for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit Leonard Edelman v. Lynchburg College

Case reversed and remanded by
Supreme Court opinion filed
3/19/02

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Cert. granted by Supreme Court
on 6/25/01

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Filed: October 11, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-2408
(CA-99-60-6)
Leonard Edelman,
Plaintiff - Appellant,
versus
Lynchburg College,
Defendant - Appellee.
O R D E R
The court amends its opinion filed October 2, 2000, as
follows:
On the cover sheet, section 7, line 2; and on page 2, section
1, line 2 -- the firm name “ALEXANDER BELL, P.L.C.,” is added after
Ms. Barney’s and Mr. Bell’s names.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED PUBLISHED PUBLISHED PUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
LEONARD EDELMAN,
Plaintiff-Appellant,
v. No. 99-2408
LYNCHBURG COLLEGE,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, District Judge.
(CA-99-60-6)
Argued: June 8, 2000
Decided: October 2, 2000
Before WILKINS and LUTTIG, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
_________________________________________________________________
Affirmed and remanded by published opinion. Senior Judge Beezer
wrote the opinion, in which Judge Wilkins joined. Judge Luttig wrote
a concurring opinion.
_________________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: Elaine Charlson Bredehoft, CHARLSON BREDEHOFT,
P.C., Reston, Virginia, for Appellant. Mary Virginia Barney, ALEXANDER
BELL, P.L.C., Lynchburg, Virginia, for Appellee. ON BRIEF: ON BRIEF: ON BRIEF: ON BRIEF: Kristine H. Smith,

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EDMUNDS & WILLIAMS, P.C., Lynchburg, Virginia, for Appel-
lant. Alexander W. Bell, ALEXANDER BELL, P.L.C., Lynchburg,
Virginia, for Appellee.
_________________________________________________________________
OPINION OPINION OPINION OPINION
BEEZER, Senior Circuit Judge:
Leonard Edelman appeals the district court's dismissal of his
employment discrimination action for lack of subject matter jurisdic-
tion. This case presents an issue of first impression in this circuit:
whether 29 C.F.R. § 1601.12(b), a regulation promulgated by the
Equal Employment Opportunity Commission ("EEOC"), conflicts
with the statutory requirements of Title VII of the Civil Rights Act,
specifically 42 U.S.C. § 2000e-5(b) and 2000e-5(e)(1), to the extent
that the regulation permits a charge of discrimination to be verified
after the expiration of the applicable limitations period. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Because we conclude that,
so applied, the EEOC regulation is contrary to the plain language of
the statute, we affirm the dismissal of Edelman's action on the
grounds that he failed to file a timely charge of discrimination.
I
Edelman, a white Polish-Jewish male biology professor, was
denied tenure by Lynchburg College on June 6, 1997. On November
14, 1997, Edelman sent a letter to the EEOC alleging that he had been
subject to "gender-based employment discrimination, exacerbated by
discrimination on the basis of [his] family's national origin and reli-
gion." According to Edelman, Jacqueline Asbury, the Dean of the
College, opposed his tenure because she wanted to improve the per-
centage of tenured women on the faculty. Edelman claims that
Asbury ignored the uniform support of his department chairman, an
ad hoc faculty committee, and the Faculty Personnel Committee. At
the conclusion of his letter, Edelman wrote, "I hereby file a charge of
employment discrimination against Lynchburg College (Dean Jacque-
line Asbury, President Charles Warren and the Board of Trustees) and
I call upon the EEOC to investigate this case[.]" Edelman's letter was
received by the EEOC on November 18, 1997.
2

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On November 26, 1997, Edelman's attorney sent another letter to
the EEOC that stated:
Professor Edelman would like to have a personal interview
with an EEOC investigator prior to the final charging docu-
ments being served on the college. It is my understanding
that delay occasioned by the interview will not compromise
the filing date, which will remain as November 14, 1997.
Please advise if my understanding in this regard is not cor-
rect.
* * *
Finally, please have the investigator contact this office to
schedule the interview at a mutually convenient time.
Shortly thereafter, the EEOC sent a letter to Edelman advising him
that it needed additional information in order to investigate his case.
The EEOC's letter urged Edelman to set up an interview "as soon as
possible because a charge of discrimination must be filed within the
time limits imposed by law[.]"
On February 17, 1998, the EEOC sent Edelman an appointment
notice advising him that his interview was scheduled for March 3,
1998. The interview was conducted as scheduled. On March 18, 1998,
the EEOC mailed a draft charge to Edelman for his signature. Edel-
man's verified charge of discrimination was filed with the EEOC on
April 15, 1998 -- 313 days after the date of alleged discrimination.
The EEOC did not assign a number to Edelman's case until after
it received his verified charge. Approximately one week later, the
EEOC forwarded the charge to both Lynchburg College and the Vir-
ginia Council of Human Rights ("VCHR"), the state agency autho-
rized to seek relief from unlawful employment practices. After
completing its investigation, the EEOC issued Edelman a right-to-sue
letter on March 26, 1999.
Edelman initially filed this action in state court, alleging state law
claims of wrongful termination, breach of contract, and intentional
3

