Leonard Edelman v. Lynchburg College

503 ilarity 741 F.2d at 901. Based on Gaste and against two one of works— Selle, majority maintains that England’s greatest Bouehat poets. an Such absurd an is entitled to inference of be- access result why illustrates the requirement of striking similarity cause of the between proving substantial similarity should re- logo Ravens shield and his independent shield main of the requirement of drawing. demonstrating poem access—Keats’s “strikingly similar” to the hypothetical

B. plaintiffs poem plaintiff because the copied it Simply from him. put, in examining a join I am majority’s unable to plaintiffs circumstantial evidence copy- “strikingly endorsement of the similar” ing, proof of one element should not allow doctrine. The underlying doctrine’s as a court to infer the existence of the other. sumption is where two works are so similar, strikingly high there is a probabili

ty copied that one was from the other. V. Gaste, However, See 863 F.2d at 1067-68. reasons, For the foregoing I have con- alone, assumption, this standing runs con cluded that jury’s verdict favor of trary to principle fundamental of copy Bouehat is unsupported factually both right protection: independent creation. legally, and I respectfully dissent. Feist, See S.Ct. 1282 (recognizing that “originality,” qua the sine copyright

non of protection, requires inde pendent degree creation and some of crea

tivity). Evidence of copying plus —access similarity substantial any “crucial to —is copyright infringement claim of because no

matter how may similar the two works be

(even point identity), EDELMAN, if the Leonard defen Plaintiff- work, Appellant, dant did not copy the accused there (cita no infringement.” 741 F.2d at 901 omitted). Indeed, tion may “two works be COLLEGE, LYNCHBURG detail, but, every identical in if Defendant-Appellee. infringer created the accused work inde pendently or copied both works were from No. 99-2408. domain, a common source in public United States Court of Appeals, then there is infringement.” no Id. As Fourth Circuit. Judge Learned Hand observed Sheldon v. Metro-Goldwyn Corp., Pictures Argued: June (2d Cir.1936), aff'd, 309 U.S. Decided: Oct. (1940), 84 L.Ed. 825 “[I]f some magic man who had never known compose

were to anew Keats’s Ode on Urn, ‘author,’ and, Grecian he would an be it, if copyrighted he might copy others not that poem, though they might of course

copy Keats’s.” Id. at 54.

However, under the majority’s “striking- ly doctrine, similar” one plagiarized who

Keats’s Ode on a Grecian Urn in 1820 arguably would entitled to inference of infringement merely on the sim- —based

OPINION BEEZER, Judge: Senior Circuit Leonard appeals Edelman the district court’s dismissal of employment his dis- subject crimination action for lack of mat- jurisdiction. ter presents This case an of impression issue in this circuit: 1601.12(b), § whether 29 regula- C.F.R. tion promulgated by Equal Employ- (“EEOC”), ment Opportunity Commission conflicts with the statutory requirements Act, of Title VII of the Rights specifi- Civil 2000e-5(b) cally § U.S.C. and 2000e- 5(e)(1), to the extent that the regulation permits a charge of discrimination to be expiration verified after the of applica- period. ble limitations jurisdic- We have pursuant tion to 28 U.S.C. 1291. Be- that, cause we conclude applied, so contrary plain language of the we affirm the dis- missal of Edelman’s action on grounds that he failed timely charge to file a of discrimination.

