                            United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    _____________

                                     No. 97-1338
                                    _____________

Deborah A. Lawrence,                     *
                                         *
               Appellant,                *
                                         *
       v.                                *
                                         *
Cooper Communities, Inc.,                * Appeal from the United States
                                         * District Court for the Western
               Appellee.                 * District of Arkansas.
                                         *
-------------------------                *
                                         *
Equal Employment Opportunity             *
Commission,                              *
                                         *
               Amicus Curiae.            *
                                    _____________

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

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

FLOYD R. GIBSON, Circuit Judge.

       Deborah A. Lawrence appeals from a final order entered in the United States
District Court for the Western District of Arkansas granting summary judgment in favor
of Cooper Communities, Inc. ("Cooper") on her claim of sex discrimination under 42
U.S.C. §§ 2000e - 2000e-17 (1994) ("Title VII"). For reversal, Lawrence argues that
the district court erred in holding that (1) Lawrence failed to file a timely charge because
her charge information form ("CIF") did not constitute a "charge" of discrimination under
42 U.S.C. §§ 2000e-5(b), 2000e-5(e)(1); and that (2) Lawrence failed to present
sufficient evidence to establish equitable tolling. Because we conclude that equitable
tolling applies for the reasons discussed below, we reverse the district court's order and
remand for further proceedings.

I. BACKGROUND

      Lawrence worked as an accountant for Cooper from 1989 until she resigned on
January 27, 1995. In her Title VII action, Lawrence alleges that Cooper discriminated
against her on the basis of sex by paying her less than a similarly situated male
accountant, Ken Willsey; denying her vacation time that was made available to other
male employees; subjecting her to a hostile work environment caused by her supervisor,
Carl Lange; and denying her certain continuing educational opportunities, promotions,
and club benefits.

       On April 13, 1995, Lawrence sought the advice of an attorney, Stephen Wood,
but decided to pursue her administrative options with the Equal Employment
Opportunity Commission Little Rock Office ("EEOC") before retaining an attorney. See
Appellant's App. at 70. On June 15, 1995, Lawrence completed a CIF regarding her
complaints and attached six additional handwritten pages providing detail about these
complaints. In the CIF, Lawrence stated that she also sought to initiate an investigation,
reinstatement, and damages. Although Lawrence signed the CIF, this signature was not
verified or, in other words, was not signed under oath or penalty of perjury. The CIF
recites that its principal purpose is "to solicit information to enable the [EEOC] to avoid
the intake of matters not within its jurisdiction." Id. at 67. The form also indicates that




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      [i]nformation provided on this form will be used by [EEOC] employees
      to determine the existence of facts relevant to a decision as to whether the
      [EEOC] has jurisdiction over potential charges, complaints or allegations
      of employment discrimination and to provide such pre-charge filing
      counseling as is appropriate.

Id. The EEOC received the CIF by mail on June 19, 1995 -- 172 days after the date that
Lawrence alleges that the last act of discrimination occurred and within the 180-day
charge filing period.1 Although Cooper never received a copy of the CIF, on August 1,
1995, the EEOC informed Cooper that an "unperfected charge" had been filed and that
the EEOC would mail a copy of the perfected charge when EEOC completed the formal
writing of the charge. Id. at 19.

       EEOC personnel prepared a charge of discrimination and forwarded it by letter
dated September 1, 1995 to Lawrence for her to review and sign. At the time the EEOC
mailed the charge to Lawrence, the 180-day charge filing period had lapsed. Lawrence
made two corrections to the form -- she corrected an erroneous date and checked sex
discrimination as a cause of discrimination in addition to her initial Equal Pay Act
charge. Lawrence, under penalty of perjury, signed and dated the form on September
13, 1995. On September 18, 1995, the EEOC received Lawrence's formal charge and
mailed Cooper a copy of the charge on September 20, 1995.

       On August 8, 1996, following the receipt of her right to sue letter, Lawrence filed
this action alleging sex discrimination in violation of Title VII.2 Cooper moved to
dismiss or, alternatively, for summary judgment arguing that the claim was barred



      1
       There is no state or local fair employment practices agency in Arkansas.
Therefore, Lawrence has 180 days, as opposed to 300 days, after the alleged unlawful
employment practice occurred to file her charge. See 42 U.S.C. § 2000e-5(e)(1).
      2
        Lawrence also initially filed a claim under the Equal Pay Act, 42 U.S.C. §
206(d) (1994). However, Lawrence later moved to amend her Complaint to dismiss
this claim.

