No. _________

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In The

Supreme Court of the United States

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MICHAEL DUBLE,

Petitioner,

versus

FEDEX GROUND PACKAGE SYSTEM, INC.,

Respondent.

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On Petition For Writ Of Certiorari To The United States Court Of Appeals

For The Eleventh Circuit

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PETITION FOR WRIT OF CERTIORARI

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ROBERT A. ADER, ESQ. ELIZABETH B. HITT, ESQ. Counsel of Record ADER & HITT, P.A. 100 S.E. 2nd Street, Suite 3550 Miami, Florida 33131-2154 305.371.6060 aderlaw@aol.com bethhitt@aol.com

Attorneys for Petitioner

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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QUESTIONS PRESENTED

1. When the filing of an EEOC charge of retali-ation prompts a new retaliatory act, must a plaintiff file a second EEOC charge in order to judicially pursue the post-charge retaliation?

2. Where the claimant reports post-charge retaliation to the EEOC, the employer defends the post-charge retaliatory act in its position statement to the EEOC, the EEOC investigates and makes an express final determination regarding the post-charge retaliation, has the post-charge retaliatory act been administratively exhausted?

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LIST OF PARTIES

The following is a list of all parties to the pro-ceeding in the circuit and district courts whose judg-ment is sought to be reviewed, as well as a corporate disclosure statement as required by Rule 29.6.

Parties to the proceedings:

Michael Duble, Petitioner

FedEx Ground Package System, Inc., Respondent

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................ i

LIST OF PARTIES ............................................... ii

TABLE OF CONTENTS ...................................... iii

TABLE OF AUTHORITIES ................................. vi

OPINION BELOW ............................................... 1

STATEMENT OF JURISDICTION ..................... 1

STATUTORY PROVISIONS INVOLVED ............ 1

STATEMENT OF THE CASE .............................. 3

REASONS FOR GRANTING THE WRIT ........... 7

I. IN THE WAKE OF THIS COURT’S MORGAN DECISION, THERE IS WIDE-SPREAD CIRCUIT DIVIDE AND CON-SIDERABLE UNREST REGARDING THE EXTENT TO WHICH THE ESTAB-LISHED EXCEPTION TO THE EXHAUS-TION REQUIREMENT CONTINUES FOR POST-CHARGE ACTS TAKEN IN RE-TALIATION FOR FILING THE EEOC CHARGE .................................................... 10

A. Notwithstanding Morgan, the majority of circuits have retained the exhaustion exception, allowing for judicial review of retaliatory acts which occur because an employee has filed an EEOC charge .................................................. 13

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TABLE OF CONTENTS – Continued

Page

B. The Tenth Circuit remains the noted outlier, finding Morgan abrogated its previous exception to the exhaustion requirement ......................................... 17

C. Other circuits have retained, yet narrowed, the exception to exhaustion, in response to Morgan ......................... 17

D. Courts, the EEOC and litigants are clamoring for guidance from this Court .................................................... 23

II. THE PURPOSE OF EXHAUSTION IS IRREFUTABLY FULFILLED WHERE THE EEOC INVESTIGATES AND MAKES AN EXPRESS DETERMINATION WITH RE-GARD TO UNEXHAUSTED POST-CHARGE ACTS OF RETALIATION .......................... 25

CONCLUSION ..................................................... 29

TABLE OF APPENDICES

Duble v. FedEx Ground Package System, Inc., 572 F. App’x 889 (11th Cir. 2014) ..................... App. 1

Opinion of the United States District Court for the Southern District of Florida, May 20, 2013 ................................................................ App. 16

Duble v. FedEx Ground Package System, Inc., Denial of Rehearing and Rehearing En Banc .......................................................... App. 45

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TABLE OF CONTENTS – Continued

Page

EEOC Charge Form .......................................... App. 47

Brief of the Equal Employment Opportunity Commission in Support of Plaintiff-Appellant’s Petition for Rehearing En Banc, Richter v. Advance Auto Parts, Inc. ............... App. 52

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TABLE OF AUTHORITIES

Page

CASES

Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246 (6th Cir. 1998) .................................................. 10

Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999) ......... 11

Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th Cir. 1988) ........................................................ 11

Bennett v. Chatham Cnty. Sheriff Dep’t, 315 F. App’x 152 (11th Cir. 2008) ...................................... 21

Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680 (10th Cir. 1988) ........................................ 11

Burton v. Pennsylvania State Police, 990 F.Supp. 2d 478 (M.D. Pa. 2014) .............................. 16

