                                            Filed:   August 29, 2002

                   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 on remand filed August 19, 2002,

as follows:

     On the cover sheet, section 7, lines 2-3; and on page 2,

section 1, line 2 --“ALEXANDER BELL, PLC,” is added after attorneys

Mary Virginia Barney and Alexander W. Bell.

                                         For the Court - By Direction




                                         /s/ Patricia S. Connor
                                                  Clerk
             PUBLISHED

   UNITED STATES COURT OF APPEALS

           FOR THE FOURTH CIRCUIT


LEONARD EDELMAN,
     Plaintiff-Appellant,

      v.                             No. 99-2408

LYNCHBURG COLLEGE,
     Defendant-Appellee.


On Remand from the United States Supreme Court.
    (S. Ct. No. 00-1072)

   Argued: June 8, 2000
 Decided: October 2, 2000
Decided on Remand: August 19, 2002


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 in part, reversed in part, and remanded by published opin-
ion. Judge Wilkins wrote the majority opinion, in which Senior Judge
Beezer joined. Judge Luttig wrote a dissenting opinion.

____________________________________________________________

                  COUNSEL

ARGUED: Elaine Charlson Bredehoft, CHARLSON BREDEHOFT,
P.C., Reston, Virginia, for Appellant. Mary Virginia Barney, ALEXANDER
BELL, PLC, Lynchburg, Virginia, for Appellee. ON BRIEF: Kristine H. Smith,
EDMUNDS & WILLIAMS, P.C., Lynchburg, Virginia, for Appel-
lant. Alexander W. Bell, ALEXANDER BELL, PLC, Lynchburg,
Virginia, for Appellee.

____________________________________________________________

                  OPINION

WILKINS, Circuit Judge:

   Leonard Edelman appeals an order of the district court dismissing
his employment discrimination claims against Lynchburg College
("the College"). His appeal has been considered by the Supreme Court
and returned to us for further proceedings. We affirm in part, reverse
in part, and remand.

             I.

   Edelman was hired by the College in August 1993. Although Edel-
man was recommended for tenure by the chairman of his department
and two review committees, the Dean refused to recommend Edelman
for tenure. On the advice of the Dean, the President recommended to
the Board of Trustees that Edelman's tenure nomination be denied,
and the Board of Trustees denied tenure on June 6, 1997.

    Edelman became convinced that the Dean had based her negative
recommendation on his religion, ethnicity, gender, and age.1 On
November 14, 1997, Edelman sent a five-page, single-spaced letter
("the November 14 letter") to the Equal Employment Opportunity
Commission ("EEOC") relating his allegations of discrimination and
asserting that "I believe my case is one of gender-based employment
discrimination, exacerbated by discrimination on the basis of my fam-
ily's national origin and religion." J.A. 64. The letter concluded, "I
hereby file a charge of employment discrimination against Lynchburg
College . . . and I call upon the EEOC to investigate this case . . . ."
Id. at 64-65. Although Edelman signed this letter, the letter was not
verified, i.e., sworn and notarized. The EEOC received this letter on
November 18, 1997.
____________________________________________________________
   1
     Edelman is a white male of Polish-Jewish descent who was 47 years
old when he was denied tenure.

             2
   On November 26, 1997, an attorney representing Edelman wrote a
letter to the EEOC ("the November 26 letter") following up on a tele-
phone conversation he had had with an EEOC intake supervisor.
After explaining that he represented Edelman, who had "filed his
complaint of discrimination against Lynchburg College on November
14, 1997," counsel indicated that Edelman preferred to have his per-
sonal interview with EEOC "prior to the final charging documents
being served on the college." Id. at 66. The attorney then stated, "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 correct." Id.
Counsel never obtained any response indicating that his understand-
ing was incorrect.

