No. 10-4742 _________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________________________ STEPHEN JAMES, Plaintiff/Appellant, v. SUTLIFF SATURN, INC., Defendant/Appellee. _________________________________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF/APPELLANT AND IN FAVOR OF REVERSAL _________________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ELIZABETH E. THERAN Attorney New York State Bar No. 4020079 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . . . 2 B. District Court's Decision. . . . . . . . . . . . . . . . . . . . . 10 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 I. THE PLAINTIFF SHOULD BE ALLOWED TO PURSUE HIS DISABILITY CLAIM IN FEDERAL COURT BECAUSE HE TOOK ALL REASONABLE STEPS TO AMEND HIS ORIGINAL CHARGE OF DISCRIMINATION, THE PHRC UNILATERALLY FAILED TO PROCESS THAT AMENDMENT, AND EQUITABLE GROUNDS EXIST TO WAIVE THE VERIFICATION REQUIREMENT, AS THIS COURT HAS RECOGNIZED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. The Plaintiff Took All Reasonable Steps to Amend His Original Charge in Compliance with the Statute and Regulations and as Instructed By the PHRC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 B. The District Court Erred in Holding that There Were No Equitable Grounds for Waiving the Verification Requirement in this Case and that this Court's Decision in Hicks v. ABT Associates Is Inapposite. . . . . . 16 II. THE DISTRICT COURT ERRED IN REQUIRING THE PLAINTIFF TO ESTABLISH THE ELEMENTS OF HIS CLAIM BY A "PREPONDERANCE OF THE EVIDENCE" IN ORDER TO SURVIVE SUMMARY JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF BAR MEMBERSHIP. . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF IDENTICALLY FILED BRIEFS. . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF VIRUS CHECK. . . . . . . . . . . . . . . . . . . . . . . . 26 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996). . . . . . 22 Anderson v. Liberty Lobby, 477 U.S. 242 (1986). . . . . . . . . . . . . . . 22 Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256 (3d Cir. 2006). . .11, 15, 16, 17 Edelman v. Lynchburg Coll., 535 U.S. 106 (2002). . . . . . . . . . . . . . . 15 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994). . . . . . . . . . . . . . . 23 Hicks v. ABT Assocs., Inc., 572 F.2d 960 (3d Cir. 1978). . . . . . . . . passim Marino v. Indus. Crating Co., 358 F.3d 241 (3d Cir. 2004). . . . . . . . . 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). . . 22 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . 22, 23 Robinson v. Dalton, 107 F.3d 1018 (3d Cir. 1997). . . . . . . . . . . . . . . 20 Sarullo v. U.S. Postal Serv., 352 F.3d 789 (2003). . . . . . . . . . . . . . .22 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . . . 21 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982). . . . . . . . . 17 STATUTES & REGULATIONS Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. . . . . 1 42 U.S.C. §2000e-5(b). . . . . . . . . . . . . . . . . . . . . 10, 11, 17, 18 42 U.S.C. § 12117. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10 42 U.S.C. § 12206. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 C.F.R. § 1601.3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 11 29 C.F.R. § 1601.9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 29 C.F.R. § 1601.12(b). . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 18 Pa. Cons. Stat. § 4904. . . . . . . . . . . . . . . . . . . . . . . . . . .14 16 Pa. Code § 42.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 RULES & OTHER AUTHORITIES Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. App. P. 29(d). . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Fed. R. App. P. 32(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Fed. R. App. P. 32(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Fed. R. App. P. 32(a)(7)(B)(iii). . . . . . . . . . . . . . . . . . . . . 25 Pa. Human Res. Comm'n, Form IN-17: Non-Job Related Disability Questionnaire, available at http://www.portal.state.pa.us/portal/server.pt/community/file_a_complaint/1 8976/employment_discrimination_complaint_forms/726963 (last visited May 25, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14 STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission is the agency established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as well as Title I of the Americans with Disabilities Act of 1990 ("ADA"), which prohibits employment discrimination based on disability. See 42 U.S.C. §§ 12117, 12206. This appeal presents an important issue concerning the effect of a processing failure at the administrative agency handling a claim of discrimination on an individual's right to file suit on that claim in federal court. It also presents a significant legal issue regarding the appropriate application of the summary judgment standard in employment discrimination cases. In this case, the district court held that, notwithstanding multiple errors on the part of the agency that processed the plaintiff's amended charge of discrimination, the plaintiff could not pursue allegations raised in his charge, as amended, in federal court because the attempted amendment was never verified. The district court also mistakenly required the plaintiff to meet the standard of proof for cases at trial in order to survive summary judgment. Because resolution of these issues will affect the EEOC's enforcement of Title VII as well as other federal antidiscrimination statutes, the Commission offers its views to the Court pursuant to Fed. R. App. P. 29(a). STATEMENT OF ISSUES<1> 1. Whether the district court erred in holding that a plaintiff who has taken all reasonable steps to amend a charge of discrimination, but whose charge was not amended (or not amended properly) due solely to a failure on the part of the processing agency, cannot pursue the amended claim in federal court. 