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No. 14-1028
IN THE
Supreme Court of the United States
MICHAEL DUBLE,
Petitioner,
v.
FEDEX GROUND PACKAGE SYSTEM, INC.,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Eleventh Circuit
BRIEF FOR THE RESPONDENT IN OPPOSITION
April 28, 2015
BARAK BABCOCK
Counsel of Record
FEDEX GROUND PACKAGE
SYSTEM, INC.
1000 FedEx Drive
Moon Township, PA 15108
(412) 859-5763
Counsel for Respondent
i
QUESTION PRESENTED
Before a person may sue under various federal anti-
discrimination statutes, he or she must first exhaust
her claim with the federal Equal Employment Oppor-
tunity Commission (EEOC) or a counterpart state or
local agency. See 42 U.S.C. § 2000e-5. Each “unlaw-
ful employment practice” must be exhausted.
In this case, petitioner filed a charge alleging that
he had been transferred to a new position and that
the transfer was an unlawful act of either discrimina-
tion or retaliation. When the agency asked him
whether he wanted to litigate the circumstances of
his subsequent termination as well, he declined and
said that he “did not wish to focus on his termina-
tion.” He subsequently sued over both the transfer
and the termination.
The question presented is:
When an employer allegedly retaliates against a
charging party for filing a discrimination charge
while the charge is pending with the agency, but the
charging party declines the opportunity to amend his
charge to add the new retaliation claim and informs
the agency that he does not wish to focus on the al-
leged new retaliation, may he subsequently sue for
retaliation and invoke a judicially-created exception
to the exhaustion requirement?
ii
RULE 29.6 STATEMENT
FedEx Ground Package System, Inc. is a wholly
owned subsidiary of FedEx Corporation, a publicly
traded company. No other publicly held company
owns 10% or more of either corporation’s stock.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................................ i
RULE 29.6 STATEMENT ............................................ii
TABLE OF AUTHORITIES ......................................... v
INTRODUCTION ......................................................... 1
STATEMENT ................................................................ 2
A. ADA Claims Must Be Exhausted................. 2
B. Petitioner’s Employment With FedEx
Ground .......................................................... 3
C. Petitioner Files A Charge Alleging That
His Transfer Was Unlawful ......................... 6
D. The Agency Dismisses The Charge
Relating To Petitioner’s Transfer ................ 8
E. The District Court Proceedings ................... 9
F. The Eleventh Circuit’s Non-
Precedential Affirmance ............................. 10
REASONS FOR DENYING THE WRIT .................... 11
I. This Case Does Not Warrant Supreme
Court Review. .................................................... 12
A. There Is No Circuit Split On The Issue
Decided By The Court Of Appeals. ............ 12
B. The Decision Below Presents, At Most,
An Intra-Circuit Conflict. ........................... 15
iv
C. The Broader Issue, Not Presented By
This Case, Of Whether The Exceptions
To The Exhaustion Requirement
Survive Morgan, Is Not The Subject Of
A “Widespread Circuit Divide,” As
Petitioner Suggests. ................................... 16
II. The Facts Of This Case Make It A Poor
Vehicle For Certiorari Review. ......................... 20
A. Petitioner’s Actions Before The Agency
Make This Case A Uniquely Unsuitable
Vehicle To Consider Whether Post-
Charge Retaliation Claims Are Exempt
From The Statutory Exhaustion
Requirement. .............................................. 21
B. Petitioner’s Second “Question
Presented” Is Not, In Fact, Presented
By This Case, Nor Does It Warrant
Review. ........................................................ 23
III. The Decision Below Is Correct. ........................ 28
A. Requiring Exhaustion For Retaliation
That Occurs During Pending EEOC
Proceedings Is Consistent With The
Statutory Framework. ................................ 28
B. Requiring Exhaustion Of Petitioner’s
Retaliation Claim Is Consistent With
The Policies Underlying Exhaustion
Provisions. ................................................... 30
CONCLUSION ........................................................... 33
APPENDIX A: Investigative Report and
Recommended Order .................................................. 1a
APPENDIX B: FedEx Ground Position
Statement .................................................................. 21a
v
TABLE OF AUTHORITIES
Page(s)
Cases
Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974) ................................................ 31
Baker v. Buckeye Cellulose Corp.,
856 F.2d 167 (11th Cir. 1988) .................. 10, 11, 13
Bennett v. Chatham Cnty. Sheriff Dep’t,
315 F. App’x 152 (11th Cir. 2008) ........................ 18
Bonner v. City of Prichard,
661 F.2d 1206 (11th Cir. 1981) ............................ 11
Brown v. Gen. Servs. Admin.,
425 U.S. 820 (1976) .............................................. 17
Bryant v. Rich,
530 F.3d 1368 (11th Cir. 2008) ............................ 27
Clockedile v. N.H. Dep’t of Corr.,
245 F.3d 1 (1st Cir. 2001) ..................................... 14
Crawford v. Babbitt,
186 F.3d 1322 (11th Cir. 1999) ............................ 23
Delisle v. Brimfield Twp. Police Dep’t,
94 F. App’x 247 (6th Cir. 2004) ............................ 18
Doe v. Oberweis Dairy,
456 F.3d 704 (7th Cir. 2006) ................................ 32
vi
Eberle v. Gonzales,
240 F. App’x 622 (5th Cir. 2007) .......................... 19
EEOC v. Joe’s Stone Crabs, Inc.,
296 F.3d 1265 (11th Cir. 2002) ............................ 18
Filer v. Donley,
690 F.3d 643 (5th Cir. 2012) ................................ 31
Fitzgerald v. Sec’y, U.S. Dep’t of Veterans
Affairs,
121 F.3d 203 (5th Cir. 1997) ................................ 22
Franceschi v. U.S. Dep’t of Veterans Affairs,
514 F.3d 81 (1st Cir. 2008) ................................... 19
Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009) .............................................. 28
Gupta v. E. Tex. State Univ.,
654 F.2d 411 (5th Cir. 1981) .......................... 11, 21
Hague v. Univ. of Tex. Health Sci. Ctr. at
San Antonio,
560 F. App’x 328 (5th Cir. 2014) .......................... 19
Jones v. Calvert Grp., Ltd.,
551 F.3d 297 (4th Cir. 2009) ................................ 16
Jones v. Calvert Grp., Ltd.,
551 F.3d 297 (4th Cir. 2009) ................................ 16
Ledbetter v. Goodyear Tire & Rubber Co., Inc.,
550 U.S. 618 (2007) ........................................ 18, 19
Martinez v. Potter,
347 F.3d 1208 (10th Cir. 2003) ................ 13, 17, 31
vii
Mohasco Corp. v. Silver,
447 U.S. 807 (1980) .............................................. 30
Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002) .......................................passim
Occidental Life Ins. Co. of Cal. v. EEOC,
432 U.S. 355 (1977) .................................... 3, 30, 31
Oubichon v. N. Am. Rockwell Corp.,
482 F.2d 569 (9th Cir. 1973) ................................ 21
Payne v. Salazar,
619 F.3d 56 (D.C. Cir. 2010) ................................ 17
Richter v. Advance Auto Parts, Inc.,
686 F.3d 847 (8th Cir. 2012) ................................ 19
Rivera v. Puerto Rico Aqueduct & Sewers Auth.,
331 F.3d 183 (1st Cir. 2003) ................................. 17
Sapp v. Potter,
413 F. App’x 750 (5th Cir. 2011) .......................... 17
Scott v. Eastman Chem. Co.,
275 F. App’x 466 (6th Cir. 2008) .......................... 19
Sherman v. Chrysler Corp.,
47 F. App’x 716 (6th Cir. 2002) ............................ 18
Simmons-Myers v. Caesars Entm’t Corp.,
515 F. App’x 269 (5th Cir. 2013) .......................... 17
Univ. of Tex. Sw. Med. Ctr. v. Nassar,
133 S.Ct. 2517 (2013) ........................................... 28
viii
Wedow v. City of Kansas City,
442 F.3d 661 (8th Cir. 2006) .......................... 19, 20
West v. Gibson,
527 U.S. 212 (1999) .............................................. 31
Statutes
Americans with Disabilities Act (ADA) ...................... 2
42 U.S.C. § 12112(a) ............................................... 2
42 U.S.C. § 12117(a) ............................................... 2
42 U.S.C. § 12203(a) ............................................... 2
Title VII of the Civil Rights Act of 1964
42 U.S.C. § 2000e-5 .......................................passim
42 U.S.C. § 2000e-5(b) ...................................... 3, 30
42 U.S.C. § 2000e-5(c) ............................................ 2
42 U.S.C. § 2000e-5(e) ...................................... 2, 28
42 U.S.C. § 2000e-5(f) ............................................. 3
42 U.S.C. § 2000e-12(d) ........................................ 17
Lilly Ledbetter Fair Pay Act of 2009, Pub.
