Byron Scruggs v. University Health Services, Inc 01-10935 No. 01-10935 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________________ BYRON SCRUGGS, Plaintiff-Appellant, v. UNIVERSITY HEALTH SERVICES, INC. d/b/a/ UNIVERSITY HOSPITAL, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Southern District of Georgia _______________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _______________________________________________________ GWENDOLYN YOUNG REAMS EQUAL EMPLOYMENT OPPORTUNITY Associate General Counsel COMMISSION Office of General Counsel PHILIP B. SKLOVER 1801 L Street, N.W., Room 7030 Associate General Counsel Washington, D.C. 20507 (202) 663-4724 CAROLYN L. WHEELER Assistant General Counsel ANNE NOEL OCCHIALINO Attorney CERTIFICATE OF INTERESTED PERSONS Byron Scruggs v. Univ. of Health Services, Inc. d/b/a Univ. Hospital No. 01-10935 Counsel hereby certifies that the following persons or entities have an interest in the outcome of this case: John P. Batson, Attorney for Plaintiff-Appellant. Constance R. Boken, Attorney for Defendant-Appellee. The Honorable Dudley H. Bowen, Jr., District Court Judge. Equal Employment Opportunity Commission, Amicus Curiae. Anne Noel Occhialino, Attorney for Amicus Curiae, EEOC. Gwendolyn Young Reams, Associate General Counsel, EEOC. Byron Scruggs, Plaintiff-Appellant. R. Perry Sentell, III, Attorney for Defendant-Appellee. Philip B. Sklover, Associate General Counsel, EEOC. University Health Services, Inc. d/b/a/ University Hospital, Defendant-Appellee. Carolyn L. Wheeler, Assistant General Counsel, EEOC. _____________________________ Anne Noel Occhialino C1 of 1 TABLE OF CONTENTS PAGE CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . C1 of 1 TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 District Court Decision . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 THE DISTRICT COURT ERRED IN HOLDING THAT THE HRC AFFIDAVIT DID NOT CONSTITUTE A TITLE VII CHARGE OF DISCRIMINATION.. . . . . . . . . . . . . . . . . . . . . 14 Intent to Activate Title VII's Machinery . . . . . . . . . . . . 16 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 C. Verification . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 TABLE OF CONTENTS (cont'd) PAGES II. SCRUGGS' TIMELY FILED EEOC INTAKE QUESTIONNAIRE CONSTITUTES A TITLE VII CHARGE OF DISCRIMINATION. . . . . . . . . . . . . . . . . . . . . . 25 Scruggs had 300 days to file a charge of discrimination 25 The EEOC intake questionnaire constitutes a charge . . 26 III. THE DISTRICT COURT ERRED IN REFUSING TO APPLY EQUITABLE TOLLING WHERE HUTTO MISLED SCRUGGS INTO BELIEVING THAT HE COULD NOT FILE A CHARGE OF DISCRIMINATION AND WHERE THE EEOC MISTAKENLY TOLD SCRUGGS THAT IT DID NOT HAVE JURISDICTION OVER HIS COMPLAINT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES PAGE(S) Armstrong v. Martin Marietta Corp., 138 F.3d 1374 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1982) (en banc) 6 Brook v. City of Montgomery, 916 F. Supp. 1193 (M.D. Ala. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 Browning v. AT & T Paradyne, 120 F.3d 222 (11th Cir. 1997) . . . . 28, 30 * Clark v. Coats & Clark, Inc., 865 F.2d 1237 (11th Cir. 1989) . . . . .11, 16 * Downes v. Volkswagen of Am., Inc., 41 F.3d 1132 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,17, 18, 19, 20 E.E.O.C. v. Shell Oil Co., 466 U.S. 54 (1984). . . . . . . . . . . . . . . . . . 22 Edelman v. Lynchburg College, 228 F.3d 503 (4th Cir. 2000), petition for cert. filed, - S. Ct. - , 69 USLW 3481 (U.S. Apr. 02, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Edwards v. Kaiser Aluminum & Chem. Sales, Inc., 515 F.2d 1195 (5th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 30, 31 Georgia Power Co. v. E.E.O.C., 412 F.2d 462 (5th Cir. 1969) . . . . . 16 Lanyon v. Univ. of Delaware, 544 F. Supp. 1262 (D.Del. 1982), aff'd, 709 F.2d 1493 (3rd Cir. 1983) . . . . . . . . . . . . . . . . . . . . 29 * Miller v. Marsh, 766 F.2d 490 (11th Cir. 1985). . . . . . . . . . . . . . . . 28, 29 Price v. Southwestern Bell Tel. Co., 687 F.2d 74 (5th Cir. 1982). . . 16 TABLE OF AUTHORITIES (con't) CASES PAGE(S) Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455 (8th Cir. 1998) . . . 17 Tillman v. City of Boaz, 548 F.2d 592 (5th Cir. 1977). . . . . . . . . . . . 15 Vason v. City of Montgomery, 240 F.2d 905 (11th Cir. 2001) . . . . . . 16, 23 Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 24 FEDERAL STATUTES 42 U.S.C. § 2000e . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 1, 3, 4, 10 42 U.S.C. § 2000e-5(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 2000e-5(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 FEDERAL REGULATIONS 29 C.F.R. § 1601.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 23 29 C.F.R. § 1601.12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 29 C.F.R. 1601.12(b) . . . . . . . . . . . . . . . . . . . . . . . . . 12, 16, 23, 27, 28 29 C.F.R. § 1601.13(a) . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 25 29 C.F.R. § 1601.74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 29 C.F.R. § 1601.74(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10 29 C.F.R. § 1601.9(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 TABLE OF AUTHORITIES (con't) STATE STATUTES PAGE O.C.G.A. § 45-19-20, et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 No. 01-10935 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________________________ BYRON SCRUGGS, Plaintiff-Appellant, v. UNIVERSITY HEALTH SERVICES, INC. d/b/a/ UNIVERSITY HOSPITAL, Defendant-Appellee. _______________________________________________________ On Appeal from the United States District Court for the Southern District of Georgia _______________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE _______________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is the agency charged with the enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). This case raises important issues concerning the circumstances under which a timely filed intake affidavit submitted to a local fair employment practices agency ("local FEP