The U.S. 5th Circuit Court of Appeals recently upheld the dismissal of a former employee’s sexual orientation discrimination and retaliation claims because he hadn’t exhausted administrative remedies with the Equal Employment Opportunity Commission (EEOC) before filing suit. Although he mentioned sex discrimination and retaliation in the EEOC intake questionnaire, he hadn’t checked the boxes on the agency’s charge form, and his former employer hadn’t been put on notice of the claims. You should always consider whether an employee has properly and fully exhausted all claims, but keep in mind that charge-form boxes alone don’t always control an employee’s fate.
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James Ernst, a self-described gay white man, began working for Texas Methodist Health System as a senior transportation analyst in 2013.
In 2016, the system received a complaint from a job applicant claiming Ernst had winked at him, suggestively grabbed and rubbed his own penis, and nodded to indicate the applicant should follow him around the corner to the men’s restroom. During an investigation, officials interviewed Ernst and several colleagues and reviewed surveillance footage, which corroborated at least parts of the applicant’s complaint.
During the initial interview, Ernst denied any sexual harassment but did admit he nodded to the applicant and may have “adjusted himself,” since he sometimes does so “subconsciously.” During a second interview, he provided some inconsistent and questionable responses, so the hospital terminated him.
EEOC Charge
After appealing the termination internally with the hospital, Ernst filed a discrimination charge form with the EEOC in June 2016. Although the form contains several boxes he could have “checked” relating to various types of claimed discrimination or retaliation, he marked only the box for race discrimination. In the “particulars” section of the form, he briefly described his firing and again mentioned alleged discrimination based only on race (white).
Ernst also had given the EEOC an intake questionnaire that contained more allegations than his charge form. In the questionnaire, in addition to alleging race discrimination (because he said 90 percent of the employees in his department are African-American and that the hospital’s investigators were biased against him), he claimed sex discrimination because of his sexual orientation, age discrimination, and retaliation.
The EEOC’s investigation concluded the hospital hadn’t discriminated against Ernst based on his race but issued a right-to-sue letter to him in December 2017.
Lawsuit
Ernst sued the hospital for alleged sex discrimination, retaliation, and race discrimination in violation of Title VII of the Civil Rights Act of 1964. The lower court dismissed the sex discrimination and retaliation claims, finding he had failed to exhaust his administrative remedies with the EEOC so he couldn’t continue pursuing them.
The lower court also granted summary judgment (dismissal without a trial) in the hospital’s favor on his race discrimination claim because he failed to show (1) he was treated less favorably than any similarly situated nonwhite employee or (2) the hospital’s reason for terminating him was a pretext (or excuse) for race bias.
Ernst appealed the decision to the 5th Circuit, which didn’t find any errors in the lower court’s ruling.
Intake Questionnaire Didn’t Exhaust Claims
There was no dispute in the case that Ernst’s discrimination charge form didn’t check the box or otherwise mention alleged sex bias or retaliation. Because his intake questionnaire submitted to the EEOC alleged the claims, however, he argued he had therefore exhausted his administrative remedies and should have been able to pursue them against the hospital in court.
To meet the exhaustion requirement under Title VII, a claim must arise out of the employee’s EEOC charge. That way, the employer has general notice of the allegations made against it, and the agency can investigate.
The 5th Circuit has found documents other than the EEOC charge form itself can serve as a “charge” for exhaustion purposes in some circumstances. Specifically, the document must ask the agency to take action to vindicate the employee’s rights and satisfy its other charge-filing requirements:
- The document must be in writing, signed, and verified (meaning it was signed and sworn to before a notary or otherwise attested to under penalty of perjury);
- It must include the name and contact information for both the employee and the accused employer, a factual statement of the individual’s allegations, and the size of the company; and
- It must indicate whether the allegations have already been brought to another agency for investigation.
In Ernst’s case, the 5th Circuit agreed with the lower court that his intake questionnaire didn’t meet the EEOC’s charge-filing requirements. First, his questionnaire wasn’t verified (sworn to) as required to be deemed a “charge.” Second, the hospital hadn’t received notice of the intake questionnaire during the agency’s investigation, so it wasn’t “on notice” of his claims other than for race discrimination.
For the above reasons, the 5th Circuit confirmed the dismissal of the sex discrimination and retaliation claims because of Ernst’s failure to exhaust the administrative remedies.
Race Discrimination Claim Unsuccessful
Ernst was allowed to proceed with the race discrimination claim because he had checked the box on the EEOC charge form. But both the lower court and the 5th Circuit found he failed to show he was replaced by a nonwhite employee or that a similarly situated nonwhite employee was treated more favorably than he was, making dismissal on summary judgment appropriate.
Ernst claimed a nonwhite employee in his department was offered his position and was allegedly treated better than he was. He had no evidence, however, to show the nonwhite employee actually took over his position or was similarly situated because he held a different job and didn’t report to the same supervisor.
In addition, the other employee was later terminated for alleged misconduct, undermining Ernst’s claims of preferential treatment because of race. As a result, his race discrimination claim was properly dismissed. Ernst v. Methodist Hospital System, No. 20-20321, 5th Cir., June 8, 2021.
Check For Exhaustion, and Attack When Appropriate
Exhaustion of administrative remedies is a prerequisite to filing a lawsuit with Title VII claims. At the early stages of a case, you should consider whether (1) the employee filed an EEOC charge, as required, and (2) whether it addresses all claims at issue. If not, you may have an opportunity to seek early dismissal of the unexhausted claims.
Keep in mind, however, documents other than an EEOC charge form can sometimes constitute a “charge” under the law. For example, an intake questionnaire can be considered a charge if it contains certain required information and if the employee signs and attests to the truth of its contents before a notary or otherwise swears to it under penalty of perjury. Ernst’s intake questionnaire failed to meet the requirements, so his claims couldn’t proceed. But not all employers will be so lucky.
Be sure to consult your employment counsel if and when questions arise relating to whether an employee has properly and fully exhausted administrative remedies with the EEOC. The step could mean the difference between early dismissal or the costly mistake of litigating unexhausted claims.
Minia Gussman is an associate in Jones Walker’s labor and employment practice group. She can be reached in New Orleans at mgussman@joneswalker.com.
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