The Lawletter Vol 41 No 4
It has long been settled law that plaintiffs who seek redress for employment discrimination under Title VII must exhaust the administrative remedies provided under that law before bringing their claims in court. Title VII, of course, not only prohibits the initial unlawful status/class discrimination, but also prohibits retaliation for complaining about such discrimination. The interplay of those two prohibitions has seemingly muddied the waters on the exhaustion issue.
In a recent case, a federal district court within the Fifth Circuit was faced with the question of that interplay. Mitchell v. Univ. of La. Sys., Civ. Act. No. 13-820-JWD-RLB, 2015 WL 9581823 (M.D. La. signed Dec. 30, 2015). In the case before it, the plaintiff had filed an Equal Employment Opportunity Commission ("EEOC") charge in June 2013, claiming discrimination. She was transferred in July 2013. Although she never filed a second EEOC charge, she included both a claim for unlawful discrimination and a claim for retaliation in her action in the federal court. The defendant argued that the retaliation claim was barred for failure to exhaust administrative remedies, but the court disagreed.
The court noted that there was a split among the circuits on the issue. While the Fifth Circuit had created an exception to the exhaustion requirement for retaliation claims arising from earlier discrimination claims, the circuits were in disagreement as to whether that exception was still recognized after the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (requiring exhaustion for each separate discrimination claim). The court distinguished situations in which an employee brings separate claims for discrimination and retaliation simultaneously and those in which the only initial claim is for discrimination but retaliation follows from that claim or "grow[s] out of the earlier charge." Mitchell, 2015 WL 9581823, at *31 (quoting Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981)). Relying on Gupta, which had initially established the retaliation exception, the Mitchell court concluded that where the retaliatory conduct does not occur until after the discrimination charge has been filed, the exception is still recognized in the Fifth Circuit because Gupta has never been overruled.
The court not only noted that it was bound to follow Gupta but also recognized that there are strong practical and policy reasons for the exception, given that by their nature, retaliation claims that arise after the filing of an EEOC charge would otherwise require two separate EEOC filings, thus adding unnecessary procedural technicalities. Presumably, this issue will eventually make it to the Supreme Court. In the meantime, counsel for employees would be wise either to file a second EEOC charge or to amend the initial one to add a charge for retaliation.