                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-1730


VICTORIA L. TILLBERY,

                Plaintiff - Appellant,

           v.

KENT ISLAND YACHT CLUB, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:09-cv-02956-CCB)


Argued:   September 20, 2011             Decided:   January 19, 2012


Before WILKINSON, NIEMEYER, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.     Judge Floyd wrote a
dissenting opinion.


Joyce E. Smithey, RIFKIN, LIVINGSTON, LEVITAN & SILVER, LLC,
Annapolis, Maryland, for Appellant.    Craig Forrest Ballew,
FERGUSON, SCHETELICH & BALLEW, PA, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       After enduring unwanted, sexually-laden harassment by the

general manager and a member of the board of the Kent Island

Yacht Club, Inc., Victoria Tillbery, a waitress at the Yacht

Club, complained to the EEOC on April 22, 2009, by filling out

an online questionnaire.      In the questionnaire, Tillbery stated

that she was hired on July 1, 2006, and that the allegedly

improper conduct took place on July 1, 2006.          Naming Kevin Damas

and Bob Schober as the persons responsible, she described their

conduct:       “Sexual   language    used;    propositioned   for    money;

display of doll for sexual purposes” and “Money for sex; just

wanted sex.”      When Tillbery filled out the questionnaire, she

was represented by an attorney, who later wrote the Kent Island

Yacht Club, demanding that the Club cease and desist in its

sexual harassment of Tillbery.

       Less than two weeks later, Tillbery filled out another EEOC

questionnaire, but this time in person in the Baltimore office

of the EEOC, giving essentially the same information that she

had given on April 22, 2009.         In response to this complaint, the

EEOC    sent   the   Kent   Island    Yacht    Club   a   notice    of   the

discrimination claim.

       Finally, on June 27, 2009, Tillbery filed a formal charge

with the EEOC, which she signed under the penalty of perjury.

The charge stated:

                                      2
        On July 1, 2006, I was hired by the above referenced
        employer as a waitress.       On this same date I was
        subjected to sexual harassment by Kevin Damass [sic]
        (General   Manager)   and    Bob   Shober  [sic]   (Rear
        Commodore).     Sexual    language   was  used,  I   was
        propositioned for money, and there was a display of a
        doll for sexual purposes.

In response to the charge, the EEOC sent Tillbery a right to sue

letter on August 8, 2009, stating, “Your charge was not timely

filed with the EEOC; in other words, you waited too long after

the date of the alleged discrimination to file your charge.”

        Tillbery commenced this action under Title VII of the Civil

Rights    Act     of   1964   against      the   Kent    Island    Yacht     Club   on

November     6,    2009.       In    her    complaint,      she    alleged       sexual

harassment by both Damas and Schober, but she claimed that it

took place between October 2008 and April 2009.                      The complaint

also alleged that from May 2009 through October 2009, the Kent

Island Yacht Club retaliated against her because of her EEOC

complaint.

        On Kent Island Yacht Club’s motion to dismiss or, in the

alternative, for summary judgment, the district court dismissed

the     complaint      for    lack    of       subject    matter     jurisdiction,

concluding that Tillbery had not exhausted her administrative

remedies by first filing a charge with the EEOC with respect to

the   harassment       that   occurred     between      October    2008    and   April

2009.     See Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th

Cir. 2009) (holding that a plaintiff’s “failure . . . to exhaust

                                           3
administrative remedies concerning a Title VII claim deprives

the    federal      courts    of     subject      matter    jurisdiction        over   the

claim”).       The court pointed out that in her EEOC questionnaires

and    formal      charge,    Tillbery       described     sexual    harassment        that

took place on July 1, 2006, leading the agency to conclude that

the charge was untimely.               The conduct alleged in the complaint

in    this    case,   however,       was     described     as    having    taken   place

between October 2008 and April 2009, and a charge about that

conduct      was   never     filed    with    the   EEOC    for     investigation      and

possible administrative resolution.

