LACK OF VERIFIED EEOC CHARGE LEADS TO DISMISSAL OF LAWSUIT
Hugh Butler filed his lawsuit against his former employer, Greif, Inc. alleging a violation of the anti-retaliation provision of the Americans with Disabilities Act (ADA). Butler's attorney filed the charge with the EEOC, which is a pre-requisite to pursuing a claim under the ADA. However, Butler failed to verify the charge since he did not sign it under oath, and under penalty of perjury. The trial court granted summary judgment in favor of Greif. On appeal, the Eleventh Circuit Court of Appeals affirmed the summary judgment, finding that the attorney's signature did not constitute a verification. The court found that an attorney can verify the charge so long as he swears to the truth of the facts stated in the charge and has personal knowledge of those facts. The charge could have been verified at any time while the charge was pending, but Butler failed to do so. It should be noted that Butler failed to cooperate with the EEOC in their investigation, and thus dis-entitled him to any equitable relief, referring to a case from the Third Circuit that held that the "verification requirement should be subject to waiver "when equity so requires", such as when, as in that case, the employer responded to the EEOC charge on the merits, declined to challenge the sufficiency of the charge before the EEOC, and later attempted to move to dismiss the suit for lack of verification."
Practice Pointers. From an employees' perspective, it is imperative that the EEOC charge be verified. Employees must also cooperate with the EEOC during the investigation to take advantage of any equitable arguments they may have. Employers need to remember that failure to verify the charge can be remedied so long as the charge process is ongoing.
