[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JAN 29 2001 THOMAS K. KAHN No. 00-11544 CLERK ________________________
D. C. Docket No. 99-00230-CV-A-N
JOE ANN VASON,
Plaintiff-Appellant,
versus
THE CITY OF MONTGOMERY, ALABAMA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Alabama _________________________
(January 29, 2001)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM: Appellant Jo Ann Vason filed suit against the City of Montgomery (the City)
on March 8, 1999, alleging race and sex discrimination in violation of 42 U.S.C.
§§ 1981 and 1983 and under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e. The district court granted summary judgment for the City on
the § 1981 and § 1983 claims on February 1, 2000, and granted summary judgment
for the City on the Title VII claim on March 10, 2000, Vason v. City of
Montgomery, 86 F. Supp. 2d 1130 (M.D. Ala. 2000). Appellant appeals as to all
claims. The only issue warranting discussion is the Title VII issue.1
I. BACKGROUND
The City hired Appellant as a nurse/matron on August 25, 1977. She was
assigned to the Montgomery Police Department Municipal Jail. On April 5, 1986,
the Montgomery Police Department implemented a Weight Management Program
for sworn officers, and the Department gave all officers one year in which to meet
their specified weights. Appellant was exempted from the program on
1 Appellant also claims her § 1981 claim should not have been merged into her § 1983 claim. The Supreme Court held in Jett v. Dallas Independent School District, 491 U.S. 701, 735, 109 S. Ct. 2702, 2723 (1989) that § 1983 “provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor.” Appellant argues the Civil Rights Act of 1991 revitalized § 1981 so that it provides a separate cause of action. This court recently decided in Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000), that the Civil Rights Act of 1991 did not affect the continuing validity of Jett. We agree with the district court that summary judgment on the § 1983 action was appropriate, as Appellant presented no genuine issue of material fact. See 11th Cir. R. 36-1.
2 December 18, 1987. The City attempted to subject her to the weight program
again in 1992, but the matter was dropped after she produced the 1987
memorandum establishing her exemption from the program.
On February 26, 1998, Appellant was charged with not being truthful about
a death that occurred in the jail, and her employment was terminated. She was
later cleared of charges of wrongdoing, and she was reinstated to her job on May 2,
1998. Immediately following her reinstatement, she was once again informed that
she must weigh in to determine her compliance with the weight program. She
again produced the 1987 memorandum exempting her from the weight program,
but she was nevertheless charged on June 23, 1998, with a violation of the weight
policy. On June 30, 1998, she was suspended without pay for a 6-month period.
The Montgomery City and County Personnel Board upheld her suspension on or
about August 26, 1998. Appellant subsequently retired from her position.
On October 28, 1998, Appellant wrote to the Equal Employment
Opportuntiy Commission (EEOC) to complain of race and sex discrimination. She
asked the EEOC to investigate the City’s alleged pattern and practice of exempting
white male officers from the weight program and included the names of white men
who were allegedly exempted from the program. Appellant received a right-to-sue
letter dated December 10, 1998, and she filed suit on March 8, 1999. It is
3 undisputed that Appellant’s letter to the EEOC “was not sworn to under oath or
affirmed” and that she did not later attempt to verify her charge through
amendment. Vason, 86 F. Supp. 2d at 1132 and n.1. The district court granted
summary judgment to Appellee on Appellant’s Title VII claim after concluding
that “verification is an absolute condition precedent to suit [under Title VII,]” and
Appellant failed to satisfy that condition. Id. at 1133.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court. See Breda v. Wolf Camera & Video,
222 F.3d 886, 888 (11th Cir. 2000). We review the record and all inferences
drawn therefrom in the light most favorable to the non-moving party (here,
Appellant), and we affirm “if the record demonstrates there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of
law.” Id.
III. DISCUSSION
Prior to filing suit under Title VII, a plaintiff must file a charge with the
EEOC. See 42 U.S.C. § 2000e-5(e). The district court granted summary
judgment on Appellant’s Title VII claim because Appellant did not verify her
EEOC charge as required by 42 U.S.C. § 2000e-5(b), which provides, “Charges
4 shall be in writing under oath or affirmation and shall contain such information and
be in such form as the Commission requires.” Appellant argues the EEOC should
have informed her if there was a problem with her charge, and she contends the
EEOC in effect waived the verification requirement when it processed her
unverified charge and issued a right to sue letter.
