The Honorable James M. Rosenbaum, United States District 1

Judge for the District of Minnesota.

___________

No. 95-2790

___________

Donald E. Diez, *

*

 Appellant, *

*

v. * Appeal from the United States

* District Court for the

Minnesota Mining and * District of Minnesota.

Manufacturing Company, a *

Delaware corporation, *

*

 Appellee. *

___________

 Submitted: February 15, 1996

 Filed: July 12, 1996

___________

Before HANSEN, LAY, and JOHN R. GIBSON, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Donald E. Diez appeals from the summary judgment entered against him

in his Age Discrimination in Employment Act claim against Minnesota Mining

and Manufacturing Co., known as 3M. The district court held that Diez had 1

not filed an administrative charge with the Minnesota Department of Human

Rights within 300 days of the act of discrimination, as he was required to

do under 29 U.S.C. § 626(d)(2) (1994). Diez appeals, arguing that he

filled out an agency questionnaire within the required time and that the

questionnaire was by law a "charge." We affirm the judgment of the

district court.
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Diez worked for 3M from 1962 to August 1, 1992, when he retired at

the age of fifty-eight. He alleged in his complaint that 3M began

discriminating against him in favor of younger workers when he was fortyeight years old. He was demoted in 1990 and his former position was filled

by a younger person, but Diez was required to continue functioning at the

higher management level without commensurate pay. He requested that his

job be re-evaluated so that he could be paid in accordance with the work

he was actually doing; 3M began a formal process to consider his request.

At the same time his request was pending, in April 1992, 3M announced a

reduction in force would take place in the tape department, where Diez

worked. 3M offered tape department employees a voluntary severance pay

plan if they retired or otherwise resigned before the end of July 1992.

Diez had to choose whether to retire voluntarily and receive the severance

payment or take his chance that he would survive the reduction in force

without being laid off. Diez alleged that he asked 3M's managers whether

he would be kept on after the reduction in force and that they gave him no

assurance. He alleged that a vice-president of 3M told him "that there

were few or no opportunities for employees in their mid-fifties or older."

Diez elected to take early retirement to get the severance pay. He

filled out an application for retirement on June 1, 1992. He modified 3M's

form by writing in the words "under duress" and gave his retirement date

as December 31, 1992, instead of the July 31 date specified in the

severance pay plan. 

On June 25, 3M told Diez that his job had been upgraded as he

requested, but by this time Diez had already applied for retirement. Diez

alleged that 3M gave the upgraded job to a "materially younger" person. 

3M rejected Diez's pending application for early retirement because

of the December date and the "under duress" language Diez
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had added to the form. On July 7, 1992 Diez completed another application

without the "under duress" language and with a retirement date of August

1, 1992. Both applications were on a 3M form that said, "Please process

my retirement/resignation with an effective date of ______ subject to

approval by 3M." (emphasis added). The record is silent as to when 3M

conveyed its approval of Diez's application, but Diez retired on August 1,

1992. Diez contends he was constructively discharged as of August 1, so

the alleged adverse action took place no later than August 1. 

On May 19, 1993 Diez visited the offices of the Minnesota Department

of Human Rights and received an intake questionnaire. The Minnesota

Department of Human Rights has a worksharing agreement with the EEOC by

which each agency designates the other as its agent for the purpose of

receiving charges. See 29 C.F.R. § 1626.10(c) (1995). In his responses

to the questionnaire, Diez detailed his complaints and the names of the

people at 3M whom he claimed discriminated against him. He signed the

questionnaire on May 20 and returned it to the MDHR on May 21, 1993. The

information in the questionnaire was reduced to a verified "Charge of

Discrimination" on a MDHR form, which Diez executed and filed on June 10,

1993. The MDHR then notified 3M of the charge for the first time. After

3M responded, the MDHR dismissed Diez's charge on the ground that further

use of the department's resources pursuing Diez's claim was not warranted.

Diez filed suit in federal court, claiming 3M violated the ADEA, 29

U.S.C. § 623 (1994), and the Minnesota Human Rights Act, Minn. Stat. Ann.

§ 363.06 (1991), and that it committed fraud. 

3M moved for summary judgment on the theory that Diez did not file

an administrative charge against it within 300 days, as provided by 29

U.S.C. § 626(d) (1994). The court granted summary judgment to 3M on the

ADEA claim, relying on Hodges v. Northwest Airlines, Inc., 990 F.2d 1030

(8th Cir. 1993), in which we stated
 See, e.g., Park v. Howard Univ., 71 F.3d 904, 908-09 (D.C. 2

Cir. 1995), petition for cert. filed (May 10, 1996) (No. 95-

1832); Downes v. Volkswagen, 41 F.3d 1132, 1137-39 (7th Cir.