L. No. 111–2, 123 Stat. 5 ...................................... 29
Other Authorities
29 C.F.R. § 1601.12(b) ................................................. 3
29 C.F.R. § 1601.13(a)(3)-(4) ........................................ 2
Enforcement & Litigation Statistics, U.S.
EEOC, http://www.eeoc.gov/eeoc/statistics/
enforcement/index.cfm (last visited Apr. 27,
2015)...................................................................... 32
Sup. Ct. R. 10 ............................................................. 12
BRIEF FOR THE RESPONDENT
IN OPPOSITION
________________________
INTRODUCTION
In this case, petitioner waited two years to assert
in federal court, for the first time, that FedEx
Ground had terminated him in retaliation for his fil-
ing an EEOC charge of discrimination. Petitioner
never exhausted the retaliatory termination claim
before the responsible agency. Although his discrim-
ination charge was pending at the time of his termi-
nation, and the responsible agency was investigating
that charge, petitioner affirmatively declined to
amend his charge based on the alleged retaliatory
termination or to file a new charge. Petitioner even
told the agency that he “did not wish to focus on the
termination but rather” on the entirely distinct em-
ployment practices that were the subject of his
charge.
Petitioner asserts that the circuits disagree about
whether this Court’s decision in National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 (2002), ab-
rogated the judicially-created exception to the ex-
haustion requirement for post-charge acts of retalia-
tion. But most of the circuits—including the Elev-
enth Circuit—have never reached this issue. And, on
the more general question of whether post-charge
acts can ever be exempt from the exhaustion re-
quirement, the Eleventh Circuit’s answer is and al-
ways has been yes—that sometimes plaintiffs can sue
for retaliation without exhausting. In other words,
the Eleventh Circuit is on petitioner’s side of the
purported split; on the other side is a circuit where
2
the rule is less favorable to him. The purported split
therefore had nothing to do with why petitioner lost
below, nor did this Court’s decision in Morgan, which
played virtually no role in the Eleventh Circuit’s de-
cision.
Rather, the Eleventh Circuit correctly held in an
unpublished decision that on these facts, petitioner
was not excused from exhausting. Because petition-
er had the opportunity to amend his charge to in-
clude the new allegation but chose not to do so, he
failed to satisfy the exhaustion requirement with re-
spect to that claim.
STATEMENT
A. ADA Claims Must Be Exhausted
The Americans with Disabilities Act (ADA) prohib-
its discrimination against a qualified individual on
the basis of his disability or perceived disability. 42
U.S.C. § 12112(a). Separately, the ADA prohibits
employers from retaliating against an employee be-
cause that employee filed a disability-discrimination
charge. Id. § 12203(a). Like other federal anti-
discrimination statutes, the ADA requires an em-
ployee to file a charge with the federal Equal Em-
ployment Opportunity Commission (EEOC) or a
state or local counterpart agency. See id. § 12117(a)
(incorporating 42 U.S.C. § 2000e-5); see also id.
§ 2000e-5(c), 29 C.F.R. § 1601.13(a)(3)-(4) (providing
for involvement of state and local agencies). The
charge must be properly filed, within a prescribed
time period, before the employee may file a discrimi-
nation claim in court. See 42 U.S.C. § 2000e-5(e),
(f)(1)(A). If the employee wishes to add to the charge,
he may amend it to “alleg[e] additional acts which
3
constitute unlawful employment practices,” and if
the new acts are “related to or growing out of the
subject matter of the original charge,” the amended
charge “will relate back to the date the [original]
charge was first received.” 29 C.F.R. § 1601.12(b).
Once a charge is filed, the agency gives the em-
ployer prompt notice of the charge, “including the
date, place and circumstances of the alleged unlawful
employment practice.” 42 U.S.C. § 2000e-5(b). The
agency then investigates the charge to determine
whether there is reasonable cause to believe the
charge is true. If the agency finds no reasonable
cause, the charging party may file suit; if the agency
finds reasonable cause, it attempts to conciliate the
violation and, if that is unsuccessful, the agency may
file suit itself. Id. § 2000e-5(b), (f).
Among other purposes, this exhaustion require-
ment allows the agency to fulfill its investigative role
and promote voluntary compliance with anti-
discrimination laws “by informal methods of confer-
ence, conciliation, and persuasion.” 42 U.S.C. §
2000e-5(b); see also Occidental Life Ins. Co. of Cal. v.
EEOC, 432 U.S. 355, 359-60, 368 (1977) (describing
the EEOC’s investigative and dispute-settling func-
tions). Failing to exhaust discrimination or retalia-
tion claims therefore not only circumvents the statu-
tory scheme, it undermines the agency’s role in in-
vestigating and resolving employment disputes.
B. Petitioner’s Employment With FedEx
Ground
Petitioner Michael Duble worked as a FedEx
Ground service manager in Miami, Florida, begin-
ning in September 1997. Pet. App. 16-17. In March
4
2007, petitioner began working as a Pick-Up and De-
livery (“P&D”) Service Manager. Id. at 17. In this
position, he often performed the “Gatekeeper func-
tion” of standing outside at the entrance gate to
speak to returning contractors regarding any unde-
livered packages. Id. at 17-18. Petitioner performed
his job duties for more than a year without incident
or request for an accommodation, including the
Gatekeeper function, which he began performing in
February 2008. On April 11, 2008, however, he in-
formed his supervisor and his senior manager that
he has multiple sclerosis (MS), that the heat exacer-
bates his condition, and that he therefore could not
perform the Gatekeeper function. Id. at 18-19.1
After initially resisting FedEx Ground’s requests
for a doctor’s note articulating his work limitations,
Petitioner finally provided a note from his doctor
stating he needed “to work in an environment that is
inside and away from heat.” Pet. App. 21. FedEx
Ground accommodated this restriction by never
again asking petitioner to perform the Gatekeeper
function or to perform “Customer Service Rides,”
which sometimes involved riding in vans without air
conditioning. Id. at 3, 21.
