The Lawletter Vol 37 No 4
Generally, a Title VII plaintiff is required to exhaust his or her administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") or its state counterpart before bringing a claim in federal court. This requirement serves the dual purposes of giving the employer some warning of the allegedly discriminatory conduct and of affording the employer an opportunity to settle the dispute with the aid of the EEOC. Therefore, as a general matter, allowing a plaintiff to include in a federal action matters not alleged in the administrative charge of discrimination would frustrate the statutory purposes of providing notice to the employer and of providing the opportunity for settlement. An exception to the exhaustion requirement has been allowed, however, when the alleged discrimination consists of retaliation for the very act of having filed a charge in the first instance.
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), in addressing the related question of the circumstances under which a plaintiff may file suit based on events falling outside the statutory limitations time period, the Supreme Court held that each discrete act of discrimination starts the clock over for purposes of filing charges alleging that act. In other words, discrete acts that are time-barred are not actionable, even when they are related to other timely filed acts. Since the decision in Morgan, the circuit courts have split over whether that decision abrogated the exception to the exhaustion requirement for claims of retaliation against a plaintiff for having filed an administrative claim.
In Fentress v. Potter, No. 09 C 2231, 2012 WL 1577504 (N.D. Ill. May 4, 2012), the court addressed that very issue. The defendant had moved to dismiss, arguing that the plaintiff had failed to exhaust his administrative remedies on the claim that he had been retaliated against for having filed a charge of discrimination. It was undisputed that the plaintiff had not filed a charge complaining about that retaliation, and the defendant argued that the exception for such retaliation claims had been abrogated by Morgan. After reviewing the cases on the question, acknowledging the split in authority, and noting that the issue had not yet been directly addressed by the Seventh Circuit, the Fentress court, based on post-Morgan "tea leaves" from that Court, concluded that the exception remains valid. In part, the Fentress court relied on the fact that the exception's continuing validity appears to be the unanimous view of the circuit's district judges who have addressed the issue.
The court, furthermore, rejected the defendant's argument that the claim in this case did not fit within the exception in any case because of the length of time between the filing of the charge and the claimed discrimination, which was almost two years. The court noted that the exception had been applied to cases involving periods even longer than that. Moreover, the court found that nothing in the Seventh Circuit precedents recognizing the exception hinted at an exception to the exception for cases in which the retaliation occurs well after the administrative charge. The court therefore denied the defendant's motion to dismiss for failure to exhaust. Given that the weight of lower court authority appears to support the continuing validity of the exception, it is likely that it will eventually be upheld by the Supreme Court. In the meantime, it will be important to check the law of the circuit.