Title VII Retaliation Claim Actionable Even When Raised for the First Time and Related EEOC Charge Is Untimely: Fourth Circuit | Practical Law

Title VII Retaliation Claim Actionable Even When Raised for the First Time and Related EEOC Charge Is Untimely: Fourth Circuit | Practical Law

In Hentosh v. Old Dominion University, the US Court of Appeals for the Fourth Circuit held that the district court properly exercised subject matter jurisdiction over a retaliation claim under Title VII of the Civil Rights Act of 1964 (Title VII), even after dismissing as untimely the discrimination claims in the plaintiff’s administrative charge.

Title VII Retaliation Claim Actionable Even When Raised for the First Time and Related EEOC Charge Is Untimely: Fourth Circuit

by Practical Law Labor & Employment
Published on 07 Oct 2014 • USA (National/Federal)
In Hentosh v. Old Dominion University, the US Court of Appeals for the Fourth Circuit held that the district court properly exercised subject matter jurisdiction over a retaliation claim under Title VII of the Civil Rights Act of 1964 (Title VII), even after dismissing as untimely the discrimination claims in the plaintiff’s administrative charge.
On September 24, 2014, in Hentosh v. Old Dominion University, a white professor brought a Title VII action against her employer, a public university, alleging it discriminated against her and denied her application for tenure in retaliation for her complaint against a minority professor. The district court dismissed the discrimination claims as untimely and granted summary judgment to the university on her tenure retaliation claim. Hentosh appealed, arguing that the district court erred in failing to dismiss her tenure retaliation claim when it dismissed her untimely discrimination claims. The US Court of Appeals for the Fourth Circuit affirmed the judgment of the district court, holding that the district court properly exercised subject matter jurisdiction over her Title VII retaliation claim, even after dismissing related untimely discrimination claims. (13-2037, (4th Cir. Sept. 24, 2014).)

Background

Patricia Hentosh, a white female, was employed as a professor by Old Dominion University (ODU) (a public university) from approximately January 2006 to June 2013. On May 26, 2010, Hentosh filed a charge with the EEOC alleging that ODU had:
  • Discriminated against her on the basis of race.
  • Retaliated against her for filing a complaint against an Asian professor.
The violations primarily alleged by Hentosh occurred more than 300 days before she filed her EEOC charge. The following events then occurred:
  • Hentosh became eligible for tenure in fall 2011 (while the EEOC's investigation of her charge was ongoing).
  • ODU denied Hentosh's application for tenure.
  • On January 26, 2012, the EEOC dismissed Hentosh's charge and issued her a right to sue letter.
On April 24, 2012, Hentosh sued ODU in district court alleging:
  • Race discrimination.
  • Retaliation for engaging in protected activities in violation of Title VII.
  • She was denied tenure as a direct result of both the discrimination and the retaliation.
ODU moved the district court to dismiss the complaint. The district court:
  • Granted in part ODU's motion to dismiss, holding that it did not have subject matter jurisdiction over:
    • ODU's acts of adverse conduct raised in the charge of discrimination because Hentosh failed to timely complain to the EEOC within 300 days of the conduct and therefore failed to properly exhaust her administrative remedies; or
    • Hentosh's claim of discrimination regarding the denial of tenure because the claim was neither within the scope of the charge nor reasonably related to the charge to be considered exhausted.
  • Denied ODU's motion to dismiss the retaliation claim regarding its rejection of Hentosh's application for tenure, finding that she could sue on the retaliation claim without having to file a new charge with the EEOC (Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992)).
The district court ultimately granted ODU's motion for summary judgment on the merits of Hentosh's tenure retaliation claim, finding that she failed to establish that ODU's desire to retaliate was the but-for cause of its adverse employment acts. Hentosh appealed to the Fourth Circuit.
On appeal, Hentosh argued that:
  • The district court committed reversible error by failing to dismiss her tenure retaliation claim with her other claims.
  • The district court did not have subject matter jurisdiction over the tenure retaliation claim after it:
    • dismissed the untimely discriminatory conduct claims set out in the EEOC charge; and
    • dismissed the claims based on discriminatory conduct occurring subsequent to the EEOC charge because it was unrelated to the EEOC charge and not exhausted.
  • The unpublished opinion in Mezu v. Morgan State University requires the Fourth Circuit to vacate the district court's judgment on the tenure retaliation claim and remand the case to the district court to dismiss the claim for lack of subject matter jurisdiction (367 F. App'x 385 (4th Cir.2010)).

Outcome

The Fourth Circuit affirmed the judgment of the district court, holding that the district court properly exercised subject matter jurisdiction over a Title VII retaliation claim, even after dismissing related untimely discrimination claims.
The Fourth Circuit found that:
  • In Nealon v. Stone, it held that a plaintiff may raise for the first time in federal court the claim that her employer retaliated against her for filing with the EEOC in violation of Title VII (958 F.2d 584 at 590 (4th Cir. 1992)).
  • The failure to timely file an EEOC charge does not deprive the district court of subject matter jurisdiction (Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). The court retains discretion to equitably toll the statutory deadline (Olson v. Mobil Oil Corp., 904 F.2d 198, 201 (4th Cir.1990)).
  • It is undisputed that Hentosh met the jurisdictional requirement of exhaustion of administrative remedies as to her Title VII discrimination claims. Under Nealon, therefore, it follows that the district court had jurisdiction over her related Title VII retaliation claim.
  • Hentosh relied heavily on Mezu (which she read as holding retaliation claims cannot "relate to" discriminatory conduct alleged in an untimely EEOC charge) but Mezu is an unpublished decision which is neither controlling nor persuasive, as it conflicts with the published precedent in Nealon.
  • As the district court had subject matter jurisdiction over Hentosh's administratively exhausted but untimely filed non-retaliation claims, the district court properly exercised subject matter jurisdiction over Hentosh's related tenure retaliation claim (Nealon, 958 F.2d at 590).

Practical Implications

A plaintiff must administratively exhaust her Title VII claims with the EEOC before filing a lawsuit in federal court. This decision reminds parties that although a failure to exhaust deprives the court of subject matter jurisdiction, timeliness is not a jurisdictional requirement because the statutory deadline can be equitably tolled. The plaintiff here filed an EEOC charge and received her right to sue notice (the requirements for administrative exhaustion). The court has subject matter jurisdiction over all claims reasonably related to the allegations in the charge. Her discrimination claims were dismissed because they were untimely. However, the plaintiff also alleged that the employer retaliated against her by denying her tenure after she filed the untimely EEOC complaint. Because a plaintiff may be naturally hesitant to invite further retaliation by filing a second charge complaining about the first retaliation, the court may hear a retaliation claim that reasonably relates to the allegations in the EEOC charge.
Although a plaintiff is not required to file a new charge if she was retaliated against for filing the original charge in order to pursue the retaliation claim in court, plaintiff's lawyers are advised that it is best practice to file a new charge.
Employers should avoid retaliating against employees for filing an EEOC charge and should not assume that they can escape litigating over retaliation claims that arise after a charge was filed, even if the original charge was untimely. In the Fourth Circuit, untimeliness is not the same as lack of subject matter jurisdiction.