In December 2008 and January 2009, FedEx
Ground discovered that certain operational needs of
the Miami facility were not being met when a Dis-
trict Managing Director noticed that a van line was
being operated without a manager. Pet. App. 3, 21.
It conducted a needs analysis of the facility, includ-
ing a review of all managers’ job assignments. Pet.
1 Petitioner had been diagnosed with MS in September 2006,
but had not previously informed his employer of his diagnosis
or sought any job restrictions due to his MS. Pet. App. 18.
5
App. 3-4, 21-22. As part of this needs analysis, Fed-
Ex Ground reevaluated its ability to maintain peti-
tioner’s position as a service manager in light of his
work limitations, given that the essential job func-
tions of his position involved working outside and he
was performing non-managerial clerical functions
due to his work limitations. Id. at 21-23. Initially,
petitioner was given the option of taking short-term
disability leave for approximately three months or
being reclassified to a clerk position, which would
have permitted him to perform largely administra-
tive work and avoid the outside work that was inher-
ent in the duties of service managers. Id. at 23.
When petitioner opposed these options, FedEx
Ground provided him with the job descriptions for
P&D Service Manager and Dock Service Manager
and asked him to obtain a letter from his doctor af-
firming that he could perform the duties listed in
those descriptions notwithstanding his medical con-
dition. Id. at 4-5, 23-24.
Petitioner’s doctor provided a letter explaining that
petitioner could perform the duties listed in either of
these job descriptions “without difficulty or interfer-
ence from the standpoint of his neurologic condition.”
Pet. App. 24. Upon receipt of this letter in February
2009, FedEx Ground placed petitioner in the only
available managerial position at its Miami facility:
Pre-Load Service Manager. Id.; App., infra, 7a.2 For
the duration of his tenure as Pre-Load Service Man-
2 The Investigative Report and Recommended Order issued by
the Miami-Dade County Office of Human Rights and Fair Em-
ployment Practices (“the agency”), which Petitioner quotes ex-
tensively but does not include in his Petition Appendix, is ap-
pended to this brief. App., infra, 1a-20a.
6
ager, petitioner never expressed to FedEx Ground or
his medical providers any difficulties performing his
job duties. Id.
C. Petitioner Files A Charge Alleging That His
Transfer Was Unlawful
Nevertheless, on March 6, 2009, petitioner filed a
charge of discrimination with the EEOC and the
Florida Commission on Human Relations, alleging
that his transfer was unlawful. In his charge, peti-
tioner alleged that he had never requested any work
accommodation and that by transferring him to Pre-
Load Service Manager, FedEx Ground was discrimi-
nating against him because of his disability or per-
ceived disability and retaliating against him for his
complaints. Pet. App. 49-50. The charge was re-
ferred to the Miami-Dade Commission on Human
Rights,3 which notified FedEx Ground of the charge
and commenced an investigation.
During its investigation of petitioner’s allegations,
FedEx Ground’s in-house counsel requested the re-
trieval of emails sent to and from petitioner’s FedEx
Ground email account. The retrieval revealed that
petitioner had sent and received numerous emails
during work hours with inappropriate content and
language, including nudity and other offensive imag-
es. Because these emails violated multiple company
policies, FedEx Ground terminated petitioner on No-
vember 19, 2009. Pet. App. 5.
3 The petition and decisions below refer to the responsible agen-
cy as the EEOC, but in fact the local agency investigated and
dismissed petitioner’s charge.
7
Petitioner did not notify the investigating agency
about his termination or seek to amend his charge or
file a new charge based on his termination. The
agency first learned about petitioner’s termination
from FedEx Ground, which included the following
two sentences regarding the termination in a back-
ground section of its Position Statement titled
“Charging Party’s Employment History”: “Respond-
ent terminated Charging Party’s employment on
[November 19, 2009] for inappropriate use of Re-
spondent’s computer resources. Specifically, Re-
spondent terminated Charging Party after learning
that he had utilized Respondent’s internet and email
systems to view and send inappropriate images,
jokes and messages.” App., infra, 26a-27a.
During the May 2, 2011 rebuttal conference con-
ducted by the agency, the agency asked petitioner
about his termination from FedEx Ground. Petition-
er stated that he was terminated because he sent a
“political email message” to a co-worker and, when
pressed further, declined to provide any details.
App., infra, 8a. During the rebuttal conference, peti-
tioner affirmatively “expressed that he did not wish
to focus on his termination and did not wish to
amend his charge to include termination because he
has consulted with his attorney and believes that he
was terminated for cause.” Id. at 8a; see also id. at
16a (“Charging Party conceded that he was fired for
cause and expressed that he did not wish to focus on
the termination but rather the transfer to the grave-
yard shift.”).4 The agency had no further contact
4 Although petitioner asserts (Pet. 5) that he did not make these
statements, he did not argue in the Eleventh Circuit that the
district court clearly erred in finding that he made these state-
8
with FedEx Ground regarding petitioner’s termina-
tion and, given the affirmative statement by peti-
tioner that he did not wish to focus on his termina-
tion, FedEx Ground provided no evidence or addi-
tional information to the agency regarding the ter-
mination. Petitioner did not appeal the agency’s
findings or determinations to a larger panel of agen-
cy members, see App., infra, 19a-20a.
D. The Agency Dismisses The Charge Relating
To Petitioner’s Transfer
Just one month later, the agency issued its deci-
sion, which determined that there was “no probable
cause to believe that a discriminatory employment
practice has occurred.” App., infra, 1a. In reporting
the history of events and positions of the parties, the
decision referred to FedEx Ground’s statement that
petitioner was terminated as a result of the inappro-
priate emails. Id. at 8a. But, repeatedly noting peti-
tioner’s affirmative statement that he did not wish to
address his termination, id. at 8a, 16a, the agency
focused its findings and analysis on petitioner’s
transfer to the Pre-Load position. Indeed, nowhere
in its “Summary of Findings” did the agency discuss
or make findings with respect to petitioner’s termi-
nation. Id. at 10a-11a. The agency similarly made
no mention of petitioner’s termination in its “Retalia-
tion Analysis.” Id. at 16a-19a.
The only discussion of petitioner’s termination ap-
pears in the agency’s analysis of “Disparate Treat-
ment based on Disability.” App., infra, 16a. The
agency once again noted that petitioner “conceded
ments, nor does he challenge this finding in his petition. See
infra pp. 26-27 & n.16.
9
that he was fired for cause and expressed that he did
not wish to focus on the termination but rather the
transfer to the graveyard shift.” Id. It also stated
that the investigation conducted pursuant to the
charge filed by petitioner did “not reveal[] any infor-
mation to substantiate that [petitioner’s] termination
was a result of any unlawful discriminatory action on
the part of Respondent.” Id.
E. The District Court Proceedings
Petitioner filed suit in federal district court under
the ADA and Florida law. In his complaint, petition-
er did not just attack the transfer to the Pre-Load
position; he also asserted for the first time that he
was terminated because of his disability and in retal-
iation for his filing an EEOC discrimination charge.
After discovery, FedEx Ground moved for sum-
mary judgment, arguing, among other things, that
petitioner’s termination-based claims had not been
exhausted as required by 42 U.S.C. § 2000e-5, and
that no triable issue of fact existed regarding the
merits of the termination claims. The parties each
presented substantial evidence to the district court
regarding petitioner’s termination from FedEx
Ground, including hundreds of pages of deposition
testimony, numerous witness affidavits, dozens of
pages of exhibits depicting the inappropriate and of-
fensive emails that petitioner sent or received at
work, and evidence regarding the disciplinary treat-
ment of others who sent or received inappropriate
emails while at work.
