LOIS M. DAVIS, Plaintiff - Appellant, v. FORT BEND COUNTY, Defendant - Appellee.
No. 16-20640
United States Court of Appeals for the Fifth Circuit
June 20, 2018
Appeal from the United States District Court for the Southern District of Texas
JENNIFER WALKER ELROD, Circuit Judge:
Once again Lois Davis appeals the district court‘s dismissal of her lawsuit against her former employer, Fort Bend County. We previously reversed and remanded, and we do so again today.
I.
Lois Davis was an information technology supervisor for Fort Bend County. Davis filed a complaint with Fort Bend‘s Human Resources Department alleging that the information technology director had sexually harassed and assaulted her. Fort Bend‘s own investigation led to the director‘s
Alleging sexual harassment and retaliation by Fort Bend, she submitted an intake questionnaire and filed a charge with the Texas Workforce Commission. While her case was still pending before the Texas Workforce Commission, she amended her intake questionnaire to include religious discrimination but did not amend her charge. Specifically, she added the word “religion” in the box labeled “Employment Harms or Actions.”
After the Texas Workforce Commission issued a right-to-sue letter, Davis filed her lawsuit in district court. She alleged both retaliation and religious discrimination under Title VII and intentional infliction of emotional distress. The district court granted summary judgment on all claims, and Davis timely appealed.
In her first appeal, Davis argued that the district court erred when it granted summary judgment for Fort Bend, and we affirmed summary judgment on her retaliation claim but reversed on her religious discrimination claim.1 See Davis v. Fort Bend County, 765 F.3d 480, 491 (5th Cir. 2014), cert denied, 135 S. Ct. 2804 (2015). On the religious discrimination claim, we held that genuine disputes of material fact existed as to whether: (1) Davis held a bona fide religious belief that she needed to attend the Sunday service; and (2)
On remand, Fort Bend argued to the district court—for the first time—that Davis had failed to exhaust her administrative remedies on her religious discrimination claim. Agreeing with Fort Bend, the district court held that administrative exhaustion is a jurisdictional prerequisite in Title VII cases. Thus, the district court reasoned, Davis‘s contention that Fort Bend had waived this argument was “irrelevant.” It determined that Davis had failed to exhaust her administrative remedies. Accordingly, the district court dismissed with prejudice Davis‘s religious discrimination claim.
On appeal, Davis argues that failure to exhaust administrative remedies under Title VII is not a jurisdictional bar to suit. Rather, administrative exhaustion is only a prudential prerequisite for suit, and Fort Bend has waived any exhaustion argument. In the alternative, Davis raises two other arguments: (1) that she did exhaust her administrative remedies; and (2) that requiring her to exhaust further would have been futile.
II.
A.
We review questions of subject matter jurisdiction de novo. See Nat‘l Football League Players Ass‘n v. Nat‘l Football League, 874 F.3d 222, 225 (5th Cir. 2017). We also review de novo a district court‘s determination that a plaintiff did not exhaust her administrative remedies. Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017).
III.
Title VII of the Civil Rights Act provides for private causes of action arising out of employment discrimination and gives federal courts subject matter jurisdiction to resolve such disputes. See
“[A] primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in attempt to achieve non-judicial resolution of employment discrimination claims.” Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir. 2006). By exhausting their administrative remedies by filing formal charges with the EEOC, Title VII plaintiffs initiate this process. In our circuit, there is disagreement on whether Title VII‘s administrative exhaustion requirement is a jurisdictional requirement that implicates subject matter jurisdiction or merely a prerequisite to suit (and thus subject to waiver or estoppel). See id. at 788 n.7.
“Jurisdiction . . . is a word of many, too many, meanings.” Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 90 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)). Cautioning against the “profligate” use of the term, the Supreme Court has admitted that it and other courts have been “less than meticulous” when using this word in the past.
We have a line of cases that characterize Title VII‘s administrative exhaustion requirement as jurisdictional. See, e.g., Randel v. U.S. Dep‘t of Navy, 157 F.3d 392, 395 (5th Cir. 1998) (“If the claimant fails to comply with either of these [Title VII] requirements then the court is deprived of jurisdiction over the case.“); Nat‘l Ass‘n of Gov‘t Emps. v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994) (“It is well-settled that courts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies.“); Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990) (“Failure to comply with [Title VII‘s administrative exhaustion requirement] wholly deprives the district court of jurisdiction over the case.“).
