Dallas Court of Appeals Reverses Retaliation Judgment Due to Deficient Charge of Discrimination
Yet another plaintiff lost his case because of the failure to check the correct box on the charge of discrimination form. In this case, the plaintiff had actually won the case to a jury, only to see the judgment reversed due to a deficient charge. The case is ATI Enterprises, Inc. v. Din, No. 05-11-01522-CV (Tex. App. -- Dallas 2013, no pet.) (now reported at 413 S.W.3d 247).
Din was an instructor for ATI, which operates schools that train medical personnel. He was Pakistan, and felt that he was subjected to national origin discrimination when he was passed over for a promotion. He went to the EEOC and filled out a charge questionnaire, but not a charge. The following month, he was fired. On the following day, he when back to the EEOC and filled out another charge questionnaire and a charge of discrimination. He alleged national origin discrimination with respect to the denial of the promotion and his termination. However, he did not check the box for retaliation, nor did he mention retaliation in his narrative.
The jury found that (1) Din was denied a promotion because of his national origin; (2) Din was fired because he had gone to the EEOC; and (3) Din was entitled to damages that totaled $439,509.92. ATI appealed.
The Dallas Court of Appeals reversed the judgment with respect to retaliation, noting that Din failed to raise retaliation in his charge of discrimination. The court noted that other courts have found that retaliation need not be raised in a separate charge, but it distinguished those cases on the ground that the alleged retaliation took place before the filing of the charge of discrimination, not afterwards:
Some appellate courts have held that a Chapter 21 claimant is not required to exhaust administrative remedies as to a retaliation claim if the retaliation occurs after the claimant has filed an EEOC charge alleging some other theory of illegal conduct. The Elgaghil court cited the Fifth Circuit in support, reasoning that it would be impractical and redundant to require a separate administrative charge alleging retaliation for a prior charge. But courts have declined to apply this rule when the claimant files his or her administrative charge after the alleged retaliation has already occurred. (Citations omitted).
The court noted that Din testified that he discussed retaliation with the EEOC investigator and that he asked the EEOC to include retaliation in the charge. The court found that this was insufficient:
We conclude that Din's evidence that he orally told an EEOC representative that ATI had retaliated against him is no evidence of exhaustion of administrative remedies. The EEOC representative who prepared the Charge of Discrimination noted only national-origin discrimination on the Charge, leaving the blank for retaliation unchecked. The narrative "Discrimination Statement" does not mention retaliation. Din signed the Charge under penalty of perjury. Accordingly, Din knew or was on notice that the EEOC understood his claim to be one for national-origin discrimination only, and he should have objected to or corrected the Charge before signing it. Under the Charge of Discrimination, the EEOC reasonably would have investigated only the allegation of national-origin discrimination, and nothing in the record shows that the EEOC actually investigated any other theory, such as retaliation.
The court therefore found that Din had failed to exhaust his administrative remedied, and it reversed the judgment against ATI. The court did, however, remand for further proceedings with respect to the failure to promote claim.
Interestingly, the court noted that "Din also filed a copy of a 2010 email he sent to [the EEOC investigator] asking her to amend his Charge to include the missing allegation of retaliation." The court found this to be insufficient, but that is a questionable conclusion. The conventional rule is that an EEOC charge includes all claims that could reasonably be expected to grow out of the investigation. If Din put the EEOC investigator on notice of the retaliation claim, then it is not so clear that that charge was deficient. However, Din could have avoided the problem by simply filing an amended charge of discrimination on his own. The EEOC's regulations provide:
A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received.
29 C.F.R. § 1601.12(b).
This case illustrates, once again, that charges of discrimination can be snares for the unwary. A plaintiff cannot be too careful in filing a charge of discrimination, and the attorney representing a plaintiff should carefully review the charge to insure that it properly presents the claims to the EEOC or TWC.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes