In a recent decision, the United States District Court for the Western District of Arkansas addressed the consequences of an employee’s failure to sign an initial form setting forth all his allegations of discrimination against his former employer. See Phillip Martinez-Nolan v. Tyson Poultry, Inc., Case No. 5:20-cv-5082, 2021 WL 469005 (W.D. Ark. Feb. 9, 2021).
A former Tyson employee—a Messianic Jew with diabetes—filed a lawsuit against Tyson, alleging several incidents of workplace discrimination and harassment and asserting several different claims. These claims included, among other things, discrimination based on disability, religion, sex, race, national origin, and FMLA leave.
The employer then moved for judgment on the pleadings on all claims. In doing so, the employer argued, among other things, that the plaintiff failed to raise (and thus “exhaust”) his claims of religious and sex discrimination before the EEOC.
In this case, the employee resigned on October 24, 2019. About two weeks later, he filed an unsigned letter with the EEOC. In this letter, the employee described instances of discrimination based upon sex, religion, disability and FMLA leave. The EEOC investigated. Following the investigation, a charge of discrimination form was completed by an EEOC investigator and filed. The former employee signed and verified the official charging document, which only checked boxes for disability and retaliation. The EEOC thereafter issued a right to sue letter.
In considering the employer’s argument that plaintiff failed to raise and exhaust his religion and sex discrimination claims, the Court asked: “If a Title VII complainant asserts various unverified claims to the EEOC, and subsequently verifies only some of those claims, which claims are exhausted?”
In answering this question, the Court started with the first, unsigned letter submitted to the EEOC. According to the Court, “it is plain that [the employee’s] initial letter, by itself, does not satisfy the verification requirements and cannot therefore exhaust a Title VII claim.” It noted the United States Supreme Court explanation that “the verification requirement ‘protect[s] employers from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury.” (citing and quoting Edelman v. Lynchburg Coll., 535 U.S. 106, 107 (2002)).
The Court then acknowledged, but distinguished, “a long line of cases holding that a Title VII plaintiff may, by subsequent verification, amend and cure a prior unverified charge.” In the Court’s view, “the weight of the authorities suggests that a claim listed in an unverified letter or intake questionnaire is not exhausted where a subsequently filed, verified and timely charge does not include that claim.” The Court principally relied on a decision from the Fourth Circuit to reach this conclusion, but also noted support for its holding in the Third and Tenth Circuits, as well as other decisions from District Courts in Arkansas.
Filings and submissions before the EEOC—whether letters, questionnaires, or official charging documents—matter both in terms of their detail and their verification. See Understanding Charges of Discrimination. Courts take seriously the obligation of complainants to not only specify the facts and bases for claims of discrimination, but also to verify them under oath.
While it is unclear from this case why the EEOC investigator only checked certain boxes after review and investigation of the initial complaint letter, it is clear the employee should have more carefully reviewed the official charging document to make sure it contained the facts and claims he intended to bring.
In short, absent careful review and pleading at the administrative stage, discrimination claims may be summarily dismissed at the outset of any subsequent lawsuit.