agency") constitutes a charge of discrimination under Title VII and whether an intake questionnaire filed with the EEOC within 300 days of the last alleged act of discrimination, which occurred in a county with a local FEP agency, constitutes a timely filed charge of discrimination. This case also raises an important issue with respect to when the statute of limitations for filing a Title VII charge of discrimination should be equitably tolled. Because the district court's ruling on these issues may affect other Title VII plaintiffs, and because the result reached by the district court is contrary to Title VII and the EEOC's regulations, the Commission offers its views to the Court. STATEMENT OF THE ISSUES 1. Whether the district court erred in granting summary judgment for the Defendant on the ground that the Plaintiff's intake affidavit, which was timely filed with a local FEP agency, did not satisfy Title VII's charge requirements. 2. Whether the district court erred in holding that the Plaintiff did not timely exhaust his administrative remedies where the Plaintiff filed an intake questionnaire with the EEOC within 300 days of his termination, and where the Defendant is located in a county served by a local FEP with jurisdiction over the Plaintiff's sex discrimination claim. 3. Whether the district court erred in refusing to equitably toll the Title VII charge-filing period where the Plaintiff's attempts to file a charge at a local FEP agency and at the EEOC were wrongly thwarted. STATEMENT OF THE CASE Statement of Facts Plaintiff Byron Scruggs was an emergency room ("ER") patient representative for University Hospital, and Ms. George Ann Phillips was the ER Business Manager. R.22, Ex. E-¶¶ 2, 14. In 1997, Phillips began demanding that the male ER patient representatives change their schedules to accommodate the schedules of female ER patient representatives. R.22, Ex. B-Pgs. 2-8. On August 25, 1997, Scruggs told Joe Herzberg, the Personnel Director for the Hospital, that schedule changes were being made to accommodate females and asked him to look into this favoritism. R.22, Ex. E-¶ 72. On December 15, 1997, Phillips asked Scruggs to cover the December 27 shift of a female ER patient representative. Id. at ¶¶ 104-106. Scruggs refused. Id. at ¶ 109. Although Scruggs felt that Phillips' request was another example of favoritism to women, he did not say so because he feared losing his job. Id. at ¶ 120. Following a heated encounter, Scruggs because so frustrated that he said, "go ahead fire me" and "I don't give a damn." Id. at ¶¶ 162, 163. Phillips told him she cared about him, and Scruggs responded, "right," and left her office. Id. at ¶¶ 164, 165. On December 19, 1997, the Hospital fired Scruggs. R.15, ¶ 1. Believing that he needed legal help for the gender discrimination and retaliation he thought he had suffered, on December 30, 1997, Scruggs went to the Augusta-Richmond County Human Relations Commission ("HRC"). R.22, Ex. E at ¶ 172; R.15, ¶ 3. The HRC is a designated fair employment practices agency ("FEP agency"), see 29 C.F.R. § 1601.74(a), and has a worksharing agreement with the Commission.<1> R.28, Ex. 1. HRC intake officers are responsible for informing complainants about how to file charges of discrimination and must accept a charge of discrimination if a complainant seeks to file one. R.28, Pgs. 32, 23-24. At the HRC, Scruggs filled out a form entitled "Richmond County Human Relations Commission Affidavit" ("HRC affidavit"). R. 22, Ex. A. On the form, Scruggs wrote his name, address, and phone number, and the Hospital's name, address and phone number. Id. at 1. Scruggs also indicated that the Hospital employed more than fifteen people. Id. at 2. When asked "[w]hat kind of harm did you suffer?" Plaintiff underlined the words "DISCHARGE," "WAGE REDUCTION," "BAD REFERENCES," "REDUCED HOURS," AND "SEXUAL HARASSMENT," although the HRC investigator, Frank Hutto, later crossed out "SEXUAL" and wrote "gender." Id.; R.29, Pg. 10. Scruggs also wrote that his supervisor "fired [him] after an incident in which she humiliated + provoked [him] into telling her to fire [him]." R.22, Ex. A-Pg. 2. In response to the question, "[w]hat is it that you want HRC to do?" Scruggs checked the line next to "Neutral references." Id. He did not check the line next to "Assistance in getting job back" or "Other," although Scruggs initialed Hutto's notation, "I want a clear explanation for my discharge and the assurance of good or neutral references & clarification restriction." Id. The bottom of the second page of the HRC affidavit contains three lines. Id. Scruggs signed his name above the first line, which says "Signature." Id. The next line, which states, "Subscribed and affirmed before this HRC Representative," is blank. Id. Hutto signed his name and wrote the date above the third line, which states, "Signature of HRC Representative." Id. The HRC intake affidavit does not allow a complainant to indicate that he wants to file a formal charge of discrimination. Id.; R.28, Pgs. 31-32. Frank Thomas, HRC's executive director, admits HRC "failed to have proper documentation to indicate to a person that they could-did have that right to . . . file the charge." Id. at 35. Thomas also testified that an HRC intake affidavit serves as a charge of discrimination, stating that "[o]nce a person files this it's placed in the file with the computer generated information, and it's also forwarded to Atlanta [the EEOC office]. So this is part of the charge of discrimination." Id. at 40. During the intake interview, Scruggs told Hutto that he had suffered gender discrimination and retaliation. R.22, Ex. E-¶ 177; R.18, Pgs. 133, 134. Scruggs also gave Hutto a detailed thirteen-page letter describing the events leading up to his discharge and complaining that the schedule had been changed for the benefit of the female ER patient representatives. R.22, Ex. B. Although Hutto did not read the letter until after the intake interview, R.29, Pg. 14, he told Scruggs that "his complaint lacked an element of illegal discrimination." Id. at 37. From what Hutto said, Scruggs believed that he had no protected legal rights. R.28, Ex. 17-Pg. 1. Scruggs denies that Hutto ever told him he needed to file a charge of discrimination. R.18, Pg. 135. Hutto said only that he needed to review everything and that he would be back in touch. Id. at 133. Hutto admits that he never defined for Scruggs what a charge of discrimination was or explained that a charge is a separate document from an intake affidavit. R.29, Pgs. 65-66. Hutto also admits that he did not supply Scruggs with any document explaining his right to file a federal employment discrimination charge.