       Responding to Tillbery’s contention that her use, in the

EEOC   questionnaires,         of    the     July   1,    2006    date    was   merely   a

clerical error that had been repeated without correction in the

formal charge, the court acknowledged that Tillbery was probably

right.       But the court observed that the effect of the error was

substantive,        frustrating      the     scheme      designed    by   Congress     for

resolving such claims.             As the court stated:

       The requirement that a claimant inform the EEOC of the
       date(s) of the alleged discriminatory activity is not
       merely a technicality.       Rather, such information
       notifies the agency of the scope of its investigation,
       and ultimately, the scope of a plaintiff’s right to
       file a federal law suit is determined by the [EEOC]
       charge’s contents.      Moreover, among the reasons
       Congress enacted Title VII’s exhaustion requirement
       was that the EEOC administrative process is typically
       better suited to ending discrimination than the
       ponderous pace of formal litigation, because the EEOC
       undertakes   detailed investigations   into  potential
       discrimination claims before any suit is filed, both

                                              4
     preserving judicial economy . . .                   and   helping
     prospective plaintiffs build their case.

(Internal quotation marks and citations omitted).

     In short, Tillbery’s charge filed with the EEOC described

sexual harassment on July 1, 2006, leading the EEOC to dismiss

that charge as untimely.         Yet in the complaint filed in this

case, she alleged sexual harassment occurring during the period

from October 2008 to April 2009, for which she never filed a

charge with the EEOC, thereby denying the EEOC the opportunity

to investigate and mediate the claim.             Because she failed to

exhaust her administrative remedies with respect to the 2008-09

conduct,   the     district   court   concluded   that    it   was   without

subject matter jurisdiction.

     While   the    assumed   clerical    error   is   regretful,    it   was

compounded by additional conduct.          At the time Tillbery filed

her complaint with the EEOC, she was represented by counsel.

Moreover, she repeated the error in her second filing and again

in her formal EEOC charge, where she stated under oath that the

sexual harassment occurred on July 1, 2006.            Finally, after the

EEOC notified Tillbery and her counsel of the untimeliness of

her claim, she still did not seek to correct the alleged error

in her filings with the EEOC.         See 29 C.F.R. § 1601.12 (allowing

the correction of “technical defects or omissions” and providing




                                      5
that these corrections will “relate back to the date the charge

was first received”).

       The dissent concludes that the EEOC failed to perform its

duty to investigate Tillbery’s charge after receiving it and

that    even    a    “minimal    investigation”    in   this   case    would     have

“exposed       the     scrivener’s    error”    that    Tillbery      now    claims

occurred when she stated that the discrimination occurred in

July 2006 rather than October 2008 and April 2009.

       While we agree with our good colleague that the EEOC is

given    the    task     of     investigating   discrimination        charges,    we

cannot agree that it needed to conduct more of an investigation

than it did in this case.             It was given no inkling of reason to

question Tillbery’s claim that the discrimination occurred in

July 2006, and without any reason to doubt the facts as claimed

multiple times by Tillbery, even when represented by counsel, we

cannot     conclude       that      the   EEOC’s    investigation        was      not

reasonable.          From its point of view, the EEOC received a charge

of     discrimination         occurring   in    July    2006   and     reasonably

concluded that because the charge for that discrimination was

filed more than two years later, it was untimely.                  The dissent’s

proposal to have the EEOC conduct a more expansive investigation

would in principle require the EEOC to investigate independently

even undisputed facts on every charge that it receives.                     This is



                                          6
clearly not required by law and, moreover, would be completely

impractical, bringing the EEOC to its knees.

     Having   reviewed     the     record   carefully    and     considered

Tillbery’s arguments on appeal, we affirm for the reasons given

by the district court in its thorough opinion.                 We do note,

however, the possibility of some relief from the ill effects of

the alleged clerical error, as Tillbery assures us that she has

pending   timely   state   court    actions,   which    allege    the   same

misconduct.   We trust that she will pursue those so as to be

able to present the merits of her claim for resolution.


                                                                   AFFIRMED




                                     7
FLOYD, Circuit Judge, dissenting:

     I respectfully dissent.

     Victoria L. Tillbery filed suit against Kent Island Yacht

Club, Inc. (KIYC), alleging discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§§ 2000e     to    2000e-17    (Title       VII),      and    Article    49B   of    the

Maryland Code, recodified effective October 1, 2009, as Md. Code

Ann. State Gov’t §§ 20-101 to 20-1203.                       Tillbery’s claims also

included retaliation under Title VII and Article 49B, negligent

retention     and     supervision,       and       intentional      infliction        of

emotional distress.

