Austin Court of Appeals: The Date Listed on a Charge of Discrimination Limits the Scope of the Claim
The Austin Court of Appeals considered claims of race discrimination and sex discrimination by a probationary Austin firefighter in Booker v. City of Austin (March 13, 2013). The specific discussion of the merits of the case is mundane. If the facts recited by the court are accurate, then the plaintiff was doomed to lose.
The potentially significant ruling in Booker relates the plaintiff's charge of discrimination. The standard form for a charge of discrimination (EEOC Form 5) contains a space for the claimant to enter "Date Discrimination Took Place," with spaces for "earliest" and "latest." This is usually filled out by an EEOC employee or, as in the case of Booker, a TWC employee. Claimants and their attorneys often pay little attention to that particular notation and instead focus on the description of the alleged discriminatory conduct. Ms. Booker listed the date of her termination (January 7, 2005) in both spaces.
The Austin Court of Appeals held that those notations limited Ms. Booker's claim to her termination, which is the only event that occurred on January 7, 2005. The court thus held that all prior conduct -- including alleged harassment -- was jurisdictionally barred because of the dates listed on the charge of discrimination:
The City further asserts that Booker similarly failed to exhaust her administrative remedies as to any alleged adverse employment action other than those occurring on January 7, 2005—i.e., Booker’s termination—the date Booker identified in both her initial and amended charge as both the beginning and end date of the discrimination of which she was complaining. We agree. If Booker intended to complain of other actions or series of actions prior to that time, “then she was statutorily required to specify the date (and meet the separate 180-day filing deadline) of each discrete event.” She failed to do so in either her initial or amended charge. Consequently, Booker’s claims predicated on alleged actions prior to her January 7, 2005 termination are jurisdictionally barred.
This is a questionable holding. It has long been settled that charges of discrimination are to be broadly construed. In fact, the standard for interpreting the scope of a charge of discrimination is whether the charge of discrimination, taken as a whole, would reasonably lead the EEOC or TWC to investigate a particular event. The Austin Court of Appeals appears to have adopted a technical standard of review that gives the dates listed in one particular box controlling -- and in fact jurisdictional -- significance.
Perhaps Booker can be explained away on the ground that Ms. Booker's other statements in the charge of discrimination did not clearly identify any actions that took place before January 7, 2005. However, the Austin Court of Appeals' statement that Ms. Booker was required to specify the date of "each discrete event" runs contrary to the general rules that have been applied for many years in construing charges of discrimination.
For employees, the lesson from Booker is that the date box may be much more significant than previously thought. A wise employee (or the employee's counsel) should insure that the date box lists as wide a date range as can be supported by the facts.
For employers, the lesson from Booker is that it may be possible to signficantly limit a plaintiff's case based on a technical error by a claimant or by an employee of the EEOC or TWC.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes