Pre-Suit ADA Requirements Not Satisfied by Nurse's Assistant's Initial EEOC Charge, Intake Questionnaire, or Amended Charge
A certified nurse’s assistant cannot pursue a disability discrimination claim under the Americans with Disabilities Act because she failed to exhaust her administrative remedies, the U.S. District Court for the Eastern District of Tennessee ruled in Davenport v. Asbury Inc., No. 3:12-CV-00445 (E.D. Tenn. Mar. 29, 2013).
Under the ADA, a claimant must file a discrimination charge with the U.S. Equal Employment Opportunity Commission or a state counterpart within 180 or 300 days of the alleged discrimination. Here, the Court found the charge by the nurse’s assistant initially filed with the EEOC was invalid because it was signed by her attorney, rather than plaintiff herself. While an attorney may file a charge on behalf of a client, the Court explained, the lawyer’s signature alone is not proper verification, unless the attorney personally swears to the truth of the facts contained in the charge and does so based on personal knowledge of those facts.
The Court further found the signed intake questionnaire the plaintiff submitted prior to filing her charge could not substitute for an official charge, because it was not verified in accordance with the ADA and the EEOC’s regulations – i.e. it was not notarized or signed under penalty of perjury.
Finally, the Court found the verified amended charge the plaintiff filed after the EEOC issued a right-to-sue notice did not exhaust her administrative remedies because it did not relate back to her intake questionnaire or her initial charge. The Court explained that because “the purpose of the verification requirement is to protect the defendant from responding to frivolous charges and ‘demands an oath…by the time the employer is obliged to respond to the charge,’ plaintiff, in filing her verified amended [charge] after the EEOC closed its case and this suit was initiated and removed to this Court, did so too late.”