2. Whether the district court erred in granting summary judgment to the defendant on the grounds that the plaintiff failed to adduce sufficient evidence to establish his claims by the "preponderance of the evidence." STATEMENT OF THE CASE A. Statement of the Facts The plaintiff, Steven Corey James, worked as an appearance technician for the defendant, Sutliff Saturn, Inc., at two different Pennsylvania locations between 1999 and 2006. A-248a (James dep. 26-28).<2> From September 1999 through June 2004, James worked at the Carlisle Pike location in Mechanicsburg, PA; after mid- June 2004, he was transferred to the Harrisburg location. A-248a (James dep. 28), 117a (disciplinary report). James testified that his job was to "go up to the store," "get cars that are scheduled to be delivered to customers," "wash them," "clean them and [] prepare them for delivery," and " fill them with gas and take them back up and put them in the showroom for the customer." A-248a (James dep. 28); see also A-131a (Sutliff dep. 24) ("[T]he guys that I call detailers, Jim Sulzer and Corey . . . do more detail, you know, shampooing of carpets, buffing paint, wax, getting a car ready enough to be delivered to the purchaser, significantly more work."). James has a condition called derangement of the lateral meniscus, as well as degenerative joint disease, in his right knee. According to his medical records, his knee problems began in approximately 1990; between then and 2006, he underwent multiple surgeries to address his symptoms, which included locking, catching, and tearing sensations in his knee when he walked or squatted. R.28-2 (records of Dr. William J. Polacheck) at 58-66. James testified that his knee disorder was expected to be "lifelong," without any expectation that it could be fixed permanently, and that he might require further knee surgeries in the future, including a full knee replacement as "a last resort." A-267a (James dep. 99-100). From November 7, 2005, through March 7, 2006, James took a medical leave of absence from work to undergo surgery on his knee. A-257a (James dep. 64). At the time James went out on leave, he was the only full-time appearance technician working at the Harrisburg facility. A-131a (Sutliff dep. 24), 143a (Smith aff. ¶ 2). After James left, a hydro technician, Luke McKenzie, was promoted to fill James's position, which McKenzie did until he resigned his employment on February 3, 2006. A-143a (Smith aff. ¶ 3). Another hydro technician, James Sulzer (Caucasian), was then promoted into the vacant position, which he held as of James's return on March 7. A-143a-44a (Smith aff. ¶¶ 5-6), A-130a-31a (Sutliff dep. 23-24). James testified that, in early March, 2006, a few days before he was scheduled to return from his medical leave of absence, he was in the Sutliff Saturn showroom with a family friend who was purchasing a vehicle, and, while working with the salesman, James "commented on the condition of cars that were in the showroom, the lack of attention to detail that was placed on them." A-250a (James dep. 34). James testified that John Saum, the general sales manager and director of operations at Sutliff Saturn, happened to be present in the showroom at the time, and that he spoke with Saum and "just basically pointed out problems, areas that were on the vehicles that were in the showroom. I mean, it was nothing inappropriate." Id. (James dep. 36). According to James, however, Saum "jumped on" him and reprimanded him for commenting on the other detailer's work, telling him that "that was the best that the gentleman that was there doing the cars in my absence could do; and it was inappropriate on my behalf to comment on his . . . work." Id. James testified that Saum terminated him on the day he returned to work, on March 7, 2006. A-254a (James dep. 51), A-133a (Sutliff aff. ¶ 3). Saum, John Sutliff, the co-owner/president of the company (R.28-2 at 5 (Sutliff dep. 8)), and David Smith, vice president of sales and marketing (R.28-2 at 25 (Smith dep. 7)), all testified that they decided jointly to terminate James at a meeting on March 7, 2006. A-149a (Saum dep. 17), 133a (Sutliff aff. ¶ 3), 144a (Smith aff. ¶ 10). According to their testimony, at the time James returned to work, there was not enough appearance technician work at the Harrisburg facility to require two appearance technicians, and Sulzer was performing well in the position. A-133a (Sutliff aff. ¶ 4), 144a (Smith aff. ¶ 11), 152a-53a (Saum dep. 27-28). Smith testified that there was not an available appearance technician position anywhere else at Sutliff Saturn at the time. A-144a (Smith