The district court granted summary judgment for
FedEx Ground. Pet. App. 16-44. Relevant here, the
court determined that petitioner had failed to ex-
10
haust his discriminatory and retaliatory termination
claims. Id. at 27-38. The court acknowledged that
under Eleventh Circuit precedent, a plaintiff need
not separately exhaust certain “post-charge” claims,
including claims alleging retaliation that “grow[] out
of an earlier charge.” Id. at 30-34 (quoting Baker v.
Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.
1988)). But the court thought that even if that ex-
ception to the exhaustion requirement remains good
law in light of subsequent developments in the law—
a question it did not decide—the exception could not
excuse petitioner’s failure to exhaust. Id. at 34. In
this case, unlike in the Eleventh Circuit cases peti-
tioner cited, petitioner’s termination occurred while
agency proceedings were still pending and long be-
fore he filed his lawsuit. Id. at 36. The court consid-
ered “significant to [its] analysis” that petitioner had
acknowledged before the agency that he was termi-
nated for cause and not as a result of his initial
EEOC charge, and that petitioner had affirmatively
stated that he did not wish to amend his EEOC
charge or file a new charge. Id. at 37.
F. The Eleventh Circuit’s Non-Precedential Af-
firmance
The Eleventh Circuit affirmed in an unpublished,
per curiam decision.5 The court of appeals explained
that circuit precedent requires exhaustion of “allega-
tions of new acts of discrimination,” including retali-
5 Although the district court’s exhaustion analysis applied
equally to Petitioner’s discriminatory retaliation claim and re-
taliatory termination claim, he did not appeal the decision with
respect to his discriminatory retaliation claim. Pet. App. 6 n.2.
Thus, the only claim relevant to this petition is petitioner’s re-
taliatory termination claim.
11
ation. Pet. App. 7. It also noted that under prior de-
cisions in Gupta v. East Texas State University, 654
F.2d 411, 414 (5th Cir. 1981),6 and Baker v. Buckeye
Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988),
claims that “grow[] out of a charge that is properly
before the court” are excepted from this exhaustion
requirement. Id. at 7-8.
The court of appeals determined, though, that the
Gupta and Baker exception did not apply to petition-
er’s case because the alleged retaliatory termination
occurred while agency proceedings were still pend-
ing, nearly two years before he filed suit in federal
district court. Pet. App. 9. In Baker and Gupta, by
contrast, the court was able to exercise “ancillary ju-
risdiction” over the plaintiffs’ retaliation claims be-
cause they accrued after the case was already in fed-
eral court. Id. at 8-9. The court of appeals further
reasoned that the exhaustion requirement was not
met in this case because petitioner “had the oppor-
tunity to amend his EEOC charge or file a new
charge relating to his termination” but “chose not to”
do so. Id. at 10.
REASONS FOR DENYING THE WRIT
The court of appeals’ unpublished decision does not
warrant further review. There exists no circuit split
regarding the narrow issue decided by the court of
appeals below: whether an individual who had the
opportunity to amend his EEOC charge to include a
claim for allegedly retaliatory termination that oc-
6 The Eleventh Circuit has adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to
October 1, 1981. See Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981).
12
curred while EEOC proceedings were pending, but
failed to do so, satisfied the ADA’s statutory exhaus-
tion requirement.
Furthermore, the distinctive facts of this case
make it a poor vehicle for this Court’s review because
petitioner expressly and affirmatively declined to
amend his charge during his conference with the re-
viewing agency or provide any details to the agency
regarding his termination, therefore precluding the
agency from performing its investigative and concil-
iatory functions. Finally, requiring exhaustion for
retaliatory termination claims that arise during
pending EEOC proceedings is consistent with the
statutory framework and the purposes of the exhaus-
tion requirement.
I. This Case Does Not Warrant Supreme
Court Review.
At bottom, petitioner’s arguments amount to noth-
ing more than dissatisfaction with the way in which
the court of appeals determined whether the facts of
this case could satisfy a widely-accepted exception to
the exhaustion requirement. At best, petitioner has
an argument that a panel of the Eleventh Circuit
misapplied circuit precedent in an unpublished deci-
sion. Neither is a sufficient basis for certiorari re-
view. Sup. Ct. R. 10. And this case simply does not
implicate any conflict.
A. There Is No Circuit Split On The Issue
Decided By The Court Of Appeals.
Petitioner suggests that this case concerns a mat-
ter of “wide-spread” and “unresolved dispute” among
the circuit courts regarding an employee’s ability to
13
pursue in court claims asserting retaliation for hav-
ing previously filed an EEOC charge. Pet. 7-8.7 But
the Eleventh Circuit already applies the basic rule
petitioner wants: that certain retaliation claims can
be sufficiently related to an exhausted discrimination
claim that they need not be separately exhausted.
As petitioner himself notes, “[t]he Eleventh Circuit
continues to align with the majority of circuits” on
this point. Pet. 20; accord Pet. 21, 22. Petitioner’s
claim failed in the Eleventh Circuit despite the fa-
vorable law. And the sole outlier circuit applies a
rule that is, if anything, less favorable to petitioner.
See Martinez v. Potter, 347 F.3d 1208, 1210 (10th
Cir. 2003) (holding that “each discrete incident of
[discriminatory or retaliatory] treatment constitutes
its own ‘unlawful employment practice’ for which
administrative remedies must be exhausted”). Peti-
tioner therefore is simply incorrect in claiming that
this case implicates a circuit conflict.
Ever since Gupta and Baker, the Eleventh Circuit
has been on record endorsing the proposition that
some retaliation claims need not be exhausted. See
Pet. App. 9, 34. Indeed, district courts in the Elev-
enth Circuit continue to apply that rule where ap-
propriate. See id. at 32-33 (citing cases). The deci-
sion below did not abrogate, or even question, that
rule. Instead, it simply held that on the facts of this
case, following that rule was not appropriate because
of the timing: petitioner’s termination did not occur
7 Petitioner’s current position—that “the circuit courts are in
complete disarray” on this issue—lies in stark contrast to the
position he assumed before the Eleventh Circuit, where he ar-
gued that the Tenth Circuit stands alone against the decisions
of nearly every other circuit court. Pet. C.A. Reply Br. 4-8.
14
at a time when the courts had ancillary jurisdiction
over it, but rather came at a time when petitioner
could easily have amended his charge to bring the
termination to the agency’s attention and allow the
agency to fulfill its investigative and conciliatory
functions. He did not do so. Id. at 9-10.
Thus, the determinative question here was one of
timing, and petitioner does not even attempt to iden-
tify a conflict on that timing question with any other
precedential court of appeals decision. And none ex-
ists: not a single circuit has issued a published opin-
ion squarely examining whether a retaliation excep-
tion to the exhaustion requirement can still be justi-
fied when the retaliation occurs during agency pro-
ceedings and can easily be brought to the agency’s
attention. The most petitioner offers on this point
(see Pet. 21 & n.17) is a footnote that string-cites a
few inapposite cases. All but one are unpublished,
and the remaining one does not meaningfully discuss
timing in its holding. See Clockedile v. N.H. Dep’t of
Corr., 245 F.3d 1, 5 (1st Cir. 2001). And because the
decision below is unpublished, even the Eleventh
Circuit has not definitively taken sides on this ques-
tion.
Moreover, the Eleventh Circuit’s unpublished deci-
sion does not even touch upon what petitioner char-
acterizes as the key issue, to which petitioner de-
votes most of his brief—the impact of this Court’s de-
cision in National Railroad Passenger Corp. v. Mor-
gan, 536 U.S. 101 (2002), on the requirement to ex-
haust retaliation claims. Pet. 10-24; see also Pet. 13
(“[T]he question now before this Court” is “if, and to
what extent, Morgan applies to post-charge acts of
15
retaliation . . . .”).8 Morgan played virtually no role
in the court of appeals’ decision below. Indeed, Mor-
gan was cited only once, for the rather unremarkable
proposition that retaliatory termination constitutes a
discrete act of unlawful discrimination. Pet. App. 9.
In short, petitioner’s claim failed because of a tim-
ing issue that no published appellate decision has
addressed head-on. With no circuit conflict on that
issue, there is no reason to review the Eleventh Cir-
cuit’s unpublished decision.
B. The Decision Below Presents, At Most, An
Intra-Circuit Conflict.
At bottom, petitioner simply disagrees with the
way the panel applied Eleventh Circuit precedent—
which petitioner referred to in his briefing below as
the “Gupta Rule”—to his case. Petitioner complains
that the panel’s basis for distinguishing that prior
circuit precedent did not appear in earlier cases. See
Pet. 6-7. But even if that amounted to an intra-
circuit conflict—and it does not—such a conflict
would properly be resolved by the court of appeals,
not this Court. This case is a particularly inappro-
priate one in which to consider a dispute over circuit
precedent, because the decision below is nonprece-
dential and affects only petitioner himself.
8 In Morgan, this Court held that “[e]ach incident of discrimina-
tion and each retaliatory adverse employment decision consti-
tutes a separate actionable ‘unlawful employment practice,’”
536 U.S. at 114, and thus 42 U.S.C. § 2000e-5 requires a charge
related to each discrete act to be filed within the applicable lim-
itations period “after the discriminatory act occurred,” id. at
113.
16
C. The Broader Issue, Not Presented By This
Case, Of Whether The Exceptions To The
Exhaustion Requirement Survive Morgan, Is
Not The Subject Of A “Widespread Circuit
Divide,” As Petitioner Suggests.
As explained above, the court of appeals’ decision
in this case was based not on Morgan, but rather on
its determination that the pre-Morgan “Gupta Rule”
did not apply to the specific facts of this case. But
even if the impact of Morgan on the exhaustion re-
quirement were presented by this case, that question
has not sufficiently percolated through the circuit
courts to warrant this Court’s review. Although peti-
tioner argues that the circuit courts are in “complete
disarray,” Pet. 22, and suffer from “considerable un-
rest” following this Court’s decision in Morgan, Pet.
10, the petition considerably overstates any post-
Morgan split. Contrary to petitioner’s contentions,
most of the circuits simply have not examined the
impact of Morgan on the retaliation exception at all.
Only the Fourth and Tenth Circuit have squarely
confronted the impact of Morgan on the exhaustion
exceptions and reached definitive positions in prece-
dential opinions. The Fourth Circuit concluded that
Morgan “addresses only the issue of when the limita-
tions clock for filing an EEOC charge begins ticking
with regard to discrete unlawful employment prac-
tices” and does not affect “exhaustion requirements
for claims of related, post-charge events.” Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 303 (4th Cir. 2009).
The Tenth Circuit concluded that “Morgan requires a
. . . plaintiff to exhaust administrative remedies for
each individual discriminatory or retaliatory act,”
including “claims based on incidents occurring after
17
the filing” of an EEOC charge. Martinez, 347 F.3d at
1210-11. But notably, the Tenth Circuit decided the
issue in a federal-sector Title VII case against the
Postmaster General; federal-sector cases have their
own “rigorous” exhaustion procedure, Brown v. Gen.
Servs. Admin., 425 U.S. 820, 833 (1976), and do not
borrow all aspects of Section 2000e-5. See 42 U.S.C.
§ 2000e-12(d).
Except for those two decisions, the federal courts of
appeals have developed little to no law on this sub-
ject since Morgan. Most references to the potential
impact of Morgan have come only in dictum, in deci-
sions expressly stating that that they need not reach
and were not reaching the issue. See, e.g., Rivera v.
Puerto Rico Aqueduct & Sewers Auth., 331 F.3d 183,
189 (1st Cir. 2003) (discussing Morgan but stating
that it did “not need to decide” the exhaustion issue
because the plaintiff failed to establish her claim on
the merits); Simmons-Myers v. Caesars Entm’t Corp.,
515 F. App’x 269, 274 n.1 (5th Cir. 2013) (“We need
not answer” whether Gupta is “applicable after the
Supreme Court’s decision in Morgan.”), cert. denied,
134 S. Ct. 117 (2013);9 Payne v. Salazar, 619 F.3d 56,
65 (D.C. Cir. 2010) (determining that it “need not de-
cide whether Morgan” abrogated the pre-Morgan ex-
9 While petitioner characterizes Simmons-Myers as a case that
narrowed the exhaustion exceptions “in response to Morgan,”
Pet. 17, 19-20, in reality the Fifth Circuit expressly declined to
address the impact of Morgan, instead holding that the facts of
the case did not fall within the pre-Morgan exceptions. 515 F.
App’x at 273-74 & n.1; see also Sapp v. Potter, 413 F. App’x 750,
753 n.2 (5th Cir. 2011) (“We need not address” whether “the
Supreme Court’s Morgan decision abolished or narrowed the
Gupta exception . . . because the facts of this case do not sup-
port the exception’s application.”).
18
haustion exceptions because the case did not fall
within the pre-Morgan exception).10
The court below is one of those that has expressly
left the issue open. See Bennett v. Chatham Cnty.
Sheriff Dep’t, 315 F. App’x 152, 162 n.7 (11th Cir.
2008) (declining to decide “whether, after [Morgan],
discrete acts of retaliation must be exhausted . . .
[b]ecause the parties d[id] not raise this issue”);
EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272
& n.5 (11th Cir. 2002) (noting Morgan but declining
to reach whether unexhausted post-charge events
were actionable because the issue “ha[d] not been
presented squarely”). And as already discussed, the
decision in this case does nothing to change that.
Furthermore, several of the circuits and cases peti-
tioner cites as opining on the impact of Morgan on
the retaliation exception in fact did not discuss Mor-
gan with respect to this issue at all. For example,
petitioner states that “[i]n Lyons v. England, 307
F.3d 1092 (9th Cir. 2002), the Ninth Circuit analyzed
Morgan at length” and concluded that the plaintiffs’
post-charge claims “were not barred for failure to ex-
haust.” Pet. 15. But the Ninth Circuit did not cite
Morgan even once in its discussion of administrative
exhaustion. See Lyons, 307 F.3d at 1103-05. The on-
ly mention of Morgan is found in an entirely separate
10 The Sixth Circuit has discussed this issue, but only in un-
published decisions, and has not reached a definitive position.
Compare Delisle v. Brimfield Twp. Police Dep’t, 94 F. App’x 247,
252-54 (6th Cir. 2004) (discussing Morgan but determining that
the plaintiff was not required to exhaust his post-charge retali-
ation claim), with Sherman v. Chrysler Corp., 47 F. App’x 716,
721 (6th Cir. 2002) (citing Morgan and holding that retaliation
claims based on acts subsequent to the filing of an EEOC
charge were not exhausted).