1994); Early v. Bankers Life & Cas. Co., 959 F.2d 75 (7th Cir.

1992); Philbin v. General Elec. Capital Auto Lease, Inc., 929

F.2d 321 (7th Cir. 1991) (per curiam); Peterson v. City of

Wichita, 888 F.2d 1307 (10th Cir. 1989), cert. denied, 495 U.S.

932 (1990); Clark v. Coats & Clark, Inc., 865 F.2d 1237, 1239-41

(11th Cir. 1989); Steffen v. Meridian Life Ins. Co., 859 F.2d

534, 541-44 (7th Cir. 1988), cert. denied, 491 U.S. 907 (1989);

Casavantes v. California State Univ., 732 F.2d 1441 (9th Cir.

1984); Price v. Southwestern Bell Tel. Co., 687 F.2d 74 (5th Cir.

1982).

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that an unverified intake questionnaire could not serve as an

administrative charge under Title VII. The district court did not find it

necessary to determine the date on which 3M's alleged act of discrimination

occurred, because the formal charge was filed more than 300 days from the

date of Diez's retirement, August 1, 1992, which was the latest possible

date for the act of discrimination. Because there was no longer any

federal claim pending before the court, it declined to exercise

jurisdiction over the state claims, citing 28 U.S.C. § 1367(c) (1994).

On appeal, Diez contends that the questionnaire he lodged with the

MDHR satisfied the requirement that he file an administrative charge within

300 days of the act of discrimination.

We review the district court's entry of summary judgment de novo.

Barry v. Barry, 78 F.3d 375, 379 (8th Cir. 1996). We must affirm if the

evidence, taken in the light most favorable to Diez, shows that there is

no genuine issue of material fact and that 3M is entitled to judgment as

a matter of law. Id. 

The issue of whether EEOC and state agency intake questionnaires can

serve as administrative charges has been widely litigated. 

2
 The EEOC in Hodges applied the 300-day time limitation, but 3

we mentioned in a footnote that the proper period was 180 days in

that case; even Hodges's questionnaire (not to mention his

verified charge) would have been untimely under the 180-day

deadline. 990 F.2d at 1032 n.4.

 Despite the failure of the questionnaires to meet the Title 4

VII criteria for a charge, some courts have held that the

questionnaire can serve as a charge to satisfy the Title VII

filing requirement. Courts have used a variety of theories to

save claims in which the plaintiff filed a questionnaire, but not

a formal charge, in time. The Ninth Circuit has expressed the

opinion that the intake questionnaire satisfies the requirement

of an administrative charge. Casavantes, 732 F.2d at 1443 ("We

note initially that federal regulations governing EEOC procedures

make clear that the Intake Questionnaire, as completed by

Casavantes, was sufficient to constitute a charge," citing 29

C.F.R. 1601.12(b)); see also Clark, 865 F.2d at 1240-41 (goals of

ADEA fulfilled where claimant completed questionnaire and EEOC

notified employer within statutory time period, even though

formal charge not filed until after limitations period expired). 

Some courts have permitted the formal charge to relate back

to the date the plaintiff lodged the questionnaire. Philbin, 929

F.2d at 324, held that later filed documents could be considered

amendments to an unverified questionnaire, which would relate

back to the time the plaintiff lodged the questionnaire. 

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The leading case in our circuit is Hodges, 990 F.2d at 1032, a Title

VII case, in which we stated that an intake questionnaire "did not

constitute a valid charge under Title VII for purposes of the statute of

limitations until [Hodges] signed it under oath . . . ." Id.; accord Park 3

v. Howard Univ., 71 F.3d 904, 909 (D.C. Cir. 1995), petition for cert.

filed (May 10, 1996) (No. 95-1832). But see Whitekiller v. Campbell Soup,

Inc., 925 F. Supp. 614 (W.D. Ark. 1996).

In Title VII cases, intake questionnaires do not satisfy the

statutory requirements for a charge because they are not verified. See 42

U.S.C. § 2000e-5(b) (1994) ("Charges shall be in writing under oath or

affirmation and shall contain such information and be in such form as [the

EEOC] requires."). But cf. 29 C.F.R. § 1601.12 (1995) ("A charge may be

amended to cure technical defects or omissions, including failure to verify

the charge . . . ."). 

