Glapion-Pressley v. City and County of Denver

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 14, 2022
• Docket: 21-1223
• Status: Unpublished

Opinion

Appellate Case: 21-1223 Document: 010110671023 Date Filed: 04/14/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 14, 2022 _________________________________ Christopher M. Wolpert Clerk of Court MELEAHA R. GLAPION-PRESSLEY,

Plaintiff - Appellant,

v. No. 21-1223 (D.C. No. 1:19-CV-02806-RM-MEH) CITY AND COUNTY OF DENVER; (D. Colo.) DEPARTMENT OF HUMAN SERVICES,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, KELLY, and CARSON, Circuit Judges. _________________________________

Meleaha R. Glapion-Pressley appeals pro se from the district court’s dismissal

of her employment discrimination suit and denial of post-judgment relief. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I

Glapion-Pressley worked for the City & County of Denver, Department of

Human Services (City) from April 2016 until December 2018, when she was fired.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-1223 Document: 010110671023 Date Filed: 04/14/2022 Page: 2

In 2019, she filed a discrimination complaint with the Equal Employment

Opportunity Commission (EEOC), concluding with the following declaration:

Pursuant to 28 U.S.C. §[]1746, I, Meleaha Ruth Glapion-Pressley, declare preparing herein June 12, 2019 (Wednesday) Filed Formal Complaint Charges of Discrimination (26 pages) truthfully and to the best of my ability.

R., vol. 3 at 99 (bolding and underlining omitted). The EEOC notified the City of the

complaint but indicated no response was required at that time because “[a] perfected

charge (EEOC Form 5) [would] be mailed to [the City] once it [had] been received

from the Charging Party.” Id. at 35 (emphasis added). The EEOC interviewed

Glapion-Pressley and required that she review and sign a formal charge by July 31,

2019. She apparently never signed it, however, because on August 23, the EEOC

notified her it had not received the charge and therefore no further action would

be taken in her case. The EEOC deemed this its final action and provided

Glapion-Pressley with a right-to-sue letter. She then initiated this suit.1

The district court determined the third-amended complaint, which was the

operative complaint, alleged three claims under Title VII, see 42 U.S.C. §§ 2000e to

2000e-17, and a fourth claim under state law. The City moved to dismiss, arguing

that the Title VII claims were unexhausted because Glapion-Pressley failed to file a

1 Although Glapion-Pressley initiated this action pro se, the district court appointed her counsel, who filed the operative complaint on her behalf.

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verified EEOC charge.2 Glapion-Pressley responded that her EEOC complaint was

verified because she referred to 28 U.S.C. § 1746 in her declaration. Adopting a

magistrate judge’s report and recommendation, the district court dismissed the Title

VII claims for failure to satisfy the verification requirement.3 Glapion-Pressley

moved to vacate the dismissal under Fed. R. Civ. P. 60(b), but the district court

denied her motion. This appeal followed.

II

We first consider the scope of this appeal. The district court entered judgment

on October 14, 2020, and Glapion-Pressley filed her Rule 60(b) motion seven days

later. The district court denied the Rule 60(b) motion on May 28, 2021, from which

Glapion-Pressley filed her notice of appeal on June 15, though she designated only

the denial of her Rule 60(b) motion. Because she designated only the denial of the

Rule 60(b) motion in her notice of appeal, the City contends this appeal encompasses

only the order denying the Rule 60(b) motion, not the underlying dismissal. But the

Rule 60(b) motion tolled the time to appeal because it was filed within 28 days of the

entry of judgment. See Fed. R. App. P. 4(a)(4)(A)(vi). Although it designated only

the denial of Rule 60(b) relief, we decline to limit this appeal for “hypertechnical

2 EEOC regulations define “verified” as being affirmed before persons authorized to administer oaths or an unsworn written declaration made under penalty of perjury. See 29 C.F.R. § 1601.3(a). 3 The district court declined to exercise supplemental jurisdiction over the state-law claim. Glapion-Pressley does not address that ruling on appeal, and we do not consider it.

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reasons” when the Rule 60(b) motion tolled the time to appeal, the notice of appeal

was timely, and Glapion-Pressley clearly aimed to challenge the underlying

dismissal. Cheney v. Moler, 285 F.2d 116, 118 (10th Cir. 1960) (internal quotation

marks omitted); see Sundance Energy Okla., LLC v. Dan D. Drilling Corp., 836 F.3d

1271, 1275 n.2 (10th Cir. 2016) (“A notice of appeal designating a ruling on a

postjudgment motion is typically sufficient to appeal the judgment itself.”). Thus, we

consider both the underlying dismissal and the denial of post-judgment relief.

