UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1730

VICTORIA L. TILLBERY,

Plaintiff - Appellant,

v.

KENT ISLAND YACHT CLUB, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Catherine C. Blake, District Judge. 

(1:09-cv-02956-CCB)

Argued: September 20, 2011 Decided: January 19, 2012

Before WILKINSON, NIEMEYER, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge Floyd wrote a 

dissenting opinion.

Joyce E. Smithey, RIFKIN, LIVINGSTON, LEVITAN & SILVER, LLC, 

Annapolis, Maryland, for Appellant. Craig Forrest Ballew, 

FERGUSON, SCHETELICH & BALLEW, PA, Baltimore, Maryland, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

After enduring unwanted, sexually-laden harassment by the 

general manager and a member of the board of the Kent Island 

Yacht Club, Inc., Victoria Tillbery, a waitress at the Yacht 

Club, complained to the EEOC on April 22, 2009, by filling out 

an online questionnaire. In the questionnaire, Tillbery stated 

that she was hired on July 1, 2006, and that the allegedly 

improper conduct took place on July 1, 2006. Naming Kevin Damas 

and Bob Schober as the persons responsible, she described their

conduct: “Sexual language used; propositioned for money; 

display of doll for sexual purposes” and “Money for sex; just 

wanted sex.” When Tillbery filled out the questionnaire, she 

was represented by an attorney, who later wrote the Kent Island 

Yacht Club, demanding that the Club cease and desist in its 

sexual harassment of Tillbery.

Less than two weeks later, Tillbery filled out another EEOC 

questionnaire, but this time in person in the Baltimore office 

of the EEOC, giving essentially the same information that she 

had given on April 22, 2009. In response to this complaint, the 

EEOC sent the Kent Island Yacht Club a notice of the 

discrimination claim.

Finally, on June 27, 2009, Tillbery filed a formal charge 

with the EEOC, which she signed under the penalty of perjury. 

The charge stated:
3

On July 1, 2006, I was hired by the above referenced 

employer as a waitress. On this same date I was 

subjected to sexual harassment by Kevin Damass [sic] 

(General Manager) and Bob Shober [sic] (Rear 

Commodore). Sexual language was used, I was 

propositioned for money, and there was a display of a 

doll for sexual purposes.

In response to the charge, the EEOC sent Tillbery a right to sue 

letter on August 8, 2009, stating, “Your charge was not timely 

filed with the EEOC; in other words, you waited too long after 

the date of the alleged discrimination to file your charge.”

Tillbery commenced this action under Title VII of the Civil 

Rights Act of 1964 against the Kent Island Yacht Club on 

November 6, 2009. In her complaint, she alleged sexual 

harassment by both Damas and Schober, but she claimed that it 

took place between October 2008 and April 2009. The complaint 

also alleged that from May 2009 through October 2009, the Kent

Island Yacht Club retaliated against her because of her EEOC

complaint.

On Kent Island Yacht Club’s motion to dismiss or, in the 

alternative, for summary judgment, the district court dismissed 

the complaint for lack of subject matter jurisdiction, 

concluding that Tillbery had not exhausted her administrative 

remedies by first filing a charge with the EEOC with respect to 

the harassment that occurred between October 2008 and April 

2009. See Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th 

Cir. 2009) (holding that a plaintiff’s “failure . . . to exhaust 
4

administrative remedies concerning a Title VII claim deprives 

the federal courts of subject matter jurisdiction over the 

claim”). The court pointed out that in her EEOC questionnaires 

and formal charge, Tillbery described sexual harassment that 

took place on July 1, 2006, leading the agency to conclude that 

the charge was untimely. The conduct alleged in the complaint

in this case, however, was described as having taken place 

between October 2008 and April 2009, and a charge about that 

conduct was never filed with the EEOC for investigation and 

possible administrative resolution.