<2> Id. at 55. On Scruggs' "Follow-Up Sheet," an HRC document describing the date that various actions were taken on Scruggs' case, Hutto wrote that "CP [charging party], in underlining harms on page 2 of his affidavit, underlined 'sexual harassment,' suggesting a violation of Title VII of the 1964 Civil Rights Act as amended." R.22, Ex. C-Pg. 3. Hutto also wrote that Scruggs' "testimony, however, did not indicate a gender-based pattern to the two harms alleged." Id. On January 8, 1998, Scruggs mailed a letter to the Hospital's President, Vice President, and Chaplain that contained the same information as in the letter he gave Hutto. R.36, Pg. 6; R.28, Ex. 9. On January 14, 1998, the Hospital's President and Vice President wrote back to Scruggs telling him about the Hospital's employee grievance procedure and offering to extend the thirty-day deadline for filing a grievance. R.28, Ex. 8. On January 15, 1998, HRC's Executive Director wrote a letter to the Hospital stating that Scruggs came to the HRC office for assistance with his discharge. R.28, Ex. 6. The letter stated that Scruggs "is not seeking reinstatement, but . . . would appreciate receiving a clear, detailed explanation both of the reason for his discharge and of the extent of the restrictions against his returning to the hospital," and that he "would like to be assured that University Hospital's references on him will be kept good or no worse than neutral." Id. On January 19, 1998, Plaintiff filed an internal grievance with the Hospital. R.28, Ex. 10. On the grievance form, he described the heated encounter with Phillips leading to his termination. Id. In either late February or early March of 1998, Scruggs spoke with an attorney friend, Elizabeth Calhoun. R.18, Pgs. 139-141. He told her that he had gone to the HRC and told Hutto that he believed he had been discriminated against because of his gender. Id. at 140. Calhoun informally helped Scruggs through the grievance procedure, although neither she nor any other attorney was present at the April 17, 1998, grievance hearing. Id. at 140, 167. During the hearing, Scruggs testified about favoritism toward women. R.22, Ex. E-¶ 184. The grievance committee voted to uphold Scruggs' termination. R.36, Pg. 8. After the grievance hearing, Calhoun told Scruggs she would represent him, and he paid her $500. R.28, Ex. 17-Pg. 4. Calhoun said that she knew Thomas and would talk to him and see what Hutto had done. R.18, Pg. 143. Calhoun never told Scruggs he needed to file a charge of discrimination. Id. at 142. Calhoun eventually referred Scruggs to another attorney named Jack Boone, who told Scruggs that he needed to file a formal charge Id. at 135, 144. This was the first time anyone told Scruggs he needed to file a formal charge. Id. at 135. On September 28, 1998, Scruggs contacted the Atlanta District Office of the EEOC and filled out an intake questionnaire. Id. at 144-45; R.22, Ex. 16. On October 6, 1998, the EEOC sent Scruggs a letter stating that it had no jurisdiction to investigate his complaint because the EEOC could only investigate charges filed within 180 days of the most recent alleged violation, and the EEOC had determined that Scruggs had waited 390 days before contacting the EEOC. R.28, Ex. 15. Scruggs eventually contacted his United States Congressman, Charles Norwood, who contacted the EEOC on Scruggs' behalf. R.36, Pg. 9. On April 21, 1999,<3> Scruggs filed a charge of discrimination with the HRC and EEOC stating, "THIS CHARGE PERFECTS THE COMPLAINT I LODGED DEC. 30, 1997, AT THE AUGUSTA HUMAN RELATIONS COMMISSION." R.34, attachment.<4> The charge states that the Hospital fired Scruggs because of his gender and in retaliation for complaining about gender discrimination. Id. The charge further states that Phillips "began pressuring her male representatives to make concessions as regards assigned hours, and she implemented a rotating schedule that benefited [sic] female representatives at the expense of male ones." Id. The charge also states that after Scruggs refused to cover the December 27 shift of a female ER patient representative, Phillips harassed and interrogated him until he blurted out that she could go ahead and fire him. Id. On October 26, 1999, Scruggs filed this lawsuit alleging that the Hospital fired him because he is male in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. R.1. District Court Decision On January 30, 2001, the district court granted the Hospital's motion for summary judgment on the ground that Scruggs failed to timely exhaust his administrative remedies. R.36. The district court first found that Scruggs' April 21, 1999, charge of discrimination was untimely because he filed it 488 days after his termination. Id. at 13-14. Relying on Downes v. Volkswagen of Amer., Inc., 41 F.3d 1132, 1138 (7th Cir. 1994), and citing 29 C.F.R. § 1601.12, the court concluded that because the HRC affidavit did not evidence an intent to activate Title VII's machinery, it did not constitute a charge of discrimination under Title VII. Id. at 15-18. The court reached this conclusion primarily because the affidavit did not state "that [the Hospital] fired him because he is male." Id. at 16. The court also found it significant that the Hospital "never learned that Plaintiff was claiming gender discrimination until nearly sixteen months after his termination." Id. at 17. Therefore, the court reasoned, the "HRC intake affidavit failed to satisfy the purpose of