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because of Lawrence's failure to file a charge within 180 days of the alleged
discrimination. On December 30, 1996, the district court granted summary judgment in
favor of Cooper based on its conclusion that Lawrence had not filed a timely charge.
The district court reasoned that Lawrence's CIF did not constitute a "charge," and
Lawrence failed to file a perfected charge until after the charge filing period had lapsed.
In reaching this decision, the district court relied upon Diez v. Minnesota Mining and
Mfg. Co., 88 F.3d 672, 675 (8th Cir. 1996) and Hodges v. Northwest Airlines, Inc., 990
F.2d 1030, 1032 (8th Cir. 1993) in which this court stated that an unverified intake
questionnaire could not serve as an administrative charge under the Age Discrimination
in Employment Act ("ADEA") or Title VII. In addition, the district court found that
Lawrence failed to present sufficient evidence of waiver, estoppel, or equitable tolling.
As such, Lawrence appeals this order.

II. DISCUSSION

       We review de novo a grant of summary judgment. The standard we apply is the
same as the district court applied: whether the record shows that no genuine issue as to
any material fact exists and that the moving party is entitled to judgment as a matter of
law. See Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1331 (8th Cir. 1996);
Fed. R. Civ. P. 56(c) (1997). We construe the factual record and all reasonable
inferences from the record in the light most favorable to the party opposing summary
judgment. See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir. 1995).

     On appeal, Lawrence3 first argues that the district court erred in granting summary
judgment against her by ruling that her CIF did not constitute a charge of




      3
       We note that the EEOC filed an amicus curiae brief in support of Lawrence and
submits essentially the same arguments on appeal. Therefore, our discussion addresses
these arguments simultaneously.

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discrimination and that Lawrence, therefore, failed to file a timely charge of
discrimination. Lawrence contends that

      a charge is sufficient when the [EEOC] 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. A charge
      may be amended to cure technical defects . . . including failure to verify
      the charge. . . . Such amendments . . . will relate back to the date the
      charge was first received.

29 C.F.R. § 1601.12(b) (1997). Here, Lawrence claims that her initial CIF satisfied the
requirements of this regulation, was filed within the 180-day filing period, and was
subsequently amended to cure the technical defect by her completion of a verified formal
charge. In addition, Lawrence suggests that Diez does not foreclose allowing an intake
questionnaire to function as a charge for statute of limitations purposes provided that the
intake questionnaire was completed under circumstances indicating that the claimant's
intent was to activate the statutory machinery. In the present case, Lawrence asserts that
"[a]t all times, my intentions have been to initiate whatever action was necessary under
federal law to protect my rights and to redress my grievances against Cooper."
Appellant's App. at 88.

       Because Hodges and Diez foreclose such arguments, we disagree. In a Title VII
case, we previously held that an intake questionnaire that was not submitted under oath
"did not constitute a valid charge under Title VII for purposes of the statute of
limitations" until it was later signed under oath. Hodges, 990 F.2d at 1032. After
considering the effect of § 1601.12, we confirmed that Hodges stands as the leading case
in our circuit and that, "[i]n Title VII cases, intake questionnaires do not satisfy the
statutory requirements for a charge because they are not verified." Diez, 88 F.3d at 675;
see also 42 U.S.C. § 2000e-5(b) (1997) ("Charges shall be in writing under oath or
affirmation and shall contain such information and be in such form as the [EEOC]




                                           -5-
requires.") Therefore, we cannot accept Lawrence's contention that such language is
mere dicta.

       Because Lawrence's CIF does not constitute a "charge," we further conclude that
§ 1601.12(b) does not apply to allow the relation back of Lawrence's verified charge to
the date that the EEOC received her CIF. The regulation specifically states that "[s]uch
amendments . . . will relate back to the date the charge was first received." 29 C.F.R.
§ 1601.12(b) (emphasis added).

      Lawrence next argues that the district court erred in refusing to apply the doctrine
of equitable tolling because, in the event that Lawrence's charge was not timely filed,
equitable tolling works to preserve her claim as she acted reasonably in following the
EEOC's instructions that were based on the agency's understanding of the charge filing
procedures.

       On the other hand, Cooper agrees with the district court's opinion that Lawrence
did not establish sufficient facts to show that equitable tolling should apply. Cooper
contends that Lawrence has presented no evidence that she was unaware of federal
discrimination law and that Lawrence, in fact, previously received assistance from an
attorney regarding the alleged discrimination. Cooper asserts that equitable tolling is
precluded once it is shown that the employee was generally aware of her rights. See
Miller v. Runyon, 32 F.3d 386, 389 (8th Cir. 1994). In addition, Cooper argues that a
mutual misunderstanding on the part of Lawrence and the EEOC does not justify
equitable tolling and that some affirmative act of misconduct intended to cause Lawrence
delay is required. See id. at 390. Finally, Cooper submits that it should not be required
to defend a lawsuit based upon an untimely charge when Lawrence had the means to
prevent this prejudice by contacting the EEOC at an earlier date or following up with the
EEOC as opposed to responding to their requests. Cooper claims that, under Dring v.
McDonnell Douglas Corp., 58 F.3d 1323, 1331 (8th Cir. 1995), this court refused to
apply equitable tolling because the claimant waited three months to file



                                          -6-
a charge. Because we find these cases distinguishable from the present case, we
disagree.

