                               UNITED STATES COURT OF APPEALS
                                       For the Fifth Circuit

                               ___________________________________

                                           No. 00-50227
                               ___________________________________

                                           CAROLYN LINTON,

                                                                                        Plaintiff - Appellant,

                                                  VERSUS


                                            CITY OF MARLIN,

                                                                                       Defendant - Appellee.


                          __________________________________________

                             Appeal from the United States District Court
                           For the Western District of Texas, Waco Division
                                         (W - 99 - CV - 272)
                          __________________________________________
                                           April 16, 2001

Before DUHÉ, and PARKER, Circuit Judges, and LINDSAY 1, District Judge.

PER CURIAM 2:

       Carolyn Linton (“Linton”) appeals from the district court’s grant of summary judgment to the

City of Marlin (“the City”) dismissing her claims of sexual harassment under 42 U.S.C. § 2000e et

seq. (Title VII of the Civil Rights Act of 1964). Because we conclude that the district court’s order




       1
           District Judge of the Northern District of Texas, sitting by designation.
       2
          Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
is inconsistent with our precedents on the relevant issue, we reverse and remand for consideration of

the merits.

         “We review a grant of summary judgment de novo, viewing the facts and inferences in the

light most favorable to the party opposing the motion.” Wilting v. Progressive County Mut. Ins. Co.,

227 F.3d 474, 475 (5th Cir. 2000). Summary judgment was requested, and granted, on a single issue,

the question of whether plaintiff had timely filed her claim with the Equal Employment Opportunity

Commission (“EEOC”). We therefore limit our discussion to those facts directly relevant to that

issue.

         Linton was discharged by the City on October 31, 1996. She submitted a sworn charge of

discrimination to the EEOC on January 23, 1998. Because a plaintiff in Texas must file a charge with

the EEOC within 300 days of the date of the discriminatory act, Byers v. Dallas Morning News, Inc.,

209 F.3d 419, 424 (5th Cir. 2000); 42 U.S.C. § 2000e-5(e)(1), the sworn charge filed on January 23,

1998 was not timely. The requirement of filing a timely charge with the EEOC, however, “is not a

jurisdictional prerequisite to suit in federal court, but 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). We have previously recognized two reasons for allowing Title VII claims despite

a plaintiff’s failure to file a sworn charge within the prescribed period: 1) equitable tolling, see Hood

v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999); McKee v. McDonnell Douglas Technical

Services Co., 700 F.2d 260, 263-65 (5th Cir. 1983); or 2) an unsworn charge, within the prescribed

period, which is subsequently amended by a sworn charge, see Price v. Southwestern Bell Tel. Co.,

687 F.2d 74, 78-79 (5th Cir. 1982); Georgia Power Co. v. EEOC, 412 F.2d 462, 464-66 (5th Cir.

1969); Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 230-31 (5th Cir. 1969).


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        Equitable tolling is not argued by Linton here. In any event, the only relevant circumstances

that she mentions are the EEOC’s delays in sending her the official form for a sworn charge and in

notifying the City of the charge. These circumstances do not fall within the bases previously

recognized for equitable tolling, see Hood, 168 F.3d at 232, and were not such a serious impediment

to the City’s assertions of her rights as would justify tolling. Cf. Chappell v. Emco Mach. Works Co.,

601 F.2d 1295, 1302-03 (5th Cir. 1979). We therefore address the second reason.

        Linton alleges that she sent an unsworn letter to the EEOC on July 14, 1997 that constituted

a “charge.” Although Title VII requires that a charge be sworn, see 42 U.S.C. § 2000e-5(b),

applicable regulations define “charge” more broadly:

        Notwithstanding the provisions of paragraph (a) of this section, 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. 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.
        A charge that has been so amended shall not be required to be redeferred.

29 C.F.R. § 1601.12(b). Linton asserts that her unsworn letter constituted the “charge” and her

sworn charge on January 23, 1998 constituted an amendment.

        The City challenges the admissibility of the unsworn letter as inadequately authenticated. The

district court indicated similar concerns about the authentication of the letter, but decided to consider

it nonetheless. We think these concerns are misplaced. To accept the City’s argument would exalt

form over substance, and such is not warranted by the facts of this case. Circumstantial evidence

alone may be sufficient to authenticate a letter, see United States v. Elkins, 885 F.2d 775, 785 (11th

Cir. 1989), cert. denied, 494 U.S. 1005 (1990). The letter is consistent with Linton’s description of


                                                   3
the letter she mailed. Her attorney’s affidavit, along with date stamp by (apparently) the EEOC,

supports an inference that the letter was in the EEOC’s possession. Absolute certainty is not

required. The authentication requirement “is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). That standard has been

met. The issue thus becomes whether this unsworn claim satisfies the requirements of a “charge.”

