Employment Law Daily No exhaustion of retaliation claim based on filing of EEOC charge where second charge didn’t mention first
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Thursday, September 27, 2018

No exhaustion of retaliation claim based on filing of EEOC charge where second charge didn’t mention first

By Marjorie Johnson, J.D.

An employee failed to exhaust administrative remedies on her Title VII claim alleging she was fired in retaliation for filing an EEOC charge in 2012 because her subsequent EEOC charge did not reference the first charge or contain allegations relating to the alleged retaliation for having filed it. Rather, the charge only raised claims that she suffered supervisory harassment based on her age and race and was fired in retaliation for complaining about it, which was insufficient to satisfy her duty to exhaust, the Tenth Circuit ruled in affirming dismissal of her lawsuit (Smith v. Cheyenne Retirement Investors L.P. dba Pointe Frontier Retirement Community, September 25, 2018, Ebel, D.).

First EEOC charge. The employee filed an EEOC charge in 2012 alleging she had been harassed by her supervisors and denied promotions based on her age and race and in retaliation for complaining about discrimination. The EEOC dismissed her charge in 2013 and issued her a right-to-sue notice, which she chose not to pursue. Her 90-day “window” to sue closed on February 10, 2014, and around the same time, she was placed under a new supervisor.

Harassed by new supervisor. The new supervisor immediately began to “harass” her by subjecting her to enhanced scrutiny. She believed that he was “instructed” to do so because of her 2012 EEOC charge. On April 7, she called the employee hotline to complain about his daily harassment and identified several other administrators as perpetrators since she did not know who instructed the supervisor to harass her. She was terminated two weeks later.

Second charge doesn’t mention first. She filed a second EEOC charge alleging she was “subjected to disparate treatment and a hostile work environment” and was retaliated against for complaining about “discriminatory treatment.” She also checked the boxes for race, age, and retaliation. She then elaborated in detail about the complaints she made regarding her supervisor in 2014 and said she was “looked upon as a trouble maker for complaining.”

Lawsuit filed, then dismissed. After receiving the EEOC’s right-to-sue notice, she filed this lawsuit alleging she was fired in retaliation for filing her 2012 EEOC charge. The district court granted the employer’s motion to dismiss for lack of subject matter jurisdiction (based on failure to exhaust argument), and, in the alternative, granted its motion for summary judgment.

Affirmative defense, not jurisdictional. The district court treated the employer’s failure-to-exhaust argument as challenging the court’s subject matter jurisdiction, in accord with several Tenth Circuit cases that were still good law at the time. Since then, Tenth Circuit law has changed so that failure to exhaust is an affirmative defense that does not bar a federal court from assuming jurisdiction. However, the Tenth Circuit could affirm on alternative grounds.

Fatal failure to identify first charge. While it was uncontested the employee filed the 2014 EEOC charge, the employer demonstrated that the claim she alleged in this lawsuit—unlawful retaliation for filing the 2012 EEOC charge—was not included. Specifically, while the latter charge alleged retaliation, it clearly did not encompass retaliation for having filed the earlier charge, which was the only Title VII violation she now alleged in her lawsuit. And while the first line of the 2014 charge stated that she was fired “after I complained,” the rest of the charge made clear that she was not suggesting her “complaint” was the 2012 EEOC charge.

For instance, she elaborated that she complained to the general manager in March 2014 about her supervisor’s discriminatory treatment, and that while nothing happened, she “was looked upon as a trouble maker for complaining.” In turn, she made only a “passing reference” to the events that precipitated her 2012 EEOC charge and never mentioned its filing. She then concluded her 2014 charge by saying “the real reason” she was fired was because she complained about her supervisor’s discriminatory treatment. Given that he was not hired until 2014, that line made clear that this latter charge did not include a claim she was fired for filing the 2012 charge.

Employer’s mention of charge insufficient. The Tenth Circuit rejected the employee’s urging that it consider the employer’s mention of the 2012 charge in its response to the 2014 charge. Specifically, the employer alerted the EEOC that this was the employee’s “second EEO Charge” against it and that the agency had previously “decided” in its favor, while also identifying the case number. While this argument had “a certain appeal,” the Tenth Circuit has repeatedly held that the “reasonable and likely scope of the investigation” is determined by the allegations contained in the charge itself, rather than in the charge and any responsive documents.

Indeed, “the twin purposes of the exhaustion requirement would be ill-served if an employer’s response could expand the scope of the EEOC inquiry.” To rule otherwise would incentivize employers to avoid any language that could be used to expand an employee’s claim beyond the face of the charge itself. This would hinder the EEOC’s ability to gather and collect enough detailed information to conciliate the claim.

In sum, even construed liberally, the 2014 EEOC charge raised two claims: (1) that the employee was repeatedly intimidated and harassed by her supervisor based on her age and race, and (2) that she was fired for complaining about this treatment to management. No matter how “liberally” these two grounds for relief were construed, they did not include the employee’s claim that she was terminated in retaliation for filing her 2012 EEOC charge. However, because the district court also considered her claim on the merits and ultimately dismissed it with prejudice, and the Tenth Circuit was only affirming dismissal based on a failure to exhaust administrative remedies without expressing an opinion on the merits, the case was remanded with instructions to vacate its previous order and dismiss the complaint without prejudice.

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