        The filing of a timely charge with the EEOC is not a jurisdictional prerequisite to
a suit in federal court. Rather, it is a condition precedent and, "like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World
Airlines, 455 U.S. 385, 393 (1982). "It is clear that equitable tolling is premised on the
plaintiff's excusable neglect, which may or may not be attributable to the defendant."
Anderson v. Unisys Corp., 47 F.3d 302, 306 (8th Cir.), cert. denied, 116 S. Ct. 299
(1995); see also Dring, 58 F.3d at 1329 ("[E]xcusable ignorance may provide the basis
for the proper invocation of the doctrine of equitable tolling.").

        In Anderson, this court considered the argument, based on Runyon, that implied
that only employer misconduct justifies equitable tolling. We noted that Runyon and the
cases it relied upon were limited to the context of the facts presented. See Anderson, 47
F.3d at 306. In those cases, the plaintiff claimed that the employer failed to post
information regarding employees' rights under the civil rights statutes. This court held
that "[e]quitable tolling is permissible in other situations as well." Id. Furthermore, we
noted that an affirmative misrepresentation is not a requisite to applying equitable tolling
because "ambiguous and misleading language" could also "lead a reasonable person to
believe" that the steps that were taken would activate the Title VII process. Id. at 307.

        After a careful review of the record, we find, in the present case, that Lawrence's
failure to file a timely charge was excusable neglect because the following circumstances
are sufficiently misleading to cause a reasonable person to believe that such steps would
activate the Title VII process. First, Lawrence stated that "at all times relevant to my
filing my complaint with E.E.O.C. I was operating under instructions given to me by
E.E.O.C.[, and] . . . I continued to provide information to E.E.O.C. as it was requested."
Appellant's App. at 87-88. The fair inference from this




                                           -7-
statement is that the EEOC told Lawrence to adhere to the following format. Because
the EEOC received Lawrence's CIF on June 15, 1995 (eight days before the 180-day
filing period would expire), the EEOC applied a special procedure4 and treated
Lawrence's CIF as a charge, assigning a charge number and giving Cooper notice on
August 1, 1995 that a charge had been received. See id. at 19.

       Second, the EEOC failed to complete the formal charge form and obtain
Lawrence's verification until after the 180-day period expired. The EEOC believed that,
pursuant to § 1601.12(b), the completed charge would relate back to the CIF's filing for
timeliness purposes. See EEOC's Br. at 8-9. Lawrence's receipt of the charge form on
September 1, 1995 carried the implied representation, although legally incorrect, that the
statute of limitations had not expired on her claim. Moreover, the fact that Lawrence
later completed a formal charge form does not necessarily mean that she intended her
CIF to be preliminary. Rather, under these circumstances, it is equally as possible that
a reasonable person would complete such a form based on directions received from the
EEOC. Although Lawrence sought the advice of an attorney prior to contacting the
EEOC and may have been generally aware of her rights, we find that the EEOC misled
Lawrence into reasonably believing that submitting her CIF within fifteen days of the
180-day filing deadline, with subsequent verification, would suffice. See Appellant's
App. at 88 (Lawrence intended "to initiate whatever action was necessary under federal
law to protect [her] rights. . . .").




      4
       See 1 EEOC Compliance Manual (BNA) § 2.2(a)(1), at 2:0001 (1989) which
provides:

      When it is clear from the contents of correspondence which is a minimally
      sufficient Title VII charge that a completed charge cannot be obtained
      within the Title VII charge filing limit (the time limit will expire in less
      than 15 days), . . . [c]ontinue with the intake process so that a copy of the
      charge can be served expeditiously.

                                          -8-
       In sum, Lawrence's failure to file a timely charge arose from the EEOC's
misconduct which is a circumstance beyond Lawrence's control and constitutes
excusable neglect for Lawrence's failure to file a timely charge. Based upon the EEOC's
instructions and its interpretation of the charge filing procedures, Lawrence reasonably
believed that she had taken all of the required steps to activate the Title VII statutory
machinery. As such, we find sufficient evidence to equitably toll the statute of
limitations period.

III. CONCLUSION

    For the reasons stated in this opinion, we reverse the district court's grant of
summary judgment in favor of Cooper and remand for further proceedings.

      A true copy.

             Attest:

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




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