UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT ______________________________ No. 06-1963 ______________________________ WILLIE GORDON, Plaintiff-Appellant, v. SHAFER CONTRACTING COMPANY, INC., Defendant-Appellee. _______________________________________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA Civil Action No. 04-3013 JRT/FLN The Hon. John R. Tunheim, U.S.D.J., Presiding _______________________________________________________ BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE ON BEHALF OF APPELLANT WILLIE GORDON IN SUPPORT OF AFFIRMANCE IN PART _______________________________________________________ JAMES L. LEE SUSAN R. OXFORD Deputy General Counsel Attorney CAROLYN L. WHEELER U.S. Equal Employment Acting Associate General Counsel Opportunity Commission 1801 L Street, N.W. LORRAINE C. DAVIS Washington, D.C. 20507 Assistant General Counsel (202) 663-4791 TABLE OF CONTENTS page TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . .iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES AND APPOSITE CASES . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .3 A. Proceedings Below. . . . . . . . . . . . . . . . . . .3 B. Statement of Facts . . . . . . . . . . . . . . . . . .3 C. District Court Decision. . . . . . . . . . . . . . . .7 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . .8 ARGUMENT GORDON FILED A TIMELY CHARGE UNDER TITLE VII AND THE ADEA. . . . . . . . . . . . . . . .9 A. Standard of Appellate Review . . . . . . . . . . . . .9 B. Gordon's July 2003 Intake Questionnaire satisfies the requirements for a "charge" under both Title VII and the ADEA.. . . . . . . . . . . . . . . . . . . . .9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 25 ATTACHMENTS A. Intake Questionnaire signed by Willie Gordon, 7/29/031a B. Affidavit of Willie Gordon dated August 17, 2005 . . 6a C. Gross v. Missouri Mounting, Civ. No. 04CV241 HEA, 2005 WL 3560592 (E.D. Mo. December 29, 2005) . . . .10a CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Federal Cases page Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430 (8th Cir. 1993) . . . 11 Buck v. Hampton Tp. Sch. Dist., – F.3d – , 2006 WL 1790779 (3d Cir. June 30, 2006) . . . . . . . . . 14 Casavantes v. Cal. State Univ., Sacramento, 732 F.2d 1441 (9th Cir. 1984) . . . . . . . . . . . . .2, 17 Delaware State Coll. v. Ricks, 449 U.S. 250 (1980) . . . . . . 13 Diez v. Minn. Mining & Mfg. Co., 88 F.3d 672 (8th Cir. 1996)10, 22 Downes v. Volkswagen, 41 F.3d 1132 (7th Cir. 1994) . . . . . . 20 Edelman v. Lynchburg College, 525 U.S. 106 (2002).1, 2, 8, passim Edelman v. Lynchburg Coll., 300 F.3d 400 (4th Cir. 2002)15, 17, 20 EEOC v. Mississippi Coll., 626 F.2d 477 (5th Cir. 1980). . . . 11 EEOC v. Commercial Office Prods., 486 U.S. 107 (1988). . . 11, 13 EEOC v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . 10, 16, 20 Georgia Power Co. v. EEOC, 412 F.2d 462 (5th Cir. 1969). . . . 12 Gordon v. Shafer Contracting Co., Civ. No. 04-3013, 2006 WL 738031 (D. Minn. March 22, 2006). . . . . . . passim Gross v. Missouri Mounting, Civ. No. 04CV241 HEA, 2005 WL 3560592 (E.D. Mo. December 29, 2005). . . . . . . 23 Holowecki v. Federal Express Corp., 440 F.3d 558 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . 2, 10, 19, 20 Federal Cases (cont'd) page Lawrence v. Cooper Communities, Inc., 132 F.3d 447 (8th Cir. 1998). . . . . . . . . .9, 21, 22, 23 McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352 (1995) . .1 Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979). . . . . . . . 13 Peterson v. City of Wichita, 888 F.2d 1307 (10th Cir. 1989). . 17 Rabzak v. County of Berks, 815 F.2d 17 (3d Cir. 1987). . . . . 17 Rowe v. Hussmann Corp., 381 F.3d 775 (8th Cir. 2004) . . . . . 21 Schlosser v. Westinghouse Elec. Co., Civ. No. 00CV205-DJS, 2001 WL 1746574 (E.D. Mo. Dec. 18, 2001). . . . . . . . . .7 Shempert v. Harwick Chem. Corp., 151 F.3d 793 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . 21, 22, 23 Sifferman v. Bd. of Regents, SE Mo. State Univ., 350 F. Supp. 2d 1139 (E.D. Mo. 2003). . . . . . . . . . . 23 Steffen v. Meridian Life Ins. Co., 859 F.2d 534 (7th Cir. 1988)19 Wilkerson v. Grinnell Corp., 270 F.3d 1314 (11th Cir. 2001)2, 10, 11, passim Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) . 10, 14 Federal Statutes 29 U.S.C. §§ 621 et seq. . . . . . . . . . . . . . . . . . . 1, 2 29 U.S.C. § 626(d)(2). . . . . . . . . . . . . . . . . . 2, 9, 10 29 U.S.C. § 628. . . . . . . . . . . . . . . . . . . . . . . . 11 29 U.S.C. § 633(b) . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . 1, 2 42 U.S.C. § 2000e-5. . . . . . . . . . . . . . . . . . . . . . .7 42 U.S.C. § 2000e-5(a) . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . 2, 9, 10, 21 42 U.S.C. § 2000e-5(e)(1). . . . . . . . . . . . . . . . 2, 9, 21 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . 2, 9 42 U.S.C. § 2000e-12(a). . . . . . . . . . . . . . . . . . . . 11 Federal Regulations 29 C.F.R. § 1601.3(a). . . . . . . . . . . . . . . . . 11, 15, 16 29 C.F.R. § 1601.6(a). . . . . . . . . . . . . . . . . . . . . 12 29 C.F.R. § 1601.9 . . . . . . . . . . . . . . . . . . . . . . 11 29 C.F.R. § 1601.11 (1966) . . . . . . . . . . . . . . . . . . 13 29 C.F.R. § 1601.12(a). . . . . . . . . . . . . . . . . . . . 18 29 C.F.R. § 1601. 12(a)-(b). . . . . . . . . . . . . . . . . . 