empowered to do so by
the Constitution and by act of Congress.” Id. (internal quotation marks omitted).
Our subject-matter jurisdiction is a constitutional prerequisite to hearing a case
and “because it involves a court's power to hear a case, can never be forfeited or
waived.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Thus, we always
have an independent obligation—no matter the stage of litigation—to consider
whether a case creates a live case or controversy and belongs in federal court.
In this case, the question is whether Title VII’s verification requirement is
a prerequisite to our subject-matter jurisdiction. Title VII specifically gives us
subject-matter jurisdiction as a general matter in 42 U.S.C. § 2000e-5(f)(3). 3 But
as a condition to filing suit in federal court, Title VII also requires claimants to
3
In pertinent part, that subsection provides that “[e]ach United States
district court . . . shall have jurisdiction of actions brought under [Title VII].” 42
U.S.C § 2000e-5(f)(3). Of course, 28 U.S.C. § 1331 would authorize us to
exercise subject-matter jurisdiction absent Title VII’s jurisdictional provision,
since Title VII cases arise “under the . . . laws . . . of the United States.”
Arbaugh, 546 U.S. at 505. But when Congress enacted Title VII, federal-question
suits had an amount-in-controversy threshold. Thus, the jurisdictional
requirement was necessary to ensure that all suits meeting Title VII’s other
requirements could be heard in federal court. Congress has since eliminated that
threshold. But, as we discuss below, the Court plainly still considers it key for
interpretative purposes whether a requirement is located in the jurisdictional
subsection.
-6-
submit a “charge” to the EEOC. That submission must “be in writing under oath
or affirmation” and “contain such information and be in such form as the [EEOC]
requires.” 42 U.S.C. § 2000e-5(b). EEOC regulations interpreting the statute
reiterate that a charge “shall be in writing and signed and shall be verified.” 29
C.F.R. § 1601.9. And the regulations clarify that “verified” means “sworn to or
affirmed before a notary public, designated representative of the Commission, or
other person duly authorized by law to administer oaths and take
acknowledgments, or supported by an unsworn declaration in writing under
penalty of perjury.” 29 C.F.R. § 1601.3.
Is this verification requirement a jurisdictional prerequisite to a Title VII
suit? The law is not clear. In several cases analyzing other aspects of Title VII,
we have concluded that some Title VII requirements are not jurisdictional
prerequisites to suit. For example, in Montes v. Vail Clinic, Inc., 497 F.3d 1160,
1167 (10th Cir. 2007), we held that § 2000e-5’s “mandatory time limit for filing
charges with the EEOC is not a jurisdictional prerequisite” and is “thus subject to
waiver, estoppel, and tolling when equity requires.” See also EEOC v. JBS USA,
LLC, 794 F. Supp. 2d 1188, 1201 (D. Colo. 2011) (noting that “not every defect
in the administrative process defeats jurisdiction”).
But we said in Shikles that “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.” Shikles, 426 F.3d at 1317.
-7-
Exhaustion requires “the filing of a charge of discrimination with the EEOC,”
Jones v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007), and charges must be
verified. Thus, one might conclude a plaintiff has not complied with Title VII’s
required prerequisites to suit—i.e., he has not fully exhausted—until he verifies.
That might appear to require the conclusion that verification is necessarily
jurisdictional. But see Green v. Donahoe, 760 F.3d 1135, 1140 (10th Cir. 2014)
(noting that “the untimeliness of an administrative claim, although an exhaustion
issue . . . is not jurisdictional”), cert. granted, 83 U.S.L.W. 3354, 2015 WL
1879779 (Apr. 27, 2015). Thus, our cases provide no dispositive answer.
Nor has the Supreme Court directly confronted this question. Although the
Court has held that Title VII includes a specifically denominated “jurisdictional
provision, 42 U.S.C. § 2000e-5(f)(3),” Arbaugh, 546 U.S. at 515, that provision
has nothing to say about verification. But the Supreme Court has provided the
principles necessary to resolve this jurisdictional question in several instructive
cases.
In the first, Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), the
Court addressed § 2000e-5’s statutory time limit for filing EEOC charges. Id. at
393. The question was whether compliance with the statutory time limit was “a
jurisdictional prerequisite to bringing a Title VII suit in federal court” or whether
it was “subject to waiver and estoppel.” Id. at 392. In choosing the latter, the
Court made two important points. First, “[t]he provision granting district courts
-8-
jurisdiction under Title VII, 42 U.S.C. §§ 2000(e) and (f), does not limit
jurisdiction to those cases in which there has been a timely filing.” 4 Id. at 393.
