Clarifying When an EEOC Intake Questionnaire Is (and Is Not) a “Charge”: Sixth Circuit Tightens Holowecki’s Gate for ADA Exhaustion and Reaffirms Michigan PWDCRA’s No-Transfer Rule

Case: Jay Pemberton v. Bell’s Brewery, Inc., No. 24-1518 (6th Cir. Sept. 4, 2025) (Recommended for Publication)

Panel: Thapar, Bush (author), and Murphy, Circuit Judges

Disposition: Affirmed (summary judgment for employer on all claims)

Introduction

This published Sixth Circuit decision confronts two recurring and often outcome-determinative issues in employment litigation:

• What counts as a “charge” that exhausts administrative remedies under the ADA when an employee first submits an EEOC intake questionnaire and later files a formal charge?
• What accommodations, if any, must a Michigan employer provide under the state Persons with Disabilities Civil Rights Act (PWDCRA) when an employee cannot perform essential job functions?

Plaintiff-appellant Jay Pemberton, a long-time Bell’s Brewery employee and senior brewer, alleged ADA failure-to-accommodate, discrimination, and retaliation; state-law disability claims under the PWDCRA; age discrimination under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA); and Title VII claims. The district court granted summary judgment for Bell’s Brewery based on failure to exhaust or untimely exhaustion for some claims and failure to show pretext for others.

On appeal, the Sixth Circuit (1) clarifies the limits of Holowecki when employees attempt to treat an EEOC “Intake/Inquire Questionnaire” as a charge, (2) underscores that ADA retaliation is not a catch-all for workplace retaliation unconnected to disability, and (3) highlights the PWDCRA’s narrower accommodation obligations—specifically, no duty to transfer or create new positions. The court also addresses appellate forfeiture and admonishes counsel about accuracy in record citations.

Summary of the Judgment

• ADA Failure-to-Accommodate: Not administratively exhausted. The formal charge did not mention a failure-to-accommodate claim, and the earlier EEOC Inquiry Questionnaire could not itself constitute a “charge” under Holowecki/Williams because it (a) repeatedly disclaimed that it was a charge and did not request agency action, (b) was unverified, and (c) lacked sufficient specificity to describe the challenged practice. Independently, the claim was time-barred under the 300-day rule because plaintiff’s restrictions ended in November 2019 but he did not file until March 2022.
• ADA Discrimination and Retaliation: Failed at the prima facie stage for lack of causal connection and, alternatively, for lack of pretext. Serving as a witness in sexual-assault investigations is not ADA-protected activity. The earlier HR complaint about a supervisor’s conduct lacked temporal proximity and was separated by intervening events. The employer’s disciplinary rationale—plaintiff’s inappropriate comments to a coworker with mental-health struggles—stood unrebutted by competent evidence.
• PWDCRA (Michigan) Disability Claims: Retaliation and discrimination claims fail for the same reasons as the ADA claims. The PWDCRA failure-to-accommodate claim fails on the merits: Michigan law imposes no duty to transfer, create new positions, or modify essential duties. The employer’s transitional work and paid leave exceeded state-law obligations.
• ELCRA (Michigan) Age Discrimination: Even assuming a prima facie case, plaintiff failed to show pretext. The employer articulated legitimate, age-neutral reasons for internal hiring decisions (education, relevant sales/distribution experience).
• Title VII: Forfeited on appeal due to perfunctory briefing.
• Motion to Reconsider: Forfeited due to skeletal treatment on appeal.
• Candor to the court: The panel admonishes counsel for “serious and active misstatements of the record” regarding a purported “big teddy bear” remark.