the charge requirement, which is to notify employers of accusations of discrimination." Id. at 17 (citing Clark v. Coats & Clark, Inc., 865 F.2d 1237, 1241(11th Cir. 1989)). Finally, the district court considered whether Scruggs had met his burden of showing that waiver, equitable estoppel, or equitable tolling applied. Id. at 18-19. The court rejected Scruggs' argument that the limitations period should be tolled because Hutto lulled him into inaction by telling him that he "'lacked an element of illegal discrimination.'" Id. at 19 (quoting Hutto Depo. at 37). The court also found that the fact "an attorney represented Plaintiff for part of the time that the period of limitation was running . . . weighs against equitable tolling." Id. (citing Edwards v. Kaiser Aluminum & Chem. Sales, Inc., 515 F.2d 1195, 1200 n.8 (5th Cir. 1975)). Id. SUMMARY OF ARGUMENT The district court erred in concluding that the HRC affidavit and thirteen-page letter did not satisfy the liberal charge requirements of 29 C.F.R. § 1601.12(b). These documents constitute a charge of discrimination under this regulation because they amount to: 1.) a written statement; 2.) identifying the parties involved; and 3.) generally describing the action complained of, which was the scheduling of shifts for the benefit of female employees at the expense of male employees, and Scruggs' termination following a heated encounter with his supervisor about covering a shift for a female co-worker. Contrary to the district court's finding, the circumstances surrounding Scruggs' filing of the HRC intake affidavit manifested his intent to activate Title VII's machinery. The Hospital also had ample notice of Scruggs' claims of gender discrimination and unjustified termination. Finally, the intake affidavit was verified as the Commission defines that term at 29 C.F.R. § 1601.3(a). The EEOC intake questionnaire Scruggs filed on or about September 28, 1998, also satisfies the permissive requirements of § 1601.12(b) and manifests Scruggs' intent to file a Title VII charge of discrimination. Although the EEOC told Scruggs that it had no jurisdiction over his claim because he filed it outside the 180-day period for filing a charge, the EEOC was mistaken because in fact Scruggs had 300 days to file a charge of discrimination, and he filed his EEOC intake questionnaire within 300 days of his termination. Although the questionnaire was not verified, under 29 C.F.R. § 1601.12(b), Scruggs' April 21, 1999, charge of discrimination relates back to cure this technical defect. Finally, the district court erred in refusing to equitably toll the charge-filing period. When Scruggs went to the HRC, he was unrepresented by counsel and unversed in Title VII law. Although Hutto knew that Scruggs' complaint potentially amounted to a Title VII sexual harassment claim, Hutto wrongly advised Scruggs that his complaint lacked an element of discrimination, thereby implying that the HRC could not help him. Hutto also failed to inform Scruggs that even if his complaint lacked an element of discrimination, he could file a charge of discrimination and that such a filing was a prerequisite to filing a federal lawsuit. Equitable tolling is also warranted in this case because Scruggs' second attempt to file a charge of discrimination was thwarted by misinformation he received from the EEOC concerning the applicable statute of limitations period for filing charges of discrimination. Although Scruggs was represented by counsel prior to the expiration of the charge-filing period, this should not preclude application of the doctrine of equitable tolling. Scruggs' first attorney, Elizabeth Calhoun, did not begin representing him until after he had visited the HRC. Scruggs told Calhoun that he had already been to the HRC and met with Hutto. Calhoun did not tell Scruggs that he needed to file an EEOC charge, perhaps because she assumed that he did so at the HRC. Scruggs' second attorney, Jack Boone, told him to immediately go to the EEOC and file a formal charge of discrimination. The EEOC, however, refused to accept Scruggs' intake affidavit because it was laboring under the mistaken belief that Scruggs had only 180 days to file a charge and because it miscalculated the date of the last alleged act of discrimination. Scruggs should not be punished for the errors of the HRC and the EEOC, or for any errors his counsel might have made in relying on the enforcement agencies to fulfill their statutory obligations. To refuse to equitably toll the charge-filing period under these circumstances would unfairly punish complainants seeking to file charges of discrimination and would undermine the remedial purpose of Title VII.ARGUMENT THE DISTRICT COURT ERRED IN HOLDING THAT THE HRC AFFIDAVIT DID NOT CONSTITUTE A TITLE VII CHARGE OF DISCRIMINATION. Title VII states 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). Under the Commission's regulations, "a charge is sufficient when the Commission receives from the person making the charge 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). Charges of discrimination may be amended "to cure technical defects or omissions, including failure to verify the charge." Id. "Charges filed with the EEOC must be liberally construed because they are made by persons who are unfamiliar with the technicalities of formal pleadings and who usually do not have the assistance of an attorney." Tillman v. City of Boaz, 548 F.2d 592, 594 (5th Cir. 1977) (citation and footnote omitted). The district court concluded that the HRC affidavit did not constitute a charge of discrimination under 29 C.F.R. § 1601.12(b) because it did not evidence an intent to file a charge of discrimination.<5> R.36, Pg. 16. The court also expressed concern that the Hospital did not learn of Scruggs' gender discrimination claim until nearly sixteen months after his termination.