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USDC: EMPLOYMENT - unsworn questionnaire answers can serve as EEOC charge

Victor B. Fox, Sr., Civil No. 06-4507 (DWF/SRN)
Thermoform Plastics, Inc.,
a/k/a TPi, Wilbert Plastic Services,
Jennie M. Brown, Esq., Brown Law Office, counsel for Plaintiff.
Jason A. Schmidt, Esq., and Julie Badel, Esq., Epstein Becker & Green, PC, and Sue B. Stingley, Esq., Stingley & Ho, PLLP, counsel for Defendant.
Victor B. Fox, Sr., an African-American male, brought this racial and gender discrimination action against Thermoform Plastics, Inc., a/k/a TPi, Wilbert Plastic Services (TPI). This matter came before the Court on July 20, 2007, pursuant to TPIs Motion for Summary Judgment. For the reasons set forth below, the Court denies TPIs motion.
Foxs Work at TPI
Sometime in 2005, Fox began doing contract work for a temporary employment agency, The Work Connection. The Work Connection subsequently placed Fox with
TPI, which is a company that primarily manufactures heavy gauge plastics through a thermal-forming process. Fox began working at TPI as a rotary machine operator on March 3, 2005. At that time, TPI placed Fox on Rotary 4.
During his tenure at TPI, Fox alleges that he experienced various acts of discrimination. First, he asserts that a white female complained that TPI had a bunch of monkeys working around here. (Compl. 9.) Second, Fox contends that on one day someone wrote the word nigger on the mens restroom wall. (Id. at 19.) Third, Fox explains that TPI regularly rotated workers off Rotary 4 because the work associated with it is particularly strenuous. Fox, however, alleges that he was never rotated off Rotary 4 while he was at TPI. Fourth, Fox asserts that on April 26, 2005, he complained to TPIs human resources manager about racial and sexual remarks directed at him by his supervisor, Bill Davis. According to Fox, Davis learned of Foxs complaint and retaliated against him on May 9, 2005, by ordering the rate of production on Rotary 4 increased. Fox alleges that he could not handle the increased speed and, as a result, suffered injuries that left him unable to work at TPI. Foxs last day of work at TPI was May 9, 2005. Sometime thereafter, The Work Connection placed Fox at a different job until July 29, 2005, when Foxs assignment at that job ended.
Foxs Contacts With the MDHR and EEOC
On January 30, 2006, Fox submitted an employment-discrimination questionnaire to the Minnesota Department of Human Rights (MDHR). In the MDHR Questionnaire, Fox included his name and contact information, TPIs contact information, and a description of the alleged discriminatory and retaliatory acts. Fox did
not, however, sign the questionnaire. The record before the Court does not indicate whether Fox ever filed an official charge of discrimination with the MDHR.
In a letter dated February 1, 2006, the MDHR responded to Foxs questionnaire and informed him that his complaint probably fell outside of its jurisdiction due to Foxs receipt of workers compensation benefits. (Def. Ex. 4.) The letter also stated that [The MDHR] will refer your file to [the Equal Employment Opportunity Commission (EEOC)]. (Def. Ex. 4.) The MDHR also provided Fox with the EEOCs telephone number and cautioned him, [K]eep in mind that your statute of limitations for filing a charge with the EEOC expires on February 26, 2006.1 (Def. Ex. 4.)
At oral argument, Foxs counsel, who represented him in January and February 2006, acknowledged that Fox did not contact the EEOC after receiving the MDHRs letter. Instead, the EEOC sent Fox a letter dated March 7, 2006, and a Form 5, which was entitled Charge of Discrimination. (Def. Exs. 5 & 6.) The EEOC instructed Fox to correct any information contained in Form 5 and to return the form to the EEOC. The EEOC had drafted Form 5 as a result of the information provided. (Def. Ex. 6.) Both the March 7, 2006 letter and the Form 5 contained an EEOC charge number. Fox returned the Form 5 to the EEOC, and, on that form, the date next to his signature is March 13, 2006. (Def. Ex. 7.) On August 17, 2006, the EEOC sent Fox his Dismissal and Notice of Suit Rights. (See Pl. Ex. 1.)
1 The parties agree that the MDHRs use of the February 26, 2006 date was in error.
Fox Commences Action Against TPI
Fox filed a Complaint against TPI2 in this Court on November 14, 2006. In his Complaint, Fox alleges claims against TPI on the basis of race and gender discrimination under Title VII, 42 U.S.C. 2000e-3(a), et seq., and the Rehabilitation Act of 1974, 29 U.S.C. 794.3 A liberal reading of Foxs complaint suggests that Fox alleges claims of hostile work environment and retaliation under the two statutes. Based on the parties Federal Rule of Civil Procedure 26(f) report, the Court issued an Order dated January 26, 2007, which set discovery and dispositive motion deadlines related only to the issue of whether Fox timely filed a charge with the EEOC. Subsequently, TPI filed its Motion for Summary Judgment.4 TPI asserts that it is entitled to summary judgment on Foxs Title VII claims because Fox failed to timely file his EEOC charge and that, as a result, his Title VII claims are time barred.