Responding to Tillbery’s contention that her use, in the 

EEOC questionnaires, of the July 1, 2006 date was merely a 

clerical error that had been repeated without correction in the 

formal charge, the court acknowledged that Tillbery was probably 

right. But the court observed that the effect of the error was 

substantive, frustrating the scheme designed by Congress for 

resolving such claims. As the court stated:

The requirement that a claimant inform the EEOC of the 

date(s) of the alleged discriminatory activity is not 

merely a technicality. Rather, such information 

notifies the agency of the scope of its investigation, 

and ultimately, the scope of a plaintiff’s right to 

file a federal law suit is determined by the [EEOC] 

charge’s contents. Moreover, among the reasons 

Congress enacted Title VII’s exhaustion requirement 

was that the EEOC administrative process is typically 

better suited to ending discrimination than the 

ponderous pace of formal litigation, because the EEOC 

undertakes detailed investigations into potential 

discrimination claims before any suit is filed, both 
5

preserving judicial economy . . . and helping 

prospective plaintiffs build their case.

(Internal quotation marks and citations omitted).

In short, Tillbery’s charge filed with the EEOC described 

sexual harassment on July 1, 2006, leading the EEOC to dismiss 

that charge as untimely. Yet in the complaint filed in this 

case, she alleged sexual harassment occurring during the period 

from October 2008 to April 2009, for which she never filed a 

charge with the EEOC, thereby denying the EEOC the opportunity 

to investigate and mediate the claim. Because she failed to 

exhaust her administrative remedies with respect to the 2008-09 

conduct, the district court concluded that it was without 

subject matter jurisdiction.

While the assumed clerical error is regretful, it was 

compounded by additional conduct. At the time Tillbery filed 

her complaint with the EEOC, she was represented by counsel. 

Moreover, she repeated the error in her second filing and again 

in her formal EEOC charge, where she stated under oath that the 

sexual harassment occurred on July 1, 2006. Finally, after the 

EEOC notified Tillbery and her counsel of the untimeliness of 

her claim, she still did not seek to correct the alleged error 

in her filings with the EEOC. See 29 C.F.R. § 1601.12 (allowing 

the correction of “technical defects or omissions” and providing 
6

that these corrections will “relate back to the date the charge 

was first received”).

The dissent concludes that the EEOC failed to perform its 

duty to investigate Tillbery’s charge after receiving it and 

that even a “minimal investigation” in this case would have 

“exposed the scrivener’s error” that Tillbery now claims 

occurred when she stated that the discrimination occurred in 

July 2006 rather than October 2008 and April 2009.

While we agree with our good colleague that the EEOC is 

given the task of investigating discrimination charges, we 

cannot agree that it needed to conduct more of an investigation 

than it did in this case. It was given no inkling of reason to 

question Tillbery’s claim that the discrimination occurred in 

July 2006, and without any reason to doubt the facts as claimed 

multiple times by Tillbery, even when represented by counsel, we 

cannot conclude that the EEOC’s investigation was not 

reasonable. From its point of view, the EEOC received a charge 

of discrimination occurring in July 2006 and reasonably 

concluded that because the charge for that discrimination was 

filed more than two years later, it was untimely. The dissent’s 

proposal to have the EEOC conduct a more expansive investigation 

would in principle require the EEOC to investigate independently 

even undisputed facts on every charge that it receives. This is 
7

clearly not required by law and, moreover, would be completely 

impractical, bringing the EEOC to its knees.

Having reviewed the record carefully and considered 

Tillbery’s arguments on appeal, we affirm for the reasons given 

by the district court in its thorough opinion. We do note, 

however, the possibility of some relief from the ill effects of 

the alleged clerical error, as Tillbery assures us that she has 

pending timely state court actions, which allege the same 

misconduct. We trust that she will pursue those so as to be 

able to present the merits of her claim for resolution.

AFFIRMED
8

FLOYD, Circuit Judge, dissenting:

I respectfully dissent.

Victoria L. Tillbery filed suit against Kent Island Yacht 

Club, Inc. (KIYC), alleging discrimination in violation of Title 

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 

§§ 2000e to 2000e-17 (Title VII), and Article 49B of the 

Maryland Code, recodified effective October 1, 2009, as Md. Code 

Ann. State Gov’t §§ 20-101 to 20-1203. Tillbery’s claims also 

included retaliation under Title VII and Article 49B, negligent 

retention and supervision, and intentional infliction of 

emotional distress.