Butts v. City of New York Dep’t of Housing Preservation & Dev., 990 F.2d 1397 (2d Cir. 1993) .................................................................. 10, 12

Clark v. Kraft Foods, Inc., 18 F.3d 1278 (5th Cir. 1994) ................................................................. 26

Clockedile v. N.H. Dep’t of Corr., 245 F.3d 1 (1st Cir. 2001) ............................................... 11, 22, 24, 26

Delisle v. Brimfield Township Police Dept., 94 F. App’x 247 (6th Cir. 2004) .................................... 14

Dixon v. Ashcroft, 392 F.3d 212 (6th Cir. 2004) ......... 25

Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828 (6th Cir. 1999) ......................................................... 11

Eberle v. Gonzales, 240 F. App’x 622 (5th Cir. 2007) ........................................................................ 20

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TABLE OF AUTHORITIES – Continued

Page

EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976) ......................................................... 27

Everett v. Cent. Mississippi, Inc. Head Start Program, 444 F. App’x 38 (5th Cir. 2011) ............... 22

Fellows v. Universal Restaurants, Inc., 701 F.2d 447 (5th Cir. 1983) .................................................. 10

Fentress v. Potter, No. 09 C 2231, 2012 WL 1577504 (N.D. Ill. May 4, 2012) ............................. 16

Franceschi v. U.S. Dept. of Veterans Affairs, 514 F.3d 81 (1st Cir. 2008) ...................................... 15

Green v. Los Angeles Cnty. Superintendent of Sch., 883 F.2d 1472 (9th Cir. 1989) ........................ 10

Gregory v. Georgia Dep’t of Human Res., 355 F.3d 1277 (11th Cir. 2004) ....................................... 25

Gupta v. E. Tex. State Univ., 654 F.2d 411 (5th Cir. 1981) ................................................................. 11

Hague v. Univ. of Texas Health Sci. Ctr. at San Antonio, 560 F. App’x 328 (5th Cir. 2014) .............. 20

Horton v. Jackson Cnty. Bd. of Cnty. Comm’rs, 343 F.3d 897 (7th Cir. 2003) ................................... 16

Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3d Cir. 1984) .......................................... 11

Jones v. Calvert Group, Ltd., 551 F.3d 297 (4th Cir. 2009) ..................................................... 13, 14, 28

Josephs v. Pac. Bell, 443 F.3d 1050 (9th Cir. 2006) ........................................................................ 26

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TABLE OF AUTHORITIES – Continued

Page

Kirkland v. Buffalo Bd. of Educ., 662 F.2d 1066 (2d Cir. 1980) ........................................................... 11

Luevano v. Wal-Mart Stores, Inc., 772 F.3d 1014 (7th Cir. 2013) ................................................ 15

Lyons v. England, 307 F.3d 1092 (9th Cir. 2002) ....... 15

Malhotra v. Cotter & Co., 885 F.2d 1035 (7th Cir. 1989) ........................................................... 11, 12

Mandel v. M & Q Packaging Corp., 706 F.3d 157 (3d Cir. 2013) .............................................. 16, 22

Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003) ........................................................................ 17

Mathis v. Leggett & Platt, 263 F. App’x 9 (11th Cir. 2008) ................................................................. 21

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) .... passim

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992) ........... 11

Nguyen v. Mabus, 895 F.Supp. 2d 158 (D.D.C. 2012) ........................................................................ 16

Nurriddin v. Griffin, 222 F. App’x 5 (D.C. Cir. 2007), cert. denied, 552 U.S. 1243, 128 S.Ct. 1473, 170 L.Ed.2d 296 (2008) ................................. 23

Payne v. Salazar, 619 F.3d 56 (D.C. Cir. 2010) .... 16, 23

Pierson v. Washington Metro. Area Transit Auth., 821 F.Supp. 2d 360 (D.D.C. 2011) ............... 16

Richter v. Advance Auto Parts, Inc., 686 F.3d 847 (8th Cir. 2012), cert. dismissed, 133 S.Ct. 1491, 185 L.Ed.2d 391 (2013) ........................... 19, 23

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TABLE OF AUTHORITIES – Continued

Page

Rivera v. Puerto Rico Aqueduct & Sewers Auth., 331 F.3d 183 (1st Cir. 2003) ......................... 15

Robinson v. Koch Foods of Alabama, No. 2:13-CV-557-WKW, 2014 WL 4472611 (M.D. Ala. Sept. 11, 2014) ......................................................... 21