This issue is one of first impression in this circuit. Other circuits have held
that the verification requirement for EEOC charges is mandatory. See, e.g.,
Hodges v. Northwest Airlines, 990 F.2d 1030, 1032 (8th Cir. 1993) (holding that
intake questionnaire filled out at EEOC office was not a valid charge because it
was not under oath); Equal Employment Opportunity Commission v. Appalachian
Power Co., 568 F.2d 354, 355 (4th Cir. 1978) (holding that the “oath or
affirmation” requirement is mandatory, even for charges “instituted by the EEOC
itself”). See also Danley v. Book-of-the-Month Club, Inc., 921 F. Supp. 1352, 1354
(M.D. Pa. 1996), aff’d 107 F.3d 861 (3rd Cir. 1997) (holding that “a private litigant
cannot maintain a Title VII claim where his or her EEOC charge was not verified
prior to the EEOC's issuance of a right to sue letter”).2
2 But see Choate v. Caterpillar Tractor Co., 402 F.2d 357, 360 (7th Cir. 1968) (holding that EEOC waived oath requirement when it processed a charge that was not under oath).
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JAN 29 2001 THOMAS K. KAHN No. 00-11544 CLERK ________________________
D. C. Docket No. 99-00230-CV-A-N
JOE ANN VASON,
Plaintiff-Appellant,
versus
THE CITY OF MONTGOMERY, ALABAMA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Alabama _________________________
(January 29, 2001)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM: Appellant Jo Ann Vason filed suit against the City of Montgomery (the City)
on March 8, 1999, alleging race and sex discrimination in violation of 42 U.S.C.
§§ 1981 and 1983 and under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e. The district court granted summary judgment for the City on
the § 1981 and § 1983 claims on February 1, 2000, and granted summary judgment
for the City on the Title VII claim on March 10, 2000, Vason v. City of
Montgomery, 86 F. Supp. 2d 1130 (M.D. Ala. 2000). Appellant appeals as to all
claims. The only issue warranting discussion is the Title VII issue.1
I. BACKGROUND
The City hired Appellant as a nurse/matron on August 25, 1977. She was
assigned to the Montgomery Police Department Municipal Jail. On April 5, 1986,
the Montgomery Police Department implemented a Weight Management Program
for sworn officers, and the Department gave all officers one year in which to meet
their specified weights. Appellant was exempted from the program on
1 Appellant also claims her § 1981 claim should not have been merged into her § 1983 claim. The Supreme Court held in Jett v. Dallas Independent School District, 491 U.S. 701, 735, 109 S. Ct. 2702, 2723 (1989) that § 1983 “provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor.” Appellant argues the Civil Rights Act of 1991 revitalized § 1981 so that it provides a separate cause of action. This court recently decided in Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000), that the Civil Rights Act of 1991 did not affect the continuing validity of Jett. We agree with the district court that summary judgment on the § 1983 action was appropriate, as Appellant presented no genuine issue of material fact. See 11th Cir. R. 36-1.
2 December 18, 1987. The City attempted to subject her to the weight program
again in 1992, but the matter was dropped after she produced the 1987
memorandum establishing her exemption from the program.
On February 26, 1998, Appellant was charged with not being truthful about
a death that occurred in the jail, and her employment was terminated. She was
later cleared of charges of wrongdoing, and she was reinstated to her job on May 2,
1998. Immediately following her reinstatement, she was once again informed that
she must weigh in to determine her compliance with the weight program. She
again produced the 1987 memorandum exempting her from the weight program,
but she was nevertheless charged on June 23, 1998, with a violation of the weight
policy. On June 30, 1998, she was suspended without pay for a 6-month period.
The Montgomery City and County Personnel Board upheld her suspension on or
about August 26, 1998. Appellant subsequently retired from her position.
On October 28, 1998, Appellant wrote to the Equal Employment
Opportuntiy Commission (EEOC) to complain of race and sex discrimination. She
asked the EEOC to investigate the City’s alleged pattern and practice of exempting
white male officers from the weight program and included the names of white men
who were allegedly exempted from the program. Appellant received a right-to-sue
letter dated December 10, 1998, and she filed suit on March 8, 1999. It is
3 undisputed that Appellant’s letter to the EEOC “was not sworn to under oath or
affirmed” and that she did not later attempt to verify her charge through
amendment. Vason, 86 F. Supp. 2d at 1132 and n.1. The district court granted
summary judgment to Appellee on Appellant’s Title VII claim after concluding
that “verification is an absolute condition precedent to suit [under Title VII,]” and
Appellant failed to satisfy that condition. Id. at 1133.
II. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court. See Breda v. Wolf Camera & Video,
222 F.3d 886, 888 (11th Cir. 2000). We review the record and all inferences
drawn therefrom in the light most favorable to the non-moving party (here,
Appellant), and we affirm “if the record demonstrates there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of
law.” Id.
III. DISCUSSION
Prior to filing suit under Title VII, a plaintiff must file a charge with the
EEOC. See 42 U.S.C. § 2000e-5(e). The district court granted summary
judgment on Appellant’s Title VII claim because Appellant did not verify her
EEOC charge as required by 42 U.S.C. § 2000e-5(b), which provides, “Charges
4 shall be in writing under oath or affirmation and shall contain such information and
be in such form as the Commission requires.” Appellant argues the EEOC should
have informed her if there was a problem with her charge, and she contends the
EEOC in effect waived the verification requirement when it processed her
unverified charge and issued a right to sue letter.
This issue is one of first impression in this circuit. Other circuits have held
that the verification requirement for EEOC charges is mandatory. See, e.g.,
Hodges v. Northwest Airlines, 990 F.2d 1030, 1032 (8th Cir. 1993) (holding that
intake questionnaire filled out at EEOC office was not a valid charge because it
was not under oath); Equal Employment Opportunity Commission v. Appalachian
Power Co., 568 F.2d 354, 355 (4th Cir. 1978) (holding that the “oath or
affirmation” requirement is mandatory, even for charges “instituted by the EEOC
itself”). See also Danley v. Book-of-the-Month Club, Inc., 921 F. Supp. 1352, 1354
(M.D. Pa. 1996), aff’d 107 F.3d 861 (3rd Cir. 1997) (holding that “a private litigant
cannot maintain a Title VII claim where his or her EEOC charge was not verified
prior to the EEOC's issuance of a right to sue letter”).2
2 But see Choate v. Caterpillar Tractor Co., 402 F.2d 357, 360 (7th Cir. 1968) (holding that EEOC waived oath requirement when it processed a charge that was not under oath). Choate is clearly distinguishable from this case. As the district court noted, Choate was decided before “Congress substantially changed the wording of the oath requirement for EEOC charges,” transforming it from “prefatory language . . . into a clearly stated statutory prerequisite.” Vason, 86 F. Supp. 2d at 1133 (citations and internal quotation marks omitted).
5 We agree with these circuits and hold the statute mandates that charges be
made under oath or affirmation. Since it is undisputed that Appellant’s charge was
not under oath or affirmation, and that she never attempted to amend it to correct
this error,3 we hold the district court correctly granted summary judgment for the
City.
AFFIRMED.
3 Appellant does not allege that she attempted to amend her charge to correct her failure to verify it in the first instance. We therefore do not reach the issue of whether such an amendment relates back to the original date of filing. See, e.g., Edelman v. Lynchburg College, 228 F.3d 503, 507-09 (4th Cir. 2000) (holding that 29 C.F.R. § 1601.12(b), which allows an amendment “to cure technical defects or omissions, including the failure to verify the charge,” to “relate back to the date the charge was first received[,]” is invalid because it thwarts the plain language of Title VII); Philbin v. General Electric Capital Auto Lease, Inc., 929 F.2d 321, 324 (7th Cir. 1991) (upholding same regulation as not unreasonable and within EEOC’s power to promulgate).