KIYC subsequently filed a motion to dismiss or, in the 

alternative, for summary judgment. The district court dismissed 

Tillbery’s federal claims for lack of subject matter 

jurisdiction, finding that she had failed to exhaust her 

administrative remedies. I think that this was in error. Thus, 

for the reasons set forth below, I would vacate the district 

court’s order and remand for further proceedings.

I.

The underlying facts of this case, as cogently set forth by 

the distinguished district court, are as follows:

KIYC is a private yacht club located in Maryland 

that hosts a marina, a club house, and a restaurant 

for its patrons. In July 2006, Ms. Tillbery began 
9

working at KIYC as a waitress and bartender. Her 

duties included taking orders and serving food and

beverages to patrons at the KIYC restaurant. Ms. 

Tillbery alleges she became the victim of sexual 

harassment in the fall of 2008, after KIYC hired Kevin 

Demas as General Manager in July 2008. As General 

Manager, Mr. Demas was Ms. Tillbery’s direct 

supervisor, and he is alleged to have sexually 

harassed Ms. Tillbery on numerous occasions. Ms. 

Tillbery further alleges that, beginning in November 

2008, Bob Schober, KIYC Rear Commodore and Board 

Member, began harassing her as well. At the time this 

complaint was filed, Ms. Tillbery continued to work at 

KIYC. In her motion for leave to amend the complaint, 

however, Ms. Tillbery alleges that she was 

constructively discharged on April 23, 2010.

Without going into exhaustive detail here, the 

facts alleged in Ms. Tillbery’s complaint are 

troubling. Ms. Tillbery alleges that, between October 

2008 and April 2009, Mr. Demas sent her over fifty 

inappropriate text messages, including requests for 

sexual considerations and descriptions of sexual acts 

that he wanted to perform on her. Mr. Demas is also 

alleged to have left similarly inappropriate notes in 

her paychecks. Ms. Tillbery further alleges that Mr. 

Demas repeatedly asked her to spend time with him 

outside of work, and once said “Everyone knows that 

you don’t sleep with your husband” when she declined. 

In addition, he allegedly made at least twenty 

sexually inappropriate comments to Ms. Tillbery when 

she bent over to stock the refrigerator, including 

such statements as “Man you got the nicest ass. I 

could grab it right now[,”] and “Oh baby oh baby.”

Mr. Demas’s harassment of Ms. Tillbery is alleged 

to have included touching as well. In January 2009 

Mr. Demas allegedly approached Ms. Tillbery from 

behind and began rubbing her shoulders, saying “You 

deserve to be treated better. Do you know how 

beautiful you are?” Then he apparently grabbed each 

side of her face with his hands and attempted to 

forcibly kiss her, while saying “Just give me a kiss.” 

Later, in the spring of 2009, Mr. Demas allegedly hung 

up a rag doll with blonde hair wearing a bikini in the 

kitchen at KIYC. Ms. Tillbery has blonde hair and, 

along with the doll, Mr. Demas apparently posted a 
10

sign that read “Vikalicious[.”] When another employee 

approached Mr. Demas about the doll, he allegedly 

responded “It’s Vickie” and “I can do what I want.” 

Moreover, Ms. Tillbery alleges that she was 

harassed not only by her direct supervisor, Mr. Demas, 

but also by KIYC Board Member and Rear Commodore, Mr. 

Schober, beginning in November 2008. Mr. Schober 

allegedly offered Ms. Tillbery money if she would have 

sex with him. According to Ms. Tillbery, he made this 

offer two to three times per week. Ms. Tillbery also 

alleges that he made other inappropriate comments to 

her, including “My wife isn’t able to satisfy me, and 

I think you would be the one that could if you know 

what I mean[,”] and “I know you need the money because 

I always see you working all the time. So if I give 

you $500, would you sleep with me?” On April 10, 

2009, Mr. Schober apparently came to Ms. Tillbery’s 

home, which frightened her because she did not know 

how he learned where she lived. Mr. Schober allegedly 

said that he wanted a haircut, and tried to open the 

screen door to Ms. Tillbery’s home. Ms. Tillbery 

asked him to leave, which he eventually did.

