United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1603

_____________ Rosemary Schlueter, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Anheuser-Busch, Inc., a Corporation, * * Defendant - Appellee. *

_____________ Submitted: September 11, 1997 Filed: January 6, 1998

_____________ Bef ore RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and BEAM , Circuit Judges.

_____________ FLOYD R. GIBSON, Circuit Judge. Appellant Rosemary Schlue ter filed suit against her employer Anheuser-Busch, Inc. ("Anheuser") allegi ng discrimination based on her sex, see 42 U.S.C. §§ 2000e - 2000e-17 (1994) ("Title VII"), and a ge, see 29 U.S.C. §§ 621-634 (1994) ("ADEA"). The d istrict court granted summary judgment in favor of Anheuser after determinin g tha t Schlueter did not file a charge of discrimination with the Equal Employmen t Oppor tunity Commission ("EEOC") within 300 days of the alleged act o f discrimination as required by Title VII and the ADEA. See42 U. S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d). Schlueter appeals claiming that the district court should haveSchl ueter also called an attorney in November of 1993 to schedule a n 1 appointment to discuss her claims. The attorney told her he would be available to meet with her after the first of the year. Sadly, the attorney passed away the day afte r Thanksgivi ng. The record contains no indication that Schlueter ever discussed th e circumstances of her case with this attorney. -2- determined that her EEOC Intake Questionnaire, which she filed with the EEOC within the 300-day period, was a valid charge of discrimination. Schlueter alternatively argues that the district court should have tolled the 300-day filing period based on equitable considerations. We affirm in part and reverse in part.

I. BACKGROUND

Schlueter worked for Anheuser in various capacities from 1951 through 195 5 andagain from 1965 through April 23, 1993. Schlueter announced her retirement in
ea rly April of 1993. She claims that her decision to retire was brought on b y intolerable discrimination based on her sex and age. Schlueter's last day of work with Anheuser was April 23, 1993; however, she used earned vacation time to extend her official date of retirement to May 31, 1993.

Schl ueter spoke with an attorney on January 27, 1994. The attorney advise d 1 Schlueter to g o to the EEOC office to file a charge of discrimination. On January 28, 19 94, Schlueter went to the EEOC office for the express purpose of filing a charge

. Schluet er communicated her intent to EEOC employee, Lynn Morgan. Morga n directe d Schlueter to complete an Intake Questionnaire which Schlueter did

. Schlueter's Questionnaire indicates that her last day of employment was May 31, 1993, but reports that the most recent date of alleged discrimination was in April of 1993

. Schlueter's Questionnaire states her belief that she was discriminated against because she i s a woman. Specifically, Schlueter's Questionnaire states: "Superior did not get along with women. He told me that a woman should not be in my position. He made my life so intolerable that I was forced to retire." See Schlueter's App. at 63.-3-

Schlueter 's Intake Questionnaire does not contain any allegation that she wa s discriminated against based on her age.

When Schlueter completed her Intake Questionnaire, Morgan advised her that she wou ld have to return to the EEOC to complete more paperwork. Morga n scheduled an appointment for Schlueter to meet with EEOC employee Althea Bolden
on Februa ry 24, 1994. When Schlueter left the EEOC office on January 28, sh e believedshe had done everything necessary to file a charge of discrimination

. Schlueter met with Bolden on February 24, and Bolden requested that she complete an official charge of discrimin ation. Schlueter filled out the charge, noting that Anheuser discriminated against her based on sex and a ge. The EEOC issued a right-to-sue letter on November 30, 1995.
On April 11, 1996, Schlueter filed Title VII and ADEA claims agai nst Anheuser. Anheuser filed a motion for summary judgment claiming that Schlueter failed to file a timely charge with the EEOC be cause, using April 23, 1993 as the last date of alleged discriminatory action, Schlueter's charge was du e February 18, 1994, but Schlueter did not file her charge until February 24. Schlueter countered Anheuser' s motion with three
ar guments: (1) the 300-day filing period did not begin to run until March 31, 1993 , because t hat was her last official day of employment; (2) she filed a valid charge o n January 28, 1994, when she filed her Intake Questionnaire because, under 29 C.F.R. §§ 1601.12(b), 1626.8(c) (1997), her formal ch arge of February 24, 1994, relates back to the date she completed her Intake Questionnaire; and (3) the 300-day filing period should be tolled based on equita ble considerations. The district court rejected each of these arguments and granted Anheuser's motion for summary judgment.