On the other hand, we have also treated Title VII‘s exhaustion requirement as merely a prerequisite to suit. See, e.g., Young v. City of Hous., 906 F.2d 177, 180 (5th Cir. 1990) (“A failure of the EEOC prerequisite does not rob a court of jurisdiction.“); Womble v. Bhangu, 864 F.2d 1212, 1213 (5th Cir. 1989) (“In holding that the failure of [the plaintiff] to exhaust administrative remedies deprived it of subject matter jurisdiction, the court erred.“); Fellows v. Universal Rests., Inc., 701 F.2d 447, 449 (5th Cir. 1983) (acknowledging that Title VII‘s requirements are “not necessarily ‘jurisdictional‘“); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970) (noting that “the filing of a charge of discrimination with the EEOC is a condition precedent to the bringing of a civil action under Title VII“).
In fact, there is a third line of cases. These more recent cases acknowledge an intra-circuit split but do “not take sides in this dispute.” Pacheco, 448 F.3d at 788 n.7; see, e.g., Ruiz, 851 F.3d at 472 (“Because neither
This has caused confusion for district courts. See, e.g., Muoneke v. Prairie View A&M Univ., No. H-15-2212, 2016 WL 3017157, at *6 n.2 (S.D. Tex. May 26, 2016) (noting that “[w]hat appears to be the most recent Fifth Circuit case addressing this issue makes clear that the failure to administratively exhaust is viewed as a jurisdictional bar to suit” (citing Simmons-Myers v. Caesars Entm‘t Corp., 515 F. App‘x 269, 272 (5th Cir. 2013))); Ruiz v. Brennan, No. 3:11-cv-02072-BH, slip op. at 10 (N.D. Tex. June 8, 2016) (magistrate judge order) (noting that “[d]ifferent Fifth Circuit panels have reached differing conclusions” on the issue of whether Title VII exhaustion is jurisdictional and conducting a rule-of-orderliness analysis).
Recently, we held that Womble and Young control under our rule of orderliness, so “the exhaustion requirement under Title VII is not jurisdictional.” Davenport v. Edward D. Jones & Co., L.P., 891 F.3d 162, 169 (5th Cir. 2018). We explained that Arbaugh “strongly suggests” that Womble “reached the correct result” because of the bright-line rule that Arbaugh announces. Id. at 169 n.19.3
Some Fifth Circuit cases cite to Tolbert v. United States, 916 F.2d 245 (5th Cir. 1990), for the proposition that Title VII‘s administrative exhaustion requirement is a jurisdictional requirement. Tolbert declared that “it is the well-settled law of this circuit that [Title VII‘s administrative exhaustion requirement] is a prerequisite to federal subject matter jurisdiction.” 916 F.2d at 247. Even though our cases may rely on Tolbert for the proposition that
Moreover, the Supreme Court‘s decision in Arbaugh is instructive. Arbaugh held that Title VII‘s statutory limitation of covered employers—to those with 15 or more employees—is not a jurisdictional limitation. 546 U.S. at 516. The Court articulated a “readily administrable bright line” for courts and litigants to determine whether a statutory requirement is jurisdictional. Id. The Court explained:
If the Legislature clearly states that a threshold limitation on a statute‘s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue . . . . But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.
Id. at 515-16 (internal citation omitted) (footnote omitted).
Here, Congress did not suggest—much less clearly state—that Title VII‘s administrative exhaustion requirement is jurisdictional, and so we must treat this requirement as nonjurisdictional in character. See
Certain statutes confer subject-matter jurisdiction only for actions brought by specific plaintiffs, e.g.,
28 U.S.C. § 1345 (United States and its agencies and officers);49 U.S.C. § 24301(l)(2) (Amtrak), or for claims against particular defendants, e.g.,7 U.S.C. § 2707(e)(3) (persons subject to orders of the Egg Board);28 U.S.C. § 1348 (national banking associations), or for actions in which the amount in controversy exceeds, e.g.,16 U.S.C. § 814 , or falls below, e.g.,22 U.S.C. § 6713(a)(1)(B) ;28 U.S.C. § 1346(a)(2) , a stated amount.