<6> Id. at 17. Intent to Activate Title VII's Machinery The district court quoted Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1138 (7th Cir. 1994) for the proposition that "a charge must 'be of a kind that would convince a reasonable person that the plaintiff manifested an intent to activate [Title VII's] machinery'" and then concluded that the HRC affidavit did not manifest the requisite intent. R.36, Pgs. 15-16. In Downes, the Seventh Circuit found that the plaintiff's EEOC intake questionnaire satisfied the ADEA's charge requirements. Downes, 41 F.3d at 1139. The court stated that in determining whether a plaintiff manifested an intent to activate the Act's machinery, a district court could consider "whether the questionnaire is precise enough to identify the parties and generally describe the complained-of practices and whether the information in the questionnaire was subsequently used to complete the formal charge." Id. at 1138 (citations omitted). The court also stated that whether the EEOC treated the questionnaire as a charge is not dispositive, but is relevant, to a determination of whether the questionnaire qualified as a charge under the ADEA. See id. The circumstances surrounding Scruggs' filing of the HRC affidavit dictate the conclusion that he intended to activate the machinery of Title VII when he went to the HRC and completed the intake affidavit. See Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455, 459 (8th Cir. 1998) (stating that court must ask "whether 'the circumstances indicate that the claimant intended to activate the machinery of the [Act] by lodging the questionnaire with the agency'") (citation omitted). Scruggs went to the HRC because he believed he needed legal help for the gender discrimination and retaliation he had suffered. R.22, Ex. E at ¶ 172. This evidence establishes that from the beginning, Scruggs' intention was to activate the machinery of Title VII, even if he did not know the name of the statute or the process for filing a formal charge. At the HRC, he filled out the intake affidavit, which provides further evidence of his intention to file a Title VII charge. See Downes, 41 F.3d at 1138 ("The intake officer also acknowledged that people who fill out intake questionnaires generally intend to file discrimination complaints."). When asked "[w]hat kind of harm did you suffer?" Plaintiff underlined the words "DISCHARGE" and "SEXUAL HARASSMENT." R.22, Ex. A-Pg. 1. Scruggs also attached to the HRC affidavit a detailed thirteen-page letter, which he had prepared before going to the HRC, stating in part that "[t]he women would clearly benefit from this rotating shift," and that "[t]wo women [ ] have benefited [sic] from the rotating shift at the expense of the full time male counterparts." R.22, Ex.B-Pgs. 5, 11. During the intake interview, Scruggs even told Hutto that he had suffered gender discrimination, harasssment, and retaliation. R.22, Ex. E-¶ 177; R.18, Pg. 133. Hutto, however, told Scruggs that "his complaint lacked an element of illegal discrimination." R.29, Pg. 37; R.22, Ex. C-Pg. 1. Based on what Hutto said, Scruggs believed that he did not have any legal rights that had been violated. R.28, Ex. 17-Pg. 1. Considering that Scruggs was unfamiliar with Title VII's charge-filing process and that Hutto essentially told him that he had no legally protected rights because his complaint was missing an element of discrimination, Scruggs did everything he thought he could do to activate the machinery of the law that was supposed to protect him from illegal discrimination. See Downes, 41 F.3d at 1138 (stating that the plaintiff's deposition "indicates that he believed he had done everything possible to commence an action against" the defendant, and holding that when viewed in the light most favorable to the plaintiff, the facts established that "a reasonable person could conclude that [plaintiff] manifested an intent to activate the Act's machinery"). While the district court's opinion suggests that to activate Title VII's machinery Scruggs had to write that he wanted to file a formal charge of discrimination under Title VII, nothing in Title VII or the Commission's regulations supports such a harsh standard. Scruggs' intent to activate Title VII's machinery is further evidenced by the fact that his April 21, 1999, charge contained the same factual information as in the HRC affidavit and thirteen-page letter. See R.34; R.22, Ex. A; see also Downes, 41 F.3d at 1139 (stating that the information in the plaintiff's intake questionnaire was "substantially the same" as that in his formal charge of discrimination, and finding that the plaintiff's intake questionnaire constituted a charge under the ADEA); Brook v. City of Montgomery, 916 F. Supp. 1193, 1202 (M.D. Ala. 1996) (finding that the plaintiff's filing of a formal charge with some of the same information contained in a letter he previously filed with the EEOC "in retrospect indicates that [plaintiff] sought 'to activate the Act's machinery'") (citation omitted). Hutto's actions reveal that even he understood Scruggs to be seeking to activate Title VII's machinery. On the Follow-Up Sheet, Hutto referred to Scruggs as "CP," or "charging party." R.22, Ex. C-Pg. 3. See Downes, 41 F.3d at 1138 (noting that the plaintiff's efforts to commence an action against his employer were "sufficient to induce the intake officer in his interview notes, to occasionally refer to [plaintiff] as a 'CP' or 'charging party'"). Hutto also wrote on the Follow-Up Sheet that "CP [charging party], in underlining harms on page 2 of his affidavit, underlined 'sexual harassment,' suggesting a violation of Title VII of the 1964 Civil Rights Act as amended." R.22, Ex. C-Pg. 3 (emphasis added). Finally, the HRC intake affidavit was assigned a case number, indicating that the HRC viewed it as a charge. R.22, Ex. A at 1. See Brook, 916 F. Supp. at 1202 (noting that the EEOC assigned the plaintiff's letter a charge number, "and, thus, treated the letter as a charge"). Even if Hutto had somehow failed to understand that Scruggs wanted to activate Title VII's machinery, this would not preclude the conclusion that the HRC intake affidavit constitutes a charge. See Downes, 41 F.3d at 1139 ("The EEOC's failure to understand and to act upon [plaintiff's] intent-while tending to argue against finding that the questionnaire was a charge-are not . . . conclusive") (footnote omitted). Thus, based on the evidence in the record, the district court erred in concluding that Scruggs' filing of the HRC affidavit and thirteen-page letter did not manifest his intent to activate Title VII's machinery. Notice The district court's conclusion that the Hospital never knew that Scruggs "was claiming gender discrimination until nearly sixteen months after his termination" is factually incorrect. R.36, Pg. 17. During his employment, Scruggs complained to Herzberg about Phillips' favoritism toward women in scheduling shifts, and Herzberg told Phillips about Scruggs' complaint. R.22, Ex. E-¶ 72. After Scruggs visited the HRC, Thomas wrote the Hospital a letter stating that Scruggs had visited the HRC "for assistance regarding what he says was his abrupt, excessively-punitive Dec. 19 discharge from his job." R.28, Ex. 6. On January 8, 1998, Scruggs mailed an eleven-page letter to the Hospital's President, Vice President, and Chaplain complaining that at the expense of the male employees, the female employees benefitted from the shift changes. R.28, Ex.9-Pg. 9. Contrary to the district court's finding, R.36, Pg. 17, Scruggs also complained during the grievance hearing about favoritism toward women. R.22, Ex. E-¶ 184. Thus, while the Hospital did not have notice that Scruggs was filing a formal charge of discrimination under Title VII until April 21, 1999, the Hospital had more than ample notice of the nature of the allegations underlying Scruggs' Title VII sex discrimination. See E.E.O.C. v. Shell Oil Co., 466 U.S. 54, 74 (1984) (stating that Title VII's notice requirement "seems to have been designed to ensure that the employer was given some idea of the nature of the charge"). Verification Although the district court did not reach the question of whether the HRC affidavit satisfied Title VII's "under oath or affirmation" requirement, the Commission submits that it did. Under the Commission's regulations, a charge must be verified. 29 C.F.R. § 1601.9(b). The Commission has defined "verified" to mean "sworn to or affirmed before a . . . designated representative of the Commission." 29 C.F.R. § 1601.3(a). HRC employees are designated representatives of the Commission under the worksharing agreement. R.28, Ex. 1. Scruggs signed the HRC affidavit above the "Signature" line, and Hutto signed his name under the line stating, "Subscribed and affirmed before this HRC Representative," and above the line stating, "Signature of HRC Representative." R.22, Ex. A-Pg. 2. Although Hutto did not print his name above the line stating "Subscribed and affirmed before this HRC Representative," the only conclusion to be drawn is that Hutto was the HRC representative before whom Scruggs affirmed the allegations contained in the HRC affidavit. Therefore, the HRC affidavit was verified. Assuming, arguendo, that the HRC affidavit was not verified, Scruggs' April 21, 1999, filing of a formal charge of discrimination with the EEOC relates back to his timely filed HRC affidavit and cures any verification defect. See 29 C.F.R. 1601.12(b) (stating that a "charge may be amended to cure technical defects or omissions, including failure to verify the charge," and that "[s]uch amendments will relate back to the date the charge was first received"). While this Court recently declined to decide whether amendments relate back to the original date of the filing of a charge, see Vason v. City of Montgomery, 240 F.2d 905, 907 n.3 (11th Cir. 2001),<7> this Court's predecessor has held that a written but unsworn charge may be amended after the period for filing charges of discrimination so as to comply with Title VII's charge-filing requirements. See Weeks, 408 F.2d at 231. II. SCRUGGS' TIMELY FILED EEOC INTAKE QUESTIONNAIRE CONSTITUTED A TITLE VII CHARGE OF DISCRIMINATION. On September 28, 1998, Scruggs signed an EEOC intake questionnaire and sent it to the EEOC. R.18, Pgs. 148-151; R.28, Ex. 16. Although the EEOC told Scruggs that his intake questionnaire was not timely filed, this statement was erroneous. Scruggs' unverified EEOC intake questionnaire constituted a timely filed charge of discrimination that was subsequently amended and therefore satisfied Title VII's charge filing requirements. Scruggs had 300 days to file a charge of discrimination Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), provides that a charge of unlawful employment practices generally must be filed with the EEOC within 180 days of the alleged discriminatory act. In jurisdictions with a FEP agency that has subject matter jurisdiction over a charge, however, the period for filing a charge with the EEOC extends up to 300 days. See 42 U.S.C. § 2000e-5(e); 29 C.F.R. § 1601.13(a). The HRC is a designated FEP agency with jurisdiction over allegations of sex discrimination filed against employers with fifteen or more employees when the alleged discrimination occurs within Augusta/Richmond County. See 29 C.F.R. § 1601.74; R.28, Ex. 1 at i (worksharing agreement) (citing Georgia's Fair Employment Practices Act of 1978, O.C.G.A. § 45-19-20, et seq., as amended); R.28, Pg. 52 (stating that the HRC had jurisdiction to investigate Scruggs' charge of gender discrimination). Under the HRC-EEOC worksharing agreement, the EEOC processes all Title VII charges that it originally receives, and the HRC waives its right to initially process any Title VII charges received 240 days or more after the date of the alleged violation. R.28, Ex. 1 at i. Because the Hospital is located within Richmond County and employs more than fifteen people, R.22, Ex. A, Scruggs had 300 days-not 180-in which to file a charge of discrimination. R.28, Pg. 45 ("if the respondent resides within Richmond County, [complainants] have up to 300 days to file a charge"). A fair reading of the EEOC intake questionnaire establishes that the last date of discrimination occurred within a few days of December 15, 1997. See R.28, Ex. 16-Pg. 3 (describing the December 15, 1997, encounter