March 23, 2019

Archives for July 10, 2015

Tenth Circuit: Verification Requirement for EEOC Charge Non-Jurisdictional

The Tenth Circuit Court of Appeals issued its opinion in Gad v. Kansas State University on Wednesday, May 27, 2015.

Sabreen Gad was hired by KSU in 2010 as a part-time assistant professor of geology. She subsequently requested to be promoted to a full-time professorship or promote her to membership on the graduate faculty, and when she did not receive either promotion, she filed an unverified charge with the EEOC alleging religious, sex, and national origin discrimination. The EEOC investigator mailed her a Form 5, which has a box in which to sign under penalty of perjury, satisfying the verification requirement, and also a letter instructing her to verify the charge within 30 days or the EEOC would be authorized to dismiss the charge. The investigator also mailed a letter to KSU that Gad had filed an “unperfected” charge of discrimination, and advising that no action was required by KSU. Later, the investigator spoke to Gad again and advised her that further investigation would be unlikely to result in a violation and the EEOC would issue her a dismissal and right-to-sue notice. The notice was mailed to Gad and copied to KSU after the conversation.

Gad sued KSU in federal court. KSU’s answer stated that Gad had failed to exhaust her administrative remedies but did not mention the unverified charge. KSU then moved for summary judgment, arguing the court lacked jurisdiction because Gad had failed to exhaust administrative remedies by not verifying her EEOC charge. The district court agreed, finding exhaustion of administrative remedies is a jurisdictional prerequisite to suit. Gad appealed.

The Tenth Circuit first discussed whether Title VII’s verification requirement was a prerequisite to its subject matter jurisdiction. Although Title VII specifically confers jurisdiction as a general matter, it also requires claimants to submit a “charge” to the EEOC, which must be in writing and must be signed and verified. The Tenth Circuit noted that it is not clear whether the verification requirement is a jurisdictional prerequisite to a Title VII suit. The Tenth Circuit analyzed Supreme Court cases and its own precedent and concluded (1) the language discussing Title VII jurisdiction was not located in the same statute as the verification requirement, tending to show the verification requirement was non-jurisdictional; (2) courts should be careful in interpreting procedural rules to deprive non-lawyers of rights in proceedings they initiate; (3) verification protects employers from the burden of responding to frivolous claims or claims of which they had no notice; and (4) failure to verify will not necessarily render a document fatally defective.

Applying the four principles to the verification requirement, the Tenth Circuit determined it was non-jurisdictional, but noted “[h]olding verification non-jurisdictional does not imply any diminution in the need for plaintiffs to comply with this Title VII requirement.” The Circuit held that an employer may still achieve dismissal based on a verification defect, and found that verification is a condition precedent to suit. The verification requirement is integrated into a statutory section delineating steps a plaintiff must satisfy before receiving leave to sue. Although Gad argued only the EEOC waived the requirement, not KSU, the Circuit held the requirement cannot be waived unilaterally, but non-compliance may be excused in some cases.

The Tenth Circuit reversed the district court’s grant of summary judgment and remanded for further proceedings.

Tenth Circuit: Exclusionary Rule Should Not Apply When Officer’s Reasonable Belief Mistaken

The Tenth Circuit Court of Appeals issued its opinion in United States v. Esquivel-Rios on Wednesday, March 27, 2015.

Antonio Esquivel-Rios was stopped in Kansas while driving a minivan with Colorado temporary tags. The officer who stopped him ran the temporary tags and received a response that there was no record of the vehicle, and the dispatcher noted that Colorado temporary tags usually don’t return. Because of the non-returning tags, the officer conducted a traffic stop, and a later search revealed over a pound of methamphetamine in a secret compartment in the vehicle. During the initial proceedings in the district court, Esquival-Rios sought to suppress all evidence obtained from the vehicle search, contending the traffic stop violated his Fourth Amendment rights because the officer who stopped him lacked reasonable suspicion of any wrongdoing. The district court disagreed and denied Esquival-Rios’ motion to suppress. He was eventually convicted of possession with intent to distribute methamphetamine.

On direct appeal, the Tenth Circuit remanded, finding “too many unanswered questions” and “too many record ambiguities” regarding the database reliability for the district court to conclude no Fourth Amendment violation had occurred. On remand, the district court conducted an evidentiary hearing, where it heard testimony from the officer, dispatcher, and various Colorado employees, as well as written responses from the Colorado Bureau of Investigation and the Colorado Department of Revenue. The evidence established that at the time of Esquival-Rios’ stop, the Colorado Department of Revenue did not transmit information about temporary tags to the Colorado Bureau of Investigation, which was responsible for maintaining the nationwide database, so every Colorado temporary tag run by an out of state officer would have returned as “no record.” However, the officer and dispatcher both testified they had not been specifically advised that this result would occur with all Colorado temporary tags, and the trooper testified he did not believe the information was categorically unavailable at the time of the traffic stop. The district court found that it had no choice but to conclude that the negative report was not particularized evidence that the vehicle was unregistered, and therefore a Fourth Amendment violation occurred. However, the district court also found no basis to apply the exclusionary rule, since the trooper reasonably relied on his mistaken belief about the database inquiry. Esquival-Rios again appealed.

On appeal, the government contended the officer’s reasonable but mistaken belief was a constitutionally sufficient ground to conduct the traffic stop, and in the alternative that if the court found a Fourth Amendment violation, the exclusionary rule should not apply because there was no police misconduct to deter. The government further contended that deterrence was inappropriate because the problem was remedied—the Colorado Department of Revenue now transmits information on temporary tags to the Colorado Bureau of Investigation for inclusion in the national database.

The Tenth Circuit analyzed the exclusionary rule, and noted that its purpose is to deter Fourth Amendment violations, and suppression is only appropriate when it will result in “appreciable deterrence” or alter the behavior of law enforcement officers. In this case, the “good-faith” exception to the exclusionary rule applied because the officer reasonably relied on the database information. Further, the Tenth Circuit found there was no recurring conduct to deter since the Colorado agencies changed their business practices to ensure that temporary tag information was included in the national database.

The Tenth Circuit affirmed the district court’s decision.

Colorado Court of Appeals: Announcement Sheet, 7/9/2015

On Thursday, July 9, 2015, the Colorado Court of Appeals issued no published opinion and 22 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 7/9/2015

On Thursday, July 9, 2015, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Redmond v. Hassan

Blackfeather v. Boulder County Combine Courts

United States v. Gallegos-Garcia

Holden v. Addison

Jordan v. Dillon Companies

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.