I

Edelman, a white Polish-Jewish male biology professor, was denied tenure Lynchburg College on June 1997. On Bredehoft, ARGUED: Elaine Charlson November Edelman sent a letter Bredehoft, P.C., Reston, Charlson Virgi- alleging to the EEOC that he had been nia, for Appellant. Mary Virginia Barney, subject “gender-based employment dis- Bell, P.L.C., Alexander Lynchburg, Virgi- crimination, exacerbated discrimination nia, Appellee. for ON BRIEF: Kristine on family’s the basis of national origin [his] Smith, Williams, P.C., H. Edmunds & religion.” Edelman, According to Jac- Lynchburg, Virginia, Appellant. for Alex- queline Asbury, College, the Dean of the Bell, Bell, P.L.C., ander W. Alexander opposed his tenure because she wanted to Lynchburg, Virginia, for Appellee. improve percentage of tenured women on the faculty. Edelman claims that As- LUTTIG, Before WILKINS Circuit bury ignored support the uniform of his BEEZER, Judges, and Senior Circuit chairman, department an ad hoc faculty Judge of the United States Court of committee, Faculty and the Personnel Circuit, Appeals for the Ninth sitting by Committee. At the conclusion of his let- designation. ter, wrote, Edelman “I hereby file a by published Affirmed opinion. Senior employment of discrimination (Dean Judge BEEZER opinion, against wrote Lynchburg College Jacque- Judge joined. Judge Asbury, WILKINS line President Charles Warren Trustees) LUTTIG wrote a concurring opinion. and the Board of and I call upon initially filed this action Edelman investigate case[.]” this the EEOC to court, of state law claims alleging by the state was received letter Edelman’s contract, termination, wrongful breach 18,1997. EEOC on November dis- infliction of emotional and intentional 26,1997, attor- On November College removed the Lynchburg tress. ney another letter to sent court after Edelman action to federal stated: complaint to assert cause amended his have a would like to Edelman Professor VII, §§ 2000e under Title U.S.C. action inves- interview with personal Lynchburg College 2000e-17. through docu- charging the final tigator prior to under Federal then moved for dismissal college. It is being served on the ments 12(b)(1) lack of Procedure for Rule of Civil delay understanding that occasioned my Because the subject jurisdiction. matter compromise will not by the interview court concluded Edelman district date, will as Novem- remain filing timely charge file his of discrimi- failed to 14, my if under- 1997. Please advise ber nation, mo- Lynchburg College’s granted not correct. standing regard in this is claim, tion, the Title VII dismissed $ ‡ ‡ ‡ ‡ remaining claims to remanded timely appeals. court. Edelman state investigator have the Finally, please the inter- this office to schedule contact II time. mutually a convenient view at novo a district review de We thereafter, a sent letter Shortly subject matter for lack of court’s dismissal him that it needed advising to Edelman 12(b)(1). Ev jurisdiction under Rule See to investi- information order additional Co., 642, B.F. 166 F.3d 647 ans v. Perkins urged The EEOC’s letter gate his case. Cir.1999). (4th as up an interview “as soon Edelman to set charge a of discrimination possible because a Title VII claim In order to assert im- within the time limits must be filed court, a must first ex plaintiff in federal posed by law[.]” by filing remedies haust his administrative 17, 1998, sent February the EEOC On with the EEOC. charge a of discrimination advising Univ., notice appointment Edelman 193 Taylor Virginia v. Union See Cir.1999). for 219, him that his interview was scheduled Title VII F.3d 239 3, The was con- March 1998. interview potential peri two limitations establishes 18, 1998, March as scheduled. On charge ducted ods which the discrimination mailed a draft to Edel- the EEOC 42 filed with the EEOC. See must be 2000e-5(e)(l); Edelman’s verified signature. Tinsley § man for his see also U.S.C. Bank, 435, with the charge of discrimination was filed First Union National 15, Cir.1998). after April days 1998—313 EEOC on limitations The basic 439 alleged the date of discrimination. alleged unlaw days is 180 after the period 42 U.S.C. employment practice. ful See a assign The did not number 2000e-5(e)(l). period limitations § it received his Edelman’s case until after however, in days, “defer extended to 300 one week charge. Approximately verified 2000e-5(e)(l). § ral states.” See id. later, forwarded the the EEOC A state” is one which has Virginia “deferral Lynchburg College both (“VCHR”), unlawful em- “prohibiting the Rights Human state law Council of and a state or ployment practice alleged” from authorized to seek relief agency state grant or agency authorized “to seek After local employment practices. unlawful § See id. 2000e- practice. is- relief’ from the investigation, its completing 5(c). state.” See Virginia on “deferral right-to-sue letter sued Edelman Accordingly, the 26,1999. 155 F.3d at 440. Tinsley, March 300-day period applies limitations to Edel- We begin with the framework established Chevron, man’s Title VII claim. Supreme U.S.A., Court Inc. v. Natural Resources Coun- Defense cil, Inc., Ill 104 S.Ct. (1984): L.Ed.2d 694 Edelman argues the district First, always, is the question whether in dismissing court erred his Title VII directly has spoken to the pre- claim because his April question cise at issue. If the intent of discrimination related back to his Novem clear, Congress is that is the end of the ber 1997 letter and was thus matter; court, for the as well as the filed within of June agency, give must effect to the unambig- date of discrimination. Title uously expressed If, Congress. intent of charges VII states that of discrimination however, the court determines Congress writing “shall be in under oath or affirma has not directly addressed precise tion and contain shall such information and question issue, the court does not be in such form as the re Commission simply impose its own construction on 2000e-5(b). quires.” U.S.C. The rel as would be necessary in the evant EEOC states “a of an absence administrative interpreta- charge is sufficient the when Commission Rather, tion. if the statute is silent or receives from person making the the ambiguous respect with to specific the charge a written sufficiently statement issue, question the for the court is precise identify to parties, the and to de agency’s whether the is answer based on generally scribe the action or practices a permissible construction of the statute. 1601.12(b). complained § of.” 29 C.F.R. 842-43, 104 Id. at S.Ct. 2778. Edelman’s letter was mailed to the EEOC within 300 and sufficiently Co., In Robinson v. Shell Oil 519 U.S. parties identified the and the dis- 337, 843, (1997), 117 S.Ct. 136 L.Ed.2d 808 However, criminatory action. the letter the Court considered the Chevron frame- was not sworn to under oath or affirma- specific work in the context of Title VII. Nevertheless, tion. Edelman relies on the The Court made clear the standard second sentence of regulation, the which guided: which we are provides may charge “[a] be amended step Our first interpreting statute is omissions, to cure technical defects or in- to determine whether language the at cluding verify the failure to charge, or issue has a plain unambiguous and to clarify amplify allegations or made meaning with regard particular therein. Such amendments ... will relate dispute in the inquiry case. Our must back to date was first re- statutory cease if the language is unam- ceived.” Id. biguous statutory and “the scheme is coherent and consistent.” parties agree