     KIYC    subsequently      filed    a       motion   to    dismiss   or,   in    the

alternative, for summary judgment.                The district court dismissed

Tillbery’s        federal     claims     for        lack      of   subject      matter

jurisdiction,       finding    that     she      had     failed    to    exhaust    her

administrative remedies.         I think that this was in error.                   Thus,

for the reasons set forth below, I would vacate the district

court’s order and remand for further proceedings.



                                         I.

     The underlying facts of this case, as cogently set forth by

the distinguished district court, are as follows:

          KIYC is a private yacht club located in Maryland
     that hosts a marina, a club house, and a restaurant
     for its patrons.   In July 2006, Ms. Tillbery began

                                            8
working at KIYC as a waitress and bartender.          Her
duties included taking orders and serving food and
beverages to patrons at the KIYC restaurant.          Ms.
Tillbery alleges she became the victim of sexual
harassment in the fall of 2008, after KIYC hired Kevin
Demas as General Manager in July 2008.       As General
Manager,   Mr.   Demas   was   Ms.   Tillbery’s    direct
supervisor, and he is alleged to have sexually
harassed Ms. Tillbery on numerous occasions.          Ms.
Tillbery further alleges that, beginning in November
2008, Bob Schober, KIYC Rear Commodore and Board
Member, began harassing her as well. At the time this
complaint was filed, Ms. Tillbery continued to work at
KIYC. In her motion for leave to amend the complaint,
however,   Ms.    Tillbery   alleges    that   she    was
constructively discharged on April 23, 2010.

      Without going into exhaustive detail here, the
facts    alleged  in  Ms.   Tillbery’s   complaint  are
troubling. Ms. Tillbery alleges that, between October
2008 and April 2009, Mr. Demas sent her over fifty
inappropriate text messages, including requests for
sexual considerations and descriptions of sexual acts
that he wanted to perform on her.     Mr. Demas is also
alleged to have left similarly inappropriate notes in
her paychecks.   Ms. Tillbery further alleges that Mr.
Demas repeatedly asked her to spend time with him
outside of work, and once said “Everyone knows that
you don’t sleep with your husband” when she declined.
In addition, he allegedly made at least twenty
sexually inappropriate comments to Ms. Tillbery when
she bent over to stock the refrigerator, including
such statements as “Man you got the nicest ass. I
could grab it right now[,”] and “Oh baby oh baby.”

     Mr. Demas’s harassment of Ms. Tillbery is alleged
to have included touching as well.     In January 2009
Mr. Demas allegedly approached Ms. Tillbery from
behind and began rubbing her shoulders, saying “You
deserve to be treated better.        Do you know how
beautiful you are?”    Then he apparently grabbed each
side of her face with his hands and attempted to
forcibly kiss her, while saying “Just give me a kiss.”
Later, in the spring of 2009, Mr. Demas allegedly hung
up a rag doll with blonde hair wearing a bikini in the
kitchen at KIYC.    Ms. Tillbery has blonde hair and,
along with the doll, Mr. Demas apparently posted a

                           9
sign that read “Vikalicious[.”] When another employee
approached Mr. Demas about the doll, he allegedly
responded “It’s Vickie” and “I can do what I want.”

     Moreover, Ms. Tillbery alleges that she was
harassed not only by her direct supervisor, Mr. Demas,
but also by KIYC Board Member and Rear Commodore, Mr.
Schober, beginning in November 2008.       Mr. Schober
allegedly offered Ms. Tillbery money if she would have
sex with him. According to Ms. Tillbery, he made this
offer two to three times per week. Ms. Tillbery also
alleges that he made other inappropriate comments to
her, including “My wife isn’t able to satisfy me, and
I think you would be the one that could if you know
what I mean[,”] and “I know you need the money because
I always see you working all the time.    So if I give
you $500, would you sleep with me?”       On April 10,
2009, Mr. Schober apparently came to Ms. Tillbery’s
home, which frightened her because she did not know
how he learned where she lived. Mr. Schober allegedly
said that he wanted a haircut, and tried to open the
screen door to Ms. Tillbery’s home.       Ms. Tillbery
asked him to leave, which he eventually did.