Romero-Ostolaza v. Ridge, 370 F.Supp. 2d 139 (D.D.C. 2005) ........................................................... 16

Sapp v. Potter, 413 F. App’x 750 (5th Cir. 2011) .................................................................. 22, 23

Scott v. Eastman Chem. Co., 275 F. App’x 466 (6th Cir. 2008) ......................................................... 14

Simmons-Myers v. Caesars Entm’t Corp., 515 F. App’x 269 (5th Cir.), cert. denied, 134 S.Ct. 117, 187 L.Ed.2d 36 (2013) ............................... 19, 23

Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) ........... 16

Thomas v. Miami-Dade Public Health Trust, 369 F. App’x 19 (11th Cir. 2010) .............................. 21

Turner v. Orr, 804 F.2d 1223 (11th Cir. 1986) ...... 10, 22

Wedow v. City of Kansas City, Mo., 442 F.3d 661 (8th Cir. 2006) ............................................ 18, 19

Wentz v. Md. Cas. Co., 869 F.2d 1153 (8th Cir. 1989) ........................................................................ 11

Williams v. New York City Hous. Auth., 458 F.3d 67 (2d Cir. 2006) .............................................. 16

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TABLE OF AUTHORITIES – Continued

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STATUTES

28 U.S.C. § 1254(1) ....................................................... 1

28 U.S.C. § 1331 ........................................................... 5

42 U.S.C. § 2000e-5(e)(1) .......................................... 2, 7

42 U.S.C. § 12117(a) ................................................. 2, 7

42 U.S.C. § 12203 ..................................................... 1, 7

FEDERAL REGULATIONS

29 C.F.R. § 1601.19(a) ................................................. 27

OTHER AUTHORITIES

Brief of the Equal Employment Opportunity Commission in Support of Plaintiff-Appellant’s Petition for Rehearing En Banc, Richter v. Advance Auto Parts, Inc., appear-ing at App. 52 .......................................................... 24

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OPINION BELOW

The July 24, 2014 unpublished opinion of the Eleventh Circuit Court of Appeals is set forth at 572 F. App’x 889; this opinion is reproduced in the Appen-dix at App. 1. The Court of Appeals’ denial of recon-sideration and reconsideration en banc is reproduced at App. 45. The May 20, 2013 unreported decision of the United States District Court for the Southern District of Florida is set out at App. 16.

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STATEMENT OF JURISDICTION

The Eleventh Circuit filed its decision on July 24, 2014, and entered an order denying Petitioner’s motion for rehearing and rehearing en banc on Sep-tember 23, 2014. Petitioner’s application to extend the time to file the instant petition for writ of certio-rari until February 20, 2015, was granted by Justice Thomas on December 16, 2014. This Court has juris-diction pursuant to 28 U.S.C. § 1254(1) to review the circuit court’s decision on a writ of certiorari.

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STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 12203 provides:

(a) Retaliation. No person shall discrimi-nate against any individual because such in-dividual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified,

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assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

42 U.S.C. § 12117(a) provides:

The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this sub-chapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment.

42 U.S.C. § 2000e-5(e)(1) provides, in pertinent part:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . except that in a case of an un-lawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice . . . , such charge shall be filed . . . within three hundred days after the alleged unlawful employment practice occurred. . . .

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STATEMENT OF THE CASE

Petitioner, Michael Duble (“Duble”), had been working for Respondent, FedEx Ground Package System, Inc. (“FedEx”), for approximately nine years when, in September 2006, he was diagnosed with Multiple Sclerosis (“MS”). Per FedEx’s request, Duble provided a letter from his neurologist explaining that his MS “can be exacerbated by warm environment or any elevation of his core body temperature”, thus it is a “neurologic necessity” that Duble stay “inside and away from heat for his own protection”. Duble con-tinued in his current position, an office job which entailed minimal time in the heat, until months later, when FedEx advised Duble he must choose between two options: take short term disability and exit the company, or take a demotion with a 50% cut in pay. Duble vehemently objected to these two “options” offered.

