Title VII administrative exhaustion is affirmative defense, need not be pleaded in complaint

By Joy Waltemath

By Marjorie Johnson, J.D.

Because administrative exhaustion under Title VII is an affirmative defense that need not be pleaded by a plaintiff, the Second Circuit revived a pro se employee’s Title VII claims of race discrimination as well as his supplemental state-law claim of negligent infliction of emotional distress. However, in a separate concurrently filed summary order, the court affirmed dismissal of his Section 1981 and intentional infliction of emotional distress claims as unviable against the municipality (Hardaway v. Hartford Public Works Department, January 12, 2018, Pooler, R.).

Forced to work in dangerous conditions. The African-American employee, who worked in the city’s public works department for over 20 years, began noticing worsening safety violations. A couple of years later, he photographed the violations after being placed in a “dangerous life and death hazardous working environment.” He also complained to his supervisor, who told him to go back to work. Meanwhile, white coworkers were not forced to work in the dangerous working environment.

Harassment follows OSHA complaint. Due to the inaction, the employee filed a complaint with OSHA. He was subsequently threatened, harassed, intimidated, denied overtime, and suspended. He alleged that he was identified as a “troublemaker,” called “bitch, gay, a person that will complain to OSHA,” and told to “’play ball’ and stop asking safety questions.” A white supervisor later told him that if he stopped reporting safety violations, his demotion would “go away” and his overtime would be “reinstated.”

He filed another complaint with OSHA asserting discrimination and retaliation, and was subsequently told to “stop acting like a bitch running to OSHA like a little girl.” He was also told that if he stopped reporting safety violations everything would “go back to normal.” He filed a third complaint with OSHA and was fired three months later.

Lower court tosses claims. He filed the instant action asserting a myriad of claims and amended his complaint three times. The district court dismissed sua sponte his third amended complaint, adopting the recommended ruling of the magistrate judge. His Section 1981 claim failed because his allegations did not allow municipal liability and a state law barring intentional torts against a municipality doomed his IIED claim. Though the court found that he had stated viable Title VII claims, it held that he failed to plead administrative exhaustion, and then declined to exercise supplemental jurisdiction over his NIED claim.

Title VII exhaustion is affirmative defense. To decide whether the district court erred in dismissing the employee’s Title VII claims, the Second Circuit was tasked with determining which party bears the burden of pleading and proving exhaustion in a Title VII case brought by a non-federal employee—a question it had not yet squarely considered. However, it had previously held that compliance with the filing deadlines operates as an affirmative defense and that failure to exhaust administrative remedies can be asserted by the government as an affirmative defense in Title VII suits brought by federal employees. Moreover, several circuits have ruled that Title VII exhaustion operates as an affirmative defense in similar contexts and the overlapping context of federal employment Title VII claims, though the Tenth Circuit has instead ruled that compliance with Title VII’s filing requirements is “a condition precedent to suit.”

With this backdrop, the Second Circuit agreed with the approach taken by the majority of circuits, and held that the burden of pleading and proving Title VII exhaustion lies with defendants and operates as an affirmative defense. It found this to be consistent with the Supreme Court’s decision in Zipes v Trans World Airlines, Inc., holding that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes indicated that a plaintiff’s failure to fully comply with the remedial administrative scheme envisioned by Title VII does not preclude judicial review but instead the filing requirements operate like a statute of limitations, which typically function as affirmative defenses in federal litigation.

Accordingly, since the district court explicitly found that the employee had otherwise stated viable Title VII claims, it erred by dismissing those claims for failing to adequately plead that he had either exhausted administrative remedies or was otherwise relieved of the obligation to do so. Supplemental jurisdiction over his NIED claim was thus proper since both those claims and his Title VII claims related to the verbal harassment that he allegedly suffered following his OSHA complaints, and thus “derived from a common nucleus of operative fact.”

Municipal liability. However, dismissal of his Section 1981 claims was proper since he failed to plausibly allege municipal liability. Despite the district court’s warning that his second amended complaint failed to sufficiently plead a municipal policy or custom, he failed to fix these deficiencies. He also failed to revive his IIED claim since Connecticut law barred claims against municipalities based on willful misconduct.

First Amendment issues. Finally, the Second Circuit rejected his assertion that the district court should have analyzed his claims under the First Amendment. In its review of his initial complaint, the district court noted that his allegations “could be read to state a First Amendment retaliation claim.” Nevertheless, he never included a First Amendment charge in his subsequent complaints, and the district court did not err in failing to consider such a claim. But even if it had, he still failed to raise a viable First Amendment claim since he alleged no facts indicating that he “spoke as citizens on a matter of public concern” in his complaints to OSHA.

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