### 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 summ ary judgment entered against him in his Age Discrimination in Employment Act clai m against Minnesota Mining and Manufacturing Co., known as 3M. The district court held t hat Diez had 1 not filed an administ rative charge with the Minnesota Department of Human Rights within 300 days of the act of discriminat ion, as he was required to do under 29 U.S.C. § 626(d)(2) (1994). Diez appeals, arguing that h e filled out an agency questionnaire within the required time and that the questionn aire was by law a "charge." We affirm the judgment of th e district court.

### -2- Diez worked for 3M from 1962 to August 1, 1992, when he retired a t the age of fifty-eight. He alleged in his complaint that 3M bega n discriminating agains t him in favor of younger workers when he was fortyeight years old. He was demoted in 1990 and his former position was fille d 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 reduc tion in force would take place in the tape department, where Die z
wor ked. 3M offered tape department employees a voluntary severance pa y plan if t hey retired or otherwise resigned before the end of July 1992

. Diez had to choose whether to retire voluntarily and receive the severance payment o r take his chance that he would survive the reduction in forc e without being laid of f. 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 ther e were few or no opportunities for employees in th eir mid-fifties or older."

Diez elec ted to take early retirement to get the severance pay. He filled out an application for retirement on June 1, 1992. He modified 3M' s formby writing in the words "under duress" and gave his retirement date
as December 31, 1992, instead of the July 31 date specified in th e severance pay plan.

On June 25 , 3M told Diez that his job had been upgraded as h e requested, but by this time Diez had already app lied for retirement. Diez alleged that 3M gave the upgraded job to a "materially younger" person.
3M reject ed Diez's pending application for early retirement because of the December date and the "under duress" language Diez

### -3-

had added to the form. On July 7, 1992 Diez com pleted 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 ret irement/resignation with an effective date of ______ subject t o appro val by 3M ." (emphasis added). The record is silent as to when 3 M 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 off ices of the Minnesota Department of Hum an Rights and received an intake questionnaire. The Minnesot a Department of Human Rights has a worksharing agreement with the EEOC b y which each agency designates the other as its agent for the purpose o f 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 th e people at 3M whom he claimed discriminated against him. He signed th e questionnaire on May 20 and returned it to the MDHR on May 21, 1993. The informa tion in the questionnaire was reduced to a verified "Charge o f 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 MDH R dismissed Diez's charge on the ground that further use of the department's resources pursuing Diez' s claim was not warranted.

Diez file d 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 mov ed for summary judgment on the theory that Diez did not fil e
an ad ministrative charge against it within 300 days, as provided by 2 9 U.S.C. § 626(d) (1994). The court granted summary judgment to 3M on the ADEAclaim, 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).
-4- that a n unverified intake questionnaire could not serve as a n administrative charge under Title VII. The dist rict court did not find it necessary to determine the date on which 3M's alleged act of discriminatio n 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 f or the act of discrimination. Because there was no longer an y federa l claim pending before the court, it declined to exercis e jurisdiction over the state claims, citing 28 U.S.C. § 1367(c) (1994).

On appea l, Diez contends that the questionnaire he lodged with th e MDHR satisfied the requirement that he file an administrative charge withi n 300 days of the act of discrimination.

We re view the district court's entry of summary judgment de novo

. Barryv. 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.
-5- The leading case in our circuit is H odges , 990 F.2d at 1032, a Title VII case, in which we stated that an intake questionnaire "did no t 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 Whi tekiller v. Campbell Soup, Inc. , 925 F. Supp. 614 (W.D. Ark. 1996).

In Title VII cases, intake questionnaires do not satisfy th e 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 o r affirmation and shall contain such information a nd 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 verif y 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).
-6- Unli ke Title VII, the ADEA does not require that a charge b e verified. The only statutory reference to what might be necessary in a cha rge comes in 29 U.S.C. § 633(b) (1994), which states: "If an y requirement for the commencement of such proceed ings is imposed by a State authorityother than a requirement of the filing of a written and signed statement of the fact s upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the p urposes 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 b y registered mail. The record in this case does n ot 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 th e minimal requirements that they be written and signed statements of th e relevant facts.
The EEOC's regulations are consistent with this understanding. Under 29 C.F.R. § 1626.6:

A char ge shall be in writing and shall name th e prospective respondent and shall generally allege the

### -7- di scriminatoryact(s). Charges received in person or b y telephone shall be reduced to writing.

Another regulation, 29 C.F.R. § 1626.8, sets out in more detail what shoul d appear in a charge, but specifically provides that the charge is legally
su fficient and effective so long as it complies with the minima l requirements of section 1626.6.
Even though the intake questionnaires literally satisfy the sta tutory and reg ulatory requirements for a charge, a fuller examination of th e regula tions and the printed language on the intake questionnaire form s shows that the EEOC does not intend the questionnaires to routinel y function as a charge.