17 29 C.F.R. § 1601.12(b) . . . . . . . . . . . . 11, 12, 13, passim 29 C.F.R. § 1626.6 . . . . . . . . . . . . . . . . . . 11, 15, 17 29 C.F.R. § 1626.8(b). . . . . . . . . . . . . . . . . . . . . 12 29 C.F.R. § 1626.8(c). . . . . . . . . . . . . . . . . . . 12, 13 Miscellaneous 31 Fed. Reg. 10,269 (1966) . . . . . . . . . . . . . . . . . . 13 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the primary agency charged by Congress with the interpretation, administration, and enforcement of federal fair employment practice laws including Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. Private lawsuits are significant to the federal enforcement scheme. See McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 357-59 (1995) (objectives of ADEA furthered when even a single employee establishes that an employer discriminated against him or her). This appeal raises important issues concerning the charge-filing prerequisite for a private lawsuit to enforce federal employment discrimination protections. Specifically, this case raises the question of whether an aggrieved individual meets the charge-filing requirements of Title VII and the ADEA by submitting a completed Intake Questionnaire to the Commission, within the statutory time limits, that identifies the alleged discriminating employer, describes the alleged discrimination, and contains a signed statement declaring under penalty of perjury that the allegations are true. Under Edelman v. Lynchburg College, 525 U.S. 106 (2002), and the relevant statutory and regulatory provisions, the district court correctly held that plaintiff's Intake Questionnaire constitutes a timely "charge." Because of the importance of this issue to the EEOC's fulfillment of its mission, we offer our views to the Court. STATEMENT OF THE ISSUE AND APPOSITE CASES<1> Whether the district court properly ruled that the Intake Questionnaire that Plaintiff Willie Gordon completed, signed and filed with the Equal Employment Opportunity Commission within 300 days of the alleged discrimination satisfies the 300-day time limit for filing a charge under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. Apposite cases: Edelman v. Lynchburg Coll., 525 U.S. 106 (2002) Holowecki v. Federal Express Corp., 440 F.3d 558 (2d Cir. 2006) Wilkerson v. Grinnell Corp., 270 F.3d 1314 (11th Cir. 2001) Casavantes v. Cal. State Univ., Sacramento, 732 F.2d 1441 (9th Cir. 1984) Apposite statutes: 42 U.S.C. §§ 2000e-5(b), (e)(1) & (f)(1) 29 U.S.C. § 626(d)(2) STATEMENT OF THE CASE A. Proceedings Below Plaintiff Willie Gordon filed suit against Shafer Contracting Company on June 21, 2004, alleging employment discrimination based on race (Black) and age. R.1.<2> On March 22, 2006, the district court granted Shafer's motion for summary judgment. See Gordon v. Shafer Contracting Co., Civ. No. 04-3013, 2006 WL 738031 (D. Minn. March 22, 2006). This appeal followed. B. Statement of Facts Shafer is a construction company specializing in road paving, earthwork and sewer installation. Id. at *1. In addition to a small year-round staff, Shafer employs approximately three hundred seasonal workers who work on road and other construction projects from the spring through October or November, depending on the weather. AeAppx.33-34. Shafer managers meet each January to determine which seasonal workers to invite back for the up-coming construction season. Shafer then holds a non-mandatory pre-season employee meeting in March at which the company reviews general policies such as its anti-harassment policy and procedures. Gordon, 2006 WL 738031, at *1. Willie Gordon is a fifty-two-year-old African American. He is a member of the Laborers Union and worked for Shafer as a seasonal laborer from June 1994 through June 2003. Id. at *1. In January 2003, Shafer managers sent Gordon a letter inviting him back for the 2003 construction season and notifying him of the March pre-season meeting. Shafer and Gordon dispute what happened next. According to Gordon, although he admittedly did not attend Shafer's 2003 pre-season meeting, he continued to be interested in working for Shafer and mailed Shafer a form indicating as much. Shafer, on the other hand, maintains that sometime in early 2003 Gordon's wife told Gordon's union representative that Gordon would not be returning to work at Shafer because they were moving out of Minnesota. Shafer claims the union representative relayed this information to the job supervisor at Shafer. Shafer further maintains that, around the same time, Gordon asked the union representative to transfer his union membership to a local Laborer's Union in Kentucky, and Gordon's union membership was transferred to Kentuc ky. Id. When Gordon did not hear from the job supervisor, Gordon called Shafer inquiring about his job assignment. Shafer told Gordon there were no vacant laborer positions left, but offered Gordon a job as a roller operator, a job that fell within a different union. Id. Gordon worked in the job briefly, but stopped when the business agent for the union that covers roller operators objected on the grounds that Gordon was not a member of that union. Id. at *2. Shafer told Gordon it did not have any other positions for him at that time. Id. On July 29, 2003, Gordon went to the EEOC office and filled out an Intake Questionnaire