United States District Court, N.D. Alabama, Southern Division
Order Filed: May 17, 2011, August 3, 2011
Decided July 5, 2011
For Equal Employment Opportunity Commission, Plaintiff: C Emanuel Smith, Eunice H Morrow, Ylda Marisol Kopka, LEAD ATTORNEYS, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Birmingham, AL; Gwendolyn Young Reams, James L. Lee, LEAD ATTORNEYS, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, DC; Julie Bean, LEAD ATTORNEY, Charles Guerrier, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Birmingham, AL.
For Summer Classics, Inc., Defendant: Brice Martin Johnston, LEAD ATTORNEY, JOHNSTON LAW FIRM, PC, Birmingham, AL; N Dewayne Pope, LEAD ATTORNEY, DEWAYNE POPE LLC, Birmingham, AL.
WILLIAM M. ACKER, JR., UNITED STATES DISTRICT JUDGE.
Because plaintiff, Equal Employment Opportunity Commission (" EEOC" ), has timely filed objections to the report and recommendation submitted by the magistrate judge to whom the above-entitled case was originally assigned, the district court is obligated to evaluate the controversy de novo. The court has now performed that not inconsiderable task. The court ends in total agreement with the magistrate judge. But, because EEOC so vigorously insists that there is no time bar, suggesting that this case may become a test case involving the unique question presented, the court will SUPPLEMENT the magistrate judge's report and recommendation as follows. Meanwhile, EEOC's objections are OVERRULED, and the report and recommendation ADOPTED.
The adverse employment decision of which EEOC complains occurred on February 23, 2007. The individual who brought the matter to EEOC's attention did so on July 21, 2007. On that date he filed with the EEOC an " Intake Questionnaire", employing the form furnished by EEOC for that purpose. This occurred within 180 days after the act of defendant, Summer Classics, Inc. that allegedly violated the Americans with Disabilities Act. The " Intake Questionnaire" began with the following clear words of warning from EEOC:
Please immediately complete the entire form and return it to the U.S. Equal Employment Opportunity Commission " EEOC" ). REMEMBER, a charge of employment discrimination must be filed within the time limits imposed by
law, generally within 180 days or in some places 300 days of the alleged discrimination. Upon receipt, this form will be reviewed to determine EEOC coverage. Answer all questions as completely as possible, and attached additional pages if needed to complete your responses(s). Incomplete responses may delay further processing of your questionnaire by EEOC. If you do not know the answer to a question, answer by stating " not known." If a question is not applicable, write " n/a."
emphasis in original, except that the words " charge of discrimination" are italicized).
The fact that the word " charge" prominently appears in the " Intake Questionnaire" shows that a sharp distinction exists between an " Intake Questionnaire" and a " Charge of Discrimination" . The actual " charge" must, as EEOC warns, be filed within 180 days of the act complained of. This 180 days expired on August 21, 2007. A " Charge of Discrimination", using EEOC's Form 5, was not received by EEOC until September 5, 2007. Peculiarly, the record contains no copy of the actual " Charge of Discrimination", although there is no dispute about the fact that the completed Form 5 was not received by EEOC until September 5, 2007.
Although the court has not been furnished a copy of the Form 5 as actually filed in this case, this court, from long experience, takes judicial notice of the pertinent language of Form 5. The first and most important words appear in the upper lefthand corner. A prominent block contains the capitalized words " CHARGE OF DISCRIMINATION" . Of lesser significance, but entirely consistent with the caption, is a place in Form 5 for the complainant to " swear and affirm the above charge is true to the best of my knowledge information and belief." (emphasis added). The " Intake Questionnaire" conspicuously refers to the " charge" as being a future occurrence. A " charge" can be amended, but it is distinct from an " Intake Questionnaire", which perhaps also can be amended, but cannot be treated as a " Charge of Discrimination" .
EEOC is like any other litigant. It cannot make up special procedural or substantive rules for itself to suit its circumstances. On July 21, 2007, on August 8, 2007, on August 21, 2007, and on September 5, 2007, 29 C.F.R. § 1601.12, a regulation promulgated by EEOC, was in effect. This rule first sets forth what must be contained in a " charge" . It then proceeds to provide some leeway to the complaining party to amend or elaborate the " charge" . However, the rule never, either expressly or impliedly, suggests that an " Intake Questionnaire" is, or can be, a substitute for a " Charge of Discrimination" . A " charge" can be amended, but there must first be a " charge" to be amended.
It is undisputed that on August 8, 2007, EEOC mailed the following letter to the complaining party:
We received your correspondence and accordingly, we have drafted a charge. We cover discrimination based on race, color, sex, age, religion, national origin, retaliation, and disability.
Please date and sign each copy of the Charge of Discrimination in the lower left hand corner indicated by the X marks and return to the undersigned within 30 days of the date of this letter. If the executed charge is not returned with this time, the charge will be administratively closed in accordance with our
procedural regulations and no further action will be taken.
Investigative Support Assistant
emphasis on words " within 30 days" in original, other emphasis added).