Ms. Tillbery claims that she told Mr. Demas of 

Mr. Schober’s advances toward her on at least three 

occasions, but that there was no informal or formal 

sexual harassment policy in place at KIYC. The 

situation was particularly uncomfortable, she points 

out, because Mr. Demas was her direct supervisor, and 

Mr. Schober, as a member of the KIYC Board, was 

essentially Mr. Demas’s supervisor. Unable to stand 

the harassment any longer, Ms. Tillbery submitted her 

resignation in writing on February 18, 2009. Mr. 

Demas allegedly promised her that the harassment would 

stop if she would agree to withdraw her resignation, 

which she reluctantly did, writing at the bottom of 

her resignation letter, “after speaking with Kevin, I 

[am hoping] that this situation will resolve itself. 

If the situation continues I will go to the labor 

board as I need this job to support my family.” 

Eventually, Ms. Tillbery contacted the Equal 

Employment Opportunity Commission (“EEOC”) by filling 

out an online intake questionnaire on April 22, 2009. 

A notice of Ms. Tillbery’s charge, dated May 7, 2009, 

was sent to KIYC, and she filled out another 

questionnaire on May 4, 2009. Ms. Tillbery signed a 
11

formal EEOC charge under penalty of perjury on June 

27, 2009. By this time, Ms. Tillbery had hired an 

attorney, Cecile Weich, who apparently sent a letter 

to KIYC requesting that Mr. Demas and Mr. Schober 

“cease and desist from your sexual harassment of her 

. . . and requests for sex for money.” On April 27, 

2009, Ms. Weich sent a follow-up letter to members of 

KIYC stating that “the General Manager and Rear 

Commodore S[c]hober . . . have been sexually harassing 

Victoria Tillbery.”

Furthermore, in May 2009, Ms. Tillbery went to 

the Queen Anne’s County Sheriff’s Department. As a 

result of that meeting the Sheriff’s Department 

pursued criminal charges against Mr. Schober. Mr. 

Schober apparently was later convicted of solicitation 

for prostitution and sentenced on October 8, 2009, to 

probation before judgment, supervised until April 8, 

2012. He agreed to stay away from Ms. Tillbery, 

resigned from the KIYC board, and relinquished his 

membership in the club.

Ms. Tillbery alleges that in May 2009, 

immediately after she filed charges with the EEOC and 

the Sheriff’s Department, she became the victim of 

retaliation. Mr. Demas allegedly told her that she 

could no longer arrive at work at 4:00 p.m. to perform 

her setup duties, therefore forcing her to perform 

them during the time that she could have been waiting 

tables and earning tips. On May 18, 2009, Ms. 

Tillbery also received a letter from KIYC’s attorney 

complaining of a performance issue. Ms. Tillbery 

claims the letter was the only negative feedback she 

ever received during her tenure at KIYC.

According to Ms. Tillbery, her attorney again 

sent a letter to KIYC on May 19, 2009, this time 

explaining that Ms. Tillbery was suffering 

retaliation, and on May 21, 2009, Ms. Tillbery 

apparently provided a written statement to KIYC 

summarizing the harassing conduct by Mr. Demas. But 

Ms. Tillbery alleges the retaliatory conduct did not 

stop. Instead, she claims that on July 4, 2009, the 

busiest evening of the year at the KIYC restaurant, 

Mr. Demas ordered her to train a busser to be a 

waitress simply so that Ms. Tillbery would have to

split her tips for the evening. On July 6, 2009, Ms. 