aff. ¶ 12). Sutliff also testified that, while he had found James's overall performance to be "satisfactory," he "would not classify Corey's performance before he left as good," and that he had "put up with Corey's less than stellar performance" "[b]ecause he's a hell of a nice guy and I respected him for his military career" until "business conditions changed." A-154a-55a (Sutliff dep. 29-30). On March 13, 2006, James, who was proceeding pro se at the time, filed an administrative charge alleging race discrimination with the Pennsylvania Human Rights Commission, which was dual-filed with the EEOC pursuant to its worksharing agreement with the PHRC. A-285a-88a (R.28 at 48-51). In his charge, James alleged that Sutliff Saturn discharged him on the basis of his race, pointing to a Caucasian comparator who returned from medical leave and was not discharged, and observing both that he was replaced by a Caucasian and that he had information that the company was now seeking to fill his position. A-287a (R.28 at 50). This charge was signed and verified by James, with the March 13 date, and was assigned a case number and processed accordingly by the PHRC. Sometime after filing his initial charge, James obtained representation of counsel. Counsel then sought to amend James's charge to add a charge of disability discrimination. On September 2, 2006, James's attorney wrote a letter to Randall R. Smedley, Human Relations Representative at the PHRC, in which she stated, in relevant part: I would like to have an amendment filed to Mr. James' current complaint to include an additional count, Count II, Perceived Disability, Disability Discrimination. See Attached Sheet. We wish to retain the entirety of Mr. James' current complaint, including Paragraphs 1 through 19. When I did this before for one of my other cases, the Human Relations Representative prepared the Amended Complaint. Please let me know if you wish to prepare this by telephoning me at the number above. A-40a (R.1, Exh. B). The disability claim was detailed separately on the attached sheet referenced in the letter. A-41a. Smedley responded to James's counsel two months later, on November 3, 2006. A-43a (R.1, Exh. C). He informed her that "The Count 2 questions marked with an "X" on the enclosed Intake Question Summary need your answers in order for the count to be added. The Count 2 questions already answered may be edited. This information may be received in any format provided the numbering corresponds to the enclosed question numbering." Id. The "Intake Question Summary" that Smedley enclosed with his letter was not an official PHRC form, but a two-page printout of a computer screen from CMS, the PHRC's internal case management system, pertaining to James's charge. A-46a-47a (R.1, Exh. D). Because it was not a form, the CMS printout had no space on it for a signature and no verification language. Nonetheless, James's counsel responded to the marked questions directly on the printout, and had James sign and date it at the bottom of each page on December 8, 2006. Id. She then hand-delivered the printout, with a cover letter, to Smedley at the PHRC on December 22, 2006. A-45a (R.1, Exh. D). In her letter, she stated, "[e]nclosed please find answers you requested to the Intake Question Summary. Please process Mr. James' amendment. . . . Should you need any further information from me, please do not hesitate to contact me at the telephone number above." Id. The next communication James's counsel received from any administrative agency regarding this case came when she received a Dismissal and Notice of Rights from the EEOC's Philadelphia office dated March 5, 2009. A-38a (R.1, Exh. A). This was a standard one-page boilerplate form indicating that "the EEOC is closing its file on this charge for the following reason," with an X next to the box for "the EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge." Id. After receiving this notice from the EEOC, counsel contacted the PHRC and was told that James's case had been dismissed back in the fall of 2008. A-31a-32a (Complaint at 11-12). James's counsel then succeeded in obtaining a copy of the PHRC's Letter of Determination dismissing James's charge, which was dated September 16, 2008. A-49a (R.1, Exh. F). The body of the letter stated: The Pennsylvania Human Relations Commission (PHRC) has investigated your complaint of discrimination and found that the evidence is not sufficient to show an unlawful act of discrimination occurred. A copy of the "Findings of the Investigation" is enclosed. You may submit a written response to the findings if you wish. Any response should be sent to me within ten (10) days of your receipt of this letter. It should state the reason why you disagree with the findings and include any additional information that you have to support your position. The case file with the Findings of the Investigation and any rebuttal you provide will be reviewed at the regional office and Central Office. If any reviewer finds that further investigation is required, the case will be returned to the regional office for that purpose. If the reviewers concur with the Findings of the Investigation, the case will be closed as "Insufficient Evidence to Support