Retaliation And The Exhaustion Requirement: A Conflict Is Brewing

Our last video of this week discusses the steps a plaintiff must go through to exhaust a retaliation claim before bringing a lawsuit. We cover this issue in detail in our paper.

In Gupta v. East Texas State Univ., 654 F.2d 411 (5th Cir. 1981), the Fifth Circuit Court of Appeals held that “it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court.” Id. at 414. The Court reasoned that having required Gupta to file another charge for retaliation would have done nothing but create additional procedural technicalities when a single filing would comply with the intent of Title VII. Id. The court believed that eliminating that needless procedural barrier would deter employers from attempting to discourage employees from exercising their rights under Title VII. Id. Similar results have been reached by other circuits considering the same situation. See Clockedile v. New Hampshire Dep’t of Corr., 245 F.3d 1, 4 (1st Cir. 2001) (noting that most circuits have permitted retaliation claims where only the discrimination charge was made to the agency, and collecting cases from every Circuit but the D.C.); Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992) (holding that retaliation claim may be raised for the first time in federal court); Carter v. South Cent. Bell, 912 F.2d 832 (5th Cir. 1991) (reasoning that because other Title VII claims were properly before court, jurisdiction existed over retaliatory termination claim as well); Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991) (holding that retaliation claim was “reasonably related” to prior sex discrimination claim); Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989) (holding that allegations of retaliation for the filing of an EEOC charge is discrimination “like or reasonably related to . . . and growing out of such allegations.”), superseded on other grounds by statute, Rush v. McDonald’s Corp., 966 F.2d 1104, 1119–20 (7th Cir. 1992); Brown v. Hartshorne Public Sch. Dist. No. 1, 864 F.2d 680 (10th Cir. 1988) (holding that retaliation arising out of first EEOC filing was “reasonably related” to that filing, obviating the need for a second EEOC charge); Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th Cir. 1988) (adopting reasoning of Gupta); Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066 (2d Cir. 1980) (holding that act of retaliation was “directly related” to plaintiff’s initiation of litigation and that no second EEOC charge was necessary).

Some courts, however, have questioned whether Gupta’s holding and logic are still valid in light of the Supreme Court’s decision in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). In Morgan, the Supreme Court held that Title VII plaintiffs could not use a “continuing violation” theory to assert claims that were barred because they were based on employer acts outside the 300–day statutory window for filing an EEOC charge. Id. at 113–14, 122 S. Ct. 2061. After Morgan, “[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’” Id. at 114, 122 S. Ct. 2061. Although Morgan involved incidents that took place before the EEOC charge was filed, courts have extended it to exclude any acts that occurred after filing from piggybacking onto an earlier-filed charge. See, e.g., Martinez v. Potter, 347 F.3d 1208, 1210–11 (10th Cir. 2003); McKenzie v. St. Tammany Parish School Bd., 2006 WL 2054391, at *2, *3 (E.D. La. July 19, 2006); Prince v. Rice, 453 F. Supp. 2d 14, 23–24 (D.D.C. 2006); Romero–Ostolaza v. Ridge, 370 F. Supp. 2d 139, 148-50 (D.D.C. 2005).

Courts in the Fifth Circuit have continued to apply Gupta after Morgan. See, e.g., Eberle v. Gonzales, 240 Fed. Appx. 622, 2007 WL 1455928 (5th Cir. May 18, 2007) (discussing Gupta‘s rationale and holding). On the other hand, relying on Morgan, some courts outside of the Fifth Circuit have rejected Gupta and its logic entirely, or in part, and have held that administrative remedies must be separately exhausted for claims of retaliation based on an earlier-filed EEOC charge that is already properly before the court. See Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851-53 (8th Cir. 2012) (relying on Morgan to conclude that each retaliatory incident is a separate act “for which administrative remedies must be exhausted”), cert. dismissed, No. 12-854, R46-0092013 WL 140297 (U.S. Mar. 1, 2013); Martinez, 347 F.3d at 1211 (Tenth Circuit case abolishing Gupta exception); Weber v. Battista, 494 F.3d 179, 182–84 (D.C. Cir. 2007) (discussing other circuits’ treatment of the issue); Prince, 453 F. Supp. 2d at 23–24 (rejecting Gupta exception in light of Morgan); Romero–Ostolaza, 370 F. Supp. 2d at 148–50 (same).

