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Another Procedural Defense For Employers: Is the EEOC Charge Verified?

The federal court for the Northern District of Indiana recently dismissed a federal court complaint filed by a plaintiff who failed to first file a verified Charge with the EEOC. As many employers know, a plaintiff alleging a claim under Title VII must exhaust his/her administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or a parallel state agency. The charge must be in writing, under oath or affirmation.  42 U.S.C. § 2000e-5(b). 

In the lawsuit of Gray v. Morris Management Specialists, Inc., the plaintiff’s employment was terminated 18 days prior to the scheduled start of her maternity leave. The plaintiff worked in the food services industry, and the employer claimed she licked a spatula and reused it. The plaintiff denied she reused the spatula and believed her termination was a result of gender and pregnancy discrimination. 

Following her termination of employment, the plaintiff completed an EEOC intake questionnaire on the Internet. Although it was signed, dated and sent to the EEOC, the plaintiff did not verify that her statements were subject to the penalties of perjury. The EEOC later forwarded her a completed formal charge of discrimination to be signed and dated.  The plaintiff signed, dated, and executed the form before a notary public, but she never returned the charge to the EEOC. The employer was notified that a charge had been filed by the plaintiff, but the EEOC never requested that they provide a position statement or other answer. Soon after, the plaintiff received her Notice of Right to Sue from the EEOC and filed a lawsuit alleging gender and pregnancy discrimination in federal court.

After discovering that the charge had not been verified during discovery, the employer filed for summary judgment, which the Court granted. The Court held that “the verification requirement is a statutory prerequisite, and failure to meet it means the suit may not proceed.” The Court also found that even though the employer did not include this as an affirmative defense in its answer, the verification requirement defense was not waived. 

For those employers who have responded or will respond in the future to an EEOC charge, be mindful that there are procedural defenses available to you in the event the charge becomes a lawsuit. If you need assistance, or advice regarding EEOC or federal court representation, please contact one of the lawyers in our Labor and Employment Practice Group.

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