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DANLEY v. BOOK-OF-THE-MONTH CLUB

April 19, 1996

JANE R. DANLEY, Plaintiff
v.
BOOK-OF-THE-MONTH CLUB, INC., Defendant



The opinion of the court was delivered by: CALDWELL

 This action arises out of Plaintiff's employment with the Defendant, Book-of-the-Month Club, Inc. ("BOMC"). Plaintiff contends that BOMC discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In the instant motion, BOMC contends that Plaintiff's complaint must be dismissed because she failed to comply with the statutory prerequisites for filing the instant action. For the reasons set forth below, BOMC's motion will be granted. *fn1"

 The procedural background of this action is not in dispute. On July 26, 1993, Plaintiff sent correspondence to the Equal Employment Opportunity Commission ("EEOC"), indicating that she sought to lodge a formal complaint against BOMC and requesting that her charge be filed with the Pennsylvania Human Relations Commission. She submitted no further documentation to the EEOC and no action was taken by the EEOC until September 29, 1995, when it issued a right to sue letter. *fn2"

 II. LAW AND ANALYSIS

 Prior to commencing an action under Title VII, a plaintiff must first file a charge with the EEOC alleging that the employer engaged in a discriminatory employment practice. The charge "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). The EEOC then conducts an investigation of the charge to determine whether there is "reasonable cause to believe that the charge is true. . . ." Id. If it finds reasonable cause, it must "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Id. If, however, it finds that no such reasonable cause exists, or more than 180 days elapse from the filing of the charge, it must dismiss the charge and issue a right to sue letter. Id. The plaintiff then has 90 days to file a lawsuit against his or her employer. 42 U.S.C. § 2000e-5(f)(1).

 Here, Plaintiff filed an unverified charge with the EEOC on July 26, 1993. On September 29, 1995, the EEOC issued a right to sue letter and plaintiff commenced this action. BOMC contends that Plaintiff's failure to verify her charge prior to the EEOC's issuance of the right to sue letter mandates dismissal of her claim. Plaintiff argues that the only requirements for maintaining a Title VII claim are: (1) the filing of a charge; and (2) the issuance of a right to sue letter, and that verification is a procedural requirement for the EEOC rather than a prerequisite to a subsequent civil action. She avers that she filed a "charge", notwithstanding her failure to verify it, and is therefore entitled to prosecute a Title VII action.

 In support of her contention that verification is a procedural requirement, Plaintiff relies upon 29 C.F.R. § 1601.12(b), which provides that

 
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.

 29 C.F.R. § 1601.12(b) (emphasis added). Plaintiff contends that because she can amend her charge to verify it, her failure to do so is simply a technical defect and insufficient to preclude her from pursuing a claim.

 We agree that, under section 1601.12(b), a plaintiff can verify his or her charge while the EEOC is investigating the claim. However, in the instant case the charge was not amended prior to the date the EEOC issued its right to sue letter and closed its file. Thus, we are faced with an issue of first impression in this circuit: whether a private litigant can maintain an action under Title VII where the underlying charge that was filed with the EEOC was not made under oath or affirmation and was not subsequently verified during the pendency of the charge before the EEOC. *fn3"

  Our review of the caselaw reveals only three cases that have addressed this issue directly and one that discussed it in dicta. See Balazs v. Liebenthal, 32 F.3d 151 (4th Cir. 1994); Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968); Bacon v. Allstate Insurance Co., 1995 U.S. Dist. LEXIS 8168, No. 93-1701, 1995 WL 360736 (N.D.Ill. June 14, 1995); EEOC v. Calumet Photographic, Inc., 687 F. Supp. 1249 (N.D.Ill. 1988).

 In Balazs, the plaintiff failed to verify his charge with the EEOC. Subsequently, a right to sue letter was issued and plaintiff commenced a civil action against his employer. The action was dismissed due to the plaintiff's failure to comply with the statutory requirements for a Title VII action (i.e., the filing of a charge "under oath or affirmation"). In affirming the opinion of the district court, the Fourth Circuit stated that

 
a reasonable construction of [ 29 U.S.C. § 1601.12(b)] would simply allow charges to be verified and to relate back only so long as the charge is a viable one in the EEOC's file, but that where, as here, a right to sue letter has been issued, a suit has been instituted and the EEOC has closed its file, there is ...

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