4
Therefore, the claim could be considered timely under Title VII. 

Accord Peterson, 888 F.2d at 1308; Casavantes, 732 F.2d at 1443.

Other courts have held in particular cases that the EEOC

waived the Title VII verification requirement. In Price, 687

F.2d at 79, the EEOC notified the employer of a claim after the

claimant had completed a questionnaire, but before the claimant

filed the verified charge. Price held that the verification

requirement was non-jurisdictional and therefore subject to

equitable considerations. Price concluded that there was a

triable issue of fact as to whether the EEOC had waived the

verification requirement in that case, and reversed the district

court's holding that the claim was time-barred. Cf. Anderson v.

Unisys Corp., 47 F.3d 302, 306-07 (8th Cir.) (applying equitable

tolling where MDHR misled plaintiff as to limitation period),

cert. denied, 116 S. Ct. 299 (1995).

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Unlike Title VII, the ADEA does not require that a charge be

verified. The only statutory reference to what might be necessary in a

charge comes in 29 U.S.C. § 633(b) (1994), which states: "If any

requirement for the commencement of such proceedings is imposed by a State

authority other than a requirement of the filing of a written and signed

statement of the facts upon which the proceeding is based, the proceeding

shall be deemed to have been commenced for the purposes of this subsection

at the time such statement is sent by registered mail to the appropriate

State authority." This section literally refers to statements sent by

registered mail. The record in this case does not indicate that Diez sent

his questionnaire to the MDHR by registered mail. However, section 633(b)

at least implies that charges in general shall be subject only to the

minimal requirements that they be written and signed statements of the

relevant facts. 

The EEOC's regulations are consistent with this understanding. Under

29 C.F.R. § 1626.6:

A charge shall be in writing and shall name the

prospective respondent and shall generally allege the
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discriminatory act(s). Charges received in person or by

telephone shall be reduced to writing.

Another regulation, 29 C.F.R. § 1626.8, sets out in more detail what should

appear in a charge, but specifically provides that the charge is legally

sufficient and effective so long as it complies with the minimal

requirements of section 1626.6. 

Even though the intake questionnaires literally satisfy the statutory

and regulatory requirements for a charge, a fuller examination of the

regulations and the printed language on the intake questionnaire forms

shows that the EEOC does not intend the questionnaires to routinely

function as a charge.

In Steffen v. Meridian Life Insurance Co., 859 F.2d 534, 542 (7th

Cir. 1988), cert. denied, 491 U.S. 907 (1989), the Seventh Circuit

recognized that the intake questionnaires fit within the statutory and

regulatory descriptions of a charge, but nevertheless refused to say that

this was sufficient for the questionnaire to be treated as a charge. The

court stated:

[T]he EEOC's regulations make clear that, while a charge is

`sufficient' if it names the respondent and generally alleges

discrimination, not all documents containing such information

are charges. There is no other way to explain the distinction

in the EEOC's regulations between a `complaint' and a `charge.'

A `complaint' is defined to `mean information received from any

source, that is not a charge, which alleges that a named

prospective defendant has engaged in or is about to engage in

actions in violation of the [ADEA] . . . .' 29 C.F.R. § 1626.3

(emphasis added). As noted above, a charge is sufficient under

the regulation if it names the respondent and generally alleges

a discriminatory act. Thus, under these regulations, any

document that names a prospective respondent and alleges a

violation of the Act falls within the definition of either a

complaint or a charge. The regulations, however, only provide

that the Commission shall promptly notify a respondent that a

charge has been filed. 29 C.F.R. § 1626.11. The only

plausible reason why the EEOC would consider one communication

of information to be a `complaint' and
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another to be a `charge' is that a `charge' is submitted under

circumstances that would lead the EEOC to believe that the

complaining party sought to `activate the Act's machinery.'

Moreover, there is no other plausible reason why the EEOC

labels certain forms as `Intake Questionnaires' and other forms

as `Charges of Discrimination.'

Id. at 542. The court decided that Steffen's intake questionnaire was

completed under circumstances that indicated Steffen intended to "activate

the machinery" of the ADEA, because the EEOC employee who took Steffen's

questionnaire told Steffen that the EEOC would treat the questionnaire as

a charge (although the EEOC did not actually do so). Id. at 544.

