Plaintiff Fails to Exhaust Remedies in EEOC Charges

by Manatt, Phelps & Phillips, LLP
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Why it matters

An employee failed to exhaust her administrative remedies where her second Equal Employment Opportunity Commission (EEOC) charge alleging retaliation didn’t reference her initial charge filed in 2012, the U.S. Court of Appeals, Tenth Circuit held, affirming dismissal of her complaint. Diane Smith filed her first charge with the EEOC in 2012, alleging that she had been harassed by her supervisors and denied promotions based on her race and age in retaliation for complaining about discrimination. The EEOC issued her a right-to-sue notice in 2013, however she declined to file a lawsuit. But when Smith was allegedly harassed by a new supervisor, she filed a second charge in 2014 and followed it up with a federal complaint. Her employer moved to dismiss based on a lack of subject matter jurisdiction, arguing that the plaintiff failed to exhaust her administrative remedies. The court granted the motion, and the federal appellate panel affirmed. As the 2014 charge did not reference the earlier charge or contain allegations related to the alleged retaliation for having filed it, Smith failed to satisfy her duty to exhaust, the Tenth Circuit held.

Detailed discussion

Diane Smith worked as a food server at the Pointe Frontier Retirement Community. In 2012, she filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that she had been harassed and intimidated by her supervisors and denied promotions and advancements on the basis of her age and race, and in retaliation for previous discrimination complaints.

Finding “there was no reasonable cause to conclude that [Pointe Frontier] engaged in discriminatory acts detrimental to [Smith],” the EEOC dismissed the charge and issued a right-to-sue letter in 2013. Smith did not pursue her claims in court.

In early 2014, the company hired a new shift leader, who became Smith’s supervisor. According to Smith, he immediately began to harass her by subjecting her to enhanced scrutiny compared with her colleagues. She believed that he had been “instructed” to treat her that way because of her 2012 EEOC charge.

A few months later, Smith called the Pointe Frontier employee hotline to complain about the harassment. Two weeks later, she was terminated. In response, Smith filed a second charge of discrimination with the EEOC. She alleged that she was “subjected to disparate treatment and a hostile work environment and was fired from [her] server position after [she] complained.”

Smith checked boxes for race, age and retaliation, further elaborating by stating she believed she had been “discriminated against based on my race/color (black) and age (56) and that I was retaliated against for complaining against [sic] discriminatory treatment,” along with additional details about her new supervisor’s alleged harassment. The 2014 charge did not refer to the events of 2012.

Responding to the 2014 charge, the employer made reference to the 2012 charge, noting that the new charge was “Smith’s second EEO charge” and that previously “the EEOC decided in favor of Pointe Frontier.” Unable “to conclude that the information obtained establishes violations of the statutes,” the agency again provided Smith with notice of her right to sue.

Smith then filed a complaint in Wyoming federal court, alleging that her termination was pretextual and in retaliation for filing the previous charge of discrimination in 2012. The employer moved to dismiss the suit for lack of subject matter jurisdiction. While Smith facially satisfied her duty to administratively exhaust with the 2014 charge, she stated different claims in the lawsuit against Pointe Frontier, specifically unlawful retaliation for filing the 2012 charge, the employer argued.

A district court judge granted the motion to dismiss, and Smith appealed. The U.S. Court of Appeals, Tenth Circuit affirmed dismissal.

“While the 2014 EEOC Charge does allege retaliation, it is clear from the text of that charge that it does not encompass retaliation for having filed the 2012 EEOC Charge, which is the Title VII violation Ms. Smith now alleges in federal court,” the panel wrote. “The first line of the 2014 EEOC Charge alleges that Ms. Smith was ‘subjected to disparate treatment and a hostile work environment and was fired from my Server position after I complained.’ While this alone would perhaps be sufficient to suggest the ‘complaint’ referenced was the 2012 EEOC Charge, Ms. Smith spends the rest of the 2014 EEOC Charge making clear this is not the case.”

Instead, the plaintiff elaborated in her charge that she complained about her new supervisor’s treatment and that as a result of her complaint, she was looked upon as a troublemaker. The 2014 charge “makes only a passing reference to the events that precipitated the 2012 EEOC Charge, and in fact never mentions that a charge was filed in 2012,” the court said.

The 2014 charge concludes with a statement that “the real reason I was fired is because I complained against [sic] [the supervisor’s] discriminatory treatment.” Given that this supervisor “was not hired at Pointe Frontier until 2014, that line alone makes clear that the 2014 EEOC Charge does not encompass the claims Ms. Smith now brings, namely that she was fired for filing the earlier 2012 EEOC Charge,” the court added.

Smith urged the panel to consider Pointe Frontier’s response, which did mention the 2012 charge. While recognizing that the “argument has a certain appeal,” the Tenth Circuit refused to stray from prior precedent that the court rely solely on the plaintiff’s complaint.

“[W]e have consistently held, time and again, 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,” the panel wrote. “And there is good reason for this requirement. After all, the twin purposes of the exhaustion requirement would be ill-served if an employer’s response could expand the scope of the EEOC inquiry.”

Using the charge itself to establish the scope of the investigation allows the employer to know exactly what allegations to defend itself against, and were the court to hold that a defendant’s response to an EEOC charge could expand the scope of that charge, “we would be incentivizing employers to respond to such charges in as bland and general a manner as possible,” the court explained. “The goal for employers would be to avoid any language that could be used to expand the employee’s claim beyond the face of the Charge itself, which would hinder the EEOC’s ability to gather and collect enough detailed information to conciliate the claim.”

Liberal construction of the content of the 2014 EEOC charge did not help Smith either.

“[E]ven construed liberally, the 2014 EEOC Charge raises two claims for relief: (1) that Ms. Smith was repeatedly intimidated and harassed by [her new supervisor] on the basis of her age and race, and (2) that she was fired for complaining about this treatment to management,” the panel said. “No matter how liberally we may construe these two grounds for relief, they do not include Ms. Smith’s claim in this lawsuit that her termination ‘was motivated by [her] filing [in 2012] of a charge of discrimination with the [EEOC].’”

The court affirmed dismissal of Smith’s complaint, albeit without prejudice to provide the plaintiff with an opportunity to file a second complaint should she be able to exhaust her administrative remedies.

To read the opinion in Smith v. Cheyenne Retirement Investors L.P., click here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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