2 Despite Foxs relationship with The Work Connection, TPI concedes the fact that it was Foxs employer for the purposes of this action.
3 The Complaint is not a model of clarity and does not explicitly contain any claims under the Americans with Disabilities Act (ADA), 42 U.S.C. 12112, et seq. Nonetheless, in the parties briefing and at oral argument, they agreed that Fox originally alleged claims under the ADA but had since dismissed any ADA claims.
4 In addition to a discussion concerning the timeliness of Foxs EEOC charge, TPIs motion also concerned Foxs ADA and Rehabilitation Act claims. As stated earlier, Fox has dismissed any ADA claims he may or may not have had. With respect to any Rehabilitation Act claims, the Court declines to address any of TPIs arguments related to such claims, given the parties prior agreement and the Courts January 26, 2007 Order that restricted the present motion to the EEOC timeliness issue.
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The Court must view the evidence and the inferences, which may be reasonably drawn from the evidence, in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). As the United States Supreme Court has stated, [s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
I. The Limitations Period
Claimants must file Title VII charges with the EEOC according to strict limitations periods. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162, 2170-71 (2007); Wilson v. Brinker Intl, Inc., 382 F.3d 765, 769 (8th Cir. 2004). A
claimant in a state without a fair employment practices agency (FEPA) must file a charge within 180 days of the last discriminatory act. Ledbetter, 127 S. Ct. at 2170 (citing 42 U.S.C. 2000e-5(e)(1)). Claimants in states with a FEPA, however, enjoy a longer limitations period of 300 days, unless the state agency has previously terminated the proceedings. 42 U.S.C. 2000e-5(e)(1). The United States Supreme Court recently acknowledged the brevity of the EEOC charging deadlines by any measure, but went on to point out that by choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination. Ledbetter, 127 S. Ct. at 2170.
The parties agree that the 300-day limitations period applies to Foxs charge. They also agree that May 9, 2005the day Fox alleges that he was injured while working on Rotary 4starts the limitations period.5 Counting forward, March 5, 2006, constitutes the 300th and final day for Fox to file a charge with the EEOC.6
Fox signed and dated his EEOC Form 5 on March 13, 2006. Therefore, TPI argues that it is entitled to summary judgment because Fox submitted his EEOC charge
5 In his opposition memorandum, Fox implied a different date should start the limitations period, July 29, 2005. However, Fox also admitted that he had no further contact with TPI after May 9, 2005 (Def. Ex. B), and he used the May 9, 2005 date to calculate his limitations period. (Pl.s Br. 2.) Therefore, the Court concludes that Fox has offered no evidence to show that any date besides May 9, 2005, should be used to calculate the applicable limitation period.
6 Fox does not rely on the doctrine of equitable tolling, which is used only for circumstances truly beyond the control of the plaintiff. See Coons v. Mineta, 410 F.3d 1036, 1040 (8th Cir. 2005).
eight days after his 300-day limitations period expired. The Court agrees that Fox did not submit Form 5 to the EEOC within the 300-day limitation.
Fox responds that the date on Form 5 is not dispositive of the timeliness issue because his MDHR Questionnaire constitutes a charge sufficient to satisfy the EEOCs 300-day limitations period. Therefore, the Court turns to the nature of the relationship between the EEOC and the MDHR.
II. Worksharing Agreement Between EEOC and MDHR
Minnesota law empowers the MDHR to act against unlawful employment practices. Minn. Stat. 363A.03, et seq. This gives the MDHR joint jurisdiction with the EEOC over many unlawful employment discrimination charges. Worthington v. Union Pac. R.R., 948 F.2d 477, 480 (8th Cir. 1991); 42 U.S.C. 2000e-8(b); see also 29 C.F.R. 1601.74(a) (listing MDHR as designated fair employment practices agency). To address both jurisdictional and practical concerns, the EEOC and the MDHR regularly create and update worksharing agreements. See 42 U.S.C. 2000e-8(b) (authorizing the EEOC to create worksharing agreements with state employment practices agencies). And Courts regularly uphold the validity of EEOC worksharing agreements for determining limitations periods. See, e.g., Worthington, 948 F.2d at 79-80; Morris v. Conagra Foods, Inc., 435 F. Supp. 2d 887, 900-01 (N.D. Iowa 2005).