The that if regulation applied is to Edelman’s discrimination 340, Id. at 117 S.Ct. 843 (quoting United charge, sworn-but-untimely charge re- Enters., Inc., States v. Ron Pair 489 U.S. lates back to his unsworn-but-timely letter 1026, 109 S.Ct. 103 L.Ed.2d 290 and is thus parties filed. The dis- (1989)). however, agree, as to whether regula- Step one analysis, of the Chevron may tion be so applied. Robinson, as confirmed requires us to

In order to question, answer this determine whether Congress has ex carefully we must relationship consider the pressed respect its intent with to the issue (Section 1601.12(b)) between the regulation undertaking at hand. In analysis, this we (Title VII, and the statute specifically 42 “agency power are mindful that is not the 2000e-5(b) 2000e-5(e)(l)). § Rather, U.S.C. power to make law. it is the 2000e-5(e)(l), into id. adopt regulations carry period, see follows power be verified within the Congress expressed by effect the will of as must Thus, period. Brown & Williamson Tobac limitations to the extent statute.” FDA, Corp. regulation permits v. that the co Cir.1998) expiration v. Hoch verified after the of the limita- (quoting Ernst & Ernst 185, 213-14, plain felder, period, language 96 S.Ct. tions it thwarts the (1976)) (internal of quotation 47 L.Ed.2d 668 Title VII. omitted).

