District Court Has Jurisdiction over Retaliation Claim Related to Prior Charge, Even Prior Charge that was Untimely
The Fourth Circuit recently ruled that the district court properly ruled that it had jurisdiction over a claim of retaliation in violation of Title VII asserted by an Old Dominion University professor, even though the retaliation claim was not contained within her initial EEOC charge and that charge was, in fact, untimely. Hentosh v. Old Dominion University, No. 13-2037 (4th Cir. September 24, 2014). The Fourth Circuit’s ruling was based on the fact that the retaliation was reasonably related to the initial charge and its own prior decision that a claim for retaliation can be asserted for the first time in federal court.
Patricia Hentosh was a professor at Old Dominion University from 2006 until 2013. Hentosh taught in ODU’s School of Medical Laboratory and Radiation Sciences, a department within the College of Health Sciences. Hentosh believed that ODU has a widespread policy of discriminating against white employees in favor of minorities. According to Hentosh, in keeping with this policy, ODU ignored her complaints about Anna Jeng, an Asian professor in another department of the College of Health Sciences.
In 2010, Hentosh filed an EEOC charge, asserting that she had been discriminated against on the basis of her race and retaliated against for filing a complaint against Jeng. The discriminatory acts taken by ODU which were identified by Hentosh occurred more than 300 days prior to the filing of the charge (making the charge untimely). In 2012, the EEOC dismissed Hentosh’s charge and issued her a right to sue letter. In the meantime, Hentosh became eligible for tenure in the fall off 2011 and her application for tenure was denied by ODU.
In April of 2012, Hentosh filed suit against ODU, claiming discrimination on the basis of her race and retaliation in violation of Title VII based upon her denial of tenure. ODU moved to dismiss the complaint. The district court ruled that it did not have subject matter jurisdiction over the alleged discriminatory conduct because it occurred more than 300 days before the EEOC charge was filed and thus Hentosh had failed to exhaust her administrative remedies. The court also determined that it did not have subject matter jurisdiction over the denial of tenure claim because the claim was not within the scope of the EEOC charge nor reasonably related. The court denied ODU’s motion to dismiss the retaliation claim, however, finding that Hentosh could go forward on this charge without filing a new EEOC charge. About three weeks later, Hentosh filed a second charge of discrimination, asserting that she was discriminated against on the basis of her race and retaliated against when ODU denied her tenure and issued her a terminal teaching contract. After getting her right to sue, Hentosh filed another action against ODU, claiming discrimination and retaliation.
Later, the district court granted ODU’s motion for summary judgment in the initial action as to the retaliation claim on the grounds that Hentosh had failed to establish that ODU’s desire to retaliate was the but-for cause of the alleged discriminatory conduct. Hentosh appealed, arguing that the district court should have dismissed her retaliation claim based on denial of tenure along with the other claims.
The Fourth Circuit disagreed and affirmed the decision of the district court. As explained by the Fourth Circuit, a plaintiff must exhaust her administrative remedies by filing a charge with the EEOC and the allegations in that charge “generally limit the scope of any subsequent judicial complaint.” Hentosh, p. 6 (citing King v. Seaboard Coast Line R.R., 538 F.2d 581, 583 (4th Cir. 1976)). However, in Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992), the Fourth Circuit held that a plaintiff may raise a claim that she was retaliated against for filing an EEOC charge for the first time in federal court. As the Fourth Circuit explained, “[t]his exception is ‘the inevitable corollary of our generally accepted principle’ that we have jurisdiction over those claims ‘reasonably related to’ the allegations in the administrative charge.” Id. at 7 (quoting Nealon at 590). Additionally, this addresses the concern that a plaintiff would be “gun shy” to file another charge alleging retaliation if she had already been retaliated against after the first charge. Id.
Moreover, although an EEOC charge must be timely filed, the court does not necessarily lose subject matter jurisdiction if it is not, but rather, “retains discretion . . . to equitably toll the statutory deadline.” Id. at 7-8. Here, because the plaintiff had exhausted her administrative remedies and based on the Fourth Circuit’s prior ruling in Nealon, the district court did indeed have jurisdiction over the Title VII retaliation claim which was related to the initial charge.