Throughout the course of Foxs employment with TPI and the subsequent investigations into his case by both the MDHR and the EEOC, the two agencies maintained a worksharing agreement. See Worksharing Agreement Between Minnesota Department of Human Rights and Equal Employment Opportunity Commission for
Fiscal Year 2005 (Minnesota Worksharing Agreement); Fiscal Year 2006 Extension of Worksharing Agreement. Although neither party provided the Court with a copy of the Minnesota Worksharing Agreement, the Court may take judicial notice of it because it is a public document. See Caha v. United States, 152 U.S. 211, 221-22 (1894) (taking judicial notice of agency rules); United States v. City of St. Paul, 258 F.3d 750, 753 (8th Cir. 2001) (taking judicial notice of an agency handbook); Walker v. Nw. Airlines, Inc., No. 00-2604-(MJD/JGL), 2004 WL 114977 at *2 (D. Minn. Jan. 14, 2004) (taking judicial notice of worksharing agreement between the Arizona FEPA and the EEOC).
The EEOC and the MDHR designate each other as an agent for the purpose of receiving and drafting charges . . . . Minnesota Worksharing Agreement II(A). Under this deferral arrangement, filing a charge with the MDHR counts as filing one with the EEOC for purposes of tolling limitation periods. See Worthington, 948 F.2d at 479-80. In Worthington, the Eighth Circuit considered a charge filed with the Nebraska Equal Opportunity Commission on the 299th day of the limitations period constructively received by the EEOC on the same day, even though the plaintiff failed to check a box requesting joint filing. Id.7 Notably, the EEOCs regulations follow the holding in Worthington. See 29 C.F.R. 1626.10(c) (2005) (Charges received by one agency
7 Like Nebraska in Worthington, Minnesota waived its right to the 60-day period of exclusive jurisdiction granted by 42 U.S.C. 2000e-5(c). See Minnesota Worksharing Agreement III(A)(1). Courts agree that when a state waives the 60-day period, a claimant can file a charge with either agency at any point until the 300-day limitations expires. Worthington, 948 F.2d at 479-80; Morris, 435 F. Supp. 2d at 900.
under [a worksharing agreement] shall be deemed received by the other for the purposes of [the limitations rule].).
The Minnesota Worksharing Agreement provides for each agency to cross-file, with the other, all employment discrimination charges received. Each agency can both accept and draft charges on behalf of the other. Minnesota Worksharing Agreement at II(A). MDHRs letter to Fox, dated February 1, 2006, promises to refer [his] file to the EEOC. (Def. Ex. 4.) And on March 7, 2006, the EEOC sent Fox a Form 5 to finalize. Under these circumstances, and making reasonable inferences in favor of Fox as the nonmoving party, the Court finds that the EEOC received the MDHR Questionnaire prior to March 5, 2005, the 300th day of the limitations period.
This conclusion, however, does not end the Courts inquiry. The Court next considers whether Foxs MDHR Questionnaire is sufficient to constitute a charge for the purposes of Title VII.
III. The MDHR Questionnaire
Based on the fact that the EEOC asked Fox to finalize his Form 5, TPI first argues that the MDHR Questionnaire should not be considered an EEOC charge because the EEOC itself did not consider it a charge. But, as TPI itself acknowledges, the EEOCs actions do not bind this Court. (Def.s Br. at 5-6 (citing Dickerson v. Metro. Dade County, 659 F.2d 574, 579 (5th Cir. 1981))); see also Ledbetter, 127 S. Ct. at 2177 n.11 (declining to give deference to the EEOCs adjudicatory positions) and Edelman, 300 F.3d at 404 (finding the EEOCs actions merely failures of its responsibilities and not dispositive). Moreover, the parties dispute the significance of the EEOCs actions, such
as the inclusion of an EEOC claim number on the documents sent to Fox, on the issue of whether the MDHR Questionnaire constitutes a charge.
Next, TPI relies on certain Eighth Circuit cases holding that questionnairesunsigned and unverifiedcannot serve as EEOC charges sufficient to toll the limitations period. See, e.g., Shempert v. Harwick Chem. Corp., 151 F.3d 793, 796 (8th Cir. 1998); Diez v. Minn. Mining & Mfg. Co., 88 F.3d 672, 672 (8th Cir. 1996). These cases point to language in a portion of the Title VII statute that provides, Charges 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). Reading this language, the Eighth Circuit has concluded that [o]nly when an Intake Questionnaire is signed under oath can it constitute a valid charge under Title VII for purposes of the statute of limitations. Shempert, 151 F.3d at 796 (internal citations omitted). Given this pronouncement by the Eighth Circuit, TPI asserts that Foxs unsigned MDHR Questionnaire cannot serve as a timely EEOC charge.