detailing his claims against Shafer of discrimination based on race and age, and checking off boxes on the form indicating the discrimination was also based on "Color" and "Equal Pay." See Attachment A at page 2. Gordon indicated on the questionnaire that the earliest date of discrimination was in May 2001, that he believed he had been subjected to discriminatory job assignments, jokes and a hostile environment, and that the most recent discrimination occurred in June 2003, when he was laid off. Id. at 2-3. He signed the form under the statement: "I declare (certify, verify or state) under penalty of perjury that the foregoing is true and correct." Id. at 5. The intake questionnaire stated, near the top of the first page, that "[a]n officer of the EEOC will review the information you provide and determine whether or not your allegations warrant a charge being filed." Id. at 1. On the last page, a pre- printed Privacy Act Statement below the signature line stated: Information provided on this form will be used by Commission employees to determine the existence of facts relevant to a decision as to whether the Commission has jurisdiction over potential charges, complaints or allegations of employment discrimination and to provide such pre-charge filing counseling as is appropriate. Id. at 5. The form indicated that if the individual had already filed a charge with a state or local fair employment practices agency it would not be necessary to file again with the EEOC, and stated that if the complaint concerned "something that happened over 300 days ago, stop and ask to speak to an intake officer before proceeding." Id. at 1 (emphasis in original). Gordon stated in an affidavit filed in opposition to summary judgment that he believed completing and signing this Questionnaire and submitting it to the Commission "was what I needed to do to make my complaint of discrimination." R.22 (Gordon Affidavit) at 2 (AaAppx.155). Afterwards, Gordon called the EEOC to ask how his case was coming, but the EEOC investigator did not return many of his calls during the fall of 2003. Id. at 3 (AaAppx.156). In December 2003, EEOC staff prepared a formal charge ("EEOC Form 5") that Gordon signed and returned to the EEOC on December 15, 2003. AeAppx.221. Consistent with the Intake Questionnaire, the EEOC Form 5 described the discrimination as a "continuing action" that began in 2001 and continued until May 25, 2003. Id. Also consistent with the Questionnaire, the formal charge indicated the basis of the discrimination to be "race" and "age," and stated, under the section for "particulars:" III. I believe that I have been discriminated against and harassed because of my race/Black, in violation of [Title VII] and because of my age/50, in violation of the [ADEA] when I was not recalled to work, got paid less than my white co-workers, and by being replaced by a young white male not in the protected age group. Id.<3> Gordon signed the document under the statement: "I declare under penalty of perjury that the above is true and correct," id., a statement virtually identical to the declaration under which he signed the July Intake Questionnaire. On December 18, 2003, the EEOC sent both the Form 5 and a Notice of Charge of Discrimination to Shafer, which Shafer received on December 19, 2003. Id. at 220-21. Gordon sued Shafer in 2004, alleging Shafer refused to assign him work in 2003 based on his race and age in violation of Title VII and the ADEA. R.1. Gordon further alleged that throughout his employment at Shafer he had been subjected to discriminatory terms and conditions of employment based on his age and race and to a hostile work environment based on racial epithets that his supervisor, Gary Heilig, and Heilig's 18-year-old son, Boyd Heilig, regularly used to address him. Id. C. District Court Decision Shafer moved for summary judgment arguing, among other things, that "Gordon's ADEA and Title VII claims are time-barred because he did not file his charge of discrimination with the EEOC within the 300-day deadline under 42 U.S.C. § 2000e-5." See id. at *2 fn.1. The district court rejected this argument. The district court agreed with Gordon that the verified intake questionnaire that he submitted to the EEOC in July 2003 "qualifie[d] as a ‘charge' for limitations purposes." Id. (citing Schlosser v. Westinghouse Elec. Co., Civ. No. 00CV205-DJS, 2001 WL 1746574 (E.D. Mo. Dec. 18, 2001)). Accordingly, the district court addressed Gordon's ADEA and Title VII claims on the merits. SUMMARY OF ARGUMENT The district court correctly concluded that Gordon's Intake Questionnaire constitutes a "charge" for purposes of the charge-filing time limits in Title VII and the ADEA. The Intake Questionnaire meets all of the requirements for a charge under Title VII, the ADEA, and the Commission's regulations, including Title VII's requirement that the charge be signed and "verified" by the charging party. Gordon filed his verified Intake Questionnaire with the Commission in July 2003, less than 300 days from the end of the 2002 construction season. Thus, Gordon's claims that he was subjected, while at Shafer, to a hostile work environment based on his race and to other on-going forms of discrimination based on his race and age are timely. This Court's prior cases holding that an Intake Questionnaire was not a "charge" are factually distinguishable and, in any event, are inconsistent with the Supreme Court's decision in Edelman v. Lynchburg College, 535 U.S. 106 (2002). This Court should, therefore, reject Shafer's argument on appeal that the district court erred on this point. See Shafer's Answer Brief ("Ans. Brf.") at 25-27. ARGUMENT GORDON FILED A TIMELY CHARGE UNDER TITLE VII AND THE ADEA. A. Standard of Appellate Review The district court's decision was rendered during the course of addressing Shafer's motion for summary judgment. This Court reviews summary judgment rulings de novo, viewing the facts in the light most favorable to the non-moving party and applying the same legal standards the district court was required to apply. Lawrence v. Cooper Communities, Inc., 132 F.3d 447, 449-50 (8th Cir. 1998). B. Gordon's July 2003 Intake Questionnaire satisfies the requirements for a "charge" under both Title VII and the ADEA. The verified Intake Questionnaire that Gordon filed with the Commission in July 2003 satisfies the statutory and regulatory requirements for a charge under both Title VII and the ADEA as well as the overall purposes behind these requirements. Before seeking a judicial remedy, a person claiming to be aggrieved under Title VII or the ADEA must file a timely charge with the EEOC alleging employment discrimination. See 42 U.S.C. §§ 2000e-5(e)(1) & (f)(1); 29 U.S.C. § 626(d)(2).<4> The EEOC is required to serve notice of the charge on the respondent within ten days and then "make an investigation thereof." See 42 U.S.C. § 2000e-5(b); see also 29 U.S.C. § 626(d) (EEOC must "promptly notify all persons named in such charge . . . and shall promptly seek to eliminate any alleged unlawful practice . . . ."). Thus, the purpose of the charge is two-fold. It serves to put the EEOC on notice that a respondent may have engaged in conduct that violates Title VII or the ADEA so the EEOC can begin its statutorily-mandated role of investigating the claim and, where appropriate, take steps to remedy the violation. It also alerts respondents that a charge has been made against them so they can gather evidence and take corrective steps to avoid further harm. See EEOC v. Shell Oil Co., 466 U.S. 54, 68 (1984); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982). Neither Title VII nor the ADEA defines the term "charge," but Title VII provides that "[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires." 42 U.S.C. § 2000e-5(b).<5> Thus, "Title VII grants the EEOC broad discretion to determine in what form a charge must come and what information it must contain." Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1318 (11th Cir. 2001). Under the EEOC's regulations, the requirements for a charge are "‘very minimal.'" Id. at 1318 (citing EEOC v. Mississippi Coll., 626 F.2d 477, 483 (5th Cir. 1980)); see also id. at 1321 n.3 (charge requirements under both Title VII and ADEA are similar).<6> A Title VII charge must "be in writing and signed and shall be verified." 29 C.F.R. § 1601.9. The term "verified" means sworn to before a notary public or "supported by an unsworn declaration in writing under penalty of perjury." 29 C.F.R. § 1601.3(a). Beyond that, a charge is sufficient when the Commission receives "a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." 29 C.F.R. § 1601.12(b). An ADEA charge similarly must be "in writing," "name the prospective respondent," and "generally allege the discriminatory act(s)." 29 C.F.R. § 1626.6. The EEOC's regulations further provide that "[an ADEA] charge is sufficient when the Commission receives from the person making the charge either a written statement or information reduced to writing by the Commission that conforms to the requirements of § 1626.6." 29 C.F.R. § 1626.8(b); see also Georgia Power Co. v. EEOC, 412 F.2d 462, 466 (5th Cir. 1969) ("All that is required [of a charge] is that it give sufficient information to enable EEOC to see what the grievance is all about."). Since laypersons may not fully appreciate the scope of the statutes the Commission enforces, it is the Commission's general practice to gather information from a prospective charging party and then "to prepare a formal charge of discrimination for the complainant to review and to verify, once the allegations have been clarified." Edelman, 535 U.S. at 115 n.9; see 29 C.F.R. § 1601.6(a). As a general matter, the EEOC often uses intake questionnaires to receive such information in advance of the filing of a formal charge of discrimination. Wilkerson, 270 F.3d at 1318. Nothing in the statute or the Commission's regulations, however, provides that intake questionnaires may never constitute charges. Id. Furthermore, the Commission's regulations permit charging parties to amend Title VII and ADEA charges to add additional allegations that arise out of the same general complaint and to correct any omissions in form or substance, including the failure to verify the charge initially. 29 C.F.R. § 1601.12(b); 29 C.F.R. § 1626.8(c). Any such amendment relates back to the date the original charge was filed. Id.<7> These straightforward, common-sense requirements for charge-filing are consistent with the overall purposes of Title VII and the ADEA. As the Supreme Court noted in Edelman, Title VII is "‘a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.'" 