marks and other citations Having application concluded that EEOC’s this case contra- at in this case precise question issue intent, Congress’s expressed venes as is whether verification must occur through plain language statutory period. “[T]he limitations proceed Step we need not further. two of if place where we must look to see analysis the Chevron does not come into with Congress spoken has to the issue play, apply and we do not concerned whether Con- Chevron, regulation. See 467 U.S. at 843 gressional regard intent in that is clear is (“If court, n. employing 104 S.Ct. 2778 INS, on the face of the statute.” Kofa construction, statutory traditional Cir.1995). tools As we F.3d Congress had an ascertains intention stated, “[statutory have earlier construc- issue, precise question on the that inten- begin language tion must with the effect.”); given tion is the law and must be statute.” Id. Williamson, see also Brown & 153 F.3d at that Congress We conclude has unam- (“It if the intent of spoken on biguously this issue. As noted ambiguous that we permissible defer to a above, the language of statute itself interpretation by agency.”). requires “[e]harges in writing shall be Supreme long The Court has adhered to under oath or contain affirmation and shall that judiciary rule is the final “[t]he such information and be such form as authority statutory on issues of construc 42 requires.” Commission U.S.C. reject tion and must administrative con 2000e-5(b). § plain meaning of this contrary structions to clear con language compels the conclusion that if a Chevron, gressional intent.” 467 U.S. discrimination claim is not in un- writing, 9, See, 843 n. e.g., 104 S.Ct. 2778. FEC v. affirmation, oath or in- containing der Comm., Campaign Democratic Senatorial required by formation and in the form 27, 32, 102 38, 454 U.S. S.Ct. 70 L.Ed.2d 23 Commission, charge. it is not a (1981) (“[Courts] reject must administra defining charge, Congress In chose to tive constructions of the whether limit authority. the EEOC’s While Con- adjudication reached or rule-mak gress expressly delegated to the EEOC ing, that are inconsistent with the statuto power to delineate the form and con- ry policy mandate or that frustrate the charge, give tent of the did not sought implement.”); that authority tamper with the oath Brown, 291, 278, NLRB v. 380 U.S. 85 writing requirements. or did Nor Con- 980, (1965) (“Review S.Ct. 13 L.Ed.2d 839 gress give authority to alter the ing obliged courts are not to stand aside period. limitations contrary, On the and rubberstamp their affirmance of ad affirmatively statute plainly and estab- ministrative decisions that in they deem period lishes the time within which a statutory consistent with a mandate or § must filed. be See id. 2000e- congressional policy frustrate the un 5(e)(1). derlying always statute. Such review is charge requires properly judicial Because a verifica province, tion, 2000e-5(b), § see id. responsibility because courts would abdicate their charge must be within the if they fully filed limitations did not review such adminis-

509 decisions.”); Luther, trative Webster v. 163 mandatory EEOC is a prerequisite to the 342, 963, validity 41 L.Ed. of the charge.” Id. (1896) (“But this court has often said that respect With to the plaintiffs second permit practice it will not anof execu- Balazs, argument although we noted department pur- tive to defeat the obvious has been “[i]t held that this regulation statute”). pose of a is valid and is not contrary to the statute requiring verification of charges,” id. at

