Hugh T. Butler, Sr. v. Greif, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16104 ELEVENTH CIRCUIT
APRIL 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-01978-CV-ODE-1
HUGH T. BUTLER, SR.,
Plaintiff-Appellant,
versus
GREIF, INC.,
MICHAEL OGILVIE, JR.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 8, 2009)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
This is an employment discrimination case, brought by Hugh T. Butler, Sr.,
against his former employer, Greif, Inc. (“Greif”), under the anti-retaliation
provision of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203(a).1
The district court granted Greif summary judgment because Butler failed properly
to file a charge with the Equal Employment Opportunity Commission (“EEOC”).
He now appeals.
Prior to bringing this lawsuit, Butler had to file a charge with the EEOC
under oath or affirmation. 42 U.S. C. § 2000e-5(b). Butler’s charge, which was
submitted by his attorney, was not verified at the time it was filed; nor was it
verified while the charge was pending before the EEOC. Butler argues that his
attorney’s signature on the charge was sufficient and that, if not, he could cure the
lack of verification even after the EEOC dismissed his case for failing to cooperate.
He also argues that Greif waived its right to challenge the lack of verification.
Before filing suit under the ADA, a plaintiff must exhaust his administrative
remedies by filing a charge with the EEOC. See 42 U.S.C. § 12117(a) (applying
remedies and procedures of Title VII to ADA); Wilkerson v. Grinnell Corp., 270
F.3d 1314, 1317 (11th Cir. 2001) (stating that exhaustion requires the timely filing
1
Butler also sued his supervisor, Michael Ogilvie, Jr. He subsequently conceded that
Ogilvie was not amenable to suit under the ADA because employers only are liable under the
ADA. Thus, the district court properly entered summary judgment for Ogilvie.
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of a discrimination charge with the EEOC). An EEOC charge must be verified,
meaning that it must be “sworn to or affirmed . . . or supported by an unsworn
declaration in writing under penalty of perjury.” 29 C.F.R. § 1601.3(a). The
verification requirement is mandatory. See Vason v. City of Montgomery, 240
F.3d 905, 907 (11th Cir. 2001).
Although the applicable regulations allow charges of discrimination to be
filed on behalf of a person, see 29 C.F.R. § 1601.7(a), the regulations do not
dispense with the requirement that a plaintiff verify the facts supporting a claim.
29 C.F.R. § 1601.9. While an attorney may file an EEOC charge on behalf of a
client, the attorney’s signature alone will not constitute verification if the attorney
does not personally swear to the truth of the facts stated in the charge and does not
have personal knowledge of those facts.2
In certain situations, the EEOC regulations permit an otherwise timely
charge to be verified or amended after the time for filing has expired, but the
deadline to verify is the time the employer is obliged to respond to the EEOC
charge. Edelman v. Lynchburg College, 535 U.S. 106, 113, 115-18, 122 S. Ct.
1145, 1149-52, 152 L. Ed. 2d 188 (2002); 29 C.F.R. § 1601.12(b). Where a right to
sue letter has issued, the plaintiff has brought suit, and the EEOC has closed its
2
In Vason, we expressly rejected the argument that the EEOC is obligated to inform a
plaintiff of deficiencies of his charge, such as the lack of verification. 240 F.3d at 907.
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file, there is no longer a charge pending before the EEOC that is capable of being
verified. See Balazs v. Liebenthal, 32 F.3d 151, 156-58 (4th Cir.1994) (allowing
EEOC charge to be amended and for amendment – verification – to relate back
only so long as the charge is a viable one in the EEOC's files).
At least one Circuit, the Third Circuit in Buck v. Hampton Twp. Sch. Dist.,
452 F.3d 256 (3rd Cir. 2006), has held that the verification requirement should be
subject to waiver “when equity so requires,” such as when, as in that case, the
employer responded to the EEOC charge on the merits, declined to challenge the
sufficiency of the charge before the EEOC, and later attempted to move to dismiss
the suit for lack of verification. Buck, 452 F.3d at 262-65 (noting that the waiver
rule would apply very sparingly). Id. at 265. However, the plaintiff’s failure to
cooperate with the EEOC disentitles that person to equitable relief. See Forehand
v. Florida State Hosp. at Chattahoochee, 89 F.3d 1562, 1570 (11th Cir. 1996).
Here, Butler’s attorney’s signature did not constitute a verification. The
deadline to verify the EEOC charge was while the charge was pending before the
EEOC. Butler, though, did not verify it until after the EEOC had dismissed his
case. Lastly, Butler’s failure to cooperate with the EEOC disentitled him to any
equitable relief.
AFFIRMED.
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