On October 3, 2022, the United States Court of Appeals for the Eleventh Circuit held in Ellison v. Postmaster General, United States Postal Service that a plaintiff bringing a claim for retaliation failed to exhaust his administrative remedies under Title VII of the Civil Rights Act of 1964 by failing to amend his U.S. Equal Employment Opportunity Commission (EEOC) charge when the alleged retaliatory conduct occurred.
Background
Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of race, color, national origin, sex (including pregnancy, sexual orientation, and gender identity), and religion. Title VII also makes it unlawful to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. However, before an employee may file suit in court, Title VII requires an employee to initiate an administrative charge of discrimination with the EEOC and obtain a notice of right to sue. Then, once suit is filed, the plaintiff’s complaint is limited by the scope of the EEOC investigation that can reasonably be expected to grow out of the charge of discrimination.
Eric Ellison was a mail handler with the United States Postal Service (USPS) in Jacksonville, Florida. In February 2016, Ellison’s supervisor assigned him to a modified job position that reduced Ellison’s daily hours from eight to two, which in turn reduced his daily pay. In June 2016, Ellison filed a formal charge of discrimination with the EEOC alleging that the supervisor discriminated against him on account of his race and disability when she assigned him the modified job position. On July 1, 2016, Ellison amended his charge of discrimination, alleging that the supervisor retaliated against him on June 23, 2016, when she allegedly ordered him to “report to the Robot Operation” or “leave the building.” Later on, in July 2016, the supervisor allegedly removed Ellison from working at the USPS facility “without pay for approximately one year.” After the EEOC issued Ellison a right-to-sue letter in March 2019, he filed suit in district court alleging disability and race discrimination and retaliation under Title VII. With regard to the retaliation claim, Ellison alleged that his supervisor retaliated against him when she placed him out of work without pay in July 2016. USPS moved to dismiss the retaliation claim arguing that Ellison “failed to exhaust his administrative remedies because the retaliation that he alleged occurred in July 2016 was a separate action from the retaliation for which he filed a formal complaint of discrimination.” The district court agreed and dismissed Ellison’s retaliation claim. Ellison appealed the decision to the Eleventh Circuit.
The Eleventh Circuit’s Holding
The Eleventh Circuit affirmed the district court’s decision. In a per curiam decision, the court rejected Ellison’s argument that the retaliation claim “was like or related to, or grew out of” the acts that he described in the amended EEOC charge. Instead, the court emphasized that Ellison’s suspension began in July 2016 and ended after approximately one year. Thus, Ellison had nearly three years from the time of the retaliatory act until the EEOC issued its right-to-sue letter to amend his charge to include his new retaliation claim. The court further explained that the exception to the exhaustion requirement outlined in its prior precedent in Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. 1981) and Baker v. Buckeye Cellulose Corp., 865 F.2d 167 (11th Cir. 1988), generally referenced as the “Gupta/Baker exception,” was inapplicable. (The Eleventh Circuit noted that in Bonner v. City of Prichard, decided in 1981, it adopted as binding precedent the decisions of the Fifth Circuit that were decided prior to October 1, 1981.) The Gupta/Baker exception established that it is unnecessary for a plaintiff to exhaust administrative remedies prior to filing a judicial claim of retaliation if the uncharged retaliatory conduct alleged in the complaint occurred after the plaintiff filed suit in district court. Because the retaliatory conduct alleged by Ellison occurred some three years prior to his filing of suit against USPS, this exception was not applicable. Thus, the court held that the district court properly dismissed the retaliation claim for failure to exhaust administrative remedies.
Key Takeaways
The Ellison v. USPS holding highlights Title VII’s requirement for a plaintiff to allege all separate and distinct acts of retaliatory conduct that the plaintiff is on notice about at the time of filing an EEOC charge of discrimination. When defending employment discrimination and retaliation lawsuits, employers may want to closely scrutinize the plaintiff’s allegations to ensure that the requirement of exhaustion of administrative remedies has been satisfied.