535 U.S. at 115 (quoting EEOC v. Commercial Office Prods., 486 U.S. 107, 124 (1972)); see also Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761 (1979) (same for ADEA). The purpose of the charge- filing time limit is to encourage claimants "to raise a discrimination claim before it gets stale, for the sake of a reliable result and a speedy end to any illegal practice that proves out." Edelman, 535 U.S. at 113 & n.5 (citing Delaware State Coll. v. Ricks, 449 U.S. 250, 256-57 (1980) ("Limitations periods . . . also protect employers from the burden of defending claims arising from employment decisions that are long past.")). The purpose of verification, on the other hand, is to "protect[] employers 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 & n.6 (citation omitted); see also id. at 115 ("[T]he EEOC looks out for the employer's interest by refusing to call for any response to an otherwise sufficient complaint until the verification has been supplied."); but see Buck v. Hampton Tp. Sch. Dist., – F.3d – , 2006 WL 1790779 (3d Cir. June 30, 2006), at *4-5 (if employer responds on the merits to unverified charge, employer foregoes the protection the verification requirement affords). Because Title VII and the ADEA are both remedial legislation, it is essential that their provisions, including the charge-filing time limits and, for Title VII, verification requirements, be construed liberally rather than technically. See Zipes, 455 U.S. at 397. The Supreme Court applied this principle in Edelman when it upheld the validity of 29 C.F.R. § 1601.12(b), the Commission's "relation-back" regulation that permits an otherwise timely charge-filer "to verify a charge after the time for filing has expired." 535 U.S. at 109. Edelman had faxed a letter to the EEOC, within the charge-filing time limits but without any oath or affirmation, claiming that Lynchburg College's decision to deny him academic tenure constituted employment discrimination based on gender, national origin and religion. Id. Edelman filed a formal, verified charge 313 days after his denial of tenure and then argued that this charge was timely under section 1601.12(b) because the verification in his formal charge related back to his initial letter. Edelman, 535 U.S. at 110. Assuming without deciding that the initial letter was a "charge," the Supreme Court held that the subsequent verification related back under the EEOC's regulation, which the Court endorsed as "an unassailable interpretation of section 706." See Edelman, 535 U.S. at 118-19. The Court reasoned that such an outcome serves the remedial purposes of Title VII because it "ensures that the lay complainant, who may not know enough to verify on filing, will not risk forfeiting his rights inadvertently." Id. at 115. The Court left open the question of whether Edelman's initial letter was actually a charge. See id. at 118-19. On remand, the Fourth Circuit concluded that Edelman's letter met the substantive requirements for a charge under EEOC regulations because it was "a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." See Edelman v. Lynchburg Coll., 300 F.3d 400, 403-04 (4th Cir. 2002). The Fourth Circuit therefore held that Edelman's letter was a valid charge with respect to those allegations that he later verified in his formal charge. Id. at 404-06. Likewise, the Intake Questionnaire that Gordon filed with the Commission in July 2003 is properly considered a "charge" because it meets all of the applicable statutory and regulatory requirements. The Intake Questionnaire was "in writing" as required by Title VII, see 42 U.S.C. § 2000e-5(a), and contained all of the information required under 29 C.F.R. §§ 1601.12(b) and 1626.6 for a charge filed under Title VII or the ADEA – identification of the parties and a general description of the alleged discrimination. In addition, it was signed "under oath or affirmation" as that requirement has been construed in the Commission's regulations. See 29 C.F.R. § 1601.3(a) (term "verified" includes "supported by an unsworn declaration in writing under penalty of perjury").<8> Gordon's Intake Questionnaire also fulfills the legislative purposes behind the requirement that aggrieved individuals file a charge, the charge-filing time limitation and the Title VII requirement of verification. The Intake Questionnaire fulfilled the primary purpose of a charge, which is to put the EEOC on notice of a potential violation. See Shell Oil, 466 U.S. at 68. By submitting the completed Intake Questionnaire to the Commission on July 29, 2003, Gordon initiated the Commission's processes well before his discrimination complaints had become stale, thereby furthering the goals of a reliable result and a speedy end to any discrimination the Commission might find. See Edelman, 535 U.S. at 113 & n.5. The fact that Gordon verified his allegations on the July 29, 2003, intake form as well as on the December 2003 formal charge document protected Shafer fully from the potential disruption and expense of having to respond to a claim where a complainant is not "serious enough and sure enough to support it by oath subject to liability for perjury." Id. at 113 & n.6. Thus, Gordon's Intake Questionnaire meets all of the statutory and regulatory requirements