19
section of the opinion addressing whether the plain-
tiffs’ pre-limitations period claims were time-barred.
See id. at 1105-08 (holding that such claims were
time-barred under Morgan). The same is true with
respect to Hague v. University of Texas Health Sci-
ence Center at San Antonio, 560 F. App’x 328 (5th
Cir. 2014), Franceschi v. U.S. Department of Veterans
Affairs, 514 F.3d 81 (1st Cir. 2008), Scott v. Eastman
Chem. Co., 275 F. App’x 466 (6th Cir. 2008), and
Eberle v. Gonzales, 240 F. App’x 622, 628 (5th Cir.
2007), none of which discusses Morgan with respect
to the retaliation exception but all of which petition-
er passes off as if they had. See Pet. 14, 15, 20
n.14.11
The only other circuit to directly confront the via-
bility of the exhaustion exceptions in light of Mor-
gan—the Eighth Circuit—is still working through
the precise impact of Morgan. That court has
acknowledged that Morgan does have implications
for exhaustion jurisprudence, not just statute of limi-
tations cases. See Richter v. Advance Auto Parts,
Inc., 686 F.3d 847, 850-53 (8th Cir. 2012). But at the
same time, the Eighth Circuit has declined to aban-
don the exhaustion exceptions “in toto” and indicated
that the extent to which the exceptions continue to
apply must be determined on a fact-specific basis, see
Wedow v. City of Kansas City, 442 F.3d 661, 674 (8th
Cir. 2006).12
11 As petitioner concedes, the Second, Third, and Seventh Cir-
cuits have not so much as mentioned the impact of Morgan on
the exhaustion exceptions. Pet. 15-16. 12 Petitioner attempts to argue that he would have prevailed
under the Eighth Circuit standard. Pet. 19 n.12. That depends
on the notion that the Eighth Circuit would consider the allega-
20
This handful of decisions hardly establishes “com-
plete disarray” as to the broader issue—Morgan’s
impact—that the petition presents but that this case
does not. Indeed, to a significant extent, petitioner is
concerned not with the current position of the circuits
regarding Morgan, but with the wholly speculative
question of where the circuits might end up on this
issue. See Pet. 19 (concern that the Eighth Circuit
“might be heading th[e] way” of the Tenth Circuit”);
Pet. 20 (concern about whether the Fifth Circuit “is
also heading in the direction of the Tenth”). The un-
published decision in this case gives this Court no
reason to halt the percolation of this issue through
the lower courts.
II. The Facts Of This Case Make It A Poor
Vehicle For Certiorari Review.
Even if the questions presented might warrant re-
view in an appropriate case, the facts of this case
make it a poor vehicle for this Court’s review. Far
from exhausting his retaliatory-termination claim in
all but name, as petitioner contends in his second
question presented, petitioner resisted exhaustion at
every juncture.
tion of retaliation petitioner did exhaust (transfer in retaliation
for his internal complaints about the accommodation he re-
ceived) to be “of a like kind to” the allegation he did not (termi-
nation in retaliation for his filing an EEOC charge). Wedow,
442 F.3d at 674.
21
A. Petitioner’s Actions Before The Agency
Make This Case A Uniquely Unsuitable Ve-
hicle To Consider Whether Post-Charge Re-
taliation Claims Are Exempt From The
Statutory Exhaustion Requirement.
This is not a case in which petitioner lacked the
opportunity to amend his agency charge. To the con-
trary, he had the opportunity but told the agency he
did not want to pursue it. He therefore cannot con-
tend that the exhaustion requirement would have
required him to return to the agency, file a new
charge, and wait on an entirely new investigation,
and thus that enforcing the statutory exhaustion re-
quirement would present a needless, overly proce-
dural technicality or would have resulted in undue
delay. See Gupta, 654 F.2d at 414 (exhaustion excep-
tion justified because “[r]equiring prior resort to the
EEOC would mean that two charges would have to
be filed in a retaliation case” and “would serve no
purpose except to create additional procedural tech-
nicalities”); Oubichon v. N. Am. Rockwell Corp., 482
F.2d 569, 571 (9th Cir. 1973) (“To force an employee
to return to the state agency every time he claims a
new instance of discrimination in order to have the
EEOC and the courts consider the subsequent inci-
dents along with the original ones would erect a
needless procedural barrier.”). In this case, petition-
er was terminated in November of 2009, and it was
not until nineteen months later that the agency ren-
dered a decision on his original charge. This time
period provided ample opportunity for him to bring
his termination to the agency’s attention and allow it
to investigate whether any retaliation occurred
(while memories were still fresh) and, if so, attempt
conciliation of the claims. Instead, petitioner simply
22
sat on his claim, discouraged the agency from inquir-
ing into it, and chose not to assert it until two years
later.
This also is not a case in which petitioner was un-
aware that he could or should amend his charge to
assert a retaliatory termination claim or was misled
by the agency into believing that amending his
charge or filing a new charge was unnecessary. In-
stead, the investigating agency asked petitioner
whether he wanted to amend his charge to include a
termination-based claim, and he expressly declined
to do so. App., infra, 8a.
Finally, as discussed in more depth below, see infra
pp. 22-27, this also is not a case in which petitioner’s
claim was effectively, even if not formally, exhausted
because he provided information and evidence to the
agency regarding his termination, and thus the
agency was able to fulfill its investigative function.
See Fitzgerald v. Sec’y, U.S. Dep’t of Veterans Affairs,
121 F.3d 203, 208 (5th Cir. 1997) (“The exhaustion
doctrine requires a good faith effort by the aggrieved
employee to provide all relevant and available infor-
mation to the investigating agency.”). Instead, the
issue of petitioner’s termination was not discussed
until the rebuttal conference (just one month before a
decision was rendered by the agency); the agency
neither sought nor received any information from
FedEx Ground regarding the termination aside from
a two-sentence statement reporting the fact of his
termination and the reason for it, App., infra, 27a;
petitioner declined to provide any details about his
termination, id. at 8a (and the bare information he
provided—the reason for his termination—was false,
id.); and there is no evidence in the record that the
23
agency conducted any investigation regarding the
termination.13 Indeed, the magnitude of the factual
record presented to the district court on the termina-
tion-based issues, see supra p. 8, demonstrates the
extent to which the agency would have benefited
from actual ventilation of this claim.
Plainly stated, the unique facts of this case demon-
strate that nearly every purpose of the exhaustion
requirement was undermined by petitioner’s conduct
in this case. See infra pp. 29-31 (discussing purposes
of the statutory exhaustion requirement). On these
facts, this case does not present an appropriate,
much less compelling, vehicle for this Court’s consid-
eration.
B. Petitioner’s Second “Question Presented” Is
Not, In Fact, Presented By This Case, Nor
Does It Warrant Review.
Petitioner argues that even if a charging party fails
to formally amend his EEOC discrimination charge
or file a new charge to allege adverse employment
action in retaliation for filing the EEOC charge, the
statutory exhaustion requirement is satisfied where
the charging party notifies the agency about the al-
legation, the agency investigates it, and the agency
makes an express determination regarding the post-
charge retaliation. Petitioner may prefer those facts,
but they are not the facts of this case. Here petition-
13 “Where an agency or the EEOC requests information relevant
to resolving the employee's complaint and the employee fails to
provide that information, the employee has failed to exhaust
her administrative remedies.” Crawford v. Babbitt, 186 F.3d
1322, 1326 (11th Cir. 1999).