Second, the Court emphasized that restrictive readings of Title VII are
“particularly inappropriate in a statutory scheme in which laymen, unassisted by
trained lawyers, initiate the process.” Id. at 397.
More recently, in Edelman v. Lynchburg College, 535 U.S. 106 (2002), the
Court upheld an EEOC regulation “permitting an otherwise timely filer to verify a
charge after the time for filing has expired.” Id. at 109. That regulation
permitted an individual to amend a charge “to cure technical defects or omissions,
including failure to verify the charge.” 29 C.F.R. § 1601.12(b). Title VII
requires—albeit in separate subsections—that a charge be verified and also be
filed within the limitations period. Id. at 111. The Court rejected a lower court
decision finding the provision was contrary to the statute.
First, the Court noted the verification and timely filing requirements are
located in different statutory subsections and have separate purposes—thus
reemphasizing the importance of examining a provision’s precise location in the
structure of Title VII to determine its meaning. See id. at 112–13. Second, the
4
Notably, since Zipes, Congress has amended the statute to combine
subsections (e) and (f) into one subsection: 42 U.S.C. § 2000e-5(f). Today’s
jurisdictional subsection is 42 U.S.C. § 2000e-5(f)(3). Arbaugh, 546 U.S. at
514–15. The timeliness provision in Zipes, at that time in subsection (d) and
outside the jurisdictional subsections, is now in subsection (e)—still outside the
jurisdictional subsection.
-9-
verification requirement is intended to protect employers and perhaps co-workers
“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.” Id. at 113. But that purpose “demands an oath only by the time the
employer is obliged to respond to the charge, not at the time an employee files it
with the EEOC.” Id. Third, it reiterated the importance of considering Title
VII’s nature as a “remedial scheme in which laypersons, rather than lawyers, are
expected to initiate the process” and the consequent need to protect the layperson
from “forfeiting his rights inadvertently.” Id. at 115. Finally, the Court
approvingly quoted Wright and Miller for the proposition that “[e]ven if a federal
rule or statute requires verification, a failure to comply does not render the
document fatally defective.” See id. at 116 n.12 (quoting 5A Charles Alan Wright
et al., Fed. Prac. & Proc. § 1339 (2d ed. 1990)).
Next, in 2006, the Court held in Arbaugh that Title VII’s 15-or-more-
employees requirement was non-jurisdictional and thus waivable by a defendant.
Arbaugh, 546 U.S. at 503–04. Following Zipes, it noted that the 15-employee
threshold, rather than appearing in Title VII’s jurisdictional subsection, 42 U.S.C.
§ 2000e-5(f)(3), “appears in a separate provision that does not speak in
jurisdictional terms or refer in any way to the jurisdiction of the district courts.”
Id. at 515 (quoting Zipes, 455 U.S. at 394) (internal quotation marks omitted).
-10-
Importantly, the Court stated, “[n]othing in the text of Title VII indicates
that Congress intended courts, on their own motion, to assure that the employee-
numerosity requirement is met.” Id. at 514. Thus, “when Congress does not rank
a statutory limitation on coverage as jurisdictional, courts should treat the
restriction as nonjurisdictional in character.” Id. at 516; see also Sebelius v.
Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824 (2013) (reiterating that courts should
not treat restrictions as jurisdictional unless Congress has “clearly state[d]” that a
rule is jurisdictional); Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (same);
Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 783 n.2 (10th Cir. 2013)
(collecting recent Supreme Court cases).
Most recently, in United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015),
the Court reiterated its framework for analyzing jurisdictional claims.
“[P]rocedural rules . . . cabin a court’s power only if Congress has ‘clearly
state[d]’ as much.” Id. at 1632 (citing Auburn Reg’l, 133 S. Ct. at 824). And, “in
applying that clear statement rule,” courts employ “traditional tools of statutory
construction” to determine whether “Congress imbued” a requirement “with
jurisdictional consequences.” Id.
