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Overturning precedent, 10th Circuit concludes that filing an EEOC charge is not a jurisdictional prerequisite to suit

By Kathleen Kapusta, J.D.

Overturning nearly 40 years of precedent holding that filing an EEOC charge is a jurisdictional prerequisite to suit, the Tenth Circuit declared that a plaintiff’s failure to file an EEOC charge regarding a discrete employment incident merely permits the employer to raise an affirmative defense of failure to exhaust, but it does not bar a federal court from assuming jurisdiction over a claim. Acknowledging that as an individual panel, it could not overrule Tenth Circuit precedent, the panel first circulated its opinion to all active members of the court, who concurred in its conclusion that its prior precedent was no longer correct. Accordingly, the court reversed the district court’s dismissal for lack of jurisdiction of several parts of the ADA claims of two BNSF employees who alleged that a tank car spill rendered them partially and permanently disabled and prevented them from working outdoors (Lincoln v. BNSF Railway Co., August 17, 2018, McHugh, C.).

When a BNSF tank car sprung a leak in October 2007 near where the employees were working, they were exposed to 2-chlorobenzyl chloride. Following the spill, they attempted for two years to negotiate a monetary settlement with the railroad regarding their injuries from the accident while continuing their duties as Maintenance of Way workers. When the settlement negotiations broke down, their attorneys sent demand letters to BNSF, confirming that they still suffered from a multitude of injuries, including respiratory infections and PTSD.

Can’t work outside. BNSF’s Medical and Environmental Health Department then determined that medical issues alleged in the demand letters raised concerns about whether the employees could safely perform their jobs. The railroad then placed them on medical leave pending evaluations. BNSF then found they could not return to their positions or perform any outdoor work. Both employees then submitted over 20 applications for BNSF positions but were not selected for any of the jobs.

Procedural events. Both employees submitted an accommodation request letter to BNSF on October 1, 2012, but neither attached any documentation from a health professional. They also both filed EEOC charges (and one later filed a second charge). Both subsequently sued, alleging among other things disability discrimination and a failure to accommodate under the ADA. BNSF moved to dismiss portions of each claim, arguing that the employees failed to exhaust their ADA administrative remedies relative to employment actions before April 16, 2012. The railroad also argued that they failed to exhaust other administrative remedies, including under the Federal Railroad Safety Act.

Stipulation on exhaustion and new defense. Before completion of a hearing on the motion, the parties entered into a stipulation agreeing, among other things, that the employees had both “exhausted their [EEOC] administrative remedies for employment actions occurring on or after April 16, 2012.” After discovery, BNSF moved for summary judgment and advanced a new exhaustion defense, contending that the first employee failed to exhaust his ADA administrative remedies relative to employment actions occurring after he filed his EEOC charge, and the second employee failed to exhaust his ADA administrative remedies relative to employment actions occurring between the date of his first EEOC charge and 300 days before he filed his second EEOC charge. Separately, it argued that their claims failed on the merits.

Summary judgment. Granting BNSF’s motion, the district court concluded that the employees failed to exhaust their administrative remedies relative to some of the positions for which they had applied and that their claims based on the positions on which they had exhausted their administrative remedies lacked merit.

Exhaustion of administrative remedies. On appeal, the Tenth Circuit noted that for nearly 40 years, it has steadfastly held that exhaustion of administrative remedies is a “jurisdictional prerequisite to suit.” The employees, however, argued that this precedent could not be squared with the Supreme Court’s 1982 decision in Zipes v. Trans World Airlines, Inc.; that it is no longer in line with the decisions of other circuits; and that it has been questioned by other Tenth Circuit panels.

Supreme Court decisions. The Supreme Court held in Zipes that filing an EEOC charge within the statutory time limit established by 42 U.S.C. § 2000e-5(e)(1) was not a jurisdictional prerequisite to suit; a plaintiff’s failure to file a timely EEOC charge permits a defendant only an affirmative defense. Thus, said the court here, it appeared to qualify as an intervening decision that would permit a Tenth Circuit panel to overrule prior Tenth Circuit precedent. Fourteen years later, however, a Tenth Circuit panel, in Jones v. Runyon, determined that Zipes pertained only to the timeliness of an EEOC charge and thus concluded that Zipes did not supersede Tenth Circuit precedent that the filing of an EEOC charge was a jurisdictional prerequisite to suit. Thus, said the court, it remained bound by Jones.

However, in its role as amicus, the EEOC argued that Tenth Circuit precedent was also inconsistent the High Court’s 2006 decision in Arbaugh v. Y & H Corp. But the Arbaugh Court, observed the court here, applied the reasoning of Zipes to another Title VII provision, and because it had already determined that Zipes was not an intervening decision that permits a panel of this court to reverse its precedent, Arbaugh also did not not qualify as an intervening decision.

Precedent is wrong. Nonetheless, the court found its precedent was incorrect. Title VII’s jurisdictional provision makes no mention of any requirement to exhaust administrative remedies or to file an EEOC charge before bringing suit, said the court, noting that the provision requiring that an ADA claimant file an EEOC charge is the same provision that sets the timeframe for filing an EEOC charge. “In fact, the language setting the timeframe for filing an EEOC charge is the only language requiring that a plaintiff, in fact, file a charge,” said the court, noting that “where the timeliness and filing requirement language in §2000e-5(e)(1) is one and the same, §2000e-5(e)(1) cannot logically be read as speaking in jurisdictional terms relative to the filing of an EEOC charge but not in jurisdictional terms relative to the timeliness of filing an EEOC charge.” Thus, after polling the entire court, the Tenth Circuit held that a plaintiff’s failure to file an EEOC charge regarding a discrete employment incident merely permits the employer to raise an affirmative defense of failure to exhaust, but it does not bar a federal court from assuming jurisdiction over a claim. Accordingly, it reversed the district court’s jurisdictional rulings.

Impact of stipulation. The employees also argued that the court should read the parties’ earlier stipulation—in which they agreed that the employees exhausted their administrative remedies for employment actions occurring on or after April 16, 2012—as an agreement that they had exhausted their administrative remedies for all positions to which they applied on or after April 16, 2012, and that by agreeing to this, BNSF waived its exhaustion defense relative to any positions to which they applied on or after April 16, 2012. Although the court noted that there was no ambiguity in the language and the stipulation was best read as a waiver by BNSF of its exhaustion defense for all employment actions occurring on or after April 16, 2012, it remanded to the district court to decide whether to enforce its terms against the railroad. Not only did the lower court have no prior reason to address the stipulation, because it was bound by precedent that some of the position-specific portions of the ADA claims failed for lack of jurisdiction, but BNSF, when it agreed to this language, might not have been concerned about foreclosing an exhaustion defense because parties cannot stipulate to a court’s jurisdiction over a matter.

On the merits. Although the court reversed the district court’s jurisdictional ruling, it affirmed the vast majority of the lower court’s summary judgment order. It found that in challenging the district court’s summary judgment determinations on the merits of their claims that survived the court’s exhaustion rulings, employees’ counsel submitted a deficient appendix that failed to satisfy the requirements set out in Federal Rules of Appellate Procedure 10(b)(2) and 30(a)(1) and in Tenth Circuit Rule 10.3. These deficiencies, said the court, impeded its ability to reach firm conclusions on the viability of portions of the employees’ ADA discrimination and failure to accommodate claims—and on the entirety of their ADA retaliation claims. On the position-based ADA discrimination and failure to accommodate claims for which it was able to reach a firm conclusion, the court affirmed in part and vacated in part.