24
er gave no such notification and the agency rendered
no such determination.
Petitioner repeatedly asserts that he specifically
advised the agency that he had been terminated, e.g.,
Pet. 5, 25-26, that the EEOC undertook an investiga-
tion of his termination, Pet. 5, 9, 26, 27, 28, that
FedEx Ground defended its termination of petitioner
in its Position Statement, Pet. 27, and that the
EEOC made a specific determination regarding his
retaliatory termination claim, Pet. 5, 9, 26, 27. Peti-
tioner cites literally nothing in support of any of
these factual assertions, which are neither correct
nor supported by the record.14
First, there is no evidence in the record that peti-
tioner contacted the agency and informed it of his
termination. In fact, and consistent with the record
below, the agency first learned of petitioner’s termi-
nation through FedEx Ground’s Position Statement,
which was filed nearly a year after petitioner was
terminated. In that Position Statement, FedEx
Ground simply noted, in a background section
providing a brief summary of petitioner’s employ-
ment history, that petitioner had been terminated
14 The likely reason that petitioner cites nothing from the rec-
ord in support of these assertions is that petitioner never made
these factual assertions in the district court—not in his com-
plaint, not in his summary judgment opposition, and not in the
affidavit that he filed in connection with his summary judgment
opposition. Consequently, FedEx Ground had no opportunity to
develop a record on this issue. On this basis, this issue should
be deemed waived. Even if this deficiency does not result in
waiver, though, the lack of a factual record developed on the
assertions that provide the factual premise for this issue cer-
tainly makes this case an unsuitable vehicle for the Court to
consider this question.
25
from his employment with FedEx Ground due to in-
appropriate emails that were sent to and from his
work email account. App., infra, 26a-27a. Indeed, it
was this two-sentence statement that triggered the
agency to ask petitioner about his termination dur-
ing the May 2011 rebuttal conference. And during
that rebuttal conference, petitioner refused to pro-
vide any information to the agency regarding his
termination, aside from a factually erroneous state-
ment that he was terminated for sending “a political
email message to a co-worker.” Id. at 8a.
Second, there is no evidence in the record that the
agency conducted any investigation regarding peti-
tioner’s termination. At no point did the agency seek
any information from FedEx Ground regarding peti-
tioner’s termination and, given that petitioner ex-
pressly disclaimed any desire to address the issue or
include it in his charge, FedEx Ground provided no
additional information or evidence regarding the
termination to the agency. Furthermore, as indicat-
ed in the agency’s decision, petitioner declined to
provide to the agency any details or information re-
garding his termination. App., infra, 8a.15
15 In light of these facts, the agency’s statement, in its analysis
of petitioner’s discrimination allegation, that “this investigation
has not revealed any information to substantiate that Charging
Party’s termination was a result of any unlawful discriminatory
action on the part of Respondent,” App., infra 16a, cannot rea-
sonably be interpreted to indicate that that the agency conduct-
ed an “actual investigation” of petitioner’s termination, as peti-
tioner asserts. Pet. 26. Given that the agency sought no infor-
mation or evidence from FedEx Ground regarding petitioner’s
termination, and petitioner declined to provide any, this state-
ment can only reasonably be interpreted to refer to the investi-
26
Third, FedEx Ground in no instance “defend[ed]
the termination in its statement to the EEOC.” Pet.
27. Indeed, the only mention of petitioner’s termina-
tion in FedEx Ground’s Position Statement is in the
brief summary of petitioner’s employment history
with FedEx Ground. In that section, FedEx Ground
simply stated that petitioner was terminated for us-
ing FedEx Ground’s “internet and email systems to
view and send inappropriate images, jokes and mes-
sages.” App., infra, 27a. FedEx Ground’s actual de-
fense in its Position Statement focused solely on peti-
tioner’s EEOC charge—his reassignment to Pre-Load
Service Manager. Id. at 33a-36a.
Fourth, the agency’s Investigative Report and Rec-
ommended Order directly contradicts petitioner’s re-
peated assertion that the agency “made a final de-
termination as to the post-charge retaliatory act.”
Pet. 9; see also id. at 5, 26, 27. The agency’s “Sum-
mary of Findings” makes no mention whatsoever re-
garding petitioner’s termination, App., infra, 10a-
11a, and the only section of the decision discussing
retaliation (clearly labeled “Retaliation Analysis”)
discusses only petitioner’s reassignment to Pre-Dock
Service Manager, id. at 16a-19a, not his termination
of employment. Petitioner is simply incorrect that
the agency reached a decision regarding retaliatory
termination.
Furthermore, the record and lower court decisions
in this case directly contradict petitioner’s argument
that the statutory exhaustion requirement was effec-
tively, even if not formally, satisfied. The district
court found that petitioner informed the agency that
gation of petitioner’s charge of discriminatory and retaliatory
transfer to Pre-Load Service Manager.
27
he did not wish to amend his charge or file a new
charge relating to his termination, that he did not
want to focus his agency proceeding on his termina-
tion, and that he was terminated for cause. Pet.
App. 25, 37. Although petitioner asserts the opposite
in his petition (at 5), he did not challenge the district
court’s finding as clearly erroneous before the Elev-
enth Circuit, nor does he challenge this finding in his
petition.16
In sum, this case does not present the question
whether the statutory exhaustion requirement is ef-
fectively, even if not formally, satisfied where the
charging party notifies the agency about alleged
post-charge retaliatory termination, the agency in-
vestigates it, the employer defends its conduct, and
the agency makes an express determination regard-
ing the post-charge retaliation. And the question ac-
tually presented by this case—whether the exhaus-
tion requirement is met where a charging party in-
forms the agency that he does not want to focus his
charge on his termination, refuses to provide infor-
mation to the agency regarding his termination, and
affirmatively chooses not to amend his charge or file
a new one—certainly does not warrant this Court’s
16 In his Eleventh Circuit opening brief, petitioner acknowl-
edged that the district court made factual findings on this issue,
and argued only that the district court was not permitted to
make findings against him as the non-moving party. Pet. C.A.
Br. 23-24. In doing so, petitioner failed to mention that a dis-
trict court is entitled to engage in factfinding in the course of
deciding whether an exhaustion requirement is satisfied, and in
fact must do so where the evidence conflicts and the dispute is
germane to its decision. See Bryant v. Rich, 530 F.3d 1368,
1376 (11th Cir. 2008); Pet. App. 7. Petitioner never argued, in
the alternative, that this factual finding was clearly erroneous.
28
review, nor is it the subject of disagreement among
the circuits.17
III. The Decision Below Is Correct.
Requiring litigants to exhaust claims for retalia-
tion that occurred while EEOC proceedings were still
pending is consistent with the statutory framework
of federal anti-discrimination laws and the policies
behind the exhaustion requirement.
A. Requiring Exhaustion For Retaliation That
Occurs During Pending EEOC Proceedings
Is Consistent With The Statutory
Framework.
This Court recently reiterated that it is “inappro-
priate in the context of a statute as precise, complex,
and exhaustive as Title VII” to “infer that Congress
meant anything other than what the text does say.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517,
2530 (2013); Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 175 (2009) (“Statutory construction must begin
with the language employed by Congress and the as-
sumption that the ordinary meaning of that lan-
guage accurately expresses the legislative purpose.”
(citation omitted)).
The statutory provision governing exhaustion and
timeliness of employment discrimination claims pro-
vides that “[a] charge under this section shall be filed
[with the EEOC or state or local agency] within one
hundred and eighty days [or, in some instances,
within three hundred days] after the alleged unlaw-
17 Petitioner identifies no circuit split regarding his second
Question Presented.