The Seventh Circuit has continued to apply the test from Steffen to

distinguish between questionnaires that are preliminary to a charge and

those that function as a charge: do the circumstances indicate that the

claimant intended to activate the machinery of the ADEA by lodging the

questionnaire with the agency? Relevant facts include what the claimant

and the EEOC personnel said to each other, see Steffen, 859 F.2d at 544,

what the questionnaire form said, see Park, 71 F.3d at 908, and what the

EEOC actually did in response to receipt of the questionnaire, see Downes

v. Volkswagen, 41 F.3d 1132, 1138 (7th Cir. 1994) ("[W]hile it is relevant

that the EEOC treated the questionnaire as a charge, we have also held that

inaction by the EEOC should not, for time limit purposes, bar an ADEA

suit.").

The purpose of distinguishing questionnaires meant to activate the

machinery of the ADEA from those that are merely preliminary to a charge

is not to keep plaintiffs out of court, but to assure that the ADEA works

as it is supposed to. If the EEOC or state agency understands the

claimant's lodging of the questionnaire to be
 29 U.S.C. § 626(d) provides: "Upon receiving such a charge 5

[alleging unlawful discrimination], the Commission shall promptly

notify all persons named in such charge as prospective defendants

in the action and shall promptly seek to eliminate any alleged

unlawful practice by informal methods of conciliation,

conference, and persuasion." Minn. Stat. § 363.06 requires the

MDHR to notify the employer within ten days of the filing of the

administrative charge.

 The date given in the quoted paragraph of the affidavit 6

appears to be off by a year, since the affidavit gives the year

1992, yet the documents are all dated 1993. 

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preliminary, it does not notify the employer of the charge. This

5

frustrates a major goal of the ADEA, which is to encourage pre-litigation

resolution of claims. See Steffen, 859 F.2d at 542; Early v. Bankers Life

& Cas. Co., 959 F.2d 75, 80 (7th Cir. 1992); see also Park, 71 F.3d at 909

(Title VII context); see generally Kloos v. Carter-Day Co., 799 F.2d 397,

400 (8th Cir. 1986).

Diez's affidavit gives us no information about what he and the MDHR

personnel said. Diez states in his affidavit:

I contacted the MN Department of Human Rights on or about

May 19, 199[3], and completed its "Employment Discrimination

6

Questionnaire," Exhibit G, on or about May 20, 199[3] and filed

it on May 21, 199[3] with the Department. I signed the charge

of discrimination on June 10, 199[3], the date on which it was

given to me.

Diez does not aver that the MDHR led him to believe he had done all

that was necessary once he returned the questionnaire. The fact that Diez

later filled out a formal charge indicates that he understood the

questionnaire to be preliminary. Further, the questionnaire itself

indicated that it was preliminary to a charge; it said: "Please fill out

this questionnaire to the best of your ability. The Department will need

specific information to determine if your claim can be processed as a

charge and to investigate the charge if it is accepted." 3M asserts,

without contradiction, that MDHR did not notify 3M of the claim until Diez
 3M also argues that the date of the act of discrimination 7

should be fixed at an earlier date than the date of Diez's

retirement, citing Delaware State College v. Ricks, 449 U.S. 250

(1980) and Chardon v. Fernandez, 454 U.S. 6 (1981). In light of

our holding that the intake questionnaire was not a charge, we

need not decide whether the date of the unlawful act was earlier

than the date of Diez's retirement, since the claim is timebarred in any case.

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filed the charge in June. 

Diez has not presented any evidence to prove the questionnaire was

intended to function as a charge in his case. The only evidence in the

record supports the conclusion that the MDHR justifiably considered the

questionnaire as preliminary, rather than a legally effective invocation

of the ADEA. Diez has simply not produced the evidence needed to avoid

summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

Diez also argues that the formal charge filed on June 10 should

relate back under 29 C.F.R. § 1626.8(c), which provides:

A charge may be amended to clarify or 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. 

We reject this argument because the regulation says, "A charge may be

amended . . . ." (emphasis added). Since we have decided that the

questionnaire was not a charge, the regulation is not applicable. To treat

a subsequently filed charge as an amendment, and thereby backdate the

charge, would deprive the employer of the timely notice to which he is

entitled. Cf. Kloos, 799 F.2d at 400 (purposes of charge requirement are

to allow agency to attempt informal resolution of claim and to give

employer notice of claim). Rejecting this relation-back theory is

consistent with Hodges. See 990 F.2d at 1032. But see Whitekiller v.

Campbell Soup, Inc., 925 F. Supp. 614 (W.D. Ark. 1996). 

We therefore affirm the judgment of the district court.7
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.