    On December 3, 1997, the EEOC wrote to Edelman informing him
that the information in the November 14 letter was "not sufficient for
[the EEOC] to continue investigating [the] case," and requesting that
he arrange an interview. Id. at 67. The letter warned, "IF WE HAVE
NOT HEARD FROM YOU AT ALL WITHIN 30 DAYS OF THIS LET-
TER, WE WILL ASSUME THAT YOU DID NOT INTEND TO FILE
A CHARGE OF DISCRIMINATION WITH US." Id. Edelman con-
tacted the EEOC "[s]oon after" receiving its letter, but "[d]ue to the
EEOC's delays," an interview was not conducted until March 3, 1998.
Id. at 70. The EEOC investigator subsequently perfected a charge of
sex discrimination,2 and on March 18, 1998, mailed an EEOC Form
5 to Edelman for his signature. The signed perfected charge was
received from Edelman on April 15, 1998, which was 313 days after
June 6, 1997, the last date of alleged discrimination by the College.
The charge was assigned a charge number and recorded in the
EEOC's charge register. The charge was then forwarded to the Col-
lege on April 21, 1998, and a copy of the Form 5 was sent to the Vir-
ginia Council on Human Rights ("the VCHR") on that same date. The
College responded on May 29, 1998, denying that it discriminated
against Edelman.
____________________________________________________________
   2
     It appears that Edelman never alleged to the EEOC that he was dis-
criminated against on the basis of age; this allegation appeared for the
first time in his complaint filed in state court.

             3
   The EEOC issued a right to sue letter to Edelman on March 26,
1999, and Edelman brought this action in Virginia state court on June
10, 1999 asserting various state law claims. The College removed the
case to federal court after Edelman amended his complaint to allege
violations of Title VII of the Civil Rights Act of 1964. See 42
U.S.C.A. § 2000e-2(a)(1) (West 1994). Thereafter, the College moved
to dismiss, asserting inter alia that the district court lacked subject
matter jurisdiction over the Title VII claims because Edelman had not
timely filed a charge with the EEOC. The district court granted the
motion to dismiss and remanded the state law claims to state court.

    Edelman appealed, and we affirmed on the ground that Edelman's
failure to file a verified charge with the EEOC within 300 days of the
last date of the alleged discrimination barred his suit. We held that an
EEOC regulation allowing verification of a charge after expiration of
the time for filing has expired, 29 C.F.R. § 1601.12(b) (2001), was
contrary to the plain language of the applicable statute. See Edelman
v. Lynchburg College, 228 F.3d 503, 507-09 (4th Cir. 2000). The
Supreme Court granted certiorari and reversed, holding that the regu-
lation was consistent with the plain language of the statute. See Edel-
man v. Lynchburg College, 122 S. Ct. 1145, 1149-53 (2002). The
Court therefore remanded to us for further proceedings. See id. at
1153.

             II.

   We now must determine whether the district court erred in ruling
that the November 14 letter was not a valid charge to which the veri-
fied Form 5 charge could relate. Although the district court accepted
the College's characterization of the exhaustion issue as jurisdic-
tional, it is in fact "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). For this reason, and
because the district court considered materials outside of the plead-
ings, we treat the College's motion as a motion for summary judg-
ment. See Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 357
n.4 (1959); Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S.
Corp., 109 F.3d 993, 995 (4th Cir. 1997). We review the grant of
summary judgment de novo, viewing the disputed facts in the light
most favorable to Edelman. See Figgie Int'l, Inc. v. Destileria Serral-

              4
les, Inc., 190 F.3d 252, 255 (4th Cir. 1999). Summary judgment is
appropriate "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c).

   Because Virginia is a "deferral state," Edelman had 300 days from
the last date of discrimination to file a charge with the EEOC.3 See
Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 439-42 (4th Cir.
1998). The Code of Federal Regulations provides 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.'"
Edelman, 122 S. Ct. at 1148 n.2 (quoting 29 C.F.R. § 1601.12(b)
(1997)). An unverified but otherwise valid charge may be verified
after the time for filing a charge has expired. See id. at 1151-52.

             A.