Two days later, Duble filed his first internal complaint with FedEx, protesting disability harass-ment and stating he was being forced to resign. That same day, he was handed job descriptions for not only his current job, but also a description for another job – a job on the un-airconditioned loading dock, which was extremely hot and required constant physical exertion. When Duble questioned why he was also given a job description for the loading dock, his manager said Duble had to have his doctor provide a

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clearance letter as to both jobs or Duble would lose his current job.1

Duble took both job descriptions to his doctor, explaining that his job entailed only nominal amounts of time in the heat, but without another doctor’s letter addressing both jobs, he would be fired. Duble’s doctor wrote a second letter stating that Duble could perform both jobs; this letter did not lift Duble’s heat restriction. In late February 2009, Duble gave this second doctor’s letter to FedEx. The day after he presented the doctor’s second letter, Duble was informed that FedEx had just done a facility “needs analysis” and determined that he would be transferred to the un-airconditioned loading dock. Duble then filed his second internal complaint, stat-ing that he was being transferred in retaliation for filing his first internal complaint, and feared that the transfer was an effort to make him quit.

Four days later, Duble filed a charge of discrimi-nation with the EEOC, alleging his pending transfer was intended to make him quit, was discriminatorily motivated and done in retaliation for his prior internal complaints of discrimination; Duble alleged the retaliation was “continuing” in nature and that he feared he was being “targeted for termination”.

1 The job descriptions FedEx provided Duble were altered to add over twice as many responsibilities than the unaltered version, and claimed his job entailed 5-7 hours in the heat, while the unaltered descriptions accurately stated the job entailed only “limited” amount of time in the heat.

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App. 47-51. The following month, admittedly because Duble filed the EEOC charge, FedEx’s in-house counsel decided to search all of Duble’s e-mails, going as far back as its system would allow. Culling through three years of e-mails, FedEx unearthed 5 “inappro-priate” e-mails which it utilized to fire Duble for purportedly violating company policy.

His EEOC charge then under investigation, Duble informed the EEOC that FedEx had fired him for, ostensibly, sending inappropriate e-mails, and advised the EEOC that FedEx employees send these same type of e-mails daily, yet FedEx does nothing. Duble was never asked by the EEOC to amend his charge, and never said that he didn’t want to supple-ment his charge to add the termination claim. Al-though Duble did not formally amend his EEOC charge, FedEx was notified of and addressed Duble’s termination in its position statement to the EEOC. The EEOC investigated the termination and, in its Investigative Report and Statement of Determina-tion, expressly determined, “this investigation has not revealed any information to substantiate that [Duble’s] termination was a result of any unlawful discriminatory action on the part of [FedEx].”

Based upon its determination, in July 2011, the EEOC issued Michael Duble a right to sue letter. Duble then timely commenced this action in the U.S. District Court for the Southern District of Florida, in-voking the court’s jurisdiction over federal questions, under 28 U.S.C. § 1331, alleging, inter alia, that he was both transferred and ultimately terminated in

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retaliation for asserting his rights under the Ameri-cans With Disabilities Act (“ADA”) and for filing internal complaints and a charge of retaliation with the EEOC. The district court granted FedEx’s motion for summary judgment, finding Duble failed to ex-haust his administrative remedies with regard to his retaliatory discharge claim, opining that Duble’s retaliatory termination claim did not relate back to his EEOC charge which “sole[ly]” pertained to Fed-Ex’s failure to accommodate Duble’s disability,2 and thus was akin to the type of “discrete discriminatory acts” at issue in Morgan,3 and must be separately administratively exhausted. App. 27-38.

On appeal, the Eleventh Circuit acknowledged its long-standing holding that when the filing of an EEOC charge leads to retaliation, a plaintiff need not file a second EEOC charge to pursue the retaliation claim, as such retaliation grows out of the earlier-filed administrative charge. Then, relying upon Morgan, the court went on to limit its prior precedent to cases in which the unexhausted retaliatory action is taken only during the pendency of the lawsuit. App. 7-10. Duble petitioned the Court for rehearing

2 Yet, the EEOC charge shows that Duble checked the box marked “Retaliation”, stated that he was “being retaliated against for [his] complaints in violation of the Americans with Disabilities Act”, alleged that the retaliation was “continuing”, and that he feared he was being “targeted for termination.” App. 47-51. 3 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

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en banc, detailing how prior Eleventh Circuit law did not condition its exception to the exhaustion require-ment on whether the post-charge retaliatory act occurred pre-lawsuit or post-lawsuit, and that be-cause the EEOC had investigated and made an express determination of the post-charge retaliatory termination, the purpose of the exhaustion require-ment had, in fact, been fulfilled. Rehearing was denied. App. 45.