     Ms. Tillbery claims that she told Mr. Demas of
Mr. Schober’s advances toward her on at least three
occasions, but that there was no informal or formal
sexual harassment policy in place at KIYC.         The
situation was particularly uncomfortable, she points
out, because Mr. Demas was her direct supervisor, and
Mr. Schober, as a member of the KIYC Board, was
essentially Mr. Demas’s supervisor.    Unable to stand
the harassment any longer, Ms. Tillbery submitted her
resignation in writing on February 18, 2009.       Mr.
Demas allegedly promised her that the harassment would
stop if she would agree to withdraw her resignation,
which she reluctantly did, writing at the bottom of
her resignation letter, “after speaking with Kevin, I
[am hoping] that this situation will resolve itself.
If the situation continues I will go to the labor
board as I need this job to support my family.”

     Eventually, Ms. Tillbery contacted the Equal
Employment Opportunity Commission (“EEOC”) by filling
out an online intake questionnaire on April 22, 2009.
A notice of Ms. Tillbery’s charge, dated May 7, 2009,
was sent to KIYC, and she filled out another
questionnaire on May 4, 2009.   Ms. Tillbery signed a
                          10
formal EEOC charge under penalty of perjury on June
27, 2009.    By this time, Ms. Tillbery had hired an
attorney, Cecile Weich, who apparently sent a letter
to KIYC requesting that Mr. Demas and Mr. Schober
“cease and desist from your sexual harassment of her
. . . and requests for sex for money.”    On April 27,
2009, Ms. Weich sent a follow-up letter to members of
KIYC stating that “the General Manager and Rear
Commodore S[c]hober . . . have been sexually harassing
Victoria Tillbery.”

      Furthermore, in May 2009, Ms. Tillbery went to
the Queen Anne’s County Sheriff’s Department. As a
result of that meeting the Sheriff’s Department
pursued criminal charges against Mr. Schober. Mr.
Schober apparently was later convicted of solicitation
for prostitution and sentenced on October 8, 2009, to
probation before judgment, supervised until April 8,
2012.     He agreed to stay away from Ms. Tillbery,
resigned from the KIYC board, and relinquished his
membership in the club.

     Ms.   Tillbery   alleges   that   in   May  2009,
immediately after she filed charges with the EEOC and
the Sheriff’s Department, she became the victim of
retaliation.   Mr. Demas allegedly told her that she
could no longer arrive at work at 4:00 p.m. to perform
her setup duties, therefore forcing her to perform
them during the time that she could have been waiting
tables and earning tips.       On May 18, 2009, Ms.
Tillbery also received a letter from KIYC’s attorney
complaining of a performance issue.       Ms. Tillbery
claims the letter was the only negative feedback she
ever received during her tenure at KIYC.

      According to Ms. Tillbery, her attorney again
sent a letter to KIYC on May 19, 2009, this time
explaining     that   Ms.   Tillbery   was   suffering
retaliation, and on May 21, 2009, Ms. Tillbery
apparently provided a written statement to KIYC
summarizing the harassing conduct by Mr. Demas.    But
Ms. Tillbery alleges the retaliatory conduct did not
stop.    Instead, she claims that on July 4, 2009, the
busiest evening of the year at the KIYC restaurant,
Mr. Demas ordered her to train a busser to be a
waitress simply so that Ms. Tillbery would have to
split her tips for the evening. On July 6, 2009, Ms.
Tillbery allegedly complained in writing via her
                          11
attorney, Ms. Weich, that she was still forced to
serve Mr. Schober.     She apparently complained of
retaliatory treatment again in writing on July 10,
2009, describing how she was forced to train a busser
and was prohibited from clocking in until 4:30. On
July 24, 2009, counsel for KIYC wrote to Ms. Weich
stating, “The Club has implemented safeguards to
ensure that Ms. Tillbery is not required to serve Mr.
S[c]hober. . . .”

