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Fourth Circuit Says EEOC Retaliation Charge Insufficient to Support Later Discrimination Lawsuit

    Client Alerts
  • January 23, 2009

Under Title VII, plaintiffs must exhaust administrative remedies before filing suit against their employers.  This means that the employee must file a Charge of Discrimination with the EEOC, and that Charge must allege discrimination that forms the basis of the later lawsuit.  A plaintiff cannot file a race discrimination suit against her employer when the EEOC Charge only alleges gender discrimination.  A new Fourth Circuit Court of Appeals (which included North and South Carolina) case applies these principles to distinguish between claims of discrimination and retaliation.

In Jones v. Calvert Group, Ltd., the plaintiff filed a race, sex and age Charge in 2003.  This Charge was settled, but the plaintiff filed a second Charge alleging retaliation in 2005.  After a right-to-sue letter was issued to the plaintiff following her second Charge, she filed suit, alleging retaliation, but also claiming race and gender discrimination.  The employer moved to dismiss the discrimination claims, asserting that the plaintiff failed to exhaust her administrative remedies by filing a discrimination lawsuit when her last EEOC Charge only alleged retaliation.

The Fourth Circuit agreed, dismissing the discrimination claims.  Even if the retaliation Charge is based upon earlier claims of discrimination, the administrative Charge on which the lawsuit is based must specifically allege discriminatory acts within the applicable period of limitations.  However, the Fourth Circuit indicated that a lawsuit can allege retaliation even though the original EEOC Charge only claims discrimination.  The plaintiff does not need to file a second Charge alleging retaliation before suing, regardless of whether the alleged retaliation occurred during the pendency of the investigation of the discrimination Charge.