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infliction of emotional distress. Lynchburg College removed the
action to federal court after Edelman amended his complaint to assert
a cause of action under Title VII, 42 U.S.C. §§ 2000e through 2000e-
17. Lynchburg College then moved for dismissal under Federal Rule
of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.
Because the district court concluded that Edelman failed to timely file
his charge of discrimination, it granted Lynchburg College's motion,
dismissed the Title VII claim, and remanded Edelman's remaining
claims to state court. Edelman timely appeals.
II
We review de novo a district court's dismissal for lack of subject
matter jurisdiction under Rule 12(b)(1). See Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999).
In order to assert a Title VII claim in federal court, a plaintiff must
first exhaust his administrative remedies by filing a charge of discrim-
ination with the EEOC. See Taylor v. Virginia Union Univ., 193 F.3d
219, 239 (4th Cir. 1999). Title VII establishes two potential limita-
tions periods within which the discrimination charge must be filed
with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); see also Tinsley v.
First Union National Bank, 155 F.3d 435, 439 (4th Cir. 1998). The
basic limitations period is 180 days after the alleged unlawful
employment practice. See 42 U.S.C. § 2000e-5(e)(1). The limitations
period is extended to 300 days, however, in "deferral states." See id.
§ 2000e-5(e)(1).
A "deferral state" is one which has a state law "prohibiting the
unlawful employment practice alleged" and a state or local agency
authorized "to grant or seek relief" from the practice. See id. § 2000e-
5(c). Virginia is a "deferral state." See Tinsley, 155 F.3d at 440.
Accordingly, the 300-day limitations period applies to Edelman's
Title VII claim.
III
Edelman argues that the district court erred in dismissing his Title
VII claim because his April 15, 1998 charge of discrimination related
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back to his November 14, 1997 letter and was thus timely filed within
300 days of June 6, 1997, the date of the alleged discrimination. Title
VII states that charges of discrimination "shall be in writing under
oath or affirmation and shall contain such information and be in such
form as the Commission requires." 42 U.S.C. § 2000e-5(b). The rele-
vant EEOC regulation states that "a charge is sufficient when the
Commission receives from the person making the charge a written
statement sufficiently precise to identify the parties, and to describe
generally the action or practices complained of." 29 C.F.R.
§ 1601.12(b).
Edelman's letter was mailed to the EEOC within 300 days and suf-
ficiently identified the parties and the alleged discriminatory action.
However, the letter was not sworn to under oath or affirmation. Nev-
ertheless, Edelman relies on the second sentence of the regulation,
which provides that "[a] charge may be amended to cure technical
defects or omissions, including the failure to verify the charge, or to
clarify or amplify allegations made therein. Such amendments . . .
will relate back to the date the charge was first received." Id.
The parties agree that if the regulation is applied to Edelman's dis-
crimination charge, the sworn-but-untimely charge relates back to his
unsworn-but-timely letter and is thus timely filed. The parties dis-
agree, however, as to whether the regulation may be so applied.
In order to answer this question, we must carefully consider the
relationship between the regulation (Section 1601.12(b)) and the stat-
ute (Title VII, specifically 42 U.S.C. § 2000e-5(b) and 2000e-5(e)(1)).
We begin with the framework established by the Supreme Court in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984):
First, always, is the question whether Congress has directly
spoken to the precise question at issue. If the intent of Con-
gress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the court deter-
mines Congress has not directly addressed the precise ques-
tion at issue, the court does not simply impose its own
construction on the statute, as would be necessary in the
5