for a charge alleging a violation of Title VII or the ADEA, and no more is needed to affirm the district court's ruling on this point. See Peterson v. City of Wichita, 888 F.2d 1307 (10th Cir. 1989) (untimely verified charge relates back to earlier unverified, but timely, Title VII charge); Casavantes v. Cal. State Univ., Sacramento, 732 F.2d 1441, 1443 (9th Cir. 1984) (same); cf. Edelman, 300 F.3d at 404-06 (unverified letter sent to EEOC properly treated as ADEA charge because it met minimal requirements of ADEA and EEOC regulations); Rabzak v. County of Berks, 815 F.2d 17, 18-20 (3d Cir. 1987) (same). Additional support for the district court's conclusion comes, however, from the fact that the attendant circumstances suggest Gordon intended to activate the Commission's administrative processes when he filed the Intake Questionnaire in July 2003. First, the intake form itself suggests it would qualify as a charge. The form that Gordon filled out in July 2003 requests all of the basic information that a charge is required to contain under 29 C.F.R. §§ 1601.12(a)-(b) and 1626.6, and Gordon supplied all of this information on the form. In addition, the form's first page directs the complainant to speak to an EEOC intake officer if the allegations involve something that happened "over 300 days ago," AaAppx.157a, suggesting that anything mentioned in the form that happened less than 300 days ago would be timely, regardless of whether a formal charge was prepared and signed within the 300-day time frame. Furthermore, the form's signature line appears under the sentence: "I declare (certify, verify or state) under penalty of perjury that the foregoing is true and correct." AaAppx.157c. Such a declaration indicates to the signatory that it is important to ensure the information is accurate "because it is legally significant." Wilkerson, 270 F.3d at 1320-21. A person in Gordon's situation certainly could reasonably believe that the intake questionnaire satisfied the EEOC's charge-filing requirements. See id. Moreover, Gordon has attested that when he filled out the Intake Questionnaire in July 2003, he believed he had done what he needed to do to make a complaint of discrimination, and he thereafter called the EEOC several times to ask how his case was progressing. AaAppx.155-56. The nature and content of the form Gordon signed in July 2003, along with Gordon's affidavit attesting that he believed he had done all that was needed to make a complaint of discrimination, demonstrate that Gordon intended to activate the EEOC's administrative process and further support the district court's determination that Gordon's Intake Questionnaire is properly considered a "charge" under Title VII and the ADEA. See Wilkerson, 270 F.3d at 1321 (verified intake questionnaire that includes the basic information suggested by 29 C.F.R. § 1601.12(a) is properly considered a charge, for purposes of the statutory charge- filing time limits, "when the circumstances . . . would convince a reasonable person that the charging party manifested [his] intent to activate the administrative process by filing the intake questionnaire with the EEOC"); see also Holowecki v. Federal Express Corp., 440 F.3d 558, 567-69 (2d Cir. 2006) (intake questionnaire considered ADEA charge because circumstances indicated plaintiff intended to activate EEOC's administrative process); Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 542 (7th Cir. 1988) (same). Shafer incorrectly argues, in its Answer brief, that Gordon's July 2003 Intake Questionnaire does not satisfy the statutory charge-filing requirements because the form, itself, "makes it clear that filing it is not tantamount to filing a charge." Shafer Ans. Brf. at 26. Specifically, Shafer points to the statement on the first page of the pre-printed form indicating that "[a]n officer of the EEOC will review the information you provide and determine whether or not your allegations warrant a charge being filed." See id. Such boilerplate language should not be dispositive of whether Gordon intended to activate the Commission's administrative processes, especially since there is no evidence the Commission gave Gordon a choice of forms to fill out when he came to the agency to file a charge. In any event, the language cited by Shafer, and a similar statement on the last page of the form, see discussion at p.5, supra, simply reflect the Commission's efforts to provide a more efficient administrative process, by limiting the allegations to which respondents such as Shafer are required to respond to those the Commission has determined actually reflect a charging party's claims and fall within the EEOC's jurisdiction. In the July 2003 intake questionnaire, for example, Gordon alleged discrimination based on race, color, age, and equal pay. In the December 2003 Form 5 charge prepared by the Commission and served on Shafer, on the other hand, Gordon's claims are limited to discrimination based on race and age. See AeAppx.220-21. The "relation-back" rule upheld in Edelman allowed the Commission an opportunity to review Gordon's initial claims and apply the Commission's expertise to develop a formal charge that reflects the facts Gordon alleged, without risk that Gordon's claims would become untimely in the process. Gordon's verified Intake Questionnaire