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REASONS FOR GRANTING THE WRIT

The anti-retaliatory provision of the ADA prohib-its discrimination against an individual “because such individual has opposed any act or practice made unlawful” by the ADA. 42 U.S.C. § 12203(a). Like other statutes designed to curb discrimination/ retaliation in employment, the ADA contains a re-quirement that, prior to commencing litigation, an aggrieved employee must “exhaust” the administra-tive process by filing a charge with the EEOC, or a state agency of like responsibility and authority, within 180/300 days after the occurrence of the chal-lenged act. See 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1).

This case concerns a decision by the Eleventh Circuit Court of Appeals, which stands in direct conflict of decisions of other circuit courts on the same important matter – an issue which directly affects employees’ right to seek judicial redress for retaliatory

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actions taken against them for the very reason that they have previously filed EEOC charges. The ques-tion is: where an employee has filed a charge of discrimination or retaliation with the EEOC and, during the pendency of the EEOC investigation, the employer subsequently retaliates against the employ-ee for filing the EEOC charge, must the employee file a second formal EEOC charge alleging retaliation in order to judicially challenge the subsequent, or post-charge, retaliatory act?

As the question remains unanswered by this Court, the matter continues in recurring dispute, with federal courts of appeals taking sharply diver-gent approaches. While the vast majority of circuit courts agree that post-EEOC-charge conduct taken in retaliation for filing the EEOC charge is directly related to the initial EEOC charge and therefore need not be separately exhausted, at least one circuit now strictly demands a subsequent or renewed charge in order to afford judicial review. Still, other circuits are caught somewhere in the middle, each allowing for judicial review only under very particularized cir-cumstances, unique from one another.

This unresolved dispute continues to enlarge, stretching throughout the circuit and district courts, causing wide-spread inconsistency in the application of exhaustion principles, thus necessitating immedi-ate review by this Court. Such divergence has result-ed in persistent and resounding confusion for legal practitioners, the EEOC, lay persons, and the courts themselves, which all appear to be looking for guidance

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from this Court, for now more than a decade. To date, this Court has declined certiorari to resolve this confusion, leaving a lingering problem as circuit and district courts continue to fashion their own rules of law regarding judicial review of unexhausted post-charge retaliatory acts. The instant matter greatly exemplifies the problem, where the Eleventh Circuit has retreated from its former rulings to now find that it is only where the post-charge retaliatory act occurs during the litigation itself (not prior thereto) that there is no need to separately exhaust. This newly-devised rule has never before been the law in the Eleventh Circuit, or any other.

This Court should additionally review the deci-sion below, as it presents an important issue of feder-al law that has not been, but should be, settled by this Court, concerning the necessity of a second formal EEOC charge where the EEOC investigated and made a final determination as to the post-charge retaliatory act. In such cases the purpose of the exhaustion requirement has been fulfilled, such that requiring a formal second EEOC charge, as a predi-cate to judicial review, places a nonsensical adminis-trative burden upon the very persons remedial statutes, such as the ADA, were designed to protect. In cases, such as that at bar, where the post-charge claim has been effectively exhausted, the lower court’s decision requiring a second formal EEOC charge cannot be squared with the intent underlying the administrative exhaustion requirement.

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I. In The Wake of This Court’s Morgan Deci-sion, There Is Widespread Circuit Divide and Considerable Unrest Regarding the Extent to Which the Established Excep-tion to the Exhaustion Requirement Con-tinues For Post-Charge Acts Taken In Retaliation For Filing the EEOC Charge

For virtually decades, circuit courts have decreed that the filing of an EEOC charge administratively exhausts not only those claims detailed in the charge itself, but also claims which involve conduct like or reasonably related to the allegations contained in the EEOC charge. Generally speaking, circuit courts find that otherwise “unexhausted” claims of discrimina-tion or retaliation are judicially reviewable in three situations: (1) where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination; (2) where the claim alleges “retalia-tion for filing an EEOC charge”; and (3) where a plaintiff “alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge.”4 Consequently, legions of circuit

4 Butts v. City of New York Dep’t of Housing Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds. See also, Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 254 (6th Cir. 1998); Green v. Los Angeles Cnty. Superintendent of Sch., 883 F.2d 1472, 1476 (9th Cir. 1989); Turner v. Orr, 804 F.2d 1223, 1226 (11th Cir. 1986); Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 450-51 (5th Cir. 1983).