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absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.
Id. at 842-43.
In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the Court con-
sidered the Chevron framework in the specific context of Title VII.
The Court made clear the standard by which we are guided:
Our first step in interpreting a statute is to determine
whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute in the case.
Our inquiry must cease if the statutory language is unambig-
uous and "the statutory scheme is coherent and consistent."
Id. at 340 (quoting United States v. Ron Pair Enters., Inc., 489 U.S.
235, 240 (1989)).
Step one of the Chevron analysis, as confirmed by Robinson,
requires us to determine whether Congress has expressed its intent
with respect to the issue at hand. In undertaking this analysis, we are
mindful that "agency power is not the power to make law. Rather, it
is the power to adopt regulations to carry into effect the will of Con-
gress as expressed by the statute." Brown & Williamson Tobacco
Corp. v. FDA, 153 F.3d 155, 161 (4th Cir. 1998) (quoting Ernst &
Ernst v. Hochfelder, 425 U.S. 185, 213-14 (1976)) (internal quotation
marks and other citations omitted).
The precise question at issue in this case is whether verification
must occur within the statutory limitations period." [T]he first place
where we must look to see if Congress has spoken to the issue with
which we are concerned and whether Congressional intent in that
regard is clear is on the face of the statute." Kofa v. INS, 60 F.3d
1084, 1088 (4th Cir. 1995). As we have earlier stated, "[s]tatutory
construction must begin with the language of the statute." Id.
We conclude that Congress has unambiguously spoken on this
issue. As noted above, the language of the statute itself requires that
6

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"[c]harges shall be in writing under oath or affirmation and shall con-
tain such information and be in such form as the Commission
requires." 42 U.S.C. § 2000e-5(b). The plain meaning of this language
compels the conclusion that if a discrimination claim is not in writing,
under oath or affirmation, containing the information and in the form
required by the Commission, it is not a charge.
In defining a charge, Congress chose to limit the EEOC's authority.
While Congress expressly delegated to the EEOC the power to delin-
eate the form and content of the charge, it did not give the EEOC
authority to tamper with the oath or writing requirements. Nor did
Congress give the EEOC authority to alter the limitations period. On
the contrary, the statute affirmatively and plainly establishes the time
period within which a charge must be filed. See id. § 2000e-5(e)(1).
Because a charge requires verification, see id. § 2000e-5(b), and
because a charge must be filed within the limitations period, see id.
§ 2000e-5(e)(1), it follows that a charge must be verified within the
limitations period. Thus, to the extent that the regulation permits a
charge to be verified after the expiration of the limitations period, it
thwarts the plain language of Title VII.
Having concluded that application of the EEOC's regulation in this
case contravenes Congress's intent, as expressed through the plain
language of the statute, we need not proceed further. Step two of the
Chevron analysis does not come into play, and we do not apply the
EEOC regulation. See Chevron, 467 U.S. at 843 n.9 ("If a court,
employing traditional tools of statutory construction, ascertains that
Congress had an intention on the precise question at issue, that inten-
tion is the law and must be given effect."); see also Brown & William-
son, 153 F.3d at 161 ("It is only if the intent of Congress is
ambiguous that we defer to a permissible interpretation by the
agency.").
The Supreme Court has long adhered to the rule that "[t]he judi-
ciary is the final authority on issues of statutory construction and must
reject administrative constructions which are contrary to clear con-
gressional intent." Chevron, 467 U.S. at 843 n.9. See, e.g., FEC v.
Democratic Senatorial Campaign Comm., 454 U.S. 27, 32 (1981)
("[Courts] must reject administrative constructions of the statute,
7

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whether reached by adjudication or by rule-making, that are inconsis-
tent with the statutory mandate or that frustrate the policy that Con-
gress sought to implement."); NLRB v. Brown, 380 U.S. 278, 291
(1965) ("Reviewing courts are not obliged to stand aside and rubber-
stamp their affirmance of administrative decisions that they deem
inconsistent with a statutory mandate or that frustrate the congressio-
nal policy underlying a statute. Such review is always properly within
the judicial province, and courts would abdicate their responsibility if
they did not fully review such administrative decisions."); Webster v.
Luther, 163 U.S. 331, 342 (1896) ("But this court has often said that
it will not permit the practice of an executive department to defeat the
obvious purpose of a statute").
Likewise, this circuit has refused to defer to agency interpretations
that are contrary to the statute at issue. See, e.g., In re Apex Express
Corp., 190 F.3d 624, 641 (4th Cir. 1999) ("Here, there is no ambigu-
ity in the text of the statute to justify the [agency's] position or a turn
to legislative history."); Cabell Huntington Hosp., Inc. v. Shalala, 101
F.3d 984, 988 (4th Cir. 1996) ("We cannot endorse the Secretary's
reading. To do so, we would have to violate both a clear canon of stat-
utory construction, and the plain meaning of the two terms.").
In keeping with the tradition that requires us to protect the will of
Congress, we hold that the regulation, 29 C.F.R. § 1601.12(b), may
not be applied to allow Edelman's untimely charge to relate back to
his November 14, 1997 letter.
IV
Edelman argues that our decision today conflicts with our earlier
discussions of the regulation in Tinsley v. First Union National Bank,
155 F.3d 435 (4th Cir. 1998), and Balazs v. Liebenthal, 32 F.3d 151
(4th Cir. 1994). We disagree.
In Balazs, the earlier of the two cases, we addressed the regulation
in the context of a plaintiff's attempt to verify his allegations of dis-
crimination almost four months after the EEOC issued plaintiff a
right-to-sue letter and terminated its processing of his case. See
Balazs, 32 F.3d at 157. The plaintiff made two arguments on appeal:
first, that a charge of discrimination did not require verification; and,
8