     The retaliation is alleged to have escalated,
however, on October 12, 2009, when Ms. Tillbery was
called into a meeting with Mr. Demas and Jack Caddy, a
KIYC Board Member. Mr. Caddy told Ms. Tillbery that
KIYC had received some complaints about her, although
he provided no information as to the nature of the
complaints, who made them, or when they were made.
Ms. Tillbery alleges that soon thereafter, on October
21, 2009, she received a letter from KIYC stating that
“employees may not clock in more than seven (7)
minutes before their shift is scheduled to start[,”]
and that “it has been recorded that on Thursday, Oct.
15, 2009, you clocked in fourteen (14) minutes before
your shift was scheduled to start and on Friday, Oct.
16, 2009, you clocked in twenty-five (25) minutes
before   your  scheduled   start  time;  both  without
consulting management.”     Ms. Tillbery alleges that
other employees who had engaged in similar conduct did
not receive a warning about the new policy and
continued to clock in early.

     Ms.   Tillbery  also   alleges that  Mr.   Demas
continues to retaliate against her by refusing to
speak to her and constantly watching her.          He
allegedly instructed another bartender to watch Ms.
Tillbery and document everything that she does.   She
claims that other employees have observed his unfair
treatment of her and that, as a result of the
harassment she has experienced at KIYC, she has
suffered a loss of income, extreme and emotional
distress, and mental anxiety.

     On August 6, 2009, the EEOC notified Ms. Tillbery
that it had dismissed her charge of discrimination as
untimely and that she had a right to sue. On November
6, 2009, Ms. Tillbery filed the present action against
KIYC alleging sexual harassment in violation of Title
VII and Article 49B (Counts I & II), negligent
                          12
       retention and supervision (Count III), intentional
       infliction of emotional distress (Count IV), and
       retaliation in violation of Title VII and Article 49B
       (Counts V & VI).

Tillbery v. Kent Island Yacht Club, Inc., Civ. No. CCB-09-2956,

2010   WL     2292499,   at     *1-4     (D.    Md.     June   4,   2010)    (footnotes

omitted) (citations omitted).

       On two EEOC questionnaires Tillbery completed, she stated

that the alleged sexual harassment occurred on July 1, 2006.                         An

EEOC representative drafted the EEOC charge and also listed the

harassment as occurring on July 1, 2006.                       Both Tillbery and the

EEOC representative wrote on the forms that KIYC hired Tillbery

on that same date, July 1, 2006.                     Subsequently, as noted above,

on August 6, 2009, the EEOC closed its file on Tillbery’s charge

without     conducting     any    investigation,          informing    her    that   her

“charge was not timely filed with the EEOC; in other words, you

waited too long after the date(s) of the alleged discrimination

to file your charge.”             In her complaint, Tillbery has clearly

alleged that, in fact, July 1, 2006, was the date of her hiring,

but that the sexual harassment occurred from October 2008 to

April 2009.

       Upon    motion      by    KIYC,         the     district     court     dismissed

Tillbery’s       federal        claims     for        lack     of   subject     matter

jurisdiction, finding that “[t]he allegations in Ms. Tillbery’s




                                           13
present complaint . . . exceed the scope of her administrative

charge and have not been properly exhausted.”                 Id. at *6.



                                          II.

       Before filing suit pursuant to Title VII, the plaintiff

must file a charge of discrimination with the EEOC.                         Jones v.

Calvert Grp., 551 F.3d 297, 300 (4th Cir. 2009).                          The charge

must be “‘sufficiently precise to identify the parties, and to

describe generally the action or practices complained of.’                         The

scope of the plaintiff’s right to file a federal lawsuit is

determined by the charge’s contents.”                   Id. (citation omitted)

(quoting Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir.

2005)).     “Whenever a charge is filed by or on behalf of a person

claiming to be aggrieved, . . . the Commission shall serve a

notice    of    the      charge    (including          the    date,       place    and

circumstances of the alleged unlawful employment practice) on

such   employer      .   .   .   within    ten     days,     and   shall    make    an

investigation       thereof.”      42     U.S.C.   §   2000e-5(b).         The     only

claims that the plaintiff may bring in a subsequent complaint

are “those discrimination claims stated in the initial charge,

those reasonably related to the original complaint, and those

developed      by     reasonable        investigation         of    the     original

complaint.”         Jones, 551 F.3d at 300 (quoting Evans v. Tech.

Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996))

                                          14
(internal      quotation      marks     omitted).          Claims    raised   in    the

district court but not with the EEOC are barred unless they

“would   naturally         have   arisen      from    an   investigation”      of   the

administrative complaint.               Dennis v. Cnty. of Fairfax, 55 F.3d

151, 156 (4th Cir. 1995).

     “[E]xperience          teaches         that     strict     adherence     to    the

procedural requirements specified by the legislature is the best

guarantee of evenhanded administration of the law.”                           Mohasco

Corp. v. Silver, 447 U.S. 807, 826 (1980).                      We cannot, however,

visit    the    effects     of    the    EEOC’s      failure    to   carry    out   its

statutory      duty   to    perform     a    reasonable       investigation    on   the

plaintiff.      Zambuto v. Am. Tel. & Tel. Co., 544 F.2d 1333, 1336

(5th Cir. 1977).           Furthermore, we must resolve any ambiguity as

to whether a plaintiff satisfied a procedural requirement in the

plaintiff’s favor to effectuate the purposes of Title VII.

     Title VII is remedial in character and should be
     liberally construed to achieve its purposes. . . .
     For this reason, courts confronted with procedural
     ambiguities in the statutory framework have, with
     virtual unanimity resolved them in favor of the
     complaining party.   That approach reflects not only
     the manifest importance of Title VII rights to
     complaining parties, but also the broad national
     commitment to eliminating such discrimination and the
     importance  of  private   suits  in  fulfilling  that
     commitment.

Garner v. E. I. Du Pont De Nemours & Co., 538 F.2d 611, 614 (4th

Cir. 1976) (citation omitted) (quoting Coles v. Penny, 531 F.2d

609, 615 (D.C. Cir. 1976)) (internal quotation marks omitted).

                                             15
                                         III.

       KIYC    contends    that    the    district     court     was    correct     in

holding that Tillbery neglected to file a charge with the EEOC

with    respect     to   the   alleged    sexual     harassment       that    occurred

between October 2008 and April 2009.                  Thus, according to KIYC

and    the    district     court,    Tillbery        failed     to     exhaust     her

administrative remedies prior to filing suit against KIYC.                            I

disagree.

       According to the district court, the allegations contained

in    Tillbery’s    complaint     “were    outside    the     scope    of    her   EEOC

charge due to an apparent error in the dates listed on the

charge.”      Tillbery, 2010 WL 2292499, at *4 n.4.                    But, from my

careful review of the record, I am of the opinion that the

allegations in Tillbery’s complaint were not outside the scope

of    her    EEOC   charge.       That    is    so   because     both       Tillbery’s

complaint and her EEOC charge concerned the alleged October 2008

to April 2009 harassment, even though, as the district court

observed, the date is incorrect on her EEOC charge.                          In fact,

later in its opinion, the district court recognized as much when

it wrote the following:

       Ms. Tillbery argues that the July 1, 2006 date in the
       EEOC charge was merely a clerical error by the EEOC
       representative who drafted the form, and that all of
       the facts alleged in her judicial complaint occurred
       within 300 days of June 27, 2009 [the date Tillbery
       filed her EEOC charge].    Assuming the truth of the
       facts alleged in the complaint, it appears likely that

                                          16
       Ms. Tillbery’s EEOC charge did contain the wrong date,
       as Mr. Demas was not even hired by KIYC until July
       2008.

Id. at *5.    Thus, drawing all inferences in favor of Tillbery at

this stage of litigation, as we are required to do, I credit her

explanation   of    the    date     as   a       scrivener’s      error      in   her    EEOC

documents.       See Risk v. Ford Motor Co., 48 F. Supp. 2d 1135,

1146 (S.D. Ind. 1999) (dismissing claims on other grounds, but

stating    that    it   was    “inclined          to   credit        [the    plaintiff’s]

explanation of the inaccuracy in her EEOC charge, especially

when   drawing    inferences       in    her      favor      at   this      stage   of    the

litigation”).       Consequently,            I    would      allow    the    case    to   go

forward.

