U.S. Fifth Circuit Clarifies Position: Later-Verified Charge Can Relate Back To Filing Date
On April 3, 2020, a three-judge panel of the U.S. Fifth Circuit in EEOC v. Vantage Energy Services, Inc., No. 19-20541, clarified its interpretation of the relate-back doctrine for administrative charges. The Fifth Circuit reversed a one-sentence Texas district court ruling, which dismissed with prejudice the Equal Employment Opportunity Commission’s (“EEOC”) complaint alleging violations of the American with Disabilities Act (“ADA”) for failure to exhaust its administrative remedies.
On October 2, 2014, the day plaintiff was to return to work from short-term disability leave while working for Vantage Energy Services (“Vantage”), plaintiff was fired for poor work performance. On February 20, 2015, plaintiff’s attorney submitted a letter and intake questionnaire to the EEOC, asserting that Vantage violated the ADA when it terminated him. The documents, however, were not verified with a sworn statement before a notary. Despite lacking the required verification, the EEOC began processing the claims. More than one year passed between plaintiff’s termination and the date when his attorney provided the EEOC with a verified charge. The EEOC determined there was reasonable cause to believe that Vantage violated the ADA and filed an enforcement action. Vantage moved to dismiss the EEOC’s complaint, asserting that the initial filings did not meet the ADA’s charge-filing requirement and were supplemented too late.
The Fifth Circuit analyzed two issues: (1) whether the later-verified intake questionnaire constituted a “charge,” satisfying the EEOC’s charge regulations; and (2) if so, whether this charge was filed within 300 days of the alleged unlawful employment action despite the EEOC receiving the verification form outside of the filing window. After addressing Vantage’s previous analysis of two Supreme Court decisions, Federal Express Corp. v. Holowecki and Edelman v. Lynchburg College, the Fifth Circuit held that the later-verified “intake questionnaire was sufficient as a charge and, although verified outside of the filing period, was ‘timely’ by virtue of the relation-back regulation.”
The Fifth Circuit stated that a questionnaire may qualify as a charge if the EEOC’s charge regulations are satisfied and if the questionnaire “can ‘be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute. . . .’” The Fifth Circuit further clarified that a charge may be amended (or verified) outside the filing window, with such amendments “relat[ing] back to the date the charge was first received,” so long as the charge is verified “by the time the employer is obligated to respond to the charge.” Here, the Fifth Circuit held that the worker’s intake questionnaire satisfied the EEOC’s charge regulations and could be reasonably construed as a request for EEOC action. Subsequently, the verification of the charge related back to the date the EEOC received plaintiff’s intake questionnaire.
The Fifth Circuit’s decision clarifies the application of the relate-back doctrine. In this COVID-19 era, the Fifth Circuit decision also serves as a cautionary notice that both the EEOC and the courts may be more forgiving on technical compliance issues, which is important to note given the potential for an uptick in charges and cases that may be filed when government agencies and the courts return.