Dora Vivaz—Senior Attorney, Civil Rights, NLRG
For a long time, courts generally held that there was no separate exhaustion-of-administrative-remedies requirement for claims that were similar to, were reasonably related to, or grew from allegations in an already-filed administrative charge of unlawful employment discrimination. In 2002, however, the Supreme Court declared that each incident of discrimination constitutes a separately actionable unlawful practice. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Since the Court's decision in Morgan, a split has developed in the lower courts as to the application of Morgan to retaliation claims that arise after the filing of an administrative charge. Some courts hold that a plaintiff must raise the retaliation claim by filing a separate administrative charge, while others hold that the plaintiff need not file a separate charge. In a recent case, the District Court for the District of Columbia sided with those that have required a separate filing. Thomas v. Vilsack, Civ. Action No. 08-0042 (AK), 2010 WL 2507755, at *10–11 (D.D.C. June 22, 2010).
In Thomas, in her 2010 administrative filing, the plaintiff raised for the first time the argument that removal of certain of her duties had been in retaliation for a 2004 discrimination complaint that she had filed. The plaintiff argued that she was not required to separately exhaust her retaliation claim, because it would naturally have come within the scope of the investigation into her 2004 complaint. The court disagreed, adopting the reasoning of those courts that require retaliation claims to be separately administratively exhausted unless they are related to claims in an earlier filing which had therein been specified to be of an ongoing and continuous nature. The plaintiff's 2004 allegations related only to promotion denials based on race and sex. Her 2010 retaliation allegations, on the other hand, related to the removal of certain duties. The court found that the later allegations were not "of a like kind" to the earlier ones. Notwithstanding her 2004 statement that the promotion denials were of on ongoing and continuous nature, therefore, the court concluded that because the removal of duties was a separate, discrete act of a different kind, the plaintiff was required to separately exhaust her administrative remedies on that claim. Since she had failed to do so, the court concluded that her retaliation claim necessarily failed.
Under this standard, it would be only in the rare case in which the retaliatory action was essentially a continuation of the discrimination itself that a retaliation claim would not have to be separately exhausted.