Tillbery allegedly complained in writing via her 
12

attorney, Ms. Weich, that she was still forced to 

serve Mr. Schober. She apparently complained of 

retaliatory treatment again in writing on July 10, 

2009, describing how she was forced to train a busser 

and was prohibited from clocking in until 4:30. On 

July 24, 2009, counsel for KIYC wrote to Ms. Weich 

stating, “The Club has implemented safeguards to 

ensure that Ms. Tillbery is not required to serve Mr.

S[c]hober. . . .” 

The retaliation is alleged to have escalated, 

however, on October 12, 2009, when Ms. Tillbery was 

called into a meeting with Mr. Demas and Jack Caddy, a 

KIYC Board Member. Mr. Caddy told Ms. Tillbery that 

KIYC had received some complaints about her, although 

he provided no information as to the nature of the 

complaints, who made them, or when they were made. 

Ms. Tillbery alleges that soon thereafter, on October 

21, 2009, she received a letter from KIYC stating that 

“employees may not clock in more than seven (7) 

minutes before their shift is scheduled to start[,”] 

and that “it has been recorded that on Thursday, Oct. 

15, 2009, you clocked in fourteen (14) minutes before 

your shift was scheduled to start and on Friday, Oct. 

16, 2009, you clocked in twenty-five (25) minutes 

before your scheduled start time; both without 

consulting management.” Ms. Tillbery alleges that 

other employees who had engaged in similar conduct did 

not receive a warning about the new policy and 

continued to clock in early.

Ms. Tillbery also alleges that Mr. Demas 

continues to retaliate against her by refusing to 

speak to her and constantly watching her. He 

allegedly instructed another bartender to watch Ms. 

Tillbery and document everything that she does. She 

claims that other employees have observed his unfair 

treatment of her and that, as a result of the 

harassment she has experienced at KIYC, she has 

suffered a loss of income, extreme and emotional 

distress, and mental anxiety.

On August 6, 2009, the EEOC notified Ms. Tillbery 

that it had dismissed her charge of discrimination as 

untimely and that she had a right to sue. On November 

6, 2009, Ms. Tillbery filed the present action against 

KIYC alleging sexual harassment in violation of Title 

VII and Article 49B (Counts I & II), negligent 
13

retention and supervision (Count III), intentional 

infliction of emotional distress (Count IV), and 

retaliation in violation of Title VII and Article 49B 

(Counts V & VI).

Tillbery v. Kent Island Yacht Club, Inc., Civ. No. CCB-09-2956, 

2010 WL 2292499, at *1-4 (D. Md. June 4, 2010) (footnotes 

omitted) (citations omitted). 

On two EEOC questionnaires Tillbery completed, she stated 

that the alleged sexual harassment occurred on July 1, 2006. An 

EEOC representative drafted the EEOC charge and also listed the 

harassment as occurring on July 1, 2006. Both Tillbery and the 

EEOC representative wrote on the forms that KIYC hired Tillbery 

on that same date, July 1, 2006. Subsequently, as noted above, 

on August 6, 2009, the EEOC closed its file on Tillbery’s charge 

without conducting any investigation, informing her that her 

“charge was not timely filed with the EEOC; in other words, you 

waited too long after the date(s) of the alleged discrimination 

to file your charge.” In her complaint, Tillbery has clearly 

alleged that, in fact, July 1, 2006, was the date of her hiring, 

but that the sexual harassment occurred from October 2008 to 

April 2009. 

Upon motion by KIYC, the district court dismissed 

Tillbery’s federal claims for lack of subject matter 

jurisdiction, finding that “[t]he allegations in Ms. Tillbery’s 
14

present complaint . . . exceed the scope of her administrative 

charge and have not been properly exhausted.” Id. at *6.

II.

Before filing suit pursuant to Title VII, the plaintiff 

must file a charge of discrimination with the EEOC. Jones v. 