The district court concluded that it does not, but this was a misapplication of relevant precedent.

       Our previous cases holding such unsworn claims to be “charges” have been limited to

situations where the EEOC treated the unsworn statement, supplemented by a sworn statement

outside the limitation period, as a charge by initiating an investigation and notifying the defendant.

See Price, 687 F.2d at 78-79; Georgia Power, 412 F.2d at 464-66; Weeks, 408 F.2d at 230-31. The

district court apparently read these holdings as limited to situations where the EEOC has initiated an

investigation on the basis of the unsworn claim alone, before receiving the subsequent sworn charge.

That is an incorrect reading and application of these cases.

       In Price, we noted that the EEOC took action on the basis of the initial complaint itself, see

Price, 687 F.2d at 76, and stated that “[t]he fact that the Commission, at least at the initial stage of

the proceedings, considered the circumstances surrounding the receipt of Price’s complaint sufficient

to initiate the administrative process, is relevant.” Id. at 78-79. This is completely consistent with

the interpretation by the district court. Although Price held that immediate action, before receipt of

the sworn charge, was sufficient to infer that the unsworn statement was a “charge,” however, it did

not hold that such immediate action was necessary.

       Our earlier cases demonst rate that the EEOC’s failure to take action right away does not

preclude a finding that the unsworn statement was a “charge.” In Weeks and Georgia Power, the


                                                   4
plaintiffs filed unsworn complaints, but the EEOC took action only after the sworn charges were

received. See Georgia Power, 412 F.2d at 464 (EEOC notified the employer seven days after the

sworn charge was filed; the original unsworn complaint was dated three months earlier); Weeks, 408

F.2d at 231 (“In its amicus brief the Commission makes clear that under its procedures unsworn

charges are not served upon respondents and that the investigation does not commence until a sworn

charge is served.”); see also Gonzalez v. Hoechst Celanese Corp., 1997 WL 855968, at *6 (S.D.

Tex. Dec. 1, 1997) (“Courts have made such exceptions where: (1) the EEOC itself treats the

claimant’s unsworn statement as a charge by initiating an investigation and notifying the defendant

(either before or after the charge is finally sworn to) . . . .”) (emphasis added) (citing Price, Weeks,

and Georgia Power).

        The district court reached its decision based on an absence of evidence to show that the

EEOC took any action regarding her letter; however, it is clear from the record that the EEOC did

take action after the sworn charge was filed. The EEOC compiled an investigative file, notified the

City of the investigation, and eventually issued a “right-to-sue” letter. Compare Gonzalez, 1997 WL

855968, at *6 (unsworn statement not treated as a “charge” where “the EEOC regarded her letter

as a mere ‘inquiry,’ [and] returned it with explicit instructions to respond with more information prior

to the 300-day deadline”). This at the very least creates a fact issue as to whether the EEOC

considered the letter to be a “charge” within the meaning of Title VII.**




        **
           After Linton sent her unsworn letter to the EEOC on July 14, 1997, she told EEOC personnel on
several occasions that she “had not made up her mind” whether to pursue her claim against the City. The City
relies heavily on this piece of evidence and makes repeated references to it in its brief. We have considered this
evidence and find it irrelevant and the City’s argument unpersuasive because the letter plainly satisfies the
definition of a charge under 29 C.F.R. § 1601.12(b).

                                                        5
        The doctrine of Weeks and Georgia Power is not completely elastic. At some point in time,

delay in filing a sworn charge necessarily becomes unduly prejudicial to a defendant. Our prior cases

involved only minimal delays beyond the deadlines. See Georgia Power, 412 F.2d at 464, 467 (filed

seven days after the then-existing deadline of ninety days); Weeks, 408 F.2d at 230 (filed thirteen days

after the deadline). We decline to establish a firm rule on how long a delay can still remain within this

doctrine; however, we are convinced that, under the facts of this case, the delay of approximately five

months was not so unreasonable as to cause undue prejudice to the City.

        The grant of summary judgment of the basis of an untimely charge was therefore

inappropriate. Accordingly, we reverse and remand for consideration of the merits of Linton’s claim.

        REVERSED and REMANDED.




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