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and district courts have held that an employee who suffers retaliation for filing a prior EEOC charge does not need to file a second or amended charge alleging the post-charge retaliatory act, as the retaliatory act is directly related to the EEOC charge itself, making separate exhaustion unnecessary.5 As was discerned, “On balance, we think the cleanest rule is this: retali-ation claims are preserved so long as the retaliation is reasonably related to and grows out of the discrim-ination complained of to the agency – e.g., the retalia-tion is for filing the agency complaint itself.” Clockedile, 245 F.3d at 6. Thus, where it is the filing of the administrative charge which allegedly prompts the post-charge retaliatory act, there is no need to separately exhaust the administrative process.6

5 See, e.g., Clockedile v. N.H. Dep’t of Corr., 245 F.3d 1, 4 (1st Cir. 2001); Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 833 (6th Cir. 1999); Anderson v. Reno, 190 F.3d 930, 938 (9th Cir. 1999) (overruled on other grounds); Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992); Malhotra v. Cotter & Co., 885 F.2d 1035, 1312 (7th Cir. 1989); Wentz v. Md. Cas. Co., 869 F.2d 1153, 1154 (8th Cir. 1989); Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir. 1988); Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988); Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984); Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981); Kirkland v. Buffalo Bd. of Educ., 662 F.2d 1066, 1068 (2d Cir. 1980). 6 Courts realize that, because, by their nature, retaliation claims arise after the filing of the EEOC charge, requiring a second charge to be filed with the EEOC would only create additional technicalities and needless procedural barriers. Gupta, 654 F.2d at 413-14. Requiring a separate EEOC charge “could have the perverse result of promoting employer retaliation in

(Continued on following page)

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This pragmatic exception to the exhaustion requirement has been applied uniformly by circuit courts for many years, without glitch – up until this Court’s decision in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In Morgan, a terminated employee sued his former employer, alleging he had been the victim of discrete racial and retaliatory acts and subjected to a hostile working environment. At issue was whether or not the plaintiff employee was barred from bring-ing suit for discriminatory acts which occurred more than 300 days prior to the employee’s filing of his EEOC charge. Id. at 106, 122 S.Ct. at 2061. This Court reasoned that “[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employ-ment practice,’ ” and found that “[a]ll prior discrete discriminatory acts are untimely and no longer actionable.” Id. at 114-15, 122 S.Ct. 2061 (emphasis added).

Morgan plainly addressed only the timeliness of claims involving acts which occur before a plaintiff files an EEOC charge. Morgan did not, however, dispose of situations where, as here, the plaintiff has

order to impose further costs on plaintiffs and delay the filing of civil actions relating to the underlying acts of discrimination.” Butts, 990 F.2d at 1402. “Having once been retaliated against for filing an administrative charge, the plaintiff will naturally be gun shy about inviting further retaliation by filing a second charge complaining about the first retaliation.” Malhotra, 885 F.2d at 1312.

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timely filed an EEOC charge and is later subjected to retaliation for filing that charge. The door has thus been left open for the circuit courts to decide if, and to what extent, Morgan applies to post-charge acts of retaliation – the question now before this Court. A pronounced split in the circuits has now appeared, creating anything but uniform application of civil rights statutes.

A. Notwithstanding Morgan, the majority

of circuits have retained the exhaus-tion exception, allowing for judicial review of retaliatory acts which occur because an employee has filed an EEOC charge.

Since Morgan, the plurality of circuits have retained their rule that claimants need not return to the EEOC to file a second administrative charge specifically alleging retaliation for filing their earlier EEOC charge. The Fourth Circuit has expressly found that Morgan does not overturn or abrogate the law of its Circuit. See Jones v. Calvert Group, Ltd., 551 F.3d 297 (4th Cir. 2009). The plaintiff in Jones had filed a second administrative charge alleging that she had been denied employment opportunities, had been unduly scrutinized and received negative per-formance reviews all in retaliation for filing her first administrative charge. Id. at 299. Well after she had filed the second charge, she was terminated; plaintiff brought action alleging that she was terminated in retaliation for filing her EEOC charge. Id. At issue in

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Jones was whether the plaintiff was required to file another EEOC charge specifically alleging the retali-atory termination. Id. at 300-02. Reversing summary judgment, the Court unanimously rejected the de-fendant’s argument that Morgan had overruled the Circuit’s prior precedent which held that a second or amended charge was not necessary. Id. at 303.7

The Sixth Circuit has also rejected, albeit in an unpublished divided panel opinion, the idea that Morgan has abrogated its line of cases espousing the exhaustion exception, and found that a plaintiff is not required to exhaust his administrative remedies prior to bringing a claim of retaliation based on the filing of his EEOC charge. Delisle v. Brimfield Township Police Dept., 94 F. App’x 247 (6th Cir. 2004). See also, Scott v. Eastman Chem. Co., 275 F. App’x 466, 474 (6th Cir. 2008) (recognizing post-charge retaliation