satisfied the 300-day charge-filing time limit, but Shafer was spared the burden of having to respond to allegations of discrimination based on "color" and violations of the Equal Pay Act that were not actually supported by the facts Gordon alleged. Thus, the fact that the Commission did not serve the Intake Questionnaire on Shafer for response does not suggest that the questionnaire should not be considered a charge. See Shell Oil, 466 U.S. at 66 n.16; Holowecki, 440 F.3d at 567-68 (intake questionnaire properly treated as ADEA charge irrespective of whether EEOC notified employer); Edelman, 300 F.3d at 404-06; Wilkerson 270 F.3d at 1321 (and cases cited therein); Downes v. Volkswagen, 41 F.3d 1132, 1138-39 (7th Cir. 1994) (inaction by EEOC should not, for time limit purposes, bar ADEA suit). Rather, it reflects the Commission's effort to guard against frivolous charges and to reduce the burden on respondents, such as Shafer, by refining Gordon's allegations through a Commission- generated document (the Form 5 charge) that would relate back to, and amend, Gordon's original charge. Such well-intentioned efforts should not work to the detriment of charging parties who invoke the Commission's administrative processes. This Court has not yet addressed the specific question of whether a verified Intake Questionnaire can satisfy the charge-filing requirements of Title VII and the ADEA.<9> In a number of prior cases, however, this Court has held that a pre-charge questionnaire that was not "verified" when it was filed did not qualify as a charge and could not later be verified under the EEOC's "relation-back" regulation. In Lawrence, for instance, this Court held that the plaintiff's "charge information form" ("CIF") was not a charge under 42 U.S.C. §§ 2000e-5(b) & (e)(1) because the CIF (apparently an earlier and different iteration of the intake questionnaire that Gordon filled out and signed) "was not verified, or in other words, was not signed . . . under penalty of perjury." 132 F.3d at 449 (emphasis added). Similarly, in Shempert v. Harwick Chem. Corp., 151 F.3d 793 (8th Cir. 1998), this Court ruled that a verified charge filed after the charge-filing deadline did not relate back to convert the plaintiff's intake questionnaire into a timely charge. See id. at 796-98. Again, however, the Intake Questionnaire that Shempert had filed with the Commission was not signed under oath or affirmation. See id. at 794. As this Court explained: The case law in the Eighth Circuit is well settled on this issue. Intake Questionnaires which are neither signed under oath nor verified do not satisfy the statutory requirement for an administrative charge. Id. at 796. See also Diez v. Minn. Mining & Mfg. Co., 88 F.3d 672, 676-77 (8th Cir. 1996) (rejecting argument that formal charge filed outside ADEA's charge-filing time limit relates back to earlier-filed intake questionnaire, because Diez presented no evidence that questionnaire was intended to function as a charge in his case). This Court recognized in these cases that the EEOC's regulations permit a charging party to amend a charge to cure technical defects, including failure to verify the original document, by allowing a subsequent amendment to relate back to the date the charge was first received. See Lawrence, 132 F.3d at 450 (citing 29 C.F.R. § 1601.12(b)); Shempert, 151 F.3d at 796 & n.6 (same); Diez, 88 F.3d at 677. This Court nevertheless rejected the argument that the formal charges eventually filed in Lawrence and Shempert cured the intake questionnaires' lack of verification. This Court appeared to reason that the intake questionnaires in Lawrence and Shempert were not "charges" because they were not verified when they were filed and, therefore, the subsequent verification of the same allegations in a formal charge could not relate back to the date the intake questionnaires were first filed because the questionnaires were not "charges" to begin with. See, e.g., Lawrence, 132 F.3d at 450; Shempert, 151 F.3d at 796-97. This reasoning has now been effectively overruled by Edelman, which held that the subsequent verification of an unverified charge relates back, for statutory timeliness purposes, to the time the unverified charge was initially filed. See Sifferman v. Bd. of Regents, SE Mo. State Univ., 350 F. Supp. 2d 1139, 1143 (E.D. Mo. 2003); cf. Gross v. Missouri Mounting, Civ. No. 04CV241 HEA, 2005 WL 3560592 (E.D. Mo. December 29, 2005) (finding Intake Questionnaire satisfies ADEA charge-filing requirements following Supreme Court's decision in Edelman) (attached). Lawrence and Shempert are, in any event, factually distinguishable from this case because Gordon signed his Intake Questionnaire declaring under penalty of perjury that the allegations are true, and attested that it was his belief that at that point he had done everything necessary to file a discrimination complaint against Shafer. The district court's ruling on this issue is, therefore, consistent with this Court's reasoning in these prior cases as well as with the Supreme Court's decision in Edelman. Accordingly, we urge this Court to recognize, as a number of other circuits have recognized including, most recently, the Second Circuit in Holowecki and the Eleventh Circuit in Wilkerson, that an Intake Questionnaire containing