Calvert Grp., 551 F.3d 297, 300 (4th Cir. 2009). The charge 

must be “‘sufficiently precise to identify the parties, and to 

describe generally the action or practices complained of.’ The 

scope of the plaintiff’s right to file a federal lawsuit is 

determined by the charge’s contents.” Id. (citation omitted) 

(quoting Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 

2005)). “Whenever a charge is filed by or on behalf of a person 

claiming to be aggrieved, . . . the Commission shall serve a 

notice of the charge (including the date, place and 

circumstances of the alleged unlawful employment practice) on 

such employer . . . within ten days, and shall make an 

investigation thereof.” 42 U.S.C. § 2000e-5(b). The only 

claims that the plaintiff may bring in a subsequent complaint 

are “those discrimination claims stated in the initial charge, 

those reasonably related to the original complaint, and those 

developed by reasonable investigation of the original 

complaint.” Jones, 551 F.3d at 300 (quoting Evans v. Tech. 

Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996)) 
15

(internal quotation marks omitted). Claims raised in the 

district court but not with the EEOC are barred unless they 

“would naturally have arisen from an investigation” of the 

administrative complaint. Dennis v. Cnty. of Fairfax, 55 F.3d 

151, 156 (4th Cir. 1995). 

“[E]xperience teaches that strict adherence to the 

procedural requirements specified by the legislature is the best 

guarantee of evenhanded administration of the law.” Mohasco 

Corp. v. Silver, 447 U.S. 807, 826 (1980). We cannot, however, 

visit the effects of the EEOC’s failure to carry out its 

statutory duty to perform a reasonable investigation on the 

plaintiff. Zambuto v. Am. Tel. & Tel. Co., 544 F.2d 1333, 1336 

(5th Cir. 1977). Furthermore, we must resolve any ambiguity as 

to whether a plaintiff satisfied a procedural requirement in the 

plaintiff’s favor to effectuate the purposes of Title VII. 

Title VII is remedial in character and should be 

liberally construed to achieve its purposes. . . . 

For this reason, courts confronted with procedural 

ambiguities in the statutory framework have, with 

virtual unanimity resolved them in favor of the 

complaining party. That approach reflects not only 

the manifest importance of Title VII rights to 

complaining parties, but also the broad national 

commitment to eliminating such discrimination and the 

importance of private suits in fulfilling that 

commitment.

Garner v. E. I. Du Pont De Nemours & Co., 538 F.2d 611, 614 (4th 

Cir. 1976) (citation omitted) (quoting Coles v. Penny, 531 F.2d 

609, 615 (D.C. Cir. 1976)) (internal quotation marks omitted).
16

III.

KIYC contends that the district court was correct in 

holding that Tillbery neglected to file a charge with the EEOC 

with respect to the alleged sexual harassment that occurred 

between October 2008 and April 2009. Thus, according to KIYC 

and the district court, Tillbery failed to exhaust her 

administrative remedies prior to filing suit against KIYC. I 

disagree.

According to the district court, the allegations contained 

in Tillbery’s complaint “were outside the scope of her EEOC 

charge due to an apparent error in the dates listed on the 

charge.” Tillbery, 2010 WL 2292499, at *4 n.4. But, from my 

careful review of the record, I am of the opinion that the 

allegations in Tillbery’s complaint were not outside the scope 

of her EEOC charge. That is so because both Tillbery’s 

complaint and her EEOC charge concerned the alleged October 2008 

to April 2009 harassment, even though, as the district court 

observed, the date is incorrect on her EEOC charge. In fact, 

later in its opinion, the district court recognized as much when 

it wrote the following:

Ms. Tillbery argues that the July 1, 2006 date in the 

EEOC charge was merely a clerical error by the EEOC 

representative who drafted the form, and that all of 

the facts alleged in her judicial complaint occurred 

within 300 days of June 27, 2009 [the date Tillbery 

filed her EEOC charge]. Assuming the truth of the 

facts alleged in the complaint, it appears likely that 
17

Ms. Tillbery’s EEOC charge did contain the wrong date, 

as Mr. Demas was not even hired by KIYC until July 

2008. 

Id. at *5. Thus, drawing all inferences in favor of Tillbery at 

this stage of litigation, as we are required to do, I credit her 

explanation of the date as a scrivener’s error in her EEOC 

documents. See Risk v. Ford Motor Co., 48 F. Supp. 2d 1135, 

1146 (S.D. Ind. 1999) (dismissing claims on other grounds, but 

stating that it was “inclined to credit [the plaintiff’s] 

explanation of the inaccuracy in her EEOC charge, especially 

when drawing inferences in her favor at this stage of the 

litigation”). Consequently, I would allow the case to go 

forward.