We distill several key principles from these cases. First, a Title VII
statutory requirement’s classification as jurisdictional or non-jurisdictional turns
in large part on whether it is located in Title VII’s jurisdictional subsection—42
U.S.C. § 2000e-5(f)(3). Both Zipes and Arbaugh turned on that distinction. See
-11-
Arbaugh, 546 U.S. at 515; Zipes, 455 U.S. at 393. Just this year, we noted this
principle’s general applicability: Statutes that speak “to the rights or obligations
of parties to a lawsuit,” rather than “speak[ing] clearly to the courts’ statutory or
constitutional power to adjudicate the case,” establish “claim-processing rules,
and should not be treated as jurisdictional prescriptions.” Barnes v. United
States, 776 F.3d 1134, 1146 (10th Cir. 2015) (internal quotation marks omitted).
Second, recognizing that non-lawyers are initiating Title VII processes, the
courts should be careful in interpreting procedural rules to cause inadvertent
forfeiture of rights. Third, verification should protect employers from the burden
of responding to frivolous claims or later finding themselves in court over claims
of which they had no notice. Finally, Edelman endorses the principle that a
failure to verify as required by a federal rule will not render the document in
question fatally defective.
B. Verification
Applying these principles to the verification requirement, it is not
jurisdictional. First, neither the statutory text nor the structure of Title VII
provides a “clear statement” that jurisdiction turns on verification. In Title VII
cases, we primarily look to whether a limitation is contained in Title VII’s
jurisdictional subsection to determine Congressional intent. See Arbaugh, 546
U.S. at 515; Zipes, 455 U.S. at 393–94. Like the timely filing requirement in
Zipes and the 15-or-more-employee requirement in Arbaugh, verification “appears
-12-
in a separate provision that does not speak in jurisdictional terms or refer in any
way to the jurisdiction of the district courts.” Arbaugh, 546 U.S. at 515 (internal
quotation marks omitted). Second, our conclusion follows the principle
disfavoring interpretations that might lead to inadvertent forfeiture of Title VII
rights by the non-lawyers initiating Title VII processes. See Edelman, 535 U.S. at
115; Zipes, 455 U.S. at 397. Yet it does not hinder the purpose of the verification
rule: protecting employers and co-workers “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.” Edelman, 535 U.S. at 113.
Because verification remains a Title VII requirement, its non-jurisdictional nature
does not bar an employer from raising a plaintiff’s failure to satisfy the
requirement as a defense. But “[w]hen an employer files a response on the merits
[without identifying a known verification defect], he foregoes the protection that
the requirement affords”—i.e., he has waived any verification objection. See
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 263 (3d Cir. 2006).
Finally, this conclusion squares with the Edelman Court’s statement that,
even “if a federal rule or statute requires verification,” failure to verify will not
“render the document fatally defective.” Edelman, 535 U.S. at 116 n.12 (quoting
5A Charles Alan Wright et al., Fed. Prac. & Proc. § 1339 (2d ed. 1990)). Indeed,
because verification “is now the exception rather than the rule in federal civil
practice,” it is generally the case that “any objection to a failure to comply with a
-13-
verification requirement must be raised immediately or not at all.” 5A Charles
Alan Wright et al., Fed. Prac. & Proc. § 1339 (3d. ed., Sept. 2014 update).
In sum, we conclude that the verification requirement is not jurisdictional.
In reaching this conclusion, we must still consider Shikles’s general
statement that the exhaustion of administrative remedies is “a jurisdictional
prerequisite to suit under Title VII,” Shikles, 426 F.3d at 1317. After all, we have
identified multiple exhaustion requirements not formally located in Title VII’s
jurisdictional subsection. See, e.g., Green, 760 F.3d at 1140 (noting requirement
that plaintiff “show that the claim [filed in district court] is within the scope of
the administrative investigation that could reasonably be expected to follow from
the allegations raised in the charge”); id. (noting requirement that plaintiff submit
charge in a timely fashion); Jones v. Runyon, 91 F.3d 1398, 1400 n.1 (10th Cir.
