Just as we closed the year 2008 on an up-note, with a couple of appellate victories for employees, we begin 2009 with a reversal of summary judgment on a retaliation claim by the Fourth Circuit. It reaffirms an important exception to the charge-filing requirement — that post-charge retaliation need not be the subject of a second EEOC charge — which has been in doubt since National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In the “bummer” category, an unpublished decision from the Ninth Circuit describes how the EEOC won a new trial order in a Title VII religious accommodation case, only to lose it with a switch of trial judges.
Jones v. Calvert Group, No. 07-1680 (4th Cir. Jan. 5, 2009): Morgan reaffirmed that each discrete act of discrimination must be supported by its own EEOC charge, leading some to wonder whether this would alter a long-accepted exception — that post-charge discrimination or retaliation claims arising from the same or related circumstances need not be separately charged. The Fourth Circuit here affirms that the rule remains the same (and reverses summary judgment on the claim):
“Although Calvert asserts that Morgan required Jones to file a new EEOC charge alleging that she was terminated in retaliation for her first charge, we do not read Morgan that broadly. Morgan addresses only the issue of when the limitations clock for filing an EEOC charge begins ticking with regard to discrete unlawful employment practices. In this respect, it concerns only Congress’s clear preference as expressed in Title VII for ‘prompt processing of all charges of employment discrimination.’ Morgan, 536 U.S. at 109. It does not purport to address the extent to which an EEOC charge satisfies exhaustion requirements for claims of related, post-charge events.”
The panel does note, though, that a Tenth Circuit decision (Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003)) tilts the other way, and the EEOC Compliance Manual [fn. 186] also recognizes a conflict in authority. So in the light of a circuit split, it is probably wise to file the follow-on charge anyway.
As a sidenote, the panel also affirms dismissal of discrimination claims that were supposedly not presented in a valid EEOC charge, but ordered that they be dismissed without prejudice for lack of subject matter jurisdiction. Hmmm. There lingers, inexplicably, a circuit split about whether the meeting of the charge-filing requirement is a precondition to federal court jurisdiction, despite that the Supreme Court spoke definitively on this point ages ago — in Zipes v. TWA, Inc., 455 U.S. 385, 393 (1982) (“filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”). The Tenth Circuit appears to be in the grips of the same error (Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005)), while the Sixth Circuit only recently reversed itself on this (Allen v. Highlands Hosp. Corp., 545 F.3d 387 (6th Cir. 2008)). Especially after Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), this rule really has to go once and for all.
EEOC v. Serranos Mexican Restaurants, LLC, No. 07-16017 (9th Cir. Jan. 5, 2009): After losing a Title VII jury verdict, the district court ordered a new trial based on the clear weight of evidence. But after a switch of judges and a motion to reconsider, the newly-assigned judge overruled the first order and entered a dismissal. The EEOC, understandably chagrined, takes an appeal but (alas) loses before the Ninth Circuit. The panel holds that the second judge did not abuse his discretion by reopening the new trial issue —
“The district court exercised its discretion to reconsider the prior grant of a new trial because it found the prior order to be clear error requiring an unnecessary second trial. [footnote omitted] After carefully reviewing the record, we do not find this was an abuse of discretion. . . . At trial, conflicting testimony was presented by [claimant] Naeve and Ric Serrano regarding whether Serrano’s made an unconditional offer of a transfer to another store location to Naeve, which the EEOC concedes would have constituted a full accommodation. Though the EEOC attempted to impeach Ric Serrano, we do not find the impeachment to have been sufficiently serious to render his testimony substantially less believable than Naeve’s. The parties also put forward on appeal conflicting interpretations of Ric Serrano’s testimony concerning the basis on which his offer was rejected. The court does not find the EEOC’s interpretation to be significantly more plausible than that offered by Serranos. Therefore, we agree with the district court’s final determination that the clear weight of the evidence does not support a finding that no unconditional accommodation was offered.”
Ordinarily, taking an appeal from a question of witness credibility is a fool’s errand, and while the EEOC was possibly justified in trying to get its new trial resurrected, the net result is exactly the same.