Analysis

1) Precedents Cited and Their Role

• EEOC “charge” and exhaustion under ADA/Title VII framework:
  • E.E.O.C. v. Waffle House, Inc., 534 U.S. 279 (2002), and 42 U.S.C. § 12117(a): ADA adopts Title VII’s enforcement scheme.
  • Williams v. CSX Transp. Co., 643 F.3d 502 (6th Cir. 2011): A pre-charge form can be a “charge” if it is verified, sufficiently precise to identify parties and practices, and—per Holowecki—objectively asks the EEOC to activate its machinery.
  • Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008): A filing can count as a “charge” if, taken as a whole, it requests agency action; mere information-gathering is not enough.
  • Russ v. Memphis Light, Gas & Water Div., 720 F. App’x 229 (6th Cir. 2017) and Kindred v. Memphis Light, Gas & Water, No. 22-5360, 2023 WL 3158951 (6th Cir. Feb. 27, 2023): Forms that explicitly disavow being a charge and fail to request action do not suffice.
  • Younis v. Pinnacle Airlines, Inc., 610 F.3d 359 (6th Cir. 2010): The “reasonably expected to grow out of” doctrine does not let an uncharged claim piggyback on different facts; liberal construction has limits.
  • Jones v. Sumser Ret. Vill., 209 F.3d 851 (6th Cir. 2000): A failure-to-accommodate claim does not automatically flow from a termination or other distinct claim.
  • Fort Bend Cnty. v. Davis, 587 U.S. 541 (2019): Charge-filing is a mandatory claim-processing rule, not jurisdictional; courts may reach merits without resolving exhaustion if appropriate.
  • Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299 (6th Cir. 2000): 300-day limitations period.
• ADA discrimination/retaliation standards:
  • McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): Burden-shifting where no direct evidence.
  • Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc): ADA causation is but-for.
  • Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014): ADA not a catch-all; “protected activity” must oppose ADA-proscribed conduct.
  • Gray v. State Farm, 145 F.4th 630 (6th Cir. 2025): Temporal proximity and causation principles.
  • Hedrick v. Western Reserve Care Sys., 355 F.3d 444 (6th Cir. 2004): ADA prima facie elements.
  • Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001): Reasonable accommodation and undue hardship framework reference.
• Michigan disability law (PWDCRA):
  • Donald v. Sybra, Inc., 667 F.3d 757 (6th Cir. 2012): PWDCRA substantially mirrors ADA for many purposes.
  • Rourk v. Oakwood Hosp. Corp., 458 Mich. 25 (1998): No duty to transfer or create positions; employer need not modify essential functions.
  • Kerns v. Dura Mechanical Components, Inc., 242 Mich. App. 1 (2000): Reinforces no duty to recreate or adjust core job duties or place the employee elsewhere.
  • Garg v. Macomb Cnty. Cmty. Mental Health Servs., 472 Mich. 263 (2005): Three-year statute of limitations under Michigan law.
• Michigan age law (ELCRA):
  • Hazle v. Ford Motor Co., 464 Mich. 456 (2001): McDonnell Douglas framework; discrimination must be a “motivating factor.”
  • Geiger v. Tower Auto., 579 F.3d 614 (6th Cir. 2009): ELCRA analyzed alongside ADEA principles (with some doctrinal nuances).
  • Lytle v. Malady, 458 Mich. 153 (1998): Prima facie elements of age discrimination under Michigan law.
• Summary-judgment standards:
  • Young v. UPS, 575 U.S. 206 (2015), and Anderson v. Liberty Lobby, 477 U.S. 242 (1986): Framing the Rule 56 standard.

2) Legal Reasoning and Doctrinal Clarifications

A. Exhaustion and the status of Intake Questionnaires after Holowecki

• The court applies Title VII’s charge-filing rules to ADA claims (42 U.S.C. § 12117(a)). It expressly rejects the district court’s approach of reading the Questionnaire and Charge “together” to find exhaustion of a failure-to-accommodate theory. The amended Charge omitted any accommodation claim, and the Questionnaire was not a standalone “charge.”
• Under Williams/Holowecki, a pre-charge filing can count as a “charge” only if:
  • It is verified (under oath or penalty of perjury). Pemberton’s was not.
  • It is sufficiently precise to identify the parties and describe the challenged practices. Pemberton’s reference to others being allowed longer “light duty” and creation of positions lacked detail (who, when, what practices) and thus failed 29 C.F.R. § 1601.12(b).
  • It requests agency action (invokes EEOC’s “machinery”). Here the Questionnaire repeatedly stated, in bold, “THIS QUESTIONNAIRE IS NOT A CHARGE OF DISCRIMINATION,” and its Privacy Act Statement framed it as a screening tool—contrary to an enforcement request. There was no accompanying affidavit requesting relief (as in Holowecki), nor any request for damages (as in Williams).
• The court also notes that Pemberton was represented by counsel when he filed, undercutting the rationale for liberal construction that typically protects pro se filers. And even under pro se standards, the Questionnaire still would not qualify.
• The “reasonably expected to grow out of” doctrine does not rescue an uncharged failure-to-accommodate theory. Vague references to light-duty arrangements suggest the employer tried to accommodate, not that it failed to. The court reaffirms that each theory must either be explicitly charged or rest on facts that would reasonably prompt the EEOC to investigate that specific theory.

