On January 8, 2013, the U.S. Supreme Court was petitioned to rule on whether employees must file a new or amended charge to pursue an employment retaliation claim arising from an initial Title VII discrimination charge. If the Court grants certiorari, we're likely to see the resolution of a decade-long circuit split created by the holding in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Background
On August 14, 2009, Richter, a store manager for Advanced Auto Parts (Employer), was removed from her position for failing to make timely bank deposits. On August 23, 2009, she informed her Regional Vice President that she filed charges with the EEOC based on her belief that she was removed from her position because of her race and gender. Her employment was terminated two days later. Richter informed the EEOC that the Employer terminated her employment, and that she had "new info[rmation] on possible retaliation[.]" Petition for Writ of Certiorari at p.5. Richter, however, did not file a formal charge based on the alleged retaliation. And the EEOC did not issue a right to sue letter until August 2010, which stated that the agency had "reviewed the investigative file[,] including the additional information [Richter] submitted." Id. at 6. Richter filed suit for retaliation under Title VII and Missouri law in the Western District of Missouri. The district court granted the Employer's motion to dismiss for failure to exhaust administrative remedies.
Circuit Split
On August 1, 2012, the Eighth Circuit affirmed the district court's dismissal order. The majority held that a plaintiff who seeks to file a retaliation charge under Title VII's anti-retaliation provision must file a new or amended charge if the retaliation is the result of the plaintiff's filing an earlier charge with the EEOC. The Eighth Circuit thereby joined the Tenth Circuit and deepened a split with the Fourth, Sixth, Second and Eleventh Circuits.
Implications
Employers in circuits that have not addressed this question have been subject to uncertainty when defending Title VII retaliation claims. On one hand, the majority of circuit courts take the position that such retaliation claims are actionable, and the EEOC, participating as amicus, lent its support to Richter's position. But, on the other hand, the Employer effectively demonstrated that Morgan can be used to successfully challenge retaliation claims where a complainant failed to file a separate charge with the EEOC. Employers may soon receive clarity. The Supreme Court has until February 11 to decide whether to grant certiorari. Stay tuned ...
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