Employees and practitioners in the Eighth Circuit be warned – Title VII claims of post-charge-filing retaliation require the filing of a fresh (or amended) charge with the EEOC. The court decides the issue in a 2-1 decision which widens the circuit split on this issue in the wake of Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Richter v. Advance Auto Parts, No. 11-2570 (8th Cir. Aug. 1, 2012): Until the Morgan decision, virtually all courts held that when an employee suffers retaliation as a result of filing an EEOC charge under Title VII, any retaliation suffered as a result of filing the charge is deemed “like or reasonably related to” the original claim and there is no need to file a second charge.
But since Morgan, which emphasized the importance of the charge-filing requirement with respect to any “discrete” claim under Title VII, the courts of appeals have since drifted apart on this issue. The Tenth Circuit now requires a fresh charge for post-charge-filing retaliation (Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003)), while the Fourth Circuit does not (Jones v. Calvert Group, Ltd., 551 F.3d 297 (4th Cir. 2009)).
The Eighth Circuit panel split 2-1 on this issue today. In a nutshell, the employee originally complained of a discriminatory demotion and filed a charge on that claim:
“On August 18, 2009, Richter filed a charge with the Equal Employment Opportunity Commission (‘EEOC’), alleging that she suffered an adverse employment action because of her race (white) and her sex (female). A complaint filed with the EEOC is also “deemed filed” with the Missouri Commission on Human Rights (‘MCHR’). Mo. Rev. Stat. § 213.075.2. On the forms, Richter checked the boxes for ‘race’ and ‘sex,’ but did not check the ‘retaliation’ box. The narrative portion of Richter’s charge asserted that Advance Auto Parts was motivated by race and sex when it removed her from the store manager position on August 14, 2009. The EEOC eventually dismissed the charge and notified Richter that she had ninety days to file a private lawsuit against the employer in federal court.”
When she filed her complaint, though, plaintiff did not allege discrimination, but instead charged that she was fired in retaliation for filing an EEOC charge. “[S]he informed a regional vice president of Advance Auto on August 23, 2009, about the charge that she had filed on August 18, and that Advance Auto terminated her employment on August 25, 2009, ‘in direct retaliation for her filing a good faith complaint with the EEOC and [MCHR] for racial discrimination.'” Plaintiff filed no separate charge for the claim of Title VII retaliation.
The district court dismissed the retaliation court on the ground that the plaintiff failed to meet the administrative prerequisite of filing a timely charge, and the Eighth Circuit affirms.
“We reject Richter’s contention that retaliation claims arising from a charge filed with the EEOC are excepted from the statutory exhaustion requirement. Title VII requires that a complainant must file a charge with the EEOC within 180 days ‘after the alleged unlawful employment practice occurred,’ and give notice to the employer of the circumstances of ‘the alleged unlawful employment practice.’ 42 U.S.C. § 2000e-5(e)(1) (emphases added). The use of the definite article shows that the complainant must file a charge with respect to each alleged unlawful employment practice. In her EEOC charge, Richter alleged discrimination based on race and sex that occurred on August 14, 2009. In the district court, she alleged discrimination for making a charge (i.e., retaliation) that occurred on August 25, 2009. These are two discrete acts of alleged discrimination-one in violation of 42 U.S.C. § 2000e-2(a), one in violation of § 2000e-3(a). Each discrete act is a different unlawful employment practice for which a separate charge is required. Morgan, 536 U.S. at 114.”
While the plaintiff argued that no separate charge was required because the retaliatory termination was “like or reasonably related to” her Title VII discrimination claim, the Eighth Circuit disagrees. Citing Wedow v. City of Kansas City, Missouri, 442 F.3d 661 (8th Cir. 2006), the panel majority holds that post-charge-filing acts of harassment are “discrete” events every bit as much as pre-charge-filing retaliation: “We recognize that Morgan concerned discrete acts of an employer that occurred prior to the filing of an EEOC charge, rather than discrete acts of an employer that occurred thereafter, but the meaning of the phrase ‘unlawful employment practice’ does not vary based on the timing of the alleged unlawful acts. The term ‘practice’ no more subsumes multiple discrete acts when one of those acts occurs after the filing of an EEOC charge than it does when all acts occur before the charge is filed.”
Dissenting from this part of the opinion, Judge Bye writes that neither Morgan nor Wedow dictated this result. “[T]he allegedly subsequent-presumably, post-Morgan-recognition Wedow speaks of is nothing more than a reiteration of our long established-and pre-Morgan-circuit precedent holding retaliatory acts occurring prior to the filing of the EEOC charge are not like or reasonably related to discrimination claims alleged in the charge. I therefore decline to view as foreclosing the applicability of the like-or reasonably -related-to exception to retaliatory acts occurring after the filing of a discrimination charge with the EEOC and growing out of said charge as such acts are necessarily reasonably related to the underlying allegations in the charge.”