United States District Court, D. Maine
WILLIAM A. APIRE, Plaintiff
WHOLE FOODS MARKET GROUP, INC., Defendant
DECISION AND ORDER ON DEFENDANT’S PARTIAL MOTION TO DISMISS
D. BROCK HORNBY UNITED STATES DISTRICT JUDGE
The defendant Whole Foods Market Group, Inc. (Whole Foods) has moved to dismiss four Title VII civil rights counts in the plaintiff Apire’s First Amended Complaint on the basis that the plaintiff failed to file a timely administrative charge. Title VII of the Civil Rights Act requires that a plaintiff file a timely administrative charge as a condition to bringing suit. 42 U.S.C.A. § 2000e-5(e)(1) (2009 & Supp. 2015); see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002); Frederique-Alexandre v. Dep’t of Nat. & Envtl. Res. P.R., 478 F.3d 433, 437 (1st Cir. 2007). I Deny the defendant’s motion.
Because Maine is a so-called deferral state,  the plaintiff was entitled to file his documents with the Maine Human Rights Commission (MHRC), and that is what he did. The MHRC concluded that the plaintiff had filed sufficient documents to amount to a timely charge. Def.’s Partial Mot. to Dismiss at Ex. 2, 3 (ECF No. 13) (“Def.’s Mot.”). But the parties agree that federal law applies to Equal Employment Opportunities Commission (EEOC) charges in determining whether what the plaintiff filed with the MHRC was sufficient. See Def.’s Mot. at n.4; Pl.’s Mem. in Opp’n to Def.’s Partial Mot. to Dismiss at 4-5 (ECF No. 18) (“Pl.’s Opp’n”).
Title VII itself “does not define the term charge.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 395 (2008). But an EEOC regulation lists a number of elements that a “charge should contain.” 29 C.F.R. § 1601.12(a) (2015). Then subsection (b) of that regulation states:
Notwithstanding the provisions of paragraph (a) of this section, 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. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received. . . .
29 C.F.R. § 1601.12(b) (emphasis added). The Supreme Court ruled that this subsection-allowing a late verification to relate back to an earlier filed document-was “an unassailable interpretation” under Title VII, Edelman v. Lynchburg Coll., 535 U.S. 106, 118 (2002), but it did so without finding it necessary to rule whether the EEOC generally deserved discretion in its regulations interpreting what constitutes a “charge, ” id. at 114. Later, however, in Federal Express Corp. v. Holowecki, the Supreme Court did defer to the EEOC in interpreting comparable charging regulations in an Age Discrimination in Employment Act (ADEA) case, but it added one requirement. 552 U.S. at 392, 395, 402 (dealing with 29 C.F.R. §§ 1626.8(b), 1626.6). In Holowecki, the Supreme Court stated:
We conclude as follows: In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.
Id. at 402. The filing provisions of the ADEA and Title VII are virtually the same, “the former having been patterned after the latter.” Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34, 42 n.1 (1st Cir. 2013) (internal quotation marks omitted).
Whole Foods does not focus its argument on whether the documents that the plaintiff Apire did timely file in this case satisfied the criteria of 29 C.F.R. § 1601.12(b) and Holowecki. What the plaintiff-pro se at the time-filed was a completed MHRC Intake Questionnaire and an attached statement. The thrust of Whole Foods’s argument is that any filings the plaintiff did make in a timely fashion were insufficient because the MHRC warned the plaintiff repeatedly that he needed to do more than file the completed Intake Questionnaire. See Def.’s Mot. at 2-3. Specifically, the “Instructions for Intake Questionnaire” stated: “Completing this Intake Questionnaire does not mean that a Complaint of Discrimination has been filed”; and “A COMPLAINT OF DISCRIMINATION IS FILED WITH THE MAINE HUMAN RIGHTS COMMISSION WHEN A SIGNED, NOTARIZED COMPLAINT FORM IS RECEIVED BY THE COMMISSION. SIGNED, NOTARIZED COMPLAINTS MUST BE RECEIVED BY THE COMMISSION WITHIN THREE HUNDRED (300) DAYS OF THE ALLEGED ACT OF DISCRIMINATION.” Def.’s Mot. at Ex. 6. Moreover, on October 8, 2013, an MHRC Intake Officer mailed the plaintiff completed draft complaint discrimination forms for him to review and have notarized, telling him in the cover letter: “a complaint must be filed within 300 days of the date of the alleged discrimination”; and that it was “imperative” that he return the documents “as soon as possible.” Def.’s Mot. at Ex. 8. The plaintiff failed to do so until his lawyer filed completed verified complaint forms on May 27, 2014. See Def.’s Mot. at Ex. 4.
It is sound policy that the MHRC warns people (often without lawyers) who are trying to assert their rights what the MHRC wants them to file, and its advice is designed to ensure that there can be no issue later over adequacy of the filings. But in determining whether this federal civil rights lawsuit is barred, I measure what the plaintiff did file against the federal EEOC regulation and Supreme Court requirements, not the warnings that the MHRC gave to the plaintiff. The completed Intake Questionnaire with the attached typed statement satisfied all of section 1601.12(b) and Holowecki, but for the verification requirement. As stated in section 1601.12(b) and the Supreme Court in Edelman v. Lynchburg College, that requirement can be satisfied later, as it was in this case.
The Supreme Court has recognized that the requirements for a charging document amount to a “permissive standard, ” and may allow “a wide range of documents [to] be classified as charges. But this result is consistent with the design and purpose of the ADEA.” Holowecki, 552 U.S. at 402. The same is true of Title VII. See id. (“The ADEA, like Title VII, sets up a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.” (internal quotation marks omitted)). The Supreme Court has also pointed out that pro se litigants confront lesser pleading standards even in formal litigation. Id.; see id. at 403 (“The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes. It thus is consistent with the purposes of the [ADEA] that a charge can be a form, easy to complete, or an informal document, easy to draft.”); see also Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979) (noting the “common purpose” of Title VII and the ADEA).
The defendant relies heavily on a pre-Holowecki case from this court, Frank v. L.L. Bean, Inc., No. Civ. 04-221-P-S, 2006 WL 47557 (D. Me. Jan. 9, 2006), report and recommendation adopted, No. Civ. 04-221-P-S, 2006 WL 462339 (D. Me. Feb. 23, 2006). In Frank, the MHRC claimed never to have received even a completed Intake Questionnaire, although Frank claimed she had sent one. Id. at *6. The MHRC dismissed Frank’s later complaint as untimely, the EEOC followed suit, and the Magistrate Judge ultimately granted the employer’s motion for summary judgment. Id. at *6-7, 10. But here, the MHRC distinguished Frank in ruling that this plaintiff’s documents were timely filed. See Def.’s Mot. at Ex. 3 (letter from MHRC’s Executive Director to defense counsel denying the defendant’s motion for reconsideration of the Commission’s ruling as to the timeliness of the complaint). In any event, as I stated at the beginning of this opinion, the parties agree that I must apply federal law and I do so. Following Holowecki and the Code of Federal Regulations, I conclude that Frank is no longer persuasive. My decision is consistent with the more recent First Circuit case, Aly v. Mohegan Council, Boy Scouts of America, 711 F.3d 34 (1st Cir. 2013). There, in a Title VII case, the First Circuit said that in Holowecki,
the [Supreme] Court attempted to resolve a dispute among the lower courts regarding whether the filing of an intake questionnaire may constitute the filing of a “charge” for purposes of the Age Discrimination in Employment Act (ADEA) if all other filing requirements are met. The Court granted deference to the EEOC’s filing requirements, concluding that,
[i]n addition to the information required by the regulations, . . . if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or ...