a declaration that the allegations are true and signed under penalty of perjury satisfies the statutory charge-filing requirements of both Title VII and the ADEA. CONCLUSION For all of the foregoing reasons, the Commission respectfully urges this Court to affirm the district court's ruling that under both Title VII and the ADEA, Gordon's Intake Questionnaire qualifies as a "charge" for purposes of the charge-filing time limits of both statutes. Respectfully submitted, JAMES L. LEE Deputy General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel DATED: July 24, 2006 SUSAN R. OXFORD, Attorney U.S. Equal Employment Opportunity Comm. 1801 L Street, N.W. Washington, D.C. 20507 Tel. (202) 663-4791 Fax (202) 663-7090 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 5,786 words. See Fed. R. App. P. 32(a)(7)(B)(i). The brief was prepared using the WordPerfect 9 word processing system, in 14-point proportionally-spaced Times New Roman type for text and 14-point Times New Roman type for footnotes. See Fed. R. App. P. 32(a)(5). The accompanying diskette has been scanned for viruses and is virus-free. July 24, 2006 Susan R. Oxford A T T A C H M E N T S CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on July 24, 2006, I caused ten copies of the EEOC's brief as amicus curiae and one diskette containing an electronic version of the brief in pdf format to be sent by Federal Express, postage prepaid, to the Clerk of the Court for the U.S. Court of Appeals for the Eighth Circuit, and two copies of the brief and one diskette to be sent to counsel of record by the same means on the same date to the following addresses: Stephen C. Fiebiger, Esq. Stephen C. Fiebiger & Associates, Chtd. 2500 West County Road 42, Suite 190 Burnsville, MN 55337 Dominic J. Cecere, Esq. LEONARD, STREET AND DEINARD, P.A. 150 south Fifth Street, Suite 2300 Minneapolis, MN 55402 July 24, 2006 Susan R. Oxford, Attorney EEOC / Office of General Counsel 1801 L Street, N.W., Room 7010 Washington, D.C. 20507 Tel. (202) 663-4791 Fax. (202) 663-7090 *********************************************************************** <> <1> The Commission takes no position on any other issue in this case. <2> “R.#” refers to the district court’s docket number. “AaAppx.” refers to Appellant Gordon’s Appendix and “AeAppx.” refers to Appellee Shafer’s Appendix. <3> The EEOC Form 5 omitted the bases of “color” and “equal pay,” which Gordon had checked off on page two of his Intake Questionnaire in addition to “race” and “age (over 40).” See Attachment A, page 2 (2a). <4> There is no dispute that the applicable time limit here is 300 days. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2). <5> The ADEA does not define “charge” or specify what must be in a charge. See Holowecki v. Federal Express Corp., 440 F.3d 558, 566 (2d Cir. 2006). This Court has concluded, however, that 29 U.S.C. § 633(b) “implies that [ADEA] charges in general shall be subject only to the minimal requirements that they be written and signed statements of the relevant facts.” Diez v. Minn. Mining & Mfg. Co., 88 F.3d 672, 675-76 (8th Cir. 1996). <6> The Commission has express authority under Title VII to issue “suitable procedural regulations to carry out the provisions of [Title VII].” See 42 U.S.C. § 2000e-12(a). The Commission has express authority under the ADEA to “issue such rules and regulations as it may consider necessary or appropriate.” 29 U.S.C. § 628. The regulations discussed in this brief are entitled to deference because they were promulgated by the Commission pursuant to this express statutory authority and are a reasonable construction that is consistent with congressional intent. See EEOC v. Commercial Office Prods., 486 U.S. 107, 115 (1988); Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430, 1441 (8th Cir. 1993) (if interpretation proposed by agency is reasonable, reviewing court cannot replace agency's judgment with its own). <7> The regulations provide: “A [Title VII] charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and 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.” 29 C.F.R. § 1601.12(b); see also 29 C.F.R. § 1626.8(c) (same for ADEA charge). This provision was initially promulgated in 1966, shortly after Title VII became law. See 29 C.F.R. § 1601.11 (1966); 31 Fed. Reg. 10,269 (1966). The substance of the provision has remained essentially unchanged since that time. <8> Given the deference due 29 C.F.R. § 1601.3(a), see p.11 n.6 supra, the fact that Gordon signed his Intake Questionnaire under the statement that he declared “under penalty of perjury” that the allegations were “true and correct” satisfies the statutory requirement that Title VII charges be “under oath or affirmation.” Thus, there is no merit to Shafer’s argument, see Shafer Ans. Brf. at 26, that Gordon failed to comply with the EEOC’s verification requirement because he did not have the intake questionnaire notarized, a step that neither the statute nor EEOC’s regulations require. <9> The plaintiff in Rowe v. Hussmann Corp., 381 F.3d 775 (8th Cir. 2004), had argued that her submission of verified answers to the EEOC’s intake questionnaire constituted the filing of a timely charge under Title VII, but this Court did not reach the issue because its resolution was immaterial to that case. See id. at 779 n.3.