Smith v. Cheyenne Retirement Investors
904 F.3d 1159
| 10th Cir. | 2018Background
- In 2012 Smith filed an EEOC charge alleging age, race discrimination and retaliation; EEOC dismissed and issued a right-to-sue letter in Nov. 2013 (90-day window expired Feb. 10, 2014).
- In early 2014 Pointe Frontier hired Hepner, who supervised Smith; Smith alleges he harassed her and she complained to management and to an employee hotline in April 2014.
- Smith was terminated on April 21, 2014; she filed a second (2014) EEOC charge alleging discrimination, hostile work environment, and retaliation for complaining about Hepner.
- The 2014 EEOC charge referenced prior 2012 adverse events but did not explicitly allege retaliation for filing the 2012 EEOC charge; it focused on complaints made in March/April 2014 about Hepner.
- EEOC issued a right-to-sue on the 2014 charge; Smith sued in federal court alleging her 2014 termination was retaliation for filing the 2012 EEOC charge.
- The district court dismissed for lack of subject-matter jurisdiction (alternative grant of summary judgment); the Tenth Circuit affirmed dismissal for failure to exhaust administrative remedies but ordered dismissal without prejudice and remanded to vacate the prior judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Smith exhausted administrative remedies for claim that termination was retaliation for filing the 2012 EEOC charge | Smith contends her 2014 EEOC charge (and employer response mentioning 2012) put defendant and EEOC on notice of retaliation for the 2012 filing | Pointe Frontier argues the 2014 charge does not allege retaliation for filing the 2012 charge and thus Smith failed to present that claim to the EEOC | Held: No exhaustion. The 2014 charge alleges retaliation for complaints about Hepner in 2014, not retaliation for filing the 2012 EEOC charge; dismissal affirmed (without prejudice) |
| Whether defendant’s response to the EEOC charge can expand the charge’s scope | Smith argues defendant’s response (which referenced the 2012 charge) could reasonably lead the EEOC to investigate the 2012 claim | Pointe Frontier contends investigation scope is defined by the charge itself, not employer responses | Held: Employer responses cannot expand the charge’s scope; investigation scope is determined by the charge’s allegations |
| Whether failure-to-exhaust is jurisdictional or an affirmative defense in Tenth Circuit practice | Smith argued dismissal for lack of jurisdiction was improper under recent panel authority | Pointe Frontier treated exhaustion as a jurisdictional prerequisite | Held: Court notes Tenth Circuit has moved away from treating exhaustion as jurisdictional; here defendant timely raised exhaustion as an affirmative defense so dismissal on that ground is proper |
| Remedy when dismissal is for failure to exhaust but district court also granted summary judgment | Smith challenges dismissal with prejudice | Pointe Frontier relied on alternate summary judgment ruling | Held: Dismissal for failure to exhaust should be without prejudice; appellate court vacated the judgment and remanded with instructions to dismiss without prejudice |
Key Cases Cited
- Jones v. Runyon, 91 F.3d 1398 (10th Cir. 1996) (exhaustion of administrative remedies prerequisite to Title VII suit)
- Ingels v. Thiokol Corp., 42 F.3d 616 (10th Cir. 1994) (purposes of exhaustion: notice to employer and opportunity to conciliate)
- MacKenzie v. City & County of Denver, 414 F.3d 1266 (10th Cir. 2005) (scope of court claim limited by reasonably expected EEOC investigation)
- Martin v. Nannie & Newborns, Inc., 3 F.3d 1410 (10th Cir. 1993) (claim in court limited to conduct that would fall within scope of EEOC investigation)
- Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009) (dismissal for failure to exhaust ordinarily without prejudice)
- Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174 (10th Cir. 2007) (affirmance on alternative grounds)
- Reese Expl., Inc. v. Williams Natural Gas Co., 983 F.2d 1514 (10th Cir. 1993) (interpretation of written documents is a question of law reviewed de novo)