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June 12, 2019

Stroock Special Bulletin

By: Howard S. Lavin, Elizabeth E. DiMichele

On June 3, 2019, the United States Supreme Court issued a surprisingly unanimous decision in Fort Bend Cty. v. Davis, No. 18-525, 2019 U.S. LEXIS 3891 (June 3, 2019) resolving a split between the Fifth and Fourth Circuit Courts of Appeal over whether a federal court possesses subject-matter jurisdiction when a plaintiff fails to satisfy the timely charge-filing requirement set forth in Title VII of the Civil Rights Act of 1964 (Title VII). Writing for the Court, Justice Ginsburg stated that the requirement, codified at 42 U.S.C. §2000e-5(e)1 and (f)1, which mandates “complainants to submit information [regarding a claim] to the EEOC and to wait a specified period before commencing a civil action,” is a “non-jurisdictional claims-processing rule.” Therefore, an objection based on a plaintiff’s failure to satisfy this rule is waivable when a defendant fails to raise it at the outset of a Title VII litigation.

Facts

According to the opinion, plaintiff Lois Davis (Davis) worked in information technology for defendant Fort Bend County (the County).  In 2010, she informed the County’s human resources department that the director of IT was sexually harassing her. Following an investigation, the director resigned, but subsequently Davis’s new supervisor reduced her work responsibilities, allegedly in retaliation for making the complaint against the former director. In response, in February 2011, Davis filled out and submitted to the Equal Employment Opportunity Commission (EEOC) an “intake questionnaire,” followed the next month by a Charge of Discrimination (the Charge). While the EEOC Charge was pending, Davis was told to report to work on an upcoming Sunday. Davis informed her supervisor that she had committed to attend church that Sunday, and she offered to arrange for another employee to work her shift.  Her supervisor threatened to fire her if she failed to appear for work; she went to church instead, and she was subsequently fired. Davis then attempted to supplement the retaliation allegations on her original EEOC intake questionnaire, handwriting “religion” on the “Employment Harms or Actions” part of the questionnaire. Crucially, Davis made no changes to the formal Charge. A few months later, Davis received a Right to Sue Letter.

Procedural Background

Davis filed a lawsuit against the County in the U.S. District Court for the Southern District of Texas alleging claims of religious discrimination and retaliation. The District Court granted the County’s motion for summary judgment on both claims. On appeal, the Fifth Circuit affirmed the dismissal of Davis’s retaliation claim, but reversed the grant of summary judgment as to her religious discrimination claim. The County filed a petition for certiorari to the Supreme Court, which was denied.  On remand, the County moved to dismiss the religious discrimination claim on the grounds that the District Court lacked subject-matter jurisdiction to adjudicate Davis’s religious discrimination claim, raising for the first time that she had not alleged the claim in her original EEOC Charge, but rather had noted it only on her revised intake questionnaire. Arguing that the charge-filing requirement was “jurisdictional,” and that failure to satisfy the requirement deprives federal courts of jurisdiction over future suits derived from those EEOC charges, the County moved to dismiss. The District Court agreed, and granted the County’s motion to dismiss. The Fifth Circuit reversed, holding that the requirement was not jurisdictional, but rather a “prudential prerequisite to suit,” which could be waived by a defendant as an affirmative defense were it not raised in a timely manner.

Supreme Court Decision

The Court agreed with the Fifth Circuit that Title VII’s charge-filing requirement is a non-jurisdictional claim-processing rule that can be waived if a party waits too long to assert it. Such a rule “[seeks] to promote the orderly progress of litigation by requiring that parties take certain procedural steps at certain specified times.” Objections based on these rules are “mandatory” in that courts must enforce the rule if the objections are properly raised. However, objections based on non-jurisdictional rules are forfeitable if not raised in a timely manner.  In Davis, the County had moved for summary judgment, appealed to the Fifth Circuit, was denied certiorari by the Supreme Court, and was again before the District Court, years after Davis filed her initial complaint, when it first raised Davis’ failure to file a formal charge of religious discrimination with the EEOC as a bar to her lawsuit — hardly a prompt objection.

The basis for the Court’s decision in this case was largely statutory interpretation. It emphasized that if Congress clearly states that a requirement is “jurisdictional,” then courts and litigants will follow its clear directive. However, the Court stated, when Congress has not designated a statutory requirement as clearly jurisdictional, the courts will not treat it as such. This is an important distinction because there are harsh consequences to designating such a requirement as jurisdictional, since objections to subject-matter jurisdiction may be raised at any time during a litigation and courts must consider them on their own — that is, sua sponte.  Therefore, delayed objections to subject-matter jurisdiction can waste judicial resources and surprise litigants.

In rejecting the County’s argument that the charge-filing requirement is jurisdictional, the Court noted that federal courts exercise jurisdiction over Title VII claims through 28 U.S.C. §1331’s grant of general federal-question jurisdiction and through Title VII’s own jurisdictional provision, set forth in 42 U.S.C §2000e-5(f)3.  Significantly, however, the charge-filing requirement is contained in a separate provision of Title VII dealing with procedural matters.

Justice Ginsburg concluded by saying that the Court’s decision does not encourage plaintiffs to skirt the statute’s instructions and risk that defendants would fail to timely object.

Looking Ahead

The Davis decision does not limit an employer’s ability to raise an employee plaintiff’s failure to exhaust the EEOC’s charge-filing administrative procedures.  Rather, Davis highlights the importance for defendant employers of exploring and asserting potential defenses early in the litigation process.  Here, the County had ample notice of Davis’s failure to formerly amend the Charge to include religion as an additional basis of alleged discrimination.  As a result, the County — like any other employer — lost its ability to do so later.

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For More Information:

Howard S. Lavin

Elizabeth E. DiMichele

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