with Phillips and stating that he had been fired "on what would have been my next working day."). Even using December 15, 1997, as the last date of discriminatory action, and using September 29, 1997,<8> as the date of Scruggs' filing of the EEOC questionnaire, the filing was timely because it occurred 288 days after Scruggs' termination. The EEOC intake questionnaire constitutes a charge Scruggs' EEOC intake questionnaire satisfies the liberal requirements of § 1601.12(b), which requires that a charge be "a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." On the intake questionnaire, Scruggs listed his name and address and the name and address of the Hospital, identified Phillips as his supervisor, complained that his hours and schedule had been altered to accommodate female co-workers, described the December 15, 1997, heated encounter with Phillips, and stated that the Hospital fired him. R.28, Ex. 16. The circumstances surrounding Scruggs' filing of the EEOC intake questionnaire also manifested an intent to activate Title VII's machinery. In response to the question "[w]hat action was taken against you that you believe to be discriminatory?" Scruggs stated in part that his "hours and schedule were altered as well as the schedules of [ ] male full time ER Patient Reps. to accommodate a female coworker," and that he was later fired "due to my supervisor's anger that [I] would not work overtime on a date that this part time female patient rep. was already scheduled to work." Id. at 1-2. He also stated that he thought the actions taken against him constituted discrimination because "Ms. Phillips made unfair concessions to her female employees at the expense of being fair to the males in this department." Id. at 2. Considering that this was the second time Scruggs had contacted an agency and completed an intake questionnaire complaining about unfair treatment that could have formed the basis of a Title VII claim of sex discrimination and/or retaliation, it is clear that Scruggs' EEOC intake questionnaire manifested his intent to activate the machinery of Title VII. Finally, while the EEOC intake questionnaire was not verified, for reasons discussed, supra, Scruggs' April 21, 1999, filing of a verified charge of discrimination cures this defect. See 29 C.F.R. § 1601.12(b) (allowing relation back to cure failure to verify a charge of discrimination). III. THE DISTRICT COURT ERRED IN REFUSING TO APPLY EQUITABLE TOLLING WHERE HUTTO MISLED SCRUGGS INTO BELIEVING THAT HE COULD NOT FILE A CHARGE OF DISCRIMINATION AND WHERE THE EEOC MISTAKENLY TOLD SCRUGGS THAT IT DID NOT HAVE JURISDICTION OVER HIS COMPLAINT. The Title VII statute of limitations is subject to equitable tolling. See Browning v. AT & T Paradyne, 120 F.3d 222, 226 (11th Cir. 1997). "[E]quitable tolling may be appropriate when a plaintiff has been 'lulled into inaction by . . . state or federal agencies' or 'if a plaintiff is "actively misled" . . . .'" Miller v. Marsh, 766 F.2d 490, 493 (11th Cir. 1985) (quoting Martinez v. Orr, 738 F.2d 1107, 1110 (10th Cir. 1984)). Here, the district court held that Scruggs failed to meet his burden of showing that the period for filing a charge of discrimination should be equitably tolled, in part because he was represented by counsel before the expiration of the filing period. R.36, Pg. 19. The district court erred in reaching this conclusion. Although Hutto understood Scruggs to be complaining about Title VII sexual harassment, he nevertheless wrongly told him that he "lacked an element of illegal discrimination." R.29, Pg. 37 (Hutto Depo.); R.22, Ex. C-Pg. 3 (Follow-Up Sheet). To Scruggs, who was unrepresented at the time and unversed in Title VII law, Hutto's words made him believe that he had no protected rights. R.28, Ex. 17-Pg. 1. In addition to dispensing bad legal advice, Hutto admits that he never explained to Scruggs that a charge of discrimination was a separate document and that he never gave Scruggs any document explaining his right to file a charge. R.29, Pgs, 55, 65. Scruggs testified that Hutto never told him that he needed to file a formal charge of discrimination with the EEOC. R.18, Pg. 135. Based on these facts, the district court should have concluded that equitable tolling applies because Hutto lulled Scruggs into inaction by dispensing erroneous legal advice and essentially telling Scruggs that there was nothing the HRC could do for him. See Miller, 766 F.2d at 493 (stating that "[u]nder equitable tolling principles[,] plaintiff's complaint was timely as she was 'lulled' into pursuing other channels at the expense of her federal court remedy by the officials involved here"); Lanyon v. Univ. of Delaware, 544 F. Supp. 1262, 1272 (D.Del. 1982) (holding that limitations period should be equitably tolled where the plaintiff was told by an employee of the Department of Labor that she needed more proof to file her charge of discrimination and to show that her employer hired a male to replace her), aff'd, 709 F.2d 1493 (3rd Cir. 1983). Equitable tolling is also appropriate in this case because the EEOC thwarted Scruggs' second attempt to file a formal charge of discrimination by misinforming him of the applicable statute of limitations. R.28, Ex. 15. This Court has held that equitable tolling applies in cases like this where the EEOC has affirmatively misinformed a plaintiff. See, e.g., Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1393 (11th Cir. 1998) (tolling the ADEA's statute of limitations where the EEOC affirmatively misinformed plaintiffs regarding the period for filing suit); Browning, 120 F.3d at 226-27 (holding that the ADEA statute of limitations was tolled for eighteen days where an EEOC investigator misinformed plaintiff's lawyer concerning the applicable statute of limitations for filing suit). While the district court correctly noted that Scruggs was represented by counsel during the running of the statute of limitations period, this finding should not preclude the application of the equitable tolling doctrine. In reaching this conclusion, the district court relied on Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1200 n.8 (5th Cir. 1975). In Edwards, this Court's predecessor stated in dicta that it would be inappropriate to apply equitable tolling where the plaintiff consulted an attorney who failed to inform him of the ADEA's requirement that he file a notice of intent to sue with the Secretary of Labor. Edwards is distinguishable because in this case Scruggs was unrepresented by counsel when he went to the HRC. Once there, he justifiably believed that he was receiving correct information about his legal rights. Once Calhoun began representing Scruggs, he told her that he had been to the HRC, and he told her that he had informed Hutto of his claim of gender discrimination. R.18, Pg. 140. Boone told Scruggs to go immediately to the EEOC and file a formal charge. Because the EEOC applied the wrong statute of limitations and miscalculated the date of the last act of discrimination, it wrongly advised Scruggs that it had no jurisdiction over his complaint. Calhoun and Boone acted appropriately in making good-faith efforts to ensure that Scruggs complied with Title VII's charge-filing requirements. To refuse to apply equitable tolling under these circumstances would require attorneys to double-check the work of the HRC and the EEOC to ensure that they were following the law by accepting charges and by providing the correct information with respect to the applicable period for filing charges of discrimination. In that tolling would not prejudice the Hospital, it would be grossly unfair to Scruggs to refuse to equitably toll the charge-filing period where two agencies charged with enforcing Title VII acted in a way to deprive Scruggs of any means of remedying the Hospital's alleged deprivation of his civil rights.CONCLUSION For the foregoing reasons, the Commission urges this Court to reverse the district court's judgment and remand the case for further proceedings. Respectfully submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 April 13, 2001 CERTIFICATE OF COMPLIANCE I, Anne Noel Occhialino, hereby certify that this brief complies with the type-volume limitations imposed under Fed. R. App. P. 32(a)(7)(B)(i) and 29(d). The brief contains 6,982 words. _______________________ Anne Noel Occhialino CERTIFICATE OF SERVICE I, Anne Noel Occhialino, hereby certify that I served two copies of the foregoing brief this 13th day of April, 2001 by first-class mail, postage pre-paid, to the following: John P. Batson P.O. Box 3248 303 Tenth St. Augusta, GA 30914-3248 (706) 737-4040 Constance R. Boken R. Perry Sentell, III Kilpatrick Stocton LLP P.O. Box 1400 699 Broad St., Suite 1400 Augusta, GA 30903 (706) 724-2622 _____________________ Anne Noel Occhialino Attorney U.S. EQUAL EMPLOYMENT COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7030 Washington, D.C. 20507 (202) 663-4724 1 The name of the agency listed in 29 C.F.R. § 1601.74(a) is actually "Richmond County (GA) Human Rights Commission." 2 The HRC has since amended its intake affidavit to make it clear that complaining parties can file charges of discrimination even if it appears from their complaints that they have not alleged a violation of the federal laws enforced by the HRC and EEOC. R.29, Pg. 56; R.29, Ex. 1-Pg. 2. 3 By this time, Scruggs was represented by his current counsel. 4 Although the district court stated that Scruggs filed his April 21, 1999, charge with the EEOC, R.36, Pg. 9, he actually filed it at the HRC. R.34, attachments. 5 Although the district court did not explicitly address the Hospital's argument that an intake questionnaire can never satisfy Title VII's charge requirements, the district court implicitly rejected this argument by acknowledging that "[i]n some circumstances, an intake affidavit can satisfy the charge requirement." R. 36, Pg. 17 (citing Clark v. Coats & Clark, Inc., 865 F.2d 1237 (11th Cir. 1989)). The Commission concurs with the court's implicit ruling on this issue, which is consistent with Clark and with case law from this Court's former predecessor. See Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 231 (5th Cir. 1969) (holding that an unsworn charge that is later sworn is an effective charge under Title VII); Georgia Power Co. v. E.E.O.C., 412 F.2d 462, 466 (5th Cir. 1969) (holding that an employee's unsworn letter constitutes a charge of discrimination for purposes of Title VII when the employee later files a formal sworn charge). Although this Court recently questioned whether cases decided before Congress' 1972 amendments to Title VII's oath requirements are still binding, see Vason v. City of Montgomery, 240 F.2d 905, 908 n. 2 (11th Cir. 2001), the Commission agrees with the Fifth Circuit that the holdings of Weeks and Georgia Power remain intact, see Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 77 n.3 (5th Cir. 1982), and therefore are binding precedent in this circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1982) (en banc) (holding that decisions of the former Fifth Circuit decided before October 1, 1981 are binding on the Eleventh Circuit). 6 It appears that the district court concluded that the HRC affidavit did not satisfy the requirements of § 1601.12(b) on the ground that the HRC affidavit did not evidence an intent to file a charge of discrimination-rather than on the ground that the HRC affidavit lacked 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). The Commission notes that the HRC intake affidavit satisfies these minimal requirements because it is a written statement that identifies the parties involved, and because the HRC affidavit and accompanying thirteen-page letter describe the discriminatory scheduling of shifts and the events leading up to Scruggs' termination. 7 As this Court noted in Vason, the courts of appeals are split on this issue. Vason, 240 F.2d at 907 n.3. See also Edelman v. Lynchburg College, 228 F.3d 503 (4th Cir. 2000), petition for cert. filed, - S. Ct. - , 69 USLW 3481 (U.S. Apr. 02, 2001). 8 It appears that the EEOC received the intake questionnaire on September 29, 1998. R.28, Ex.15.