   The College does not challenge the status of the November 14 let-
ter as a charge on the basis of its substantive contents. However, the
College asserts that the November 14 letter did not constitute a charge
because the EEOC did not assign it an EEOC number, forward a copy
to the College, or forward a copy to the VCHR. The College asserts
that as a matter of law the sworn Form 5 charge that Edelman eventu-
ally filed with the EEOC cannot relate back under 29 C.F.R.
§ 1601.12(b) because there was never a valid charge to which it could
relate back. We disagree.

   The problems noted by the College are not deficiencies in the
charge; they are failures of the EEOC to carry out its responsibilities
under Title VII.4 See, e.g., 42 U.S.C.A. § 2000e-5(b) & (e)(1) (West
____________________________________________________________
   3
       Virginia is a deferral state because the VCHR possesses "authority to
. . . seek relief from" the alleged unlawful employment practice. 42
U.S.C.A. § 2000e-5(e)(1) (West 1994); see Tinsley v. First Union Nat'l
Bank, 155 F.3d 435, 440-42 (4th Cir. 1998).
   4
     It is worth noting that the record reflects that the Richmond area
director for the EEOC concluded from her review of Edelman's file that
the EEOC considered the November 14 letter to be "a minimally suffi-
cient charge." J.A. 80.

             5
1994) (requiring EEOC to serve charge upon employer within ten
days of date charge filed with EEOC). Once a valid charge has been
filed, a simple failure by the EEOC to fulfill its statutory duties
regarding the charge does not preclude a plaintiff's Title VII claim.5
See Waiters v. Robert Bosch Corp., 683 F.2d 89, 92 (4th Cir. 1982).

   The College contends that Waiters is not controlling because the
record demonstrates that Edelman did not intend the November 14
letter to be a charge. The College first points to the November 26 let-
ter as support for its position. However, the November 26 letter only
confirms that Edelman believed the November 14 letter was a charge.
The letter specifically refers to Edelman's "complaint of discrimina-
tion" as well as Edelman's understanding that November 14 would be
the filing date. J.A. 66. Although the letter also included an inquiry
regarding whether that filing date would be affected if the EEOC
delayed notifying the College of the charge, that inquiry was not
inconsistent with Edelman's position that the November 14 letter con-
stituted a charge.6

   The College also maintains that the Form 5 charge demonstrated
that Edelman did not consider the November 14 letter to be a charge.
In this regard, the College notes that the Form 5 does not refer to the
November 14 letter and fails to include two claims that were raised
in that letter. We disagree. Neither of these points is significant
because it is clear from the context that the Form 5 charge relates to
the same circumstances as the November 14 letter.7
____________________________________________________________
  5
    The College has not identified any prejudice resulting from the
EEOC's delay.
   6
     The College further asserts that Waiters is distinguishable because the
EEOC's delay in notifying the College of Edelman's claims was the
result of Edelman's own request in the November 26 letter. But Edel-
man's request for delayed notification was explicitly based on his under-
standing that such delay would not affect the filing date, and the
November 26 letter did not indicate a willingness to withdraw his charge
if he was mistaken. Moreover, the record does not indicate that the
EEOC construed the November 26 letter as a request to withdraw his
charge.
   7
     We are not aware of any authority requiring an amendment to
expressly identify the earlier charge when it is clear that all documents

             6
   Accordingly, because the College does not contend that the
November 14 letter was substantively deficient and because the
record does not reflect that Edelman prevented the EEOC from com-
pleting its statutory duties regarding the charge, we conclude that the
College has failed to demonstrate as a matter of law that the unveri-
fied November 14 letter was not an otherwise valid charge to which
the Form 5 could relate back.

            B.