1996) (observing that filing an EEOC charge is exhaustion requirement); Khader
v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993) (referring to requirement that plaintiff
cooperate with the EEOC); cf. Shikles, 426 F.3d at 1314–15 (relying on Khader’s
language to impose a similar cooperation requirement on plaintiffs under the Age
Discrimination in Employment Act (ADEA)). In a vacuum, the language from
Shikles might appear to enshrine all exhaustion requirements—including the
verification requirement—as jurisdictional prerequisites, regardless of whether
Congress evidenced intent to characterize them as such by placing them in Title
VII’s jurisdictional subsection. Indeed, in both Khader and Shikles, we held that
-14-
failure to cooperate was a jurisdictional bar simply because it is an exhaustion
requirement. Id. at 1317; Khader, 1 F.3d at 970–71.
That logic, however, is at odds with the Supreme Court’s instructions in
subsequent cases and cannot be squared with current law. 5 Since Shikles, the
Supreme Court in Arbaugh and Kwai Fun Wong reemphasized that we should not
treat requirements as jurisdictional without express congressional direction. 6 See
Arbaugh, 546 U.S. at 516; see also Auburn Reg’l, 133 S. Ct. at 824. To the extent
our previous cases would require a contrary result, these “superseding contrary
decision[s]” of the Supreme Court “control[] our analysis.” United States v.
Hathaway, 318 F.3d 1001, 1006 (10th Cir. 2003); see also Clark v. Wilson, 625
F.3d 686, 691 & n.3 (10th Cir. 2010).
Moreover, the Supreme Court has instructed that “drive-by jurisdictional
rulings . . . have no precedential effect.” Steel Co. v. Citizens for a Better Env’t,
5
Indeed, in Shikles itself we recognized the tension between classifying
cooperation as a requirement of Title VII and the rule against “read[ing]
requirements into Title VII . . . beyond those expressly provided by Congress.”
Shikles, 426 F.3d at 1314 (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 798–99 (1973)). But Khader and our policy of interpreting Title VII and the
ADEA harmoniously compelled us to treat cooperation as an exhaustion
requirement, which in turn compelled us to treat failure to cooperate as a
jurisdictional bar. See id. at 1315 (noting that “courts have held that Title VII
contains a cooperation requirement, despite the Supreme Court’s admonition that
no requirements beyond those in the statute should be imposed”). Our analysis in
this case should resolve that tension.
6
Our latest published opinion stating the Shikles rule was Bertsch v.
Overstock.com, 684 F.3d 1023, 1030 (10th Cir. 2012).
-15-
523 U.S. 83, 91 (1998). Shikles’s statement that Title VII exhaustion is a
“jurisdictional prerequisite” can be traced back to two cases, both of which stated
the proposition with little extended analysis. See Sampson v. Civiletti, 632 F.2d
860, 862 (10th Cir. 1980) (citing, without further discussion, Bragg v. Reed, 592
F.2d 1136, 1138 (10th Cir. 1979)). Significantly, Bragg does not address the
issue at all beyond citing (without expressly adopting) the district court’s order,
which only asserted that “[t]he timely exhaustion of the administrative remedies
[was] a jurisdictional prerequisite to the bringing of this civil action.” Bragg, 592
F.2d at 1138. Bragg did say that plaintiffs “must exhaust administrative remedies
before filing an action,” id., but that does not address the question of whether a
failure to satisfy a particular requirement robs the court of jurisdiction. Both
cases preceded not only Arbaugh but also Zipes, and the subsequent development
of the law underscores the limited force our earlier cases retain today. 7
Holding verification non-jurisdictional does not imply any diminution in
the need for plaintiffs to comply with this Title VII requirement. Exhaustion still
serves the important purposes of “protect[ing] employers by giving them notice of
the discrimination claims being brought against them and providing the EEOC . . .
with an opportunity to conciliate the claims.” Green, 760 F.3d at 1140 (internal
quotation marks omitted). Verification is particularly important because it helps
7
In fact, as far as we can tell, none of the cases stemming from Bragg
actually grappled with the propriety of calling exhaustion jurisdictional.
-16-
weed out frivolous or harassing claims. See Edelman, 535 U.S. at 113. And
serious verified claims may provide the impetus for settlement, avoiding federal
court action altogether.
Thus, an employer that identifies and raises a verification defect may still
achieve the dismissal of a plaintiff’s suit. But because Congress has not
explicitly instructed that a failure to verify deprives us of jurisdiction, Supreme
Court precedent requires us to hold it is a “waivable claim processing provision[]
that do[es] not invoke our subject matter jurisdiction.” Muskrat, 715 F.3d at 783
(internal quotation marks omitted).