Tolbert is out-of-step with the Supreme Court‘s approach in Arbaugh. There, we said that Title VII‘s exhaustion requirement was jurisdictional and endorsed the Third Circuit‘s reasoning that “[a]bsent an indication of contrary congressional intent, we will not countenance circumventing the administrative process” by allowing a plaintiff to file a lawsuit before exhausting her administrative remedies. Tolbert, 916 F.2d at 249 n.1 (quoting Purtill v. Harris, 658 F.2d 134, 138 (3d Cir. 1981)). However, Arbaugh directs us to apply precisely the opposite presumption: “A rule is jurisdictional ‘if the Legislature clearly states that a threshold limitation on a statute‘s scope shall count as jurisdictional.‘” Gonzalez v. Thaler, 565 U.S. 134, 141-42 (2012) (quoting Arbaugh, 546 U.S. at 515) (emphasis added); see also United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015) (“In recent years, we have repeatedly held that procedural rules . . . cabin a court‘s power only if Congress has ‘clearly stated’ as much.” (quoting Sebelius v. Auburn Reg‘l Med. Ctr., 568 U.S. 145, 153 (2013))). Accordingly, today, we reaffirm our earlier holding in Womble that Title VII‘s administrative exhaustion requirement is not a jurisdictional bar to suit.
This holding that Title VII‘s exhaustion requirement is not jurisdictional is consistent with the First, Second, Sixth, Seventh, Eighth, Ninth, and D.C. Circuits. See Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 385 (2d Cir. 2015) (acknowledging imprecise language in its own case law and clarifying that “the failure of a Title VII plaintiff to exhaust administrative remedies raises no jurisdictional bar to the claim proceeding in federal court“); Adamov v. U.S. Bank Nat‘l Ass‘n, 726 F.3d 851, 855-57 (6th Cir. 2013) (concluding that “the
B.
We now turn to the issue of whether Fort Bend has forfeited its opportunity to raise Davis‘s alleged failure to exhaust. Just because Title VII‘s administrative exhaustion requirement is not jurisdictional does not mean that this requirement should be ignored. “The purpose of this exhaustion
Failure to exhaust is an affirmative defense that should be pleaded. See Flagg v. Stryker Corp., 819 F.3d 132, 142 (5th Cir. 2016) (en banc) (Haynes, J., concurring) (“Absent a jurisdictional nature to ‘failure to exhaust,’ we treat such failures to exhaust as affirmative defenses, not jurisdictional prerequisites.“); Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (noting that in PLRA cases, “[a]ny failure to exhaust must be asserted by the defendant“).
Fort Bend did not raise the issue of administrative exhaustion in the district court originally. Davis‘s complaint alleged that “all conditions precedent” to suit had been met, but Fort Bend‘s answer only stated that Fort Bend did not have “sufficient knowledge or information, after reasonable inquiry, to admit or deny” the claim of jurisdiction. See F.D.I.C. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) (“As we have held, if a litigant desires to preserve an argument for appeal, the litigant must press and not merely intimate the argument during the proceedings before the district court.“). In its original motion for summary judgment, Fort Bend did not argue that Davis failed to exhaust her administrative remedies. Then, when Davis appealed for the first time, Fort Bend did not argue to us, in its briefing or during oral argument, that Davis failed to exhaust her administrative remedies. Nor did it raise the issue in its petition for rehearing en banc or in its petition for certiorari to the Supreme Court.
Simply put, Fort Bend waited five years and an entire round of appeals all the way to the Supreme Court before it argued that Davis failed to exhaust.
IV.
Title VII‘s administrative exhaustion requirement is not a jurisdictional bar to suit but rather a prudential prerequisite under our binding precedent, and Fort Bend forfeited its exhaustion argument by not raising it in a timely manner before the district court. For these reasons, we REVERSE and REMAND for further proceedings consistent with this opinion.
* Concurring in the judgment only.