       Inasmuch as everyone agrees that the EEOC charge contained

a   scrivener’s    error      in   regards        to   the    date    that    the    sexual

harassment occurred, and, as the D.C. Circuit has observed, the

“filing period begins on the date ‘the alleged unlawful practice

occurred’—not the date listed in the charge itself,”                              Carter v.

Wash. Metro. Area Transit Auth., 503 F.3d 143, 145 (D.C. Cir.

2007) (quoting 42 U.S.C. § 2000e-5(e)(1)), I cannot concur that

it was proper in this instance for the EEOC to reject Tillbery’s

charge without first hearing from the parties.                           See 42 U.S.C. §

2000e-5(b) (stating that the EEOC “shall make an investigation”

of claims of discrimination).                What seemed evident to the EEOC

from    the   documents        before        it—that      Tillbery’s          charge      was

                                             17
untimely—was    an   error    instead,        an    error      that    a   reasonable

investigation    would     have    revealed,       and    an   error   that   is   now

being repeatedly compounded.             I respectfully suggest that it is

within our province finally to correct it.

     It is beyond dispute that,

     among   the  reasons   Congress   enacted Title VII’s
     exhaustion    requirement     was    that  the   EEOC
     administrative process is typically better suited to
     ending discrimination than the “ponderous pace of
     formal litigation[,”] because the EEOC “undertakes
     detailed investigations into potential discrimination
     claims before any suit is filed, both preserving
     judicial economy . . . and helping prospective
     plaintiffs build their case.”

Tillbery, 2010 WL 2292499, at *6 (omission in original) (quoting

Chacko, 429 F.3d at 510).          But, it is also beyond dispute, as I

have already noted, that there is a “broad national commitment

to eliminating such discrimination and the importance of private

suits in fulfilling that commitment.”                    Garner, 538 F.2d at 614

(quoting    Coles,   531    F.2d    at    615)     (internal      quotation    marks

omitted).     In this instance, KIYC asks us to allow procedural

formalism to trump this commitment.                To this proposition I will

not lend my assent.

     As observed above, the law requires that the EEOC “shall

make an investigation” of all charges.                   42 U.S.C. § 2000e-5(b).

It also requires claimants to be specific in their charges so

that the EEOC can properly investigate and, hopefully, resolve

the matter.     See Jones, 551 F.3d at 300.                When no investigation

                                         18
occurs, however, I think that it is improper for us to bar a

plaintiff from her day in court.                    But, that is what happened

here.

       Even a minimal investigation into Tillbery’s charge would

have    exposed    the    scrivener’s         error    and       revealed    that    the

complained of sexual harassment occurred between October 2008

and April 2009.         Yet the error passed unnoticed because of the

EEOC’s failure to conduct any investigation.                      Accordingly, I am

unable to agree that we should require Tillbery to suffer from

the negative consequences of the law—being unable to assert any

claims in federal court except those that the EEOC investigated—

even    though    the    EEOC     failed      to    conduct      any   investigation.

       Although we ought not endeavor to instruct the EEOC on how

to   perform     its    duties,    we   also       ought   not    be   bound    by   its

decisions when it does not.                On the whole, the problems that

KIYC complains of are not so much deficiencies in the charge as

they are the EEOC’s failure to carry out its duties as required

by Title VII.      See Edelman v. Lynchburg Coll., 300 F.3d 400, 404

(4th Cir. 2002).

       Here, Tillbery was unquestionably harmed by the EEOC not

performing the simplest of investigations.                    “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.”              Id.       Thus, I disagree with KIYC

                                           19
that we should, in effect, “visit the effects of the EEOC’s

erroneous practice on [Tillbery].”              Zambuto, 544 F.2d at 1336.



                                          IV.

     As   an    alternative       basis     for      finding     that     the       conduct

Tillbery alleged in her complaint did not exceed the scope of

her EEOC charge, that her charge was timely, and that she has

properly exhausted her administrative remedies, I would look to

her April 22, 2009, EEOC questionnaire.                     There can be no dispute

that the April 22, 2009, questionnaire, as well as Tillbery’s

other   EEOC    forms,      stated   that     Demas     was    one   of   the       alleged

harassers.      Moreover, there appears to be no disagreement that

both parties were aware that he began working at the restaurant,

at the earliest, on July 1, 2008.                 Less than 300 days later, on

April 22, 2009, Tillbery completed her first EEOC questionnaire.