Probable Cause" and you will be informed by mail. At that time you will be given the opportunity to appeal the Commission's decision if you choose to do so. Id. No "Findings of the Investigation" were attached to the letter James's counsel received from the PHRC. To the present day, neither James nor his counsel (nor defense counsel, for that matter) has ever seen the findings supposedly issued by the PHRC in this case. A-32a (R.1 at 12). Based on the March 5, 2009, mailing date of the EEOC's notice of right to sue, James had ninety days from the date of receipt in which to file suit in federal court. By the time James's counsel learned the details of both dismissals, time was running out, and James's counsel was preparing to go forward with his suit based on what she believed to be his amended charge encompassing both race and disability discrimination claims. At some point in early June, 2009, James's counsel learned for the first time that the respondent had never received notice of any disability charge and that the amendment might not have been processed. She then contacted the PHRC and spoke with William Smithey, Assistant to the Director of Compliance, who informed her that Smedley had retired from the PHRC sometime while James's complaint was being processed and that, in fact, the disability amendment she had filed had never been processed by Smedley or anyone else. A-31a-32a (Complaint at 11-12). James filed suit in federal district court on June 6, 2009, alleging that Sutliff Saturn discriminated against him on the basis of race and disability when it discharged him from his position as an appearance technician. A-16a. Sutliff Saturn moved for summary judgment on all claims in August 2010. A-17a. In relevant part, it argued that James could not advance his disability claim in federal court because he had failed to file the disability charge "under oath or affirmation" as required under the ADA. A-186a-87a (Def.'s SJ br. at 15-16) (citing 42 U.S.C. §§2000e-5(b), 12117(a)). B. District Court's Decision After reviewing the factual background of the case, the district court first analyzed the merits of James's race discrimination claim. The court stated, "[a]fter a thorough review of the record, we conclude that plaintiff has failed to sufficiently show by a preponderance of the evidence that defendant's asserted explanation was a pretext for racial discrimination." A-10a (Memorandum ("Mem.") at 7). Next, the district court turned to James's disability discrimination claim, noting the defendant's argument that it "should be dismissed because plaintiff failed to verify the amendment to his PHRC complaint." A-10a (Mem. at 7). The court began by rejecting James's reliance on the Third Circuit's decision in Hicks v. ABT Associates, Inc., 572 F.2d 960 (3d Cir. 1978), for "the proposition that the PHRC's failure to correctly process his amendment should not be used against him." A-11a (Mem. at 8). The court observed, "[i]n Hicks, the Third Circuit held '[o]nce the charging party has done all that he can reasonably do to amend his charge in accordance with the Commission's regulations' the failure of an administrative agency to accept the amendment, due to its failure to adhere to the statute and regulations, does not penalize the charging party." Id. (quoting Hicks, 572 F.2d at 964-65 (emphasis added by district court)). The court ruled that Hicks did not apply to James's case, however: In Hicks, the charging party filed a broad complaint for "disparate treatment" with the EEOC that the Third Circuit concluded could have encompassed race as well as sex discrimination. See Id. at 967. Therefore, Hicks' EEOC complaint was sufficiently broad that it could encompass both forms of discrimination alleviating his duty to first bring his sex discrimination charge before the EEOC. See Id. In this case, plaintiff did not file such a broad charge. James' complaint before the PHRC and EEOC alleged race discrimination, and only later did he seek to amend to include disability discrimination. . . . Thus, we conclude that Hicks does not apply to the facts of this case. Instead, our inquiry is whether plaintiff's amendment to his charge was required to be filed under oath or affirmation. A-11a (Mem. at 8). The district court then went on to describe the verification requirement as follows: Prior to bringing an ADA claim in the district court, a plaintiff must comply with the procedural requirements set forth in Title VII of the Civil Rights Act of 1964, which mandates [sic] that a plaintiff must first file a charge, "in writing under oath or affirmation," with the EEOC/PHRC. 42 U.S.C. § 2000e-5(b); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). In addition, EEOC regulations require a charge to "be in writing and signed and verified," 29 C.F.R. § 1601.9, and define "verified" as "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 acknowledgements, or supported by an unsworn declaration in writing under penalty of perjury." 29 C.F.R. § 1601.3(a); see also Buck, 452 F.3d at 260. This verification requirement is mandatory and a prerequisite to filing suit in the district court. Buck, 452 F.3d at 261. However, this requirement can be waived by a defendant. . . . In addition, "only in the most unusual cases," equitable considerations may excuse a plaintiff's failure to verify. Id. A-11a-12a (Mem. at 8-9). The court then concluded that "plaintiff failed to verify his amendment before the PHRC, and thus his ADA claim should be dismissed." A-12a (Mem. at 9). The court observed that, although James's initial charge of race discrimination "included a signed verification made under penalty of perjury," he "failed to submit his amended charge under oath or affirmation." Id. The court rejected what it termed James's argument that "his original verification filed under his original charge satisfies the statutory or administrative requirements," holding that "[b]ased on the statutory and regulation language, it follows that any later amendment to the charge adding an additional, separate count that was not covered by the narrow language of the original charge must also be in writing made under oath or affirmation." A-12a-13a (Mem. at 9-10 (citing no authority)). The court found that, "based on the mandatory language of the statute and regulations," James's ADA claim "must be dismissed." A-13a (Mem. at 10). Finally, the court held, "[i]nasmuch as plaintiff does not argue and we do not find equitable grounds for waiving the verification requirement, we will grant defendant summary judgment on this claim." Id. ARGUMENT I. THE PLAINTIFF SHOULD BE ALLOWED TO PURSUE HIS DISABILITY CLAIM IN FEDERAL COURT BECAUSE HE TOOK ALL REASONABLE STEPS TO AMEND HIS ORIGINAL CHARGE OF DISCRIMINATION, THE PHRC UNILATERALLY FAILED TO PROCESS THAT AMENDMENT, AND EQUITABLE GROUNDS EXIST TO WAIVE THE VERIFICATION REQUIREMENT, AS THIS COURT HAS RECOGNIZED. A. The Plaintiff Took All Reasonable Steps to Amend His Original Charge in Compliance with the Statute and Regulations and As Instructed by the PHRC. In this case, it was the PHRC's inexplicable failure to follow its own procedures in processing James's charge amendment that led directly to its failure to amend his charge as he requested and to obtain verification. James began the process as a pro se complainant properly, as the district court noted, by filing a timely, verified charge of discrimination with the PHRC. When James sought to amend his charge to add the disability claim in September 2006, his attorney contacted the PHRC with a detailed description of the amendment, requested that the charge be amended, and inquired of the case manager how next to proceed. At this point, the procedure went off the rails. The PHRC regularly uses an intake form for disability discrimination claims called an IN-17, or "Non-Job Related Disability Questionnaire," available on its web site.<3> The form bears a "last revised" date of August 2005, and the web site instructs complainants to "[c]omplete this form if your complaint involves any type of employment discrimination based on a physical or mental disability. (If any of the discriminatory actions described above were based on a disability, we must have the information included in this form to be able to investigate your claims.)." The IN-17 is twelve pages long plus a continuation page at the end, and on page twelve, above the signature line, the following language appears: I hereby verify that the statements contained in this complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 PA.C.S. Section 4904, relating to unsworn falsification to authorities. Had Smedley sent James's counsel the appropriate intake form for his disability claim and requested that James fill it out and sign it, there would have been no verification issue in this case at all, because the IN-17 itself contains verification language. Instead, with no explanation or justification, Smedley sent counsel the two-page CMS printout from the agency's internal case management software, which was not a form and contained no verification language. Nor did Smedley ever indicate to counsel that James's "answers" to the blanks on the CMS printout would have to be verified. Instead, he simply directed her to answer the marked questions on behalf of her client, which she did. Counsel then had her client sign and date each page, and returned the printout to Smedley along with explicit instructions to amend James's charge accordingly, and to contact her if anything further was needed. It is undisputed that Smedley never did what he was supposed to do-he never processed the amendment to James's charge, verified or not, and neither did anyone else at the PHRC. The PHRC apparently had approximately two years to obtain James's verification, since that was how long it took the agency to process his charge, and it could have been verified at any point during that time prior to Sutliff Saturn's response. See Edelman v. Lynchburg Coll., 535 U.S. 106, 113 (2002) (observing that the object of requiring charge verification "demands an oath only by the time the employer is obligated to respond to the charge, not at the time an employee files it with the EEOC"); see also Buck, 452 F.3d at 263 n.7 (same). Instead, it is apparent that during the course of Smedley's retirement and departure from the agency, James's amendment request never went any further, because the charge was processed and ultimately dismissed by the PHRC only