29
ful employment practice occurred.” 42 U.S.C. §
2000e-5(e)(1) (emphases added). In Morgan, this
Court parsed the plain meaning of this statutory text
and determined that “[e]ach incident of discrimina-
tion and each retaliatory adverse employment deci-
sion constitutes a separate actionable ‘unlawful em-
ployment practice.’” 536 U.S. at 114. It further de-
termined that “[a] party . . . must file a charge within
either 180 or 300 days of” each discrete retaliatory or
discriminatory act “or lose the ability to recover for
it.” Id. at 110; see also id. at 109-10 (“’[O]ccurred’
means that the practice took place or happened in
the past. The requirement, therefore, that the
charge be filed ‘after’ the practice ‘occurred’ tells us
that a litigant has up to 180 or 300 days after the un-
lawful practice happened to file a charge with the
EEOC.” (alteration in original) (footnote omitted)).
Although Morgan specifically addressed whether
pre-charge conduct falls within this described limita-
tions period, its interpretation of the plain text must
necessarily have the same meaning for post-charge
retaliatory termination claims, given that the statu-
tory language interpreted in Morgan sets forth both
the exhaustion requirement and the statutory peri-
od. As this Court subsequently stated in Ledbetter v.
Goodyear Tire & Rubber Co., Inc., “Morgan is per-
fectly clear that when an employee alleges ‘serial vio-
lations,’ i.e., a series of actionable wrongs, a timely
EEOC charge must be filed with respect to each dis-
crete alleged violation.” 550 U.S. 618, 639 (2007),
superseded in part by statute, Lilly Ledbetter Fair
Pay Act of 2009, Pub. L. No. 111–2, 123 Stat. 5.
Notably, petitioner’s proposed exception to the ex-
haustion requirement is based, as are all of the ex-
30
ceptions to the exhaustion requirement, not on the
text of the statute or even the statutory framework,
but on “practical” or “pragmatic” considerations. See
Pet. 12, 11 n.6, 15 n.8, 28. But this Court in Morgan
eschewed approaches to interpreting procedural pro-
visions governing discrimination claims that are not
“compelled by the text of the statute.” 536 U.S. at
108-09. Just as courts “may not interject an addi-
tional 60-day period into” “a statutory scheme in
which Congress carefully prescribed a series of dead-
lines measured by numbers of days—rather than
months or years,” Mohasco Corp. v. Silver, 447 U.S.
807, 825-26 (1980), neither may they interject excep-
tions to the exhaustion requirement where none ex-
ists in the text itself. Under the plain meaning of the
statute, before asserting his retaliatory termination
claim in federal court, petitioner needed to file a new
charge or amend his existing charge within the stat-
utory period to exhaust his administrative remedies.
B. Requiring Exhaustion Of Petitioner’s
Retaliation Claim Is Consistent With The
Policies Underlying Exhaustion Provisions.
The exhaustion requirement of Title VII and the
ADA serves a variety of purposes. It allows the
EEOC (or a state or local counterpart agency) to in-
vestigate the allegedly unlawful conduct in the first
instance so that if there is reasonable cause to be-
lieve the allegation is true, the agency can work with
the parties to eliminate the unlawful practice “by in-
formal methods of conference, conciliation, and per-
suasion.” 42 U.S.C. § 2000e-5(b); see also Occidental
Life, 432 U.S. at 359-60, 368 (describing the EEOC’s
investigative and dispute-settling functions). Where
those conciliation efforts are unsuccessful, the ex-
31
haustion requirement permits the agency to itself
bring a civil action against an employer. See Occi-
dental Life, 432 U.S. at 359-60. The exhaustion re-
quirement therefore “facilitate[s] the administrative
agency’s investigation and conciliatory functions and
. . . recognize[s] its role as primary enforcer of anti-
discrimination laws.” See Filer v. Donley, 690 F.3d
643, 647 (5th Cir. 2012).
It also furthers the goal of “encouraging quicker,
less formal, and less expensive resolution of dis-
putes.” West v. Gibson, 527 U.S. 212, 219 (1999); see
also Martinez, 347 F.3d at 1211 (exhaustion re-
quirement “serves to facilitate internal resolution of
the issue rather than promoting costly and time-
consuming litigation”). And, it acknowledges that
cooperation and voluntary compliance, not litigation,
are the preferred methods of achieving the goal of
equal employment opportunity. See Alexander v.
Gardner-Denver Co., 415 U.S. 36, 44 (1974). Conse-
quently, the EEOC “does not function simply as a
vehicle for conducting litigation on behalf of private
parties; it is a federal administrative agency charged
with the responsibility of investigating claims of em-
ployment discrimination and settling disputes, if
possible, in an informal, noncoercive fashion.” Occi-
dental Life, 432 U.S. at 368.
The Florida Chapter of NELA repeatedly derides
the statutory exhaustion requirement as a mere
technicality. But far from creating “picayune and
insignificant procedural details,” Fla. Ch. Amicus Br.
2, administrative exhaustion is central to the frame-
work and effectiveness of federal anti-discrimination
laws and the agencies charged with enforcing those
laws. Permitting a litigant who is subject to an ad-
32
verse employment action while agency proceedings
are still pending to make his own choice about
whether to assert a retaliation claim before the
EEOC or sit on it, potentially for years, until he can
file a claim in federal court undermines every pur-
pose underlying the exhaustion requirement, not to
mention those underlying the statutory limitations
period, and turns a mandatory requirement into an
elective one.
Most significantly, it precludes the agency from
having any opportunity to investigate the allegedly
unlawful conduct while memories are still fresh, or to
attempt conciliation of meritorious claims outside of
the time-intensive and costly litigation context. The
possibility of pre-litigation resolution of employment
disputes is not a mere hypothetical benefit of the ex-
haustion requirement. Of the many discrimination
and retaliation charges received each year by the
EEOC (nearly 100,000 in each of the last five years,
http://www.eeoc.gov/eeoc/statistics/enforcement/char
ges.cfm), tens of thousands are successfully resolved
at the agency stage and never reach the courthouse
doors. See Doe v. Oberweis Dairy, 456 F.3d 704, 708-
09 (7th Cir. 2006); Enforcement & Litigation Statis-
tics, U.S. EEOC, http://www.eeoc.gov/eeoc/statistics/
enforcement/index.cfm (last visited Apr. 27, 2015).
Particularly in this case, where the agency sought
to investigate but was denied that opportunity when
petitioner declined to provide any details regarding
his termination and stated that he did not wish to
focus on that issue, forgiving petitioner’s failure to
exhaust would only reward his defiance of the ex-
haustion requirement.
* * * * *
33
The court of appeals decided a narrow issue, in an
unpublished decision, that has not been addressed by
any other circuit. The court correctly held that an
individual who had the opportunity to amend his
EEOC charge to include a claim for retaliatory ter-
mination that occurred while agency proceedings
were pending, but chose not to do so, is not excused
from the statutory exhaustion requirement. This de-
cision creates no circuit split, and petitioner’s claim
that it reflects an intra-circuit disagreement does not
warrant this Court’s review.
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
April 28, 2015
BARAK BABCOCK
Counsel of Record
FEDEX GROUND PACKAGE
SYSTEM, INC.
1000 FedEx Drive
Moon Township, PA 15108
(412) 859-5763
Counsel for Respondent