Lois Davis v. Fort Bend County
893 F.3d 300
5th Cir.2018Background
- Lois Davis, an IT supervisor for Fort Bend County, alleged sexual harassment by the IT director; Fort Bend’s investigation led to the director’s resignation. Davis claimed subsequent retaliation and alleged religious discrimination after she missed work to attend a Sunday religious service and was later terminated.
- Davis filed an EEOC/TWC charge for harassment and retaliation; while the state charge was pending she amended an intake questionnaire to add "religion" but did not amend the formal charge.
- After receiving a right-to-sue letter, Davis sued under Title VII (retaliation and religious discrimination) and for intentional infliction of emotional distress; the district court granted summary judgment to Fort Bend on all claims.
- On first appeal, this Court affirmed summary judgment on retaliation but reversed and remanded the religious-discrimination claim, finding factual disputes about bona fide religious belief and undue hardship. The Supreme Court denied certiorari.
- On remand Fort Bend first raised, and the district court accepted, a new argument that Davis failed to exhaust administrative remedies for her religious-discrimination claim and dismissed that claim with prejudice as jurisdictionally barred.
- Davis appealed, arguing (1) exhaustion is non-jurisdictional (and Fort Bend waived it), (2) she had exhausted, or (3) further exhaustion would be futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title VII’s administrative-exhaustion requirement is jurisdictional | Davis: Not jurisdictional; it is a prudential prerequisite subject to waiver/forfeiture | Fort Bend: Failure to exhaust deprives the court of subject-matter jurisdiction | Court: Not jurisdictional; exhaustion is a nonjurisdictional, prudential prerequisite (Womble controls under rule of orderliness and Arbaugh guidance) |
| Whether Fort Bend may raise exhaustion after prior proceedings and appeals | Davis: Fort Bend waived/forfeited the defense by not timely raising it below or on initial appeal | Fort Bend: Entitled to assert failure-to-exhaust at any point to preserve jurisdiction | Court: Fort Bend forfeited the exhaustion defense by waiting until remand after full appellate cycle and certiorari denial |
| Whether court must resolve exhaustion or plaintiff’s alternative exhaustion/futility arguments | Davis: Alternatively, she did exhaust or further exhaustion would be futile | Fort Bend: (implicit) insist on dismissal for non-exhaustion | Court: No need to resolve alternative exhaustion or futility claims because defendant’s forfeiture and nonjurisdictional status render dismissal improper |
Key Cases Cited
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (establishes framework for distinguishing jurisdictional limits from nonjurisdictional statutory prerequisites)
- Womble v. Bhangu, 864 F.2d 1212 (5th Cir. 1989) (Title VII exhaustion is a condition precedent, not jurisdictional)
- Tolbert v. United States, 916 F.2d 245 (5th Cir. 1990) (earlier Fifth Circuit case treating exhaustion as jurisdictional; discussed and limited)
- Davenport v. Edward D. Jones & Co., L.P., 891 F.3d 162 (5th Cir. 2018) (applies rule of orderliness to reaffirm nonjurisdictional treatment of Title VII exhaustion)
- Davis v. Fort Bend County, 765 F.3d 480 (5th Cir. 2014) (prior appeal reversing district court on religious-discrimination summary-judgment issues)
- Flagg v. Stryker Corp., 819 F.3d 132 (5th Cir. 2016) (failure to exhaust treated as affirmative defense to be pleaded)
- Pinkard v. Pullman-Standard, 678 F.2d 1211 (5th Cir. 1982) (receipt of right-to-sue letter is condition precedent, not jurisdictional)