Finally, although our conclusion is dictated by Supreme Court precedent,
other circuits have followed a similar course. For example, in Buck, the Third
Circuit observed that Title VII clearly makes verification “mandatory” and
reiterated verification’s purpose of protecting employers from having to respond
to frivolous charges. Buck, 452 F.3d at 262. But that did not end the analysis.
The court nonetheless held verification is non-jurisdictional, pointing to Zipes’s
instruction to look to the “provision granting district courts jurisdiction under
Title VII.” Id. (quoting Zipes, 455 U.S. at 393). Because the jurisdictional
subsection does not limit jurisdiction to cases where the charge has been properly
verified, the court concluded that verification was “subject to waiver when equity
so requires.” Id. at 262–63 (internal quotation marks omitted). Similarly, in
Price v. Southwestern Bell Telephone Co., 687 F.2d 74 (5th Cir. 1982), the Fifth
-17-
Circuit applied Zipes, emphasizing the need to protect the layman complainant
from inadvertent forfeiture while remanding for “a possible EEOC waiver” of
verification. Id. at 79.
We could find only one case holding the requirement jurisdictional, Vason
v. City of Montgomery, 240 F.3d 905 (11th Cir. 2001). 8 There, the Eleventh
Circuit summarily affirmed the district court’s grant of summary judgment on the
grounds that verification is mandatory. See id. at 907. The court acknowledged,
but did not engage, the plaintiff’s argument that verification was waivable and
that the EEOC had in fact waived it. Id. To be sure, that court never explicitly
dubbed the requirement jurisdictional, and a requirement is not jurisdictional just
because it is mandatory. Nevertheless, its holding strongly suggests an implicit
conclusion that the requirement was jurisdictional. Because Vason did not
analyze the issue in any detail and precedes the Supreme Court’s new analytical
framework, we find it unpersuasive.
8
Both parties suggest that Balazs v. Liebenthal, 32 F.3d 151 (4th Cir.
1994), also held the requirement jurisdictional, but that case dealt with whether
the plaintiff could amend his charge to provide the necessary verification after the
plaintiff had received a right-to-sue letter, instituted a suit, and had been served
with a motion to dismiss based on non-verification. Id. at 153, 157. It did not
address whether verification is waivable.
-18-
C. Waiver
The district court did not reach waiver because it dismissed the case on
jurisdictional grounds. We remand for the district court to undertake that analysis
in the first instance.
Several points are worth noting in considering waiver. As we mentioned
above, verification is a condition precedent. It is not an affirmative defense in the
classical sense—a meaningful distinction in the Title VII context. In this context,
a condition precedent is a “duty [Title VII] imposes” that “serves as a necessary
precondition to filing a lawsuit.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645,
1651 (2015) (discussing conciliation, which is a condition precedent to suit by the
EEOC). Our cases indicate verification is such a duty. For example, in Montes v.
Vail Clinic, Inc., 497 F.3d 1160 (10th Cir. 2007), we rejected plaintiffs’ argument
that Title VII’s timely filing requirement is an affirmative defense, holding
instead that it is a “condition precedent” to suit, which made “the obligation to
demonstrate timeliness . . . a burden for plaintiffs to carry” by properly pleading
it. Id. at 1167 & n.11; see also Viviana Aldous, Comment, Timed Out of Title VII
Claims: Which Party Should Bear the Burden of Showing Compliance with Title
VII Timing Requirements?, 2014 U. Chi. Legal F. 697, 710–13 (exploring
distinction and the implications of placing burden on plaintiff instead of
defendant in timely filing context).
-19-
We noted two important considerations in Montes. First, the timely filing
deadlines are “integrated into the statutory section that delineates the various
other steps a prospective plaintiff must satisfy before being given the keys to the
courthouse door to file a complaint,” unlike “traditional affirmative defenses
which are separate bars to suit.” Montes, 497 F.3d at 1168. Second, “practical
realities” supported placing the burden on plaintiffs, who “enjoy superior access
to the evidence necessary to prove their compliance with the statutory filing
deadline.” Id.
As in Montes, the verification requirement is a condition precedent. It is
located in the same subsection—42 U.S.C. § 2000e-5(b)—as the conciliation
requirement, which is a condition precedent to suit by the EEOC, EEOC v. Zia
Co., 582 F.2d 527, 532 (10th Cir. 1978). The subsection’s structure indicates that
verification must precede conciliation, since conciliation should only occur after
the EEOC has investigated a verified charge and found there is “reasonable cause
to believe that the charge is true.” 42 U.S.C. § 2000e-5(b); see also Occidental
Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 359 (1977) (describing process).