as a race charge. Accordingly, when the EEOC received James's file, it only contained a charge of race discrimination. When the EEOC ultimately dismissed James's charge in March 2009, this was the first notice James's counsel ever received that any action had been taken on the charge, and the dismissal notice bore no reference to any grounds whatsoever. At this point, when counsel first learned that the charge had been processed and dismissed, she contacted the PHRC and attempted to obtain more information, and was given essentially the same information she had been given by the EEOC-that the charge, whatever it was (again, with no description of the charge as processed), had been dismissed. It was only within days of the expiration of her time to file suit in federal court that counsel actually learned that the charge that both agencies had dismissed had in fact never been amended, through no fault of her own or her client's. Thus, contrary to the district court's suggestion, plaintiff's counsel did everything asked of her by the PHRC and in accordance with the PHRC's and the Commission's regulations to amend her client's charge to incorporate his disability claim. The fact that James's disability amendment did not end up being verified or otherwise processed by the PHRC was solely due to multiple procedural lapses at the PHRC and not to any failure by James to comply with the regulations.<4> B. The District Court Erred in Holding that There Were No Equitable Grounds for Waiving the Verification Requirement in this Case and that this Court's Decision in Hicks v. ABT Associates Is Inapposite. As this Court has already held, the verification requirement for Title VII charges is not a jurisdictional prerequisite for suit and is therefore subject to equitable waiver. Buck, 452 F.3d at 262-63 (observing that, "[l]ike the 'provision specifying the time for filing charges with the EEOC,' the provision requiring such charges to be 'in writing under oath or affirmation,' 42 U.S.C. § 2000e-5(b), 'appears as an entirely separate provision, and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.'") (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982) (internal citations omitted)). In Buck, this Court also took note of the fact that, "while not controlling, the EEOC's own regulation describes a plaintiff's failure to verify her charge as a 'technical defect[ ] or omission[ ],' 29 C.F.R. § 1601.12(b)." 452 F.3d at 263. Thus, this Court concluded, "the verification requirement, like the statute's time limit for filing a charge with the EEOC, should be subject to waiver 'when equity so requires.'" Id. (quoting Zipes, 455 U.S. at 398). This Court's decision in Hicks addresses circumstances extremely similar to the instant case and instructs that James should be allowed to pursue his disability claim in federal court. In concluding that Hicks was inapposite to this case, the district court misconstrued Hicks and apparently relied on the wrong part of the opinion. In Hicks, this Court considered two issues, the first being whether "Hicks reasonably attempted to amend his charge to include sex discrimination, but the EEOC improperly refused to accept the amendment." 572 F.2d at 964. The Hicks Court stated, "We believe that such circumstances would create an excuse for the failure to file a sex discrimination charge," id., and went on to observe: Courts have held that the failure of the EEOC to give notice of a charge to the employer involved or its failure to attempt reconciliation, both of which are required by section 706(b) of Title VII, 42 U.S.C. § 2000e-5(b), does not bar a civil suit by the charging party. . . . These decisions are based on the concept that, once the Commission has been given its chance to reconcile the parties informally, the individual's right to bring a civil action becomes an indispensable part of the enforcement scheme of Title VII. This right should not be defeated by the EEOC's failure to comply with its statutory obligations. . . . We believe that the same result should follow if it is shown that the EEOC improperly refused to accept an amendment to a charge. Once the charging party has done all that he can reasonably do to amend his charge in accordance with the Commission's regulations, the statutory policy of providing the EEOC with an opportunity to reconcile the grievance has been fulfilled. The failure of the EEOC to accept the amendment is similar to the agency's failure to give the defendant notice of a charge. Both are the result of the failure of the agency to follow the statute and its own regulations. The individual employee should not be penalized by the improper conduct of the Commission. Id. at 964-65 (internal citations omitted). The Hicks panel then went on to consider a second and distinct issue: whether, assuming Hicks had not attempted to amend his original race charge to include a sex discrimination charge (which was a disputed fact in that case), he could nonetheless sue in federal court on the sex claim based on the scope of the investigation that could reasonably be expected to arise out of the original charge he filed. 