7 The Jones Court reasoned:

Although Calvert asserts that Morgan required Jones to file a new EEOC charge alleging that she was ter-minated in retaliation for her first charge, we do not read Morgan that broadly. Morgan addresses only the issue of when the limitations clock for filing an EEOC charge begins ticking with regard to discrete unlawful employment practices. In this respect, it concerns only Congress’s clear preference as expressed in Title VII for “prompt processing of all charges of employment discrimination.” Morgan, 536 U.S. at 109, 122 S.Ct. 2061. It does not purport to address the extent to which an EEOC charge satisfies exhaustion require-ments for claims of related, post-charge events.

Id. at 303.

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based on the filing of an EEOC charge need not be separately exhausted).

Similarly, the First Circuit held that while a retaliatory transfer may be a “discrete act” under Morgan, Morgan did not foreclose unexhausted claims of retaliation which arise subsequent to the filing of an EEOC charge. Rivera v. Puerto Rico Aqueduct & Sewers Auth., 331 F.3d 183, 188-89 (1st Cir. 2003). See also, Franceschi v. U.S. Dept. of Veter-ans Affairs, 514 F.3d 81, 86-87 (1st Cir. 2008) (“A claim of retaliation for filing an administrative charge with the EEOC is one of the narrow excep-tions to the normal rule of exhaustion of administra-tive remedies.”).

In Lyons v. England, 307 F.3d 1092 (9th Cir. 2002), the Ninth Circuit analyzed Morgan at length. Distinguishing between claims based upon pre-EEOC-charge acts and post-EEOC-charge acts, the court found that plaintiffs’ failure-to-promote claims which arose after the filing of their EEOC charge were not barred for failure to exhaust, where the post-charge acts were like or reasonably related to the allegations in the EEOC charge. Id. at 1103-05.

Though not squarely addressing Morgan’s impact on the issue, other circuits, such as the Seventh,8

8 See Luevano v. Wal-Mart Stores, Inc., 772 F.3d 1014, 1030 (7th Cir. 2013) (“We have held for practical reasons, to avoid futile procedural technicalities and endless loops of charge/ retaliation/charge/retaliation, etc., that a plaintiff who alleges

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and Second9 Circuits, continue to apply, post-Morgan, the exception to the exhaustion requirement. The D.C. Circuit has expressly declined a definitive ruling, resulting in a glaring intra-circuit split on the issue, but leaving intact the pre-Morgan line of cases per-mitting unexhausted post-charge retaliation claims.10 Likewise, although the Third Circuit has yet to issue a decisive post-Morgan opinion, the circuit and its district courts continue to apply and reaffirm pre-Morgan jurisprudence.11

retaliation for having filed a charge with the EEOC need not file a second EEOC charge to sue for that retaliation.”); Horton v. Jackson Cnty. Bd. of Cnty. Comm’rs, 343 F.3d 897, 898 (7th Cir. 2003). District courts within the Seventh Circuit have deter-mined that Morgan did not abrogate the exhaustion exception for acts taken in retaliation for filing an EEOC charge. See, e.g., Fentress v. Potter, No. 09 C 2231, 2012 WL 1577504, at *2 (N.D. Ill. May 4, 2012). 9 See Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (allowing unexhausted retaliatory discharge claim, acknowledg-ing retaliation for filing an EEOC charge as a recognized exception to the exhaustion requirement). See also, Williams v. New York City Hous. Auth., 458 F.3d 67, 70 n.1 (2d Cir. 2006). 10 See Payne v. Salazar, 619 F.3d 56, 65 & n.9 (D.C. Cir. 2010). Compare Nguyen v. Mabus, 895 F.Supp. 2d 158, 183-84 (D.D.C. 2012); Pierson v. Washington Metro. Area Transit Auth., 821 F.Supp. 2d 360, 366-67 (D.D.C. 2011) with Romero-Ostolaza v. Ridge, 370 F.Supp. 2d 139, 149 (D.D.C. 2005). 11 See, e.g., Mandel v. M & Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013); Burton v. Pennsylvania State Police, 990 F.Supp. 2d 478, 500 (M.D. Pa. 2014).

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B. The Tenth Circuit remains the noted outlier, finding Morgan abrogated its previous exception to the exhaustion requirement.