III

We review de novo the district court’s dismissal for failure to exhaust. See

Gad v. Kan. State Univ., 787 F.3d 1032, 1036-38 (10th Cir. 2015) (treating Title

VII’s verification requirement as a non-jurisdictional exhaustion requirement); Smith

v. Cheyenne Ret. Invs. L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (reviewing district

court’s exhaustion ruling de novo).4 Although we afford pro se pleadings a liberal

construction, we will not act as Glapion-Pressley’s attorney by searching the record

and crafting arguments on her behalf. See Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005).

A charge of discrimination filed with the EEOC must “‘be in writing under

oath or affirmation containing such information and in such form as the [EEOC]

4 To the extent Glapion-Pressley contends the district court erred by reviewing material outside the operative complaint, the City was entitled (and obliged) to object to the verification defect immediately in its motion to dismiss. See Gad, 787 F.3d at 1039 (“[A]ny objection to the failure to comply with a verification requirement must be raised immediately or not at all.” (internal quotation marks omitted)). 4 Appellate Case: 21-1223 Document: 010110671023 Date Filed: 04/14/2022 Page: 5

requires.’” Edelman v. Lynchburg Coll., 535 U.S. 106, 112 (2002) (quoting

42 U.S.C. § 2000e-5(b)) (brackets and ellipses omitted). “EEOC regulations

interpreting the statute reiterate that a charge ‘shall be in writing and signed and shall

be verified.’” Gad, 787 F.3d at 1036 (quoting 29 C.F.R. § 1601.9). “‘[V]erified’

means ‘sworn to or affirmed before a notary public, designated representative of the

[EEOC], or other person duly authorized by law to administer oaths and take

acknowledgements, or supported by an unsworn declaration in writing under penalty

of perjury.’” Id. (emphasis added) (quoting 29 C.F.R. § 1601.3); see also id. at 1034

(recognizing a claimant can satisfy the verification requirement by signing a

declaration under penalty of perjury). Although the verification requirement is not

jurisdictional, see id. at 1039, it is a condition precedent to suit, see id. at 1042.

Indeed, verification serves to “protect[] 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.” Edelman, 535 U.S. at 113; see also

Peterson v. City of Wichita, 888 F.2d 1307, 1309 (10th Cir. 1989) (“[T]he purpose of

the verification requirement . . . is to protect an employer from frivolous claims.”).

Glapion-Pressley fails to show the district court erred in dismissing her claims

for failure to satisfy Title VII’s verification requirement. Her declaration cited

§ 1746, but as the district court correctly observed, she did not sign it “under penalty

of perjury.” See Price v. Philpot, 420 F.3d 1158, 1167 (10th Cir. 2005) (recognizing

the “‘under penalty of perjury’ language [is] specifically required by 28 U.S.C.

§ 1746”). Although Glapion-Pressley suggests she satisfied the verification

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requirement by submitting an initial EEOC intake questionnaire, which she says was

verified, we decline to consider this argument because Glapion-Pressley failed to

preserve it in the district court, and she makes no attempt to show plain error on

appeal. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127-28 (10th Cir. 2011)

(distinguishing waived from forfeited arguments and explaining that “we will reverse

a district court’s judgment on the basis of a forfeited theory only if failing to do so

would entrench a plainly erroneous result”).

Glapion-Pressley asserts she did preserve this issue, but her pleadings refute

her assertion. She argued in response to the motion to dismiss that she satisfied the

verification requirement—not by submitting an intake questionnaire—but by citing

§ 1746 in her declaration. See R., vol. 3 at 70. She also relied on her reference to

§ 1746 in her objections to the magistrate judge’s report and recommendation,

arguing that “[b]y invoking Section 1746, expressly by name, the Plaintiff’s

declaration must be viewed as incorporating and adopting all of the language of the

statute itself, including the ‘under penalty of perjury’ language.” Id. at 126. And in

her Rule 60(b) motion, she argued that an amended EEOC charge that she filed just

days before the district court dismissed her case constituted new evidence justifying

post-judgment relief. She insisted under Edelman that her amended EEOC charge

related back to the time she filed her EEOC complaint and cured the verification

defect. Although her Rule 60(b) motion included a sentence suggesting that an

intake questionnaire can serve as an EEOC charge, see id. at 143, her argument was

that her amended EEOC charge should relate back to cure her unverified EEOC

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complaint. See id. at 142-43. She repeated this argument in her Rule 60(b) reply

brief, in which she distinguished an intake questionnaire from an amended EEOC

charge, which she relied upon. See id. at 159-60. Her pleadings thus confirm that

she failed to preserve this issue.5

Neither must we consider another new argument in which Glapion-Pressley

contends the magistrate judge was biased against her. See Richison, 634 F.3d

at 1127-28. Although she indicates that she “explicitly conveyed, verbally and in

writing, reasonably questioning [the magistrate judge’s] impartiality to Pro Bono

Counsel along with mentioning how she had previously filed a Motion for Recusal,”

Aplt. Br. at 6, she apparently never raised these concerns with the district court.

