Victoria Tillbery v. Kent Island Yacht Club, Inc., No. 10-1730 (4th Cir. Jan. 19, 2012) (unpublished). Victoria Tillbery was a waitress at the Kent Island Yacht Club, Inc. On April 22, 2009, she complained to the Equal Employment Opportunity Commission (“EEOC”) by filling out an online questionnaire. Ms. Tillbery stated in the questionnaire that she was hired on July 1, 2006, and that she experienced improper treatment of a sexual nature that same day. The conduct Ms. Tillbery alleged was outrageous: she described that her superiors propositioned for sex in exchange for money, used sexual language around the workplace, and displayed a doll “for sexual purposes” in the workplace, among other things. Two weeks later, Ms. Tillbery came into the EEOC offices in Baltimore and filled out another questionnaire in which she gave essentially the same information. On June 27, 2009, Ms. Tillbery filed a formal charge with the EEOC. In this charge she repeated many of the allegations from her former questionnaire answers, including her allegation that the improper conduct took place on July 1, 2006.
On August 8, 2009, the EEOC sent Ms. Tillbery a “right to sue” letter, which stated that her charge was not timely filed with the EEOC. The EEOC requires that a party file a charge within either 180 or 300 days from the time the discrimination took place. (The difference in the deadlines depends upon which state the charging party lives in.) In her charge, she gave the date for the improper conduct as July 1, 2006. Because the alleged discrimination preceded her charge by more than three years, the EEOC found that her charge was too late. The EEOC apparently did not conduct any investigation into Ms. Tillbery’s allegations; had the EEOC done so, it would have likely found that her charge was, in fact, brought in time.
Ms. Tillbery filed a complaint in federal court on November 6, 2009, and in her complaint alleged sexual harassment that took place between October 2008 and April 2009 and retaliation that took place from May 2009 through October 2009.
The district court dismissed Ms. Tillbery’s complaint, concluding that she had not exhausted her administrative remedies by filing an EEOC charge with respect to the harassment that occurred between October 2008 and April 2008. In Ms. Tillbery’s questionnaires and charge, she stated that the conduct she complained of took place on July 1, 2006—she did not address any conduct after that date.
Ms. Tillbery claimed that the July 1, 2006 date was a clerical error, and the court acknowledges that she was probably correct. The effect of the error, however, was more than a technicality: it was substantive, in that it limited the scope of her lawsuit. The district court concluded that it was without jurisdiction, and Ms. Tillbery appealed.
The Fourth Circuit Court of Appeals agreed with the district court. The Court emphasized that Ms. Tillbery repeated the clerical error not once but twice, in her second questionnaire and her formal EEOC charge, and that she was represented by counsel. The Court also emphasized that Ms. Tillbery’s charge was signed under the penalty of perjury and, though the EEOC notified Ms. Tillbery and her attorney that the charge was untimely, no one sought to correct the clerical error.
Though the dissent argued that the EEOC failed to perform its duty to investigate Ms. Tillbery’s charge, and that doing so would have exposed the clerical error, the majority ruled that the EEOC did not need to conduct a more thorough investigation than it did in Ms. Tillbery’s case. Ms. Tillbery gave no indication that any discrimination took place on a date other than July 1, 2006, and the majority found that the law did not require the EEOC to independently confirm undisputed facts.
This case once again illustrates the importance of carefully drafting an EEOC charge. Like in Ze-Ze v. Kaiser Permanente Mid-Atlantic States Regions, Inc., if Ms. Tillbery had drafted her charge with the assistance of her attorney, or if her attorney had amended her charge, then she may have been able to pursue her Title VII claims against Kent Island Yacht Club. Because of either clerical errors or carelessness, Ms. Tillbery is limited to pursuing her claims in state court.