Thus, even if the alleged sexual harassment began as early as

July 1, 2008, the date that Demas began working at KIYC, and

allowing the EEOC intake questionnaire to serve as a charge for

purposes of the exhaustion requirement, I am of the opinion that

the spirit of Title VII is better served by holding that the

timeliness     requirement       was    met     as     to    Tillbery’s     Title      VII

claims.        See    Carter,     503   F.3d      at    146     (allowing       an     EEOC

questionnaire        with   an   incorrect      date    to    constitute        a    timely

charge of discrimination); Edelman, 300 F.3d. at 405 (allowing a

                                          20
letter    to     the     EEOC    to     serve       as    a    valid     charge,     without

objection,       although       the   plaintiff          was   represented      by   counsel

during the relevant time period); Waiters v. Robert Bosch Corp.,

683 F.2d 89, 91 (4th Cir. 1982) (allowing an affidavit to serve

as   an   EEOC      charge   although         the   plaintiff      was    represented     by

counsel during the relevant time period).



                                               V.

      Even     if    I   assumed      that     Tillbery        failed    to    exhaust    her

administrative remedies on the basis of an incorrect date on her

EEOC forms, in light of the fact that Title VII is a remedial

statute to be liberally construed in favor of the victims of

discrimination, I would grant Tillbery an opportunity to amend

her EEOC charge.          As the majority mentioned,

      [a] charge may be amended to cure technical defects or
      omissions, including failure to verify the charge, or
      to clarify and amplify allegations made therein. Such
      amendments and amendments alleging additional acts
      which constitute unlawful employment practices related
      to or growing out of the subject matter of the
      original charge will relate back to the date the
      charge was first received.

29 C.F.R. § 1601.12(b).                   Neither the plain language of this

regulation       nor     Supreme      Court    precedent        limit    the    time   frame

during which a plaintiff can amend a charge.                              See Edelman v.

Lynchburg      Coll.,      535     U.S.    106,     116-17      (2002)     (finding      that

allowing the verification of a charge after the expiration of


                                               21
the time for filing has expired was consistent with the plain

language of the statute).              We need not impose such a limitation

either.      For   that    reason,         even    if   I    agreed    with     KIYC     that

Tillbery failed to exhaust her administrative remedies based on

the erroneous date on her EEOC charge, I would, at a minimum,

remand the matter to the district court to stay the proceedings

so Tillbery could request from the EEOC an opportunity to amend

her charge.



                                             VI.

      Finally,     KIYC    makes      much    of    the     fact     that   Tillbery     was

represented by counsel and, thus, that she should be held to a

higher standard in regards to making certain that the date on

her charge was correct.               As the argument goes, I assume, it is

Tillbery’s      attorney    who       is     really     to    blame     for    Tillbery’s

present predicament.        I am unpersuaded.

      First, and most importantly, it is of no moment whether

Tillbery was represented by counsel.                    The fact remains that the

EEOC should have conducted an investigation before it dismissed

her   charge.      That     is    a    substantial          reason    for     her   present

predicament.

      Second, to agree with KIYC and dismiss this matter based on

the action or inaction of Tillbery’s counsel is like aiming at

the   attorney,    but     shooting        the     client    instead.         It    is   also

                                             22
counter to the law of this circuit as to Title VII claims.

Garner, 538 F.2d at 614 (“Title VII is remedial in character and

should be liberally construed to achieve its purposes.” (quoting

Coles, 531 F.2d at 615) (internal quotation marks omitted)).

     The fact that Tillbery was represented by counsel changes

neither    the   remedial    nature   nor    the   purpose    of   the   statute,

which is to stamp out the insidious practice of discrimination.

See Garner, 538 F.2d at 614.           It is this purpose, not a desire

to penalize counsel, that must guide our interpretation of this

statute.



                                      VII.

     Upon this record, I am unconvinced that Tillbery failed to

exhaust    her    administrative      remedies     on   the    basis     of   the

erroneous date on her EEOC documents.              But, if she did, I would

give her an opportunity to amend her complaint pursuant to 29

C.F.R. § 1601.12(b).        Accordingly, I must respectfully dissent.




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