The Seventh Circuit, and courts within it, continue to apply the Gupta-like exception, even post-Morgan. See, e.g., Horton v. Jackson County Bd. Of County Commissioners, 343 F.3d 897, 898 (7th Cir. 2003) (“retaliation for complaining to the EEOC need not be charged separately from the discrimination that gave rise to the complaint”); Edlebeck v. Trondent Development Corp., NO. 09 C 7462, 2011 WL 862891, at *4 (N.D. Ill. Mar. 8, 2011) (“Because these allegations arise out of events that occurred after Edlebeck filed his EEOC charge on September 25, 2008, Edlebeck’s failure to include his retaliation claim in the EEOC charge does not preclude him from pursuing the claim in federal court.”).

The Fifth Circuit, and other courts, agree that Gupta does not apply if the alleged retaliation occurred before the Charging Party ever filed any EEOC charge. See Eberle v. Gonzales, 240 Fed. Appx. 622, 2007 WL 1455928 (5th Cir. May 18, 2007); McCray v. DPC Industries, Inc., 942 F. Supp. 288, 295 (E.D. Tex. 1996) (“The situation in Gupta is distinguishable from this case because McCray’s retaliation claim does not grow out of a previously filed EEOC charge. The alleged retaliation about which McCray complains occurred before McCray ever went to the EEOC. Thus, the Gupta rule does not apply.”).

The decisional landscape as May 2012 regarding this evolving issue was accurately summarized in May 2012 by the court in Fentress v. Potter, No. 09 C 2231, 2012 WL 1577504, at *2 (N.D. Ill. May 4, 2012):

The circuits have split over whether Morgan abrogated the exception to the exhaustion requirement for claims that a plaintiff suffered retaliation for filing an administrative charge. Compare Jones v. Calvert Grp., Ltd., 551 F.3d 297, 303 (4th Cir. 2009) (holding that the exception was not abrogated); Wedow v. City of Kan. City, 442 F.3d 661, 673–74 (8th Cir. 2006) (same); Delisle v. Brimfield Twp. Police Dep’t, 94 Fed. Appx. 247, 252–54 (6th Cir. 2004) (same), with Martinez v. Potter, 347 F.3d 1208, 1210–11 (10th Cir. 2003) (holding that the exception was abrogated). Although the Seventh Circuit has not squarely addressed the issue, it favorably cited the exception in Horton, 343 F.3d at 898, which was decided a year after the Supreme Court handed down Morgan. Given these post-Morgan tea leaves from the Seventh Circuit, as well as the three-to-one circuit split against abrogation, the court concludes that the exception remains valid. See Luna v. United States, 454 F.3d 631, 636 (7th Cir. 2006); Gacy v. Welborn, 994 F.2d 305, 310 (7th Cir. 1993). This appears to be the unanimous view of district judges within the Seventh Circuit, including one judge since elevated to the court of appeals. See Mandewah v. Wis. Dep’t of Corr., 2009 WL 1702089, *3 (E.D. Wis. June 17, 2009); Hill v. Potter, 2009 WL 901462, at *8 n. 6 (N.D. Ill. Mar. 31, 2009); Troutt v. City of Lawrence, 2008 WL 3287518, at *12 (S.D. Ind. Aug.8, 2008) (Hamilton, J.); Spellman v. Seymour Tubing, Inc., 2007 WL 1141961, at *3–4 (S.D. Ind. Apr. 12, 2007); Kruger v. Principi, 420 F. Supp. 2d 896, 906–07 (N.D. Ill. 2006).

See also Finch v. City of Indianapolis, NO. 1:08-CV-00432-DML, 2012 WL 3294959, at *16 (S.D. Ind. Aug. 10, 2012) (“Although the Tenth Circuit views National Railroad as requiring an EEOC charge for every act on which a Title VII claim is based, including a charge of retaliation for having gone to the EEOC in the first place, Martinez v. Potter, 347 F.3d 1208, 1210–11 (10th Cir. 2003), other circuits have held, or signaled their agreement, that National Railroad does not abrogate the McKenzie-type “exception” to administrative exhaustion.”).

In August 2012, however, the Eighth Circuit weighed in, and joined the Tenth Circuit, in concluding that Morgan required exhaustion of all claims, even post-EEOC filing retaliation claims. See Richter, 686 F.3d at 851-53. So, the predicted conflict is indeed brewing.