Inasmuch as everyone agrees that the EEOC charge contained 

a scrivener’s error in regards to the date that the sexual 

harassment occurred, and, as the D.C. Circuit has observed, the 

“filing period begins on the date ‘the alleged unlawful practice 

occurred’—not the date listed in the charge itself,” Carter v. 

Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 (D.C. Cir. 

2007) (quoting 42 U.S.C. § 2000e-5(e)(1)), I cannot concur that 

it was proper in this instance for the EEOC to reject Tillbery’s 

charge without first hearing from the parties. See 42 U.S.C. § 

2000e-5(b) (stating that the EEOC “shall make an investigation” 

of claims of discrimination). What seemed evident to the EEOC 

from the documents before it—that Tillbery’s charge was 
18

untimely—was an error instead, an error that a reasonable 

investigation would have revealed, and an error that is now 

being repeatedly compounded. I respectfully suggest that it is 

within our province finally to correct it.

It is beyond dispute that, 

among the reasons Congress enacted Title VII’s 

exhaustion requirement was that the EEOC 

administrative process is typically better suited to 

ending discrimination than the “ponderous pace of 

formal litigation[,”] because the EEOC “undertakes 

detailed investigations into potential discrimination 

claims before any suit is filed, both preserving 

judicial economy . . . and helping prospective 

plaintiffs build their case.”

Tillbery, 2010 WL 2292499, at *6 (omission in original) (quoting 

Chacko, 429 F.3d at 510). But, it is also beyond dispute, as I 

have already noted, that there is a “broad national commitment 

to eliminating such discrimination and the importance of private 

suits in fulfilling that commitment.” Garner, 538 F.2d at 614 

(quoting Coles, 531 F.2d at 615) (internal quotation marks 

omitted). In this instance, KIYC asks us to allow procedural 

formalism to trump this commitment. To this proposition I will 

not lend my assent.

As observed above, the law requires that the EEOC “shall 

make an investigation” of all charges. 42 U.S.C. § 2000e-5(b). 

It also requires claimants to be specific in their charges so 

that the EEOC can properly investigate and, hopefully, resolve 

the matter. See Jones, 551 F.3d at 300. When no investigation 
19

occurs, however, I think that it is improper for us to bar a 

plaintiff from her day in court. But, that is what happened 

here. 

Even a minimal investigation into Tillbery’s charge would 

have exposed the scrivener’s error and revealed that the 

complained of sexual harassment occurred between October 2008 

and April 2009. Yet the error passed unnoticed because of the 

EEOC’s failure to conduct any investigation. Accordingly, I am 

unable to agree that we should require Tillbery to suffer from 

the negative consequences of the law—being unable to assert any 

claims in federal court except those that the EEOC investigated—

even though the EEOC failed to conduct any investigation. 

Although we ought not endeavor to instruct the EEOC on how 

to perform its duties, we also ought not be bound by its 

decisions when it does not. On the whole, the problems that 

KIYC complains of are not so much deficiencies in the charge as 

they are the EEOC’s failure to carry out its duties as required 

by Title VII. See Edelman v. Lynchburg Coll., 300 F.3d 400, 404 

(4th Cir. 2002). 

Here, Tillbery was unquestionably harmed by the EEOC not 

performing the simplest of investigations. “Once a valid charge 

has been filed, a simple failure by the EEOC to fulfill its 

statutory duties regarding the charge does not preclude a 

plaintiff’s Title VII claim.” Id. Thus, I disagree with KIYC 
20

that we should, in effect, “visit the effects of the EEOC’s 

erroneous practice on [Tillbery].” Zambuto, 544 F.2d at 1336.

IV.