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second, that an unverified charge may be cured by amendment. See
id. at 156. We rejected outright the plaintiff's first argument, conclud-
ing, as we conclude today, that "a sworn charge of discrimination
with the EEOC is a mandatory prerequisite to the validity of the
charge." Id.
With respect to the plaintiff's second argument in Balazs, although
we noted that "[i]t has been held that this regulation is valid and is
not contrary to the statute requiring verification of charges," id. at 157
(citing Peterson v. City of Wichita, 888 F.2d 1307, 1308-09 (10th Cir.
1989)), we refused to apply the regulation under the facts of the case,
see id. We expressed our concern that "[c]arried to its logical conclu-
sion, under the EEOC's interpretation of its regulation it would never
be too late to verify a charge[.]" Id. Thus, we determined that "a rea-
sonable construction" of the regulation would "simply allow charges
to be verified and to relate back only so long as the charge is a viable
one in the EEOC's files[.]" Id. Here, we similarly conclude that a rea-
sonable construction must be imposed on the regulation, one which
does not allow relation-back of the verification requirement beyond
the time limitation prescribed by Congress.
We briefly mentioned both the regulation and Balasz in a footnote
in Tinsley:
The district court also rejected Tinsley's claim that her
untimely formal charge amended and related back to her
timely-but-unsworn letter. In so ruling, the district court
inexplicably ignored the applicable EEOC regulation, 29
C.F.R. § 1601.12(b), which explicitly allows such an
amendment. What is more, the district court ignored the
recent conclusion of this Circuit approving the very use of
the regulation that Tinsley, joined by the EEOC, urges:
allowing her verified claim to amend and relate back to the
date her unverified claim was filed.
Tinsley, 155 F.3d at 439 n.2 (citing Balazs). We noted, however, that
in light of our conclusion that Tinsley's verified charge was filed
within the applicable limitations period, which we held to be 300 days
rather than 180, there was no need to address the regulation. See id.
("Because we hold that the appropriate statute of limitations period
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was 300 days, we need not resolve any of these other questions.").
Thus, the most that can be said about our discussion of the regulation
in Tinsley is that it is dictum. Moreover, contrary to Edelman's char-
acterization, the facts of this case are materially different from those
of Tinsley. Tinsley verified his allegations of discrimination within
the statutory time period, whereas Edelman did not.
V
Although our decision today is consistent with our prior discus-
sions of the regulation, we are mindful that our analysis conflicts with
that of several other circuits.
In Philbin v. General Electric Capital Auto Lease, Inc., 929 F.2d
321 (7th Cir. 1991), the Seventh Circuit reversed a decision of the dis-
trict court dismissing the plaintiff's Title VII action as untimely. See
id. at 322. The Philbin court held that a timely filed Intake Question-
naire, which is verified after the limitations period, may be sufficient
to constitute a charge.* See id. at 323.
The court relied on two factors in reaching its decision. First, the
court stated that "Title VII is remedial legislation which must be con-
strued liberally." Id. Citing its previous decision in Choate v. Cater-
pillar Tractor Co., 402 F.2d 357 (7th Cir. 1968), in which it stated
that the verification requirement was "directory and technical rather
than mandatory and substantive," Choate, 402 F.2d at 359, the Phil-
bin court concluded that "[i]n keeping with the broad purposes of the
act, the omission of technical requirements which are later fulfilled
should not affect the timeliness or validity of the charge." Philbin,
929 F.2d at 324.
_________________________________________________________________
* The court did not go so far as to say that a subsequently-verified
Intake Questionnaire will always constitute a charge. See Philbin, 929
F.2d at 324. Instead, the court considered the EEOC's treatment of the
questionnaire. Specifically, the court recognized that the EEOC had not
only assigned a charge number to the questionnaire within the 300-day
time period, but also notified Philbin's employer within the same period.
See id. In Edelman's case, the EEOC neither assigned a charge number
nor notified Lynchburg College of Edelman's claim within the 300-day
limitations period.
10