B. Timeliness and the 300-day ADA filing window

• Even if the accommodation theory had been properly included, the ADA’s 300-day deadline bars it. Pemberton’s doctor cleared him to full duty without restrictions in November 2019, and he neither sought nor required accommodations thereafter. The March 2022 charge fell well outside 300 days from the last possible accommodation-related event (no continuing violation theory was advanced or applicable here).

C. ADA discrimination and retaliation: prima facie causation and pretext

• Protected activity: Serving as a witness in a sexual-assault/harassment investigation is not ADA-protected activity because it does not oppose disability discrimination or participate in proceedings under the ADA. The ADA is not a catch-all workplace retaliation statute (Rorrer).
• Causation (but-for): The HR complaint about a supervisor’s disparaging conduct was too remote in time (two years) and intervening events (the internal investigation of Pemberton’s own comments) broke any causal chain with the suspension/punitive options (last chance agreement or severance).
• Pretext: The Brewery’s stated reason—Pemberton’s inappropriate comments to a coworker with mental-health struggles—was not rebutted by admissible evidence. Counsel’s repeated assertion that a coworker called Pemberton a “big teddy bear” lacked record support despite repeated requests, prompting judicial admonishment.

D. Michigan PWDCRA: no duty to transfer, create a job, or modify essential functions

• While the PWDCRA mirrors the ADA in many respects, Michigan law is narrower on reassignment. Under Rourk and Kerns, Michigan imposes no duty to create new positions, transfer an employee, or alter essential duties. By contrast, the ADA may, in some instances, require reassignment as a reasonable accommodation (the court notes the distinction without deciding the ADA issue here).
• Pemberton could not perform the essential lifting and carrying duties of a senior brewer during 2019. His request that the employer create a “Field Marketing and Research Specialist” position exceeded what the PWDCRA requires. Bell’s Brewery’s response—light duty when available, paid leave, a fully paid Transitional Work Program with a non-profit partner, and then restoration to unrestricted duty—surpassed state-law obligations.

E. ELCRA age discrimination: pretext failure

• Assuming a prima facie case, the Brewery provided legitimate, non-age reasons for selecting other internal candidates: for the FSR role, the selectee’s distribution/sales training; for Technical Brewer, the selectee’s beverage-science degree and relevant project experience. Plaintiff offered no evidence that age was a motivating factor in those decisions.

F. Appellate forfeiture and litigation conduct

• Title VII: Forfeited because plaintiff’s opening brief mentioned Title VII only perfunctorily without developed argument (see Rose and Doe).
• Motion to reconsider: Forfeited for skeletal briefing (Hendrickson).
• Candor: The panel warns counsel that misstatements of the record “undermine the integrity of the litigation process.”

3) Impact and Practical Implications

• EEOC filing practice—no more “near misses”: This opinion narrows the path for treating intake questionnaires as “charges,” especially when the form itself repeatedly disclaims that it is a charge. To count, the pre-charge filing must be verified (or later properly cured by a timely, verified charge incorporating the same facts), be specific about the challenged practice, and unmistakably request agency action.
• Representation matters: The court’s explicit reference to plaintiff’s counsel at the filing stage signals reduced tolerance for omissions that might be forgiven in pro se filings.
• Charge content must match the later lawsuit: Plaintiffs should include each legal theory (e.g., failure-to-accommodate) in the EEOC charge or plead facts that would necessarily trigger investigation of that theory. General narratives about light duty or “milking” an injury will not, by themselves, exhaust an accommodation claim.
• Deadlines control strategy: ADA claims tied to accommodation events end when restrictions end or the alleged accommodation violation ceases; watch the 300-day clock.
• Michigan disability law is narrower on accommodation: PWDCRA’s no-transfer/no-created-position rule remains robust; employers need not reengineer jobs or fabricate roles. This divergence from the ADA’s reassignment jurisprudence is crucial in dual-filed cases.
• ADA retaliation scope: Participation or opposition must be ADA-related; assisting in sexual harassment investigations is not ADA-protected conduct, even though it may be protected under other statutes if properly charged and preserved.
• Appellate preservation: Issues not developed in the opening brief are forfeited. Counsel must ensure accurate, supported record citations—misstatements can prompt judicial censure and undermine credibility.