572 F.2d at 965-66. Although this Court concluded that there was, in fact, a genuine dispute of material fact on this issue that could have allowed Hicks to file suit on his sex claim, it was this section of the opinion that the district court in this case, erroneously, relied on to conclude that James could not maintain his disability claim here. See A-11a (Mem. at 8) (citing Hicks, 572 F.2d at 967). This part of Hicks is inapposite to James's case because it is undisputed here that James did attempt to amend his race claim in the manner his counsel described and extensively documented. Accordingly, the governing precedent for purposes of this issue is the first holding of Hicks-i.e., that James's rights as a private litigant may not be impaired by the PHRC's improper failure to process his charge amendment-and the district court erred by not applying it to this case. Moreover, although Hicks addresses and dismisses the issue of employer notice as a legal matter (see supra at 18), this case does not create significant equitable concerns about notice to Sutliff Saturn because, as this Court put it in Hicks, the facts of the disability claim "arise from the same acts which support claims for race discrimination." 572 F.2d at 965. James's theory of race discrimination is that he was replaced by a Caucasian and discharged upon his return from medical leave when non-African American employees were not, while his theory of disability discrimination is that his employer used his disability against him in making that same decision to discharge him. In other words, he alleges that his discharge when he attempted to return from medical leave could have been because of his race or because of his disability. Either way, it was the same employment action involving all of the same individuals and all the same decisionmakers. Ultimately, an affirmance of the district court's ruling in this case would, as this Court put it in Hicks, unfairly "penalize a plaintiff for the possible misconduct of" the PHRC, 572 F.2d at 966, and would serve no legal or policy purpose. The plaintiff did everything he could reasonably do to comply with the statutory and regulatory requirements to amend his charge, and the PHRC failed to process that amendment or obtain a verified signature solely due to its own errors. See also Robinson v. Dalton, 107 F.3d 1018, 1023 (3d Cir. 1997) (contrasting plaintiff's reliance on a single phone conversation with an EEO counselor with the facts of other cases where the EEOC had failed to follow its own rules, and observing that in one such case "the EEOC appeared as amicus curiae arguing that filling out an intake questionnaire should be enough to satisfy the filing requirement, thereby further justifying equitable estoppel"). Especially where no real prejudice would inhere to the defendant, denying James access to the federal courts would serve only to undermine enforcement of the fair employment statutes.<5> II. THE DISTRICT COURT ERRED IN REQUIRING THE PLAINTIFF TO ESTABLISH THE ELEMENTS OF HIS CLAIM BY A "PREPONDERANCE OF THE EVIDENCE" IN ORDER TO SURVIVE SUMMARY JUDGMENT. In addition to the charge filing issue, we note that the district court applied the wrong legal standard when it granted summary judgment to the defendant in this case. The district court stated that, "[a]fter a thorough review of the record, we conclude that plaintiff has failed to sufficiently show by a preponderance of the evidence that defendant's asserted explanation was a pretext for racial discrimination." A-10a (Mem. at 7). Certainly, in order to prevail at trial (whether before a jury or at a bench trial), James would be required to demonstrate, by a preponderance of the evidence, that discrimination was more likely than not the real cause for his termination. See, e.g., Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) ("First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.' Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973) (internal citations omitted)); Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (same). However, as this Court has observed on multiple occasions, in order to survive summary judgment the plaintiff is not required to prove his case by a "preponderance of the evidence"; in fact, the district court is not permitted to weigh the evidence or make credibility determinations and is required to view all facts in the light most favorable to the nonmoving party. See, e.g., Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) ("In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'") (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1077 n.1 (3d Cir. 1996) (stating that, on summary judgment, this Court "resolve[s] all factual doubts and draw[s] all reasonable inferences in favor of . . . the nonmoving part[y]") (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In the McDonnell Douglas context, then, the relevant question for summary judgment purposes is whether any reasonable jury could find that the defendant's asserted explanation was pretextual, not whether the plaintiff has already, at the summary judgment stage, satisfied the "preponderance of the evidence" test. This Court addressed this issue at length in Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994): This basic framework under Title VII illustrates that, to defeat