In Steffen v. Meridian Life Insurance Co. , 859 F.2d 534, 542 (7t h Cir. 198 8), cert. denied , 491 U.S. 907 (1989), the Seventh Circui t recogn ized that the intake questionnaires fit within the statutory an d regulatory descriptio ns of a charge, but nevertheless refused to say that this was sufficient f or the questionnaire to be treated as a charge. The court stated:

[T] he EEOC's regulations make clear that, while a charge i s `sufficient' if it names the respondent and generally alleges discrimination, not all documents containing such information are charges. There is n o other way to explain the distinction in the EEOC's regulations between a `complaint' anda `charge.' A `complaint' is defined to `mean information recei ved from any source, that is not a charge , which alleges that a name d 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 suff icient under the regulation if it names the respondent and gener ally alleges a discr iminatory act. Thus, under these regulations, an y docu ment 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 charg e has been filed. 29 C.F.R. § 1626.11. The onl y plausible reason why the EEOC would consider one communication of information to be a `complaint' and

### -8- another to be a `charge' is that a `charge' is submitted under cir cumstances that would lead the EEOC to believe that th e complaining party sought to `activate the Act's machinery. ' Mor eover, there is no other plausible reason why the EEO C labels certain forms as `Intake Questionnaires' andother forms as `Charges of Discrimination.'

Id. a t 542. The court decided that Steffen's intake questionnaire wa s completed under circumstances that indicated Ste ffen intended to "activate the machinery" of the ADEA, because the EEOC employee who took Steffen's questionnaire told St effen that the EEOC would treat the questionnaire as a charge (although the EEOC did not actually do so). Id. at 544.

The Seven th Circuit has continued to apply the test from Steffen to distin guish between questionnaires that are preliminary to a charge an d those that function as a charge: do the circumstances indicate that the claim ant intended to activate the machinery of the ADEA by lodging th e 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 treatedthe questionnaire as a charge, we have also held tha t ina ction by the EEOC should not, for time limit purposes, bar an ADE A suit.").

Th e purpose of distinguishing questionnaires meant to activate th e machineryof the ADEA from those that are merely preliminary to a charge is not to keep plaint iffs out of court, but to assure that the ADEA works
as it is sup posed to. If the EEOC or state agency understands th e 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.
-9- pre liminary, it does not notify the employer of the charge. Thi s 5 frustrates a major go al 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 af fidavit 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 May19, 199[3], and completed its "Employment Discriminatio n 6 Questionnaire," Exhibit G, on or about May 20, 199[ 3] and filed it on May 21, 199[3] wit h the Department. I signed the charge of discrimination on Jun e 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 question naire. The fact that Diez later filled out a formal charge indicates that he understood th e quest ionnaire to be preliminary. Further, the questionnaire itsel f 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 i nformation to determine if your claim can be processed as a cha rge 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 earlierthan the date of Diez's retirement, since the claim is timebarred in any case.
-10- filed the charge in June.

Diez has not presented any evidence to prove the questionnaire wa s inten ded to function as a charge in his case. The only evidence in th e record supports the conclusion that the MDHR justifiably considered th e questionnaire as preliminary, rather than a legally effective invocation of the ADEA. Diez has simply not produced the evidence needed to avoi d summary judgment. See Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986).

Diez also argues that the formal charge filed on June 10 shoul d relate back under 29 C.F.R. § 1626.8(c), which provides:

A charge may be amended to clarify or a mplify allegations mad e therein. Such amendments and amendments allegin g additional acts which co nstitute unlawful employment practices related to or growing out of the subject matter of the original charge w ill relate back to the date the charge was firs t received.

We reject this argument because the regulation says, "A charge may b e amended . . . ." (emphasis added). Since we have decided that th e questionnaire was not a charge, the regulation is not applicable. To trea t
a subse quently filed charge as an amendment, and thereby backdate th e charge, would deprive the employer of the timely notice to which he i s entitled. Cf. Kloos , 799 F.2d at 400 (purposes of charge requirement are to allow agency to attempt informal resolution of claim and to giv e employ er notice of claim). Rejecting this relation-back theory i s consi stent 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

### -11- A true copy.

Attest:

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