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In contrast to the Seventh Circuit, we have previously held that the
oath requirement contained in Title VII "is cast in mandatory terms."
Equal Employment Opportunity Comm'n v. Appalachian Power Co.,
568 F.2d 354, 355 (4th Cir. 1978). We also noted then, as we confirm
now, that we "see no reason to ignore the plain language that Con-
gress has enacted." Id.; accord Hamel v. Prudential Ins. Co., 640 F.
Supp. 103, 105 (D. Mass. 1986) ("Although an Intake Questionnaire
is signed, it is not signed under oath. Any suggestion that this distinc-
tion is formalistic tends to ignore the significance of a perjury convic-
tion.").
The second factor relied upon by the Philbin court was "the defer-
ence accorded EEOC regulations." Philbin, 929 F.2d at 324. In apply-
ing the Chevron analysis, the court failed to give sufficient weight to
the plain language of the statute, focusing instead on whether the
EEOC's regulation represented a reasonable interpretation of the stat-
ute. The court did note, however, that "[w]hile the statute does require
that a complainant verify a charge, the statute does not require that the
verification take place prior to the expiration of the 300-day time
period." Id.
As discussed in Section III above, we read the plain language of
the statute differently. Moreover, while we recognize the remedial
nature of Title VII, we see no reason to distort Congress's mandate
that charges be timely verified in order to make room for the EEOC's
regulation. Cf. Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,
150 (1984) (holding that there is "no satisfactory basis for giving Title
VII actions a special status under the [Federal] Rules of Civil Proce-
dure").
Finally, we note that the Seventh Circuit is not the only other cir-
cuit to have addressed the conflict between the EEOC regulation and
the statutory provisions of Title VII. Other circuits have approved the
application of the regulation to permit the relation-back of charges
that were verified after the limitations period. See Peterson v. City of
Wichita, 888 F.2d 1307, 1308 (10th Cir. 1989) (rejecting the district
court's conclusion that regulation was contrary to statute and thus
beyond EEOC's power to promulgate); Casavantes v. California
State Univ., 732 F.2d 1441, 1442-43 (9th Cir. 1984) (noting that its
position is "consistent with the recent trend in Title VII jurisprudence
11

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which recognizes the importance of nontechnical interpretations of
the procedural requirements inherent in the processing of discrimina-
tion claims"; condemning contrary position as"overly formalistic");
Price v. Southwestern Bell Tel. Co., 687 F.2d 74 (5th Cir. 1982)
(reversing summary judgment in favor of employer because factual
issues remained as to whether form completed by plaintiff constituted
"charge" and as to whether EEOC waived verification requirement).
But see Lawrence v. Cooper Communities, Inc., 132 F.3d 447 (8th
Cir. 1998) (holding that Intake Questionnaire does not constitute a
"charge" because it is not verified and that regulation only allows an
amendment to relate back to the date a charge is first received).
We disagree with these decisions, in short, because we believe that
they improperly substitute policy justifications for clear statutory lan-
guage. See Kenneth Culp Davis & Richard J. Pierce, Jr., Administra-
tive Law Treatise §§ 3.2, 3.3 (3rd ed. 1994) (discussing Chevron's
attempt to curtail judicial policy-making).
VI
Although we conclude that Edelman failed to timely file a charge
of discrimination, we recognize that this failure does not deprive the
court of subject matter jurisdiction. See Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982) ("We hold that filing a timely charge
of discrimination with the EEOC is not a jurisdictional prerequisite to
suit in federal court, but a requirement that, like a statute of limita-
tions, is subject to waiver, estoppel, and equitable tolling."). But see
Davis v. North Carolina Dep't of Corrections, 48 F.3d 134, 137 (4th
Cir. 1995) (discussing Title VII's exhaustion requirement in jurisdic-
tional terms).
Before we affirm the dismissal of Edelman's Title VII claim, we
consider whether the facts of this case warrant equitable tolling of the
limitations period. Edelman was represented by counsel at all stages
of the administrative process. In fact, his initial letter to the EEOC
referenced his attorneys by name. Despite the fact that Edelman
attempts to attribute significant delay to the EEOC's processing of his
complaint, he waited more than five months after the alleged discrim-
ination before even contacting the agency. Moreover, the EEOC
mailed the draft charge to him before the expiration of the limitations
12