summary judgment when the defendant answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. . . . * * * Next, we consider what quantum of evidence is required. . . . [T]o avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non- discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext). . . . If the defendant proffers a bagful of legitimate reasons, and the plaintiff manages to cast substantial doubt on a fair number of them, the plaintiff may not need to discredit the remainder. Id. at 764 & n.7 (internal citations omitted). Accordingly, the district court erred in granting summary judgment to the defendant insofar as it did so based on the plaintiff's purported failure to prove his case by the "preponderance of the evidence." CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel s/Elizabeth E. Theran ELIZABETH E. THERAN Attorney New York State Bar No. 4020079 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St., N.E., 5th Floor Washington, D.C. 20507-0001 (202) 663-4720 elizabeth.theran@eeoc.gov CERTIFICATE OF BAR MEMBERSHIP Pursuant to 3d Cir. L.A.R. 28.3(d), I certify that, as an attorney representing an agency of the United States, I am not required to be admitted to the bar of this Court. I also certify that all other attorneys whose names appear on this brief likewise represent an agency of the United States and are also not required to be admitted to the bar of this Court. See 3d Cir. L.A.R. 28.3, comm. cmt. May 27, 2011 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Amicus Curiae EEOC CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 5,865 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and 3d Cir. L.A.R. 29.1(b). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. May 27, 2011 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Amicus Curiae EEOC CERTIFICATE OF IDENTICALLY FILED BRIEFS Pursuant to 3d Cir. L.A.R. 31.1(c), Counsel for Amicus Curiae EEOC certifies that the text of the electronically filed version of this brief is identical to the text of the hard copies of the brief filed with the Court. May 27, 2011 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Amicus Curiae EEOC CERTIFICATE OF VIRUS CHECK Pursuant to 3d Cir. L.A.R. 31.1(c), Counsel for Amicus Curiae EEOC certifies that a virus check using Trend Micro OfficeScan version 10.0 was performed on the electronic version of this brief on May 27, 2011, prior to electronic filing with the Court, and that no virus was detected. May 27, 2011 s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Amicus Curiae EEOC CERTIFICATE OF SERVICE I, Elizabeth E. Theran, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system and filed one original and nine hard copies of the foregoing brief with the Court by next business day delivery, postage pre-paid, this 27th day of May, 2011. I also certify that the following counsel of record, who have consented to electronic service, will be served the foregoing brief via the appellate CM/ECF system: Counsel for Plaintiff/Appellant: Lisa Jo Fanelli-Greer, Esq. 2806 Sunset Court P.O. Box C Grantham, PA 17027 (717) 790-0744 lisajogreer@aol.com Counsel for Defendant/Appellee: Richard L. Etter, Esq. McNees, Wallace & Nurick 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 237-5367 retter@mwn.com s/Elizabeth E. Theran Elizabeth E. Theran Counsel for Amicus Curiae EEOC ********************************************************************************** <> <1> We take no position with respect to any other issue presented in this appeal. <2> "A-[#]" refers to material in the Appendix, cited by page number. "R.[#]" refers to the district court docket entry. <3> Available at http://www.portal.state.pa.us/portal/server.pt/community/file_a_complaint/18976/e mployment_discrimination_complaint_forms/726963 (last visited May 25, 2011) ("PHRC web site"). <4> It is also worth noting that neither the EEOC nor the state regulations explicitly state that amendments to a verified charge must themselves be verified independently. See 29 C.F.R. § 1601.12(b) (2010); 16 Pa. Code § 42.35 (2008). This at least raises a question as to whether counsel would or should have been aware, in the absence of further direction from the PHRC, that the amendment itself had to be verified separately in the wake of a verified principal charge. <5> We also note that the district court erred when it stated that "plaintiff does not argue . . . equitable grounds for waiving the verification requirement." A-13a (Mem. at 10). James argued extensively to the district court that Hicks should govern his ability to proceed with his disability discrimination claim in this case based on its holding that "[t]he individual employee should not be penalized by the improper conduct of the Commission." A-228a-31a (Pl.'s br. in opp. to SJ at 17- 20). Although the panel in Hicks did not use the term "equitable waiver" to describe the doctrine it applied in that case, Hicks was an equitable waiver case, holding that the charge-filing requirement should be waived when the agency fails to process a charge amendment despite the charging party's best efforts to file it. 572 F.2d at 965. James used the same language in his brief that this Court used in Hicks to frame his equitable argument.