Likewise, this circuit has refused to de- (citing Wichita, City Peterson v. agency interpretations fer to that are con- Cir.1989)), F.2d 1308-09 we See, trary to the statute at e.g., issue. In apply refused to the regulation under the Apex re Express Corp., 190 F.3d case, facts of the see id. expressed We (4th Cir.1999) (“Here, ambigui- there is no “[cjarried our concern that logical to its ty in the text of justify the statute to conclusion, under the interpreta- EEOC’s [agency’s] position or a turn legislative tion of its it would never be too history.”); Huntington Hosp., Cabell Inc. verify Thus, late to a charge[.]” Id. Shalala, Cir.1996) determined that “a reasonable construc- (“We Secretary’s cannot endorse the read- tion” of the regulation would “simply allow so, To ing. do we would have to violate charges to be verified and to relate back statutory both a clear canon of construc- long so as the charge is a viable one tion, plain meaning and the of the two Here, in the EEOC’s Id. files[.]” we simi- terms.”). larly conclude that a reasonable construc- In keeping with the tradition that re- imposed must be on regulation, tion quires protect Congress, us to the will of one which does not allow relation-back of regulation, we hold that 29 C.F.R. the verification requirement beyond the 1601.12(b), may not applied to allow time prescribed limitation by Congress. untimely charge to relate back briefly We regula- mentioned both the 14,1997 to his November letter. tion and Balazs a footnote in Tinsley: rejected The district court also Tinsley’s IV claim that her untimely formal argues Edelman today our decision amended and related back timely- to her conflicts with our earlier discussions of the but-unsworn In ruling, letter. so the regulation Tinsley in v. First Union Na- district court inexplicably ignored the (4th Bank, Cir.1998), tional 155 F.3d 435 applicable regulation, 29 C.F.R. (4th Liebenthal, and Balazs v. 32 F.3d 151 1601.12(b), explicitly which allows Cir.1994). disagree. We more, such an amendment. What is the ignored district court the conclu- recent Balazs, cases, In the earlier of the two sion of approving very this Circuit the we addressed regulation the in the context regulation joined use of the that Tinsley, plaintiffs of a attempt verify allega- his EEOC, urges: allowing the her veri- tions of discrimination almost four months fied claim to amend and relate back to after the plaintiff right-to- EEOC issued a the date her unverified claim was filed. sue letter and processing terminated its of Balazs, his case. See 32 F.3d at 157. Tinsley, 155 F.3d at n. 2 (citing Ba ). plaintiff arguments noted, however, made two on appeal: lazs in light We that of first, that a charge of discrimination did our Tinsley’s conclusion that verified verification; and, second, not require that was filed within the limi applicable an unverified may period, be cured tations which we held to be 300 amendment. rejected See id. at 156. We rather than there no need to was outright (“Be plaintiffs argument, the regulation. con- address the See id. cluding, as we today, conclude that “a cause we hold that appropriate statute sworn of discrimination with the period days, of limitations was 300 we need contained in Title VII “is cast any questions.”). of these other ment

not resolve Thus, that our mandatory Equal Employment the most can be said about terms.” regulation Tinsley is Opportunity Appalachian discussion of Comm’n v. Moreover, (4th contrary Co., that it is dictum. Cir. Power characterization, 1978). then, facts of also noted as we confirm We materially different from now, this case that no reason to ignore we “see Tinsley verified his alle- Tinsley. those of plain language has enacted.” of within the statu- gations Co., discrimination Id.; Hamel Prudential Ins. accord v. tory period, (D.Mass.1986) (“Al time whereas Edelman did 103, 105 F.Supp. not. Questionnaire signed, though Intake Any oath. signed sugges is not under V tion that this distinction is formalistic today our decision is consis- Although ignore significance perju of a tends to prior regu- tent with our discussions of the conviction.”). ry lation, analysis we are mindful that our upon by factor relied The second with that of several other circuits. conflicts accorded Philbin court was “the deference Capital In Philbin v. Electric General Philbin, regulations.” 929 F.2d at Inc., Lease, Auto 929 F.2d 321 Cir. applying analysis, 324. In the Chevron 1991), the Seventh Circuit reversed a deci give weight court failed to sufficient to the dismissing sion of the district court language focusing in- plain untimely. Title action as plaintiffs VII stead on whether the EEOC’s See id. at 322. The Philbin court held represented interpretation a reasonable Questionnaire, timely filed Intake note, however, the statute. The court did peri is verified after the limitations “[wjhile require does statute od, may be sufficient to constitute complainant verify charge, the statute id. at charge.* See 323. require that the verification take does not The court relied on two factors in reach place prior expiration 300-day First, ing its decision. the court stated period.” time Id. legislation that “Title is remedial VII above, III As discussed Section which must Id. liberally.” be construed dif- plain language read the statute Citing its decision in previous Choate Moreover, ferently. recognize while we Co., Tractor 402 F.2d 357 Caterpillar VII, the remedial nature of Title we see no Cir.1968), in which it stated that verifi Congress’s to distort mandate that reason requirement “directory cation was verified in order charges mandatory technical rather than and sub regulation. make room for the EEOC’s stantive,” Choate, 402 F.2d at County Baldwin Welcome Ctr. v. Cf. court keeping Philbin concluded that “[i]n Brown, 466 U.S. act, with the broad of the the purposes (1984) (holding 80 L.Ed.2d 196 that there requirements omission of technical which satisfactory giving is “no basis for Title fulfilled affect later should not the a special VII actions status under the validity charge.” timeliness or of the Phil Procedure”). of [Federal] Rules Civil bin, 929 F.2d at 324. Circuit, In to Finally, contrast the Seventh we note that the Seventh Circuit have previously require- only held that the oath is not the other circuit to have ad- go say questionnaire *The court did not so far as to number to the within the 300- Questionnaire subsequently-verified day period, Intake time but also notified Philbin's Philbin, always charge. employer period. will constitute a See the same See id. In Instead, case, assigned 929 F.2d at 324. the court consid- neither a question- charge Lynchburg ered the EEOC's treatment of the number nor notified Col- Specifically, recognized lege 300-day naire. the court of Edelman’s claim within the assigned charge period. the EEOC had not limitations