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period. Had he promptly signed and returned the proposed draft,
which included a form of oath or affirmation, his charge would have
been timely filed.
We hold that Edelman is not entitled to equitable tolling of the lim-
itations period. See Irwin v. Department of Veteran Affairs, 498 U.S.
89, 96 (1990) ("[T]he principles of equitable tolling . . . do not extend
to what is at best a garden variety claim of excusable neglect.").
VII
We believe this case is best summed up in the words of the
Supreme Court:
Procedural requirements established by Congress for gain-
ing access to the federal courts are not to be disregarded by
courts out of a vague sympathy for particular litigants. . . .
[I]n the long run, experience teaches that strict adherence to
the procedural requirements specified by the legislature is
the best guarantee of evenhanded administration of the law.
Baldwin County Welcome Ctr., 466 U.S. at 152.
The judgment of the district court dismissing Edelman's action is
affirmed, but on remand the district court should take proper action
to indicate that the dismissal is for failure to exhaust administrative
remedies rather than for lack of subject matter jurisdiction.
AFFIRMED AND REMANDED
LUTTIG, Circuit Judge, concurring:
I would decide this case on the narrow ground that Edelman's sec-
ond filing is ineligible for relation back because (1) Edelman charac-
terized his initial filing as a request for a charge rather than as a
charge; (2) the EEOC did not even treat Edelman's original filing as
a charge; (3) the EEOC never served a copy of the letter on Lynch-
burg College; and (4) the second sworn letter, which allegedly
amended the first letter, even alleges different discriminatory conduct
than that charged in the original letter.
13

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I am sufficiently uncomfortable with the broader ground for deci-
sion set forth in the majority opinion, that verification may never
relate back after 180 days from the date of the alleged discriminatory
action, that I am unable to concur in the opinion for the court. As to
this issue, we are not confronted with a single statute stating either by
terms or in effect that "a verified charge must be filed within 180 days
of a discriminatory action." Were we confronted with a single statute
worded in this way, then the plain meaning interpretation advanced
in the opinion for the court would, I think, be unassailable. Instead,
we are presented with two statutes, the first providing that a charge
shall be filed within 180 days of the unlawful employment practice,
and the second providing that charges shall be in writing and include
an oath or affirmation.
Although I confess some uncertainty as to this, it seems to me that,
between these two statutes, there is not necessarily the nexus required
in order to sustain the plain meaning interpretation advanced in the
opinion. That is to say, it seems to me at least plausible to read the
first statute to require simply that a charge be filed within 180 days,
and the second as freestanding of the first, and simply to require that,
before a charge is finalized, all of the allegations and information
required by the EEOC be provided and verified. Of course, if the two
statutes are so read as temporally independent of each other, or at
least not temporally coterminous, then there is no statutory require-
ment that the charge be verified within the 180 days, and relation
back would be available by regulation.
Apart from what I believe is its inherent structural logic, this inter-
pretation is plausible because there is no statutory definition of
"charge," contrary to the implicit premise of the majority's opinion.
There is no statutory definition that provides that, in order to consti-
tute a "charge," an allegation must be verified. Thus, the "charge" that
must be filed within 180 days need not -- at least need not by defini-
tion -- be an allegation that is verified or that includes all the infor-
mation that eventually must be provided before it is sufficiently
complete to require notice to the employer. Insofar as the statute
informs us, the "charge" that must be filed within 180 days can be
merely an allegation of discrimination; it need not be verified.
As precisely as I can state it -- and I readily concede that the point
is conceptually elusive -- the majority's interpretation seems to me
14

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actually to depend entirely upon reading the two statutes as if they
were one. And I fear that it is only through reading the two as one that
the nexus necessary to the majority's interpretation is supplied; in
other words, unless the two statutes are read as one, I believe that it
is impossible to say, with the certainty necessary to abrogate the agen-
cy's contrary interpretation, that a charge must be filed and verified
within 180 days of the alleged discriminatory action.
I do not believe that the alternative interpretation I suggest is the
only interpretation of the two statutes, by any means. Indeed, I do not
even believe that it is the better interpretation; in fact, I believe that
the one adopted by the majority is the better. But I do believe that this
alternative interpretation of the agency is a plausible one. And, of
course, being such, we are bound to give deference to that administra-
tive interpretation.
For these reasons, I concur only in the judgment of the court.
15

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