In Edelman v. Lynchburg College, 535 U.S. 106 (2002), the Supreme Court considered circumstances similar to those in Shempert, Diez, and Foxs case.8 Edelman, a college professor, alleged that Lynchburg College committed discriminatory
8 Neither party addressed Edelman or the relation-back rule in their memoranda, and they both conceded at oral argument that they were unfamiliar with its holding.
TPI does rely, however, on one Eighth Circuit case issued post-Edelman. In that case, the Eighth Circuit did not address Edelman or the relation-back rule and held only that the plaintiff bears the burden of proof to show that the discriminatory events took place within the statutory period. Wilson v. Brinker Intl, Inc., 382 F.3d 765, 774 (8th Cir. 2004).
employment practices against him in violation of Title VII. Edelman, 535 U.S. at 109. Edelman faxed a letter to the EEOC that contained the substance of his allegations but did not include the EEOCs official Form 5 or an oath or affirmation of his signature. Id. Despite a reminder from the EEOC that he must file an official charge within the time limits imposed by law, Edelman did not file the EEOC Form 5 until 13 days after the limitation period elapsed. Id. at 110. Lynchburg College moved to dismiss Edelmans complaint on the basis that his EEOC charge was untimely. Id. at 109.
Edelman responded that an EEOC regulation defined charge, for purposes of the limitation period, to include written documents containing all the material elements of an official charge, as long as the claimant later perfected the charge. Id. at 110 (citing 29 C.F.R. 1601.12(b)) (the relation-back rule).9 The Supreme Court found the relation-back rule an unassailable interpretation of the limitations statute, upholding the EEOCs authority to make it. Id at 118. The Supreme Court then remanded the case back to the Fourth Circuit, leaving open the question of what constitutes a charge of discrimination. Id. at 118-19. On remand, the Fourth Circuit found that Edelmans letter
9 This regulation remained the same throughout Foxs case in the condition cited by the Edelman court. It provides, in relevant part: [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. A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received. 29 C.F.R. 1601.12(b) (2005).
adequately met the relation-back rules requirements, despite the EEOCs actions to the contrary. Edelman v. Lynchburg College, 300 F.3d 400, 404-05 (4th Cir. 2002).
Other district courts in the Eighth Circuit have concluded that Edelman overrules the Eighth Circuit cases that find questionnaires insufficient to serve as EEOC charges. See, e.g., Gross v. Mo. Mounting, No. 4:04CV241 HEA, 2005 WL 3560592, at *2 (E.D. Mo. Dec. 29, 2005); Sifferman v. Bd. of Regents, 250 F. Supp. 2d 1139, 1143 (E.D. Mo. 2003). The Court finds the reasoning in those cases persuasive and adopts it as its own. If the relation-back rule can apply to a claimant-created letter, it may also apply to a completed agency-generated questionnaire, depending on the circumstances of a particular case.
Under the relation-back rule, a charge must be in writing and sufficiently precise to identify the parties and to describe generally the actions or practices complained of. 29 C.F.R. 1601.12(b). Here, Foxs MDHR Questionnaire was in writing, identified the parties and described TPIs alleged discriminatory actions. In this way, it is sufficiently precise to meet the liberal requirements of the relation-back rule. See 29 C.F.R. 1601.12(b); Gross, 2005 WL 3560592, at *3. And the parties agree that Fox later perfected his EEOC charge with a completed, signed and verified Form 5. Under Edelman and its progeny, the MDHR Questionnaire, together with the completed Form 5, constitute a timely filed charge of discrimination. Given this, the Court denies TPIs motion for summary judgment.
A denial of summary judgment, however, does not equate to a victory at trial. At this stage, there is nothing in the record to either support or negate Foxs Title VII and Rehabilitation claims. Given this, the Court does not reach or make any prediction about the merits of Foxs claims. Considering the unique scheduling order and procedural posture in this case after the denial of TPIs motion, the Court directs the parties to meet and confer about the status of the case. If necessary, the parties are instructed to contact Beverly Riches, Calendar Clerk to Magistrate Judge Susan Richard Nelson at (612) 664-5490, to set up a status conference to discuss amending the scheduling order or participating in an early settlement conference.
Accordingly, IT IS HEREBY ORDERED that:
1. Thermoform Plastics, Inc., a/k/a TPi, Wilbert Plastic Services Motion for Summary Judgment (Doc. No. 25) is DENIED.
Dated: August 16, 2007 s/Donovan W. Frank
Judge of United States District Court


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