5H filing timely of charge the conflict between discrimination dressed- of statutory provisions jurisdictional with the EEOC is not a regulation pre- and court, approved requisite have to suit in Title Other circuits federal VII. but that, permit to regulation requirement like a statute limita- application of tions, waiver, verified charges subject of that were is to estoppel, relation-back period. equitable tolling.”). the limitations See Peterson But see Davis after v. Wichita, Correction, 888 F.2d 1308 North Carolina City Dep’t v. of of Cir.1989) (4th (10th Cir.1995) (rejecting the district F.3d (discussing jur- conclusion that was con- Title in requirement court’s VII’s exhaustion terms). beyond and thus EEOC’s trary to statute isdictional v. Cali- power promulgate); to Casavantes Before we affirm the dismissal of Univ., 1442-43 State fornia claim, Edelman’s Title VII we consider Cir.1984) (noting position its whether the facts of this case warrant with the recent trend in Title “consistent equitable tolling of the period. limitations recognizes jurisprudence VII represented by Edelman was counsel at all interpretations nontechnical importance of stages process. of the administrative In inherent in procedural requirements fact, his initial letter to the refer claims”; of discrimination processing attorneys by enced Despite his name. contrary “overly as condemning position fact that Edelman attempts to attribute formalistic”); Bell Price Southwestern significant delay to processing the EEOC’s (5th Cir.1982) (re- Co., Tel. 687 F.2d 74 complaint, of his waited more than five he versing summary judgment favor of em- qfter months discrimination be factual remained ployer because issues as contacting agency. fore even More completed by plaintiff whether form to over, the draft EEOC mailed to and as whether “charge” constituted him of expiration before the limitations requirement). EEOC waived verification signed Had he period. promptly re Communities, v. Cooper But see Lawrence draft, proposed turned the which included Inc., Cir.1998) (holding F.3d affirmation, a form of oath or his Questionnaire that Intake does not consti- would have been filed. “charge” tute a because it is not verified regulation only and that allows an amend- not entitled We hold Edelman is ment to relate back to the date a equitable tolling period. of limitations received). Department Irwin v. Veterans See Af- decisions, disagree We with these fairs, 498 U.S. short, (1990) (“[T]he im- they because we believe that principles L.Ed.2d 435 properly policy justifications substitute for equitable tolling ... do not extend to what ' statutory language. clear See Kenneth garden variety is .at best a claim of excusa- Pierce, Jr., Culp Davis & Richard J. Ad- neglect.”). ble (3rd 3.2, §§

ministrative Law Treatise 3.3 ed.1994) (discussing attempt Chevron’s VII judicial policy-making). curtail up