This letter was obviously written in response to " correspondence" from the complaining party. The complaining party's said correspondence is not in the record. It is impossible to tell the exact date upon which EEOC received the correspondence to which it responded on August 8, 2007. If a " Charge of Discrimination" had been received on September 5, 2007, it would, of course, have been timely. On August 8, 2007, EEOC enclosed to complainant copies of Form 5, as " drafted" by EEOC, for the signature of the complaining party. (emphasis added). EEOC's letter of August 8, 2007, is unequivocal. Although mistaken, it makes clear that the complaining party must sign and return the " Charge of Discrimination" " within 30 days" (emphasis in original). September 5, 2007, the date of receipt by EEOC, was within 30 days of the erroneous date provided by EEOC in its August 8, 2007 letter, but it was after August 21, 2007, the date upon which the 180 days expired. The complaining party, arguing now through EEOC, followed the advice of EEOC, and overlooked or ignored the clear requirements of the applicable federal statute, which plainly requires a " charge" to be filed within 180 days of the adverse employment decision.
If an error like this, made by EEOC, and then by its client, can be forgiven or overlooked, and can provoke an extension of the 180-day deadline, then any and every " Intake Questionnaire" can be readily transmogrified into, or treated as, a " Charge", and Form 5 can be dispensed with entirely. The fact that EEOC may have inadvertently mislead the complaining party provides no escape from a statute of limitations that is clear and absolute. Would EEOC have filed this suit if complainant's Form 5 had not been received by it within the demanded 30 days after August 8, 2007? Would EEOC have filed this suit if its letter of August 8, 2007, had erroneously said " 90 days" instead of erroneously said " 30 days" and complainant had complied on the 89th day? EEOC understandably may feel some obligation to complainant, but it asks for too much. Its error is attributable to its client.
The magistrate judge baked a solid cake. The district court will be forgiven for adding a bit of frosting.
An appropriate order will be entered separately.
In accordance with the accompanying memorandum opinion, which hereby incorporates the report and recommendation of the magistrate judge, there are no disputes of material fact, and defendant, Summer Classics, Inc., is entitled to judgment as a matter of law. Its amended motion for summary judgment is therefore GRANTED, and the above-entitled action of Equal Employment Opportunity Commission is DISMISSED WITH PREJUDICE. All other motions are MOOT.
The parties shall bear their own respective costs.
REPORT AND RECOMMENDATION
Robert R. Armstrong, Jr., United States Magistrate Judge.
This is a civil action brought by the Equal Employment Opportunity Commission (" EEOC" ) against Summer Classics, Inc., for violation of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12112. The complaint alleges that the defendant wrongfully terminated Larry Lowe after learning that Lowe was HIV positive and he refused to respond to the defendant's inquiries concerning his medical condition. 
The case comes before the court on the defendant's second motion for summary judgment. (Doc. 15.)
STANDARD OF REVIEW
In considering a motion for summary judgment, the court must determine whether the moving party is entitled to
judgment as a matter of law. Summary judgment may be granted only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.56. In making that assessment, the court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of proof is upon the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). Once that initial burden has been carried, the non-moving party may not merely rest upon his pleadings, but must come forward with evidence supporting each essential element of his claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barfield v. Brierton, 883 F.2d 923 (11th Cir. 1989). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990).
The parties have extensively briefed a number of issues in this case. However, if the charge of discrimination was not timely filed, dismissal would be appropriate for that reason alone.
As an administrative prerequisite to filing suit under Title VII, an employee must file a timely charge of discrimination with the EEOC. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) 9; Morrow v. Auburn Univ. Montgomery, 973 F.Supp. 1392, 1400 (M.D. Ala. 1997); 42 U.S.C. § 2000e-5 (e)(1). Likewise, to assert a claim under the ADA, an employee " must comply with the same procedural requirements to sue under Title VII," and thus, a timely EEOC charge is required under the ADA as well. See, e.g., Fry v. Muscogee County Sch. Dist., 150 F.App'x 980, 981-982, 2005 WL 2596880 *1 (11th Cir. 2005); Zillyette v. Capital One Fin. Corp., 179 F.3d 1337, 1339 (11th Cir. 1999); Wagner v. Texas A & M Univ., 939 F.Supp. 1297, 1308 (S.D.Tex.1996); Harbuck v. Kelley Foods of Ala., Inc., 2006 WL 827109 at 2 (M.D. Ala. 2006); 42 U.S.C. § 12117(a) (applying remedies and procedures of Title VII to ADA).
The requirement that an employee file a charge with the EEOC serves an important purpose. It triggers the investigatory and conciliatory procedures of the EEOC. Sanchez, 431 F.2d at 466. Thus, the charge must enable the EEOC to serve its administrative enforcement role by conducting a full investigation while also providing the employer with advance notice of the claim and an opportunity to resolve the dispute. See, e.g., Gregory, 355 F.3d at 1279-80 (collecting cases discussing the purpose of the administrative exhaustion requirement). Another important purpose of the charge requirement is ...