Indeed, the district court docket sheet does not reflect a motion for recusal, and while

the parties declined consent to proceed before a magistrate judge, Glapion-Pressley

provides no record citation demonstrating that she moved for recusal. See Garrett,

425 F.3d at 840-41 (noting an appellant’s brief must provide citations to “parts of the

record on which the appellant relies”).

The argument is meritless in any event. “To demonstrate a violation of due

process because of judicial bias, a claimant must show either actual bias or an

appearance of bias.” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010) (internal

5 We also note that Glapion-Pressley’s opening brief on appeal fails to adequately develop this issue; it merely asserts she satisfied the verification requirement by submitting an initial intake questionnaire. See Aplt. Br. at 8. Absent any developed argument, we decline to construct arguments on her behalf. See Garrett, 425 F.3d at 840.

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quotation marks omitted). “Adverse rulings alone do not demonstrate judicial bias.”

Id. Yet adverse rulings are the sole basis of Glapion-Pressley’s allegations in which

she avers that the magistrate judge issued adverse rulings against her in other Title

VII suits she previously has brought. See Aplt. Br. at 6 (arguing that the magistrate

judge “presided over appealed Title VII civil actions and granted summary judgments

to pro se Appellant’s previous federal employers”); id. at 16 (same).

Additionally, Glapion-Pressley faults the EEOC for closing her case. While

her argument is not entirely clear, she seems to contend the EEOC lacked jurisdiction

to close her case because the Department of Justice has sole authority to prosecute

discrimination claims involving local municipalities. See id. at 11. Once again,

however, we need not consider this issue because Glapion-Pressley failed to preserve

it in the district court. See Richison, 634 F.3d at 1127-28. We also note that she

waived this issue on appeal by failing to explain how the EEOC’s closure of her case

suggests any error on the part of the district court. See Nixon v. City & Cnty. of

Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an appellant is to

explain to us why the district court’s decision was wrong. Recitation of a tale of

apparent injustice may assist in that task, but it cannot substitute for legal

argument.”); see also id. at 1369-70 (invoking waiver where appellant failed to

explain how district court erred). We therefore affirm the district court’s dismissal.

IV

Finally, Glapion-Pressley challenges the denial of her Rule 60(b) motion. “We

review the district court’s denial of a Rule 60(b) motion for abuse of discretion.”

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Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). “A district

court abuses its discretion when it commits legal error.” Dronsejko v. Thornton,

632 F.3d 658, 664 (10th Cir. 2011). There was no abuse of discretion here.

Shortly before the district court entered judgment on October 14, 2020,

Glapion-Pressley executed an amended, notarized EEOC charge under penalty of

perjury on October 9. See R., vol. 3 at 146-47. Following entry of judgment, she

returned to the district court and filed a Rule 60(b) motion, arguing that her amended

EEOC charge was new evidence warranting relief from the judgment. She claimed

her amended EEOC charge should relate back to her EEOC complaint filed on June

12, 2019, to cure the verification defect. See Edelman, 535 U.S. at 109 (upholding

29 C.F.R. § 1601.12(b), which “permit[s] an otherwise timely filer to verify a charge

after the time for filing has expired”); see also Peterson, 888 F.2d at 1309 (same).

The district court denied the motion, ruling that because the EEOC had already

issued a right-to-sue letter and closed the case, the amended charge was too late.

Glapion-Pressley is correct that Edelman permits an amended EEOC charge to

relate back to verify an original charge, but we have found no case—and she cites

none—permitting such an amendment once the EEOC has closed the case and issued

a right-to-sue letter. As Edelman observed, the object of verification is to protect

employers from frivolous claims, but “[t]his object . . . demands an oath only by the

time the employer is obliged to respond to the charge.” 535 U.S. at 113. Once the

EEOC issues a right-to-sue letter and the claimant files suit, there is no pending

EEOC charge to verify. The Fourth Circuit recognized as much when it held that an

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amended EEOC charge may relate back to the time the charge was filed to cure a

verification defect “only so long as the charge is . . . viable . . . in the EEOC’s files,

but [once] a right[-]to[-]sue letter has issued, a suit has been instituted and the EEOC

has closed its file, there is no longer a charge pending before the EEOC which is

capable of being amended.” Balazs v. Liebenthal, 32 F.3d 151, 157 (4th Cir. 1994).

Here, the EEOC issued a right-to-sue letter, Glapion-Pressley initiated suit,

the City filed its motion to dismiss based on the verification defect, and the

magistrate judge recommended that the motion to dismiss be granted for lack of

verification. Only then—just days before the district court’s entry of judgment—did

Glapion-Pressley file an amended EEOC charge in an attempt to cure the verification

defect. But because the EEOC had long since issued her right-to-sue letter and

closed the case, her belated attempt to cure the verification defect was too late and

did not justify granting the Rule 60(b) motion. Consequently, the district court acted

within its discretion in denying the motion.

V

The district court’s judgment is affirmed.

Entered for the Court

Nancy L. Moritz Circuit Judge