And, because the statute contemplates the investigation process beginning with a
verified charge, see 42 U.S.C. § 2000e-5(b), there is no reason to think
verification is any less a condition precedent in cases where the EEOC finds no
reasonable cause to believe the charge is true. Thus, like the timely filing
deadlines, the verification requirement is “integrated into” a statutory section
-20-
“delineat[ing]” steps plaintiffs must satisfy before receiving leave to sue. Montes,
497 F.3d at 1168. And, as with timely filing, verification and proof of
verification lie chiefly within the plaintiff’s control.
Nor does classification as an affirmative defense make sense. A Title VII
affirmative defense—such as a statute of limitations—can concede “that there has
in fact been discrimination and then justif[y] this admitted discrimination.” Hugh
Joseph Beard, Jr., Title VII and Rule 301: An Analysis of the Watson and Atonio
Decisions, 23 Akron L. Rev. 105, 140–41 (1989). Conversely, an employer
raising a failure to verify as a basis for dismissal need admit no discrimination.
The flaw is procedural, not substantive—it is the plaintiff’s failure to properly
comply with the requirements Congress and the EEOC established.
We also note that Gad only argues the EEOC waived the requirement, not
KSU. Although the relevant principles show both that verification is non-
jurisdictional and that an employer that fails to raise a known verification defect
has waived the issue as a potential defense, it does not necessarily follow that the
EEOC can waive the requirement unilaterally. After all, that would allow cases
where an employer, through no fault of its own, suffers “the disruption and
expense of responding to a claim” despite the lack of verification demonstrating
the “complainant is serious enough and sure enough to support [the claim] by oath
subject to liability for perjury.” Edelman, 535 U.S. at 113. Buck followed that
logic. See Buck, 452 F.3d at 265 (premising decision “on the fact that the School
-21-
District had adequate information, i.e., a copy of the detailed but unverified
charge, on which to raise the issue” and holding that “where, as here, an employer
has actual notice of a discrimination charge and chooses to respond to the merits
of the claim before the EEOC without asserting lack of verification as a defense it
waives its right to secure dismissal of the federal court proceedings on that
basis”). Moreover, verification provides notice and an opportunity for the
employer to investigate, promoting the prompt administration of discrimination
complaints and possible settlement.
But we also recognize that a rigid rule can result in a Title VII complainant
inadvertently forfeiting his or her rights. That suggests a rule where non-
compliance might be excused, at least in extreme circumstances where negligent
EEOC conduct would mislead a reasonable layperson into thinking he need not
verify. Price apparently allows such a result. See Price, 687 F.2d at 79 (holding
requirement non-jurisdictional and remanding for “a possible EEOC waiver of
that requirement”); see also B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1102
(9th Cir. 2002) (“A Title VII complainant is not charged with the commission’s
failure to perform its statutory duties.” (internal quotation marks omitted));
Forehand v. Fla. State Hosp., 89 F.3d 1562, 1571 (11th Cir. 1996) (“[A]ny
-22-
deficiency in the EEOC’s performance of its duties should not adversely affect a
plaintiff’s right to sue.”). 9
We need not decide the scope or contours of a waiver rule here, particularly
because the district court may not even need to reach the question on remand if it
concludes that, assuming an EEOC waiver is possible, no such waiver occurred.
III. Conclusion
Because Title VII’s verification requirement is not jurisdictional, we
REVERSE and REMAND this case for the district court to determine whether the
verification requirement was waived here.
9
In the related context of Title VII’s timely filing requirement, “equitable
tolling may be appropriate where a plaintiff has been lulled into inaction by . . .
state or federal agencies.” Gray v. Phillips Petroleum Co., 858 F.2d 610, 615
(10th Cir. 1988) (internal quotation marks omitted). Of course, the timely filing
requirement, no less than the verification requirement, works to protect
employers. See Del. State Coll. v. Ricks, 449 U.S. 250, 256–57 (1980) (noting
that Title VII’s “limitations periods . . . protect employers from the burden of
defending claims arising from employment decisions that are long past”).
-23-