Davis v. Fort Bend Cnty.

• Citation: 893 F.3d 300
• Decision Date: 20 June 2018
• Docket Number: No. 16-20640,16-20640
• Parties: Lois M. DAVIS, Plaintiff–Appellant, v. FORT BEND COUNTY, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

893 F.3d 300

Lois M. DAVIS, Plaintiff–Appellant,

v.FORT BEND COUNTY, Defendant–Appellee.

No. 16-20640

United States Court of Appeals, Fifth Circuit.

Filed June 20, 2018

Russell Hollenbeck, Raffi Melkonian, Wright, Close & Barger, L.L.P., Houston, TX, for Plaintiff-Appellant.

Randall Weaver Morse, Assistant County Attorney, County Attorney's Office for the County of Fort Bend, Richmond, TX, for Defendant-Appellee.

Before KING, JONES,^* and ELROD, Circuit Judges.

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 eventual resignation. According to Davis, her supervisor began retaliating against her because Davis had made a formal complaint against the director, who was a personal friend of her supervisor. When Davis informed her supervisor that she could not work one specific Sunday because she had a "previous religious commitment" to attend a special church service, her supervisor did not approve the absence. After Davis attended the church service and did not report to work, Fort Bend terminated her employment.

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 , ––– U.S. ––––, 135 S.Ct. 2804, 192 L.Ed.2d 847 (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) Fort Bend would have suffered an undue hardship in accommodating Davis's religious observance. Id. at 487, 489. Fort Bend filed a petition for writ of certiorari challenging this determination, and the Court denied it.

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 42 U.S.C. § 2000e-5(f). Before seeking judicial relief, however, Title VII plaintiffs are required to exhaust their administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission within 180 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e)(1).²

"[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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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. Arbaugh v. Y&H Corp. , 546 U.S. 500, 510–11, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). We must be careful to distinguish between jurisdictional requirements that bear on a court's power to adjudicate a case and nonjurisdictional requirements.

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 party is arguing waiver or estoppel, and because the outcome would remain the same whether we consider exhaustion to be a condition precedent or a jurisdictional prerequisite, ‘we need not take sides in this dispute.’ " (quoting Pacheco , 448 F.3d at 788 n.7 ) ); Sapp v. Potter , 413 F. App'x 750, 752 (5th Cir. 2011) ("We decline to address this disagreement because the facts of this case do not implicate any of the equitable doctrines of relief."); Devaughn v. U.S. Postal Serv. , 293 F. App'x 276, 281 (5th Cir. 2008) (deciding not to settle "whether a failure to exhaust Title VII administrative remedies is a jurisdictional requirement or a prerequisite to suit").

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

Under our rule of orderliness, "one panel of our court may not overturn another panel's decision, absent an intervening change in the law, such as by a statutory amendment, or the...