Sc hlueter appeals arguing that her charge was timely because, when she file d iton Fe bruary 24, 1994, it related back to the filing of her Intake Questionnaire o n January 28, 1994. Schlueter als o contends that the district court erred when it refusedTitle VII commands that "[c]harges shall be in wri ting under oath or affirmation 2 andshall contain such information and be in such form as the [EEOC] requires." 42 U.S.C. § 2000e-5(b) (1994). -4- to apply the doctrine of equitable tolling to the 300-day fil ing period. We affirm in part and reverse in part.

II. DISCUSSION

We revie w a grant of summary judgment de novo

. See Hamilton v. West , 3 0 F.3d 992, 993 (8th Cir. 1994). "Summary judgment is proper if, based on the pleadings and affidavits, there is no genuine issue of material fact, and the moving p arty is entitled to judgment as a matter of law." Id. "In reviewing the district court's grant of summary judgment, we view the facts in the light most favorable to the nonmoving party." Id.

We first discuss Schlueter's T itle VII claim. Schlueter contends that the district court should not have granted summary judgment on her Title VII claim because she completed her Intake Questionnaire within the 300-day filing perio d. Schlueter reasons that wh en she filed her charge on February 24, 1994, the charge related back to th e Ja nuary 28 completion of her Intake Questionnaire; therefore, the charge was timel y based on the initial filing of her Intake Questionnaire. Schlueter's argument appear s well taken. Nonetheless, we are bound by Eighth Circuit case law which holds tha t "[i]n Title VII cases, intake questionnaires d o not satisfy the statutory requirements for a charge because they are not verified." Diez v. Minnesota Mining and Mfg. Co. , 88 2 F.3d 672, 675 (8th Cir. 19 96). See also Hodges v. Northwest Airlines, Inc. , 990 F.2d 1030, 1032 (8th Cir. 1993). But cf. 29 C.F.R. § 1601.12(b) (1997) ("A charge may be amended to cure technical defects or omissions, including failure to verifythe charge."). Because Schlueter's Intake Question naire did not amount to a charge of discrimination under T itle VII, her formal charge of February 24, 1994 could not relate back to th e filing of the Intake Questionnaire.T he court in Jennings was particularly persuaded by the fact that th e 3 complai nant

was not represented by counsel. Jennings , 672 F.2d at 715. Certainly , un represented complainants are more likely to be misled by the EEOC or thei r em ployer than are those who are represented. Nonetheless, in this case, Schlueter' s -5- Schlue ter also argues that the district court should have applied the doctrine of equitable tolling to the 300-day filing period. We agree. "[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisit e to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393 (1982) ; accord Warr en v. Department of Army , 867 F.2d 1156, 1159 (8th Cir. 1989)

. "[E]quitable tolling is premise d on the plaintiff's excusable neglect, which may or may not be attributable to the defendant." Anderson v. Unisy s Corp. , 47 F.3d 302, 306 (8th Ci r.), cert. denied , 116 S. Ct. 299 (1995). After a careful review of the record, w e conclude that Schlueter's failure to file a charge within the 300-day filing period was due to excusable neglect.

Schlueter went to the EEOC office on J anuary 28, 1994 for the express purpose of filing a charge of discrimination. She told EEOC employee Morgan she intended to file a charge. With knowledge of Schlueter's intent, Morgan gave her an Intak e Questionnaire rather than a charge form. Morgan then requested that Schlueter return to the EEOC office on February 24, 1994. There is ev idence in the record which tends to show t hat the EEOC used the date of May 31, 1993 (Schlueter's last day o f employment), rather than April 23, 1993 (the last day of alleged discriminatory action), to calculate when th e 300-day filing period would expire. Evidence also exists which indica tes that the EEOC considered Schlueter's Intake Questionnaire to be a vali d charge (or believed that her charge would relate back to the completion of the Intake Questionnaire). Whichever of these beliefs the EEOC may have held, they wer e mistaken , and we will not hold Schlueter responsible for the EEOC's mistake. Cf

. Jennings v. American Postal Workers Union , 672 F.2d 712, 715 (8th Cir. 1982). 3repre sentation did not prevent her from being misled by the EEOC. Cf. Cobb v

.