Complex Concepts Simplified

• Exhaustion: Before suing under the ADA (and Title VII), a worker must first file a “charge” with the EEOC identifying the employer and the specific discrimination claimed. A later court case generally cannot exceed the scope of the charge.
• EEOC “charge” versus “intake questionnaire”: A charge triggers enforcement (notice to employer, investigation, conciliation). An intake questionnaire typically screens claims. It becomes a “charge” only if it is verified, specific, and objectively asks the EEOC to act.
• Verification: Submitting under oath or penalty of perjury. An unsigned or unverified pre-charge filing generally does not count.
• “Invoking the machinery”: The filing must ask the EEOC to take action (e.g., investigate, stop the discrimination, or pursue remedies), not simply provide information.
• 300-day rule: For ADA claims, a charge must be filed with the EEOC within 300 days of the challenged act; otherwise the claim is time-barred.
• Protected activity (ADA retaliation): Opposing or participating in processes against disability discrimination under the ADA—not all forms of workplace complaints count.
• But-for causation: The adverse action would not have happened “but for” the protected activity (retaliation) or disability (discrimination).
• Pretext: The employee must show the employer’s stated reason for the action is false or not the real reason, and that discrimination/retaliation was a determining factor.
• Essential functions: The core duties of a job. Employers need not remove essential functions as an accommodation.
• PWDCRA versus ADA accommodations: Michigan’s PWDCRA does not require transfers or creation of positions; the ADA sometimes may require reassignment where appropriate.

Practical Guidance

• For employees and counsel:
  • List every theory (e.g., failure-to-accommodate, disparate treatment, retaliation) explicitly in the EEOC charge and include facts tailored to each.
  • If relying on an intake questionnaire, add a clear, written request for the EEOC to take action; sign and verify it; and include precise details of the alleged unlawful practice. Better still, follow promptly with a verified formal charge that incorporates the same facts.
  • Calendar the 300-day deadline from the last discriminatory act; do not assume a continuing violation.
  • On appeal, fully brief each issue in the opening brief with record citations and legal development; avoid perfunctory references.
  • Maintain absolute fidelity to the record. Unsupported statements risk sanctions and credibility loss.
• For employers:
  • Document accommodations, transitional assignments, and leave decisions; clarity can defeat later pretext arguments.
  • Train supervisors on disability-related communications; derogatory comments (like those documented for Pohlman) can create exposure—even if later remedied.
  • Understand Michigan’s PWDCRA distinct limits: no obligation to transfer, create positions, or alter essential functions.
  • Review internal job postings and selection decisions for consistency and merit-based criteria; explain decisions contemporaneously.
  • Preserve investigation records and articulate the non-discriminatory basis for discipline.

Conclusion

This decision clarifies, in a published and practitioner-focused way, when an EEOC intake questionnaire can qualify as a “charge” for ADA exhaustion. The Sixth Circuit tightens Holowecki’s gate by emphasizing three concrete prerequisites—verification, specificity, and an unmistakable request for agency action—while also recognizing the import of disclaimers printed on the EEOC’s own forms. It further underscores that ADA retaliation must be ADA-related; generic participation in other workplace investigations does not qualify.

On state disability law, the opinion reaffirms a central feature of Michigan’s PWDCRA: no duty to transfer, create new positions, or alter essential functions. And on age discrimination under ELCRA, the case is a reminder that legitimate, documented selection criteria (degrees, directly relevant experience) typically defeat pretext absent countervailing proof.

The overarching lesson is procedural and strategic: charge-filing content and timing can make or break ADA claims. Precision at the EEOC stage—paired with careful, accurate advocacy in court—remains essential.