As an alternative basis for finding that the conduct 

Tillbery alleged in her complaint did not exceed the scope of 

her EEOC charge, that her charge was timely, and that she has 

properly exhausted her administrative remedies, I would look to 

her April 22, 2009, EEOC questionnaire. There can be no dispute 

that the April 22, 2009, questionnaire, as well as Tillbery’s 

other EEOC forms, stated that Demas was one of the alleged 

harassers. Moreover, there appears to be no disagreement that 

both parties were aware that he began working at the restaurant, 

at the earliest, on July 1, 2008. Less than 300 days later, on 

April 22, 2009, Tillbery completed her first EEOC questionnaire. 

Thus, even if the alleged sexual harassment began as early as 

July 1, 2008, the date that Demas began working at KIYC, and 

allowing the EEOC intake questionnaire to serve as a charge for 

purposes of the exhaustion requirement, I am of the opinion that 

the spirit of Title VII is better served by holding that the 

timeliness requirement was met as to Tillbery’s Title VII 

claims. See Carter, 503 F.3d at 146 (allowing an EEOC 

questionnaire with an incorrect date to constitute a timely 

charge of discrimination); Edelman, 300 F.3d. at 405 (allowing a 
21

letter to the EEOC to serve as a valid charge, without 

objection, although the plaintiff was represented by counsel 

during the relevant time period); Waiters v. Robert Bosch Corp., 

683 F.2d 89, 91 (4th Cir. 1982) (allowing an affidavit to serve 

as an EEOC charge although the plaintiff was represented by 

counsel during the relevant time period).

V.

Even if I assumed that Tillbery failed to exhaust her 

administrative remedies on the basis of an incorrect date on her 

EEOC forms, in light of the fact that Title VII is a remedial 

statute to be liberally construed in favor of the victims of 

discrimination, I would grant Tillbery an opportunity to amend 

her EEOC charge. As the majority mentioned, 

[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). Neither the plain language of this 

regulation nor Supreme Court precedent limit the time frame 

during which a plaintiff can amend a charge. See Edelman v. 

Lynchburg Coll., 535 U.S. 106, 116-17 (2002) (finding that 

allowing the verification of a charge after the expiration of 
22

the time for filing has expired was consistent with the plain 

language of the statute). We need not impose such a limitation 

either. For that reason, even if I agreed with KIYC that 

Tillbery failed to exhaust her administrative remedies based on 

the erroneous date on her EEOC charge, I would, at a minimum, 

remand the matter to the district court to stay the proceedings 

so Tillbery could request from the EEOC an opportunity to amend 

her charge. 

VI.

Finally, KIYC makes much of the fact that Tillbery was 

represented by counsel and, thus, that she should be held to a 

higher standard in regards to making certain that the date on 

her charge was correct. As the argument goes, I assume, it is 

Tillbery’s attorney who is really to blame for Tillbery’s 

present predicament. I am unpersuaded.

First, and most importantly, it is of no moment whether 

Tillbery was represented by counsel. The fact remains that the 

EEOC should have conducted an investigation before it dismissed 

her charge. That is a substantial reason for her present 

predicament.

Second, to agree with KIYC and dismiss this matter based on 

the action or inaction of Tillbery’s counsel is like aiming at 

the attorney, but shooting the client instead. It is also 
23

counter to the law of this circuit as to Title VII claims. 

Garner, 538 F.2d at 614 (“Title VII is remedial in character and 

should be liberally construed to achieve its purposes.” (quoting 

Coles, 531 F.2d at 615) (internal quotation marks omitted)).

The fact that Tillbery was represented by counsel changes

neither the remedial nature nor the purpose of the statute, 

which is to stamp out the insidious practice of discrimination. 

See Garner, 538 F.2d at 614. It is this purpose, not a desire 

to penalize counsel, that must guide our interpretation of this 

statute.

VII.

Upon this record, I am unconvinced that Tillbery failed to 

exhaust her administrative remedies on the basis of the 

erroneous date on her EEOC documents. But, if she did, I would 

give her an opportunity to amend her complaint pursuant to 29 

C.F.R. § 1601.12(b). Accordingly, I must respectfully dissent.