We believe this is best summed case Supreme the words of the Court: VI Although requirements by that established we conclude Edel Procedural charge gaining man access to the fed- failed to file of dis for crimination, disregarded by that failure eral are not be recognize we this courts to deprive subject vague sympathy par- does not the court of mat courts out of a for run, jurisdiction. litigants.... long' v. Trans ticular the Zipes [I]n ter See World Airlines, Inc., 385, 393, 102 that strict adherence experience 455 U.S. teaches (1982) (“We specified procedural requirements 71 L.Ed.2d 234 hold that to the uncertainty I as legislature guarantee Although the is the best confess some

by that, this, it to me these of the law. to seems between of evenhanded administration statutes, necessarily two there is not the Ctr., 466 County Baldwin Welcome in required nexus order to sustain the 152, 104 S.Ct. 1723. in plain meaning interpretation advanced court dis- judgment of the district opinion. say, That is to it seems to me affirmed, but missing Edelman’s action is plausible at least to read first statute court take on remand the district should charge require simply to that be filed proper action to indicate that the dismissal days, within 180 and the second as free- is for failure to exhaust administrative first, standing simply require of the and to subject than lack remedies rather for that, finalized, before a all of the charge is jurisdiction. matter by and information allegations required provided the EEOC be and verified. Of AND AFFIRMED REMANDED. course, if the are so read two statutes as other, independent of each or temporally LUTTIG, Judge, concurring: Circuit coterminous, temporally at least not then statutory there that the requirement is no I would decide this case on the narrow days, be verified the 180 and ground filing that Edelman’s second is ine- (1) by regula- E del- relation back would be available ligible for relation back because tion. filing man characterized his initial as a request for a rather than as a Apart from what I believe is its inherent (2) charge; did not even treat logic, interpretation plau- structural this is (3) original filing charge; as a statutory no sible because there is defini- copy never served “charge,” contrary implicit tion of to the (4) Lynchburg College; letter on premise majority’s opinion. There letter, allegedly second sworn statutory provides no definition that is letter, even dif- alleges amended first that, in “charge,” order to constitute a discriminatory than

ferent conduct Thus, allegation must be verified. charged original in the letter. “charge” that must be filed within 180 days need not—at least need not defini- I sufficiently am uncomfortable with the allegation tion—be an is verified or in ground broader for decision set forth that includes all the information that even- majority opinion, may that verification tually provided must be before it suffi- days never relate back after 180 from the ciently complete require to notice to the action, alleged discriminatory date of the employer. Insofar as the statute informs that I am in opinion unable to concur us, “charge” that must be filed within issue, for the court. As to this not days merely can an allegation with a single stating confronted statute discrimination; it need not be verified. in either terms or effect that “a verified charge must days precisely be filed within 180 of a As as I can state it—and I discriminatory readily point conceptu- action.” Were we confront- concede that the ed with a statute single ally majority’s interpretation worded this elusive—the way, then the plain meaning interpretation actually depend entirely seems to me advanced in the for opinion upon reading they the court the two if statutes as would, think, Instead, I I be unassailable. were one. And fear that it is statutes, presented we are with through reading two the two as one that the providing shall be necessary majority’s interpre- filed nexus words, employ- within 180 of the unlawful tation is supplied; other unless one, practice, ment and the second providing the two statutes are read as I believe in- charges writing impossible shall be that it is with say, the cer- clude an oath tainty necessary abrogate agency’s or affirmation. must contrary interpretation, within 180 filed and verified discriminatory action. the alternative

I do not believe only I is the inter- interpretation suggest statutes, by any of the two pretation Indeed, I even believe that means. do not fact, I interpretation; it is the better by majori- adopted that the one believe I that this ty the better. But do believe interpretation agency alternative And, course, being plausible one. such, give we are bound to deference interpretation. that administrative reasons, these I concur For the court. judgment of ADMIRALTY COATINGS

CORPORATION,

Petitioner, EMERY; Director, B. Office of William Compensation Programs, Workers' Labor, Department United States Respondents.

No. 97-2639. Appeals, United States Court of Fourth Circuit. 1,May Argued: Sept. Decided:

Case Details

Case Name: Leonard Edelman v. Lynchburg College

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 11, 2000

Citation: 228 F.3d 503

Docket Number: 99-2408

Court Abbreviation: 4th Cir.