St ringer , 850 F.2d 356, 357, 360 (8th Cir. 1988) (applying the doctrine of equitabl e tolling when the complainant's attorney advised her to file a c omplaint with the EEOC). The record shows that Schlueter spoke with her attorney on January 27. He told her to go to t he EEOC office to file a charge, which Schlueter did. Neither Schlueter nor her atto rney reasonably could have expected that the EEOC would have give n Schlueter the wrong form or scheduled her secondappointment with the EEOC out-oftime. Anheuser argues that, because Sc hlueter was generally aware of her rights, she

4 could not claim excusable neglect bas ed on her ignorance of the 300-day filing period. See Miller v. Runyon , 32 F.3d 386, 389 (8th Cir. 1994). However, when an agency misleads a complainant as to certain specific pleading requ irements, a claimant's failure to adh ere to those requirements may be excusable, and thus, equitable tolling ma y apply. We find that the misleading conduct of the EEOC in this case was sufficient to justify Schlueter's neglect. S ee Anderson , 47 F.3d at 306-07; Early v. Bankers Life & Casualty Co. , 959 F.2d 75, 81 (7th Cir. 1992).
-6- Schlueter left

the EEOC office with the belief that she had done everything necessary to file a charge. Under the circumstances of this case, her belief was reasonable. 4 Th erefore, we conclude that the doctrine of equitable tolling should apply, and w e reverse the district court's grant of summary judgment on Schlueter's Title VII claim.
We now turn to Schlueter's arguments concerning her AD EA claim. The ADEA does not require that charges be verified. Ho wever, in Diez , this Court stated that "the EEOC does not intend the [intake] questionnaires to routinely function as [charges]." 88 F.3d a t 676. Whether a plaintiff intended an Intake Questionnaire to function as a charge m ust be decided on a case-by-case basis. In each case, we ask whether "th e circ umstances indicate that the claimant intended to activate the machinery of th e ADEA by lodging the questionnaire with the agency." Id. In this case, Schlueter' s Intake Questionnaire did not indicate that she intended to file a cha rge of discrimination under the ADEA because it did not contain an allegation of discrimination based age. The only allegat

ions made in Schlueter's Intake Questionnaire relate to discrimination-7-

based on sex. EEOC employee Morgan t ook notes pertaining to her January 18, 1994 meeting w ith Schlueter. Morgan's notes seem to indicate that Schlueter may hav e intended to make a claim of age discrimination. However, our inquiry focuses on the contents of the Intake Questionnaire itself. Id. ("[Do the circumstances indicate that the clai mant intended to activate the machinery of the ADEA by lodging th e questionnaire with the agency?" (emphasis added)). Schlueter completed thi s Questio nnaire and made absolutely no claim of age discrimination. Therefore, w e
cann ot conclude that in completing the Questionnaire she "intended to activate th e machinery of the ADEA." Id.
Furthermore, we must reject Schlueter's claim that her form al charge of February 24 , 1994 should relate back under 29 C.F.R. § 1626.8(c). The regulation states tha t "[a] charge may be amended . . . ." 29 C.F.R. § 1626.8(c) (1997). Because we have concluded that Schlueter's Intake Questionnaire was not a charge, the regulation i s inapplicable. See Diez , 88 F.3d at 677.
Finally, the district court did not err in determin ing that the circumstances of this case do not require equitable t olling of the 300-day filing period on Schlueter's ADEA claim. Schlueter completed the Intake Questionnaire without mention of a potential age claim. We cannot conclude that Schlueter's neglect was excusable or that th e circumstances warrant equitable tolling. We affirm the district court's gr ant of summary judgment in favor of Anheuser on Schlueter's ADEA claim.

III. CONCLUSION
Based on the reasons set forth in this opinion, we reverse the district court's grant of summary j udgment in favor of Anheuser on Schlueter's Title VII claim. We affirm the grant of summary judgment in favor of Anheuser on Schlueter's ADEA claim.-8-

A true copy.

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