    The College also argues that the Form 5 charge cannot relate back
to the November 14 letter with regard to the religion and ethnicity
claims because the Form 5 charge contains only the allegation of sex
discrimination. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132-
33 (4th Cir. 2002). We agree. It would be unreasonable—as well as
prejudicial to the College—to allow Edelman's sworn statement on
the Form 5 charge, which does not mention religious or ethnic dis-
crimination, to serve as a verification of those charges. Cf. Balazs v.
Liebenthal, 32 F.3d 151, 158 (4th Cir. 1994) (noting that defendant
is prejudiced when it has to defend in court against charge that was
never verified). We therefore hold that Edelman's verification via the
Form 5 charge did not relate back to the claims not asserted in the
Form 5.8 Cf. Edelman, 122 S. Ct. at 1149 (explaining that verification
requirement "protect[s] employers from the disruption and expense of
responding to a claim unless a complainant is serious enough and sure
enough to support it by oath subject to liability for perjury").
____________________________________________________________

relate to the same allegations of discrimination. Nor would the addition
of such a technical requirement be consistent with the remedial purposes
of Title VII. See EEOC v. Techalloy Md., Inc., 894 F.2d 676, 679 (4th
Cir. 1990).
   8
     The College also contends that Edelman failed to timely exhaust his
state remedies. This argument is foreclosed by Puryear v. County of Roa-
noke, 214 F.3d 514 (4th Cir. 2000), a case decided after we heard oral
argument in the present appeal.

             7
            III.

   In sum, despite the fact that the EEOC did not treat the November
14 letter as a charge, the College has failed to demonstrate as a matter
of law that the unverified letter was not an otherwise valid charge to
which the Form 5 could relate back. However, because the verified
Form 5 charge contained only an allegation of sex discrimination, we
reverse the dismissal of that claim only. We affirm the dismissal of
Edelman's other Title VII claims.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


LUTTIG, Circuit Judge, dissenting:

   The majority holds that Professor Edelman's November 14 letter
was a "charge" for the purpose of 42 U.S.C. § 2000e-5(b) (1994). I
continue to believe that the November 14 letter was not a charge, on
the grounds that (1) Edelman characterized the letter not as a charge,
but, rather, as a request for a charge, (2) Edelman further evidenced
his intention that the letter not be regarded as a charge by requesting,
in a letter dated November 26, that the EEOC not notify the employer
until more than 10 days after November 14 (a request inconsistent
with the requirements of the statute), (3) consistent with Edelman's
own actions, the EEOC did not consider or treat the letter as a charge,
and (4) the second sworn letter, allegedly amending the first letter,
alleges different discriminatory conduct than that claimed in the first
letter. Although each of these facts standing alone might be insuffi-
cient to conclude that the November 14 letter was not a charge, cumu-
latively they confirm that neither Edelman nor the EEOC considered
this letter a charge.

     The majority's reliance on Waiters v. Robert Bosch Corp., 683
F.2d 89 (4th Cir. 1982), is misplaced. The complainant in Waiters had
filed a document fully satisfying the EEOC's requirements for a
charge, and gave no indication that the document was not intended to
be a charge. Id. at 92. Here, Edelman himself requested that the
employer not be notified. Given that "[w]henever a charge is filed . . .
the Commission shall serve notice of the charge . . . on such employer
. . . within ten days," 42 U.S.C. § 2000e-5(b) (emphasis added), Edel-
man's request is a refutation of the suggestion that he intended the let-

             8
ter to be a charge. Edelman's attorney did state that it was his
"understanding that delay occasioned by the interview will not com-
promise the filing date, which will remain as November 14, 1997."
Edelman v. Lynchburg College, 66 F. Supp. 2d 777, 779 (W.D. Va.
1999). Although this suggests that Edelman and his attorney perhaps
did not understand the EEOC's regulation concerning relation-back,
they could not have misunderstood the painfully clear words of the
statute itself.

   As I would hold that the November 14 letter was not a charge, I
conclude that the April 15, 1998 form submitted by Edelman could
not relate back to any valid charge, and hence Edelman's charge was
filed beyond the 300 day deadline allowed by the statute. Accord-
ingly, I respectfully dissent.

            9