While the vast majority of circuits find that Morgan does not speak to the issue of administrative exhaustion of post-charge acts of retaliation, one circuit has concluded altogether to the contrary, finding Morgan abrogated this exception to the exhaustion requirement. In Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003), the Tenth Circuit decided that Morgan promulgates a bright-line rule, requiring exhaustion for not only those acts that precede the EEOC charge, but also those discriminato-ry/retaliatory acts which occur post-charge. Thus, according to Martinez, a plaintiff ’s failure to return to the EEOC to file a second or amended charge alleging she was retaliated against because she filed the EEOC charge, bars her from judicial relief for the retaliation she suffered.

C. Other circuits have retained, yet nar-

rowed, the exception to exhaustion, in response to Morgan.

While the Tenth Circuit has categorically de-nounced the exception to exhaustion for post-charge retaliatory acts, a handful of circuits have simply curbed the exception – each in its own unique way – limiting its purview and further muddying the waters to the current convoluted state.

18

In Wedow v. City of Kansas City, Mo., 442 F.3d 661 (8th Cir. 2006), the Eighth Circuit discussed Morgan’s impact on the Circuit’s rule that a claim for retaliation which grows out of an earlier EEOC charge need not be separately exhausted, and found that the plaintiffs’ post-charge retaliation claims were properly exhausted where, although clearly separate acts, they were not discrete or unrelated to the plain-tiffs’ EEOC allegations of ongoing and continuing retaliation. Id. at 674-75 (noting “[a]cts of retaliation contained in EEOC charges that are alleged to be ‘ongoing and continu[ing]’ are not closed-ended”). In so ruling, the Eighth Circuit recognized:

While our court has narrowed its view of what subsequent acts are sufficiently related to be within the scope of the properly filed administrative charges, we have not wholly abandoned the theory that reasonably re-lated subsequent acts may be considered exhausted. . . . Guided by the principles set forth in Morgan, we continue to adhere to a narrow reading of this exhaustion exception, but we decline, on the facts before us, to abandon it in toto where the subsequent retaliatory acts were of a like kind to the re-taliatory acts alleged in the EEOC charge, which were specified to be of an ongoing and continuing nature.

19

Id. at 673-74.12 Thus, although the Eighth Circuit does not countenance abrogation of the exhaustion exception, it does find that Morgan has limited the exception such that it only applies where the EEOC charge specifically alleges ongoing or continuous retaliatory conduct and the post-charge retaliatory conduct is like or related to that described in the EEOC charge.13 While the Eighth Circuit hasn’t quite sided with the Tenth, Richter provides indication that the Eighth might be heading that way.

In Simmons-Myers v. Caesars Entm’t Corp., 515 F. App’x 269, 273-74 (5th Cir.), cert. denied, 134 S.Ct. 117, 187 L.Ed.2d 36 (2013), the Fifth Circuit took a novel approach and, while continuing to recognize the

12 Had Petitioner Duble brought his claims in the Eighth Circuit, he would have been found to have exhausted his administrative remedies where his EEOC charge “clearly alleged that retaliation had occurred and was continuing to occur”, where he checked the box in his EEOC charge “indicating [he] was claiming retaliation”, and specifically described that he was being retaliated against for his complaints of discrimina-tion. Id. at 674. Indeed, where Duble alleged in his EEOC charge that the employer’s retaliatory acts were intended to make him quit, and that he feared he was being “targeted for termination” (App. 47-51), his judicial claim for retaliatory termination is not separate, distinct or unrelated to the allega-tions contained in his EEOC charge, but rather “the same type of ongoing retaliation” which began prior to his EEOC charge and continued through his post-charge termination. 13 See also, Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851-52 & n.1 (8th Cir. 2012), cert. dismissed, 133 S.Ct. 1491, 185 L.Ed.2d 391 (2013) (recognizing that Wedow “consid-erably narrowed” the “like or reasonably related to” exception).

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exception to administrative exhaustion, curtailed its application to situations in which the plaintiff alleges solely claims of retaliation, not alternative theories of retaliation and discrimination for post-charge acts. According to the Fifth Circuit, if a plaintiff should allege that post-charge acts were motivated by not only retaliation but also discrimination, a plaintiff must file a second EEOC charge alleging both post-charge retaliation and discrimination, in order to garner judicial review of her post-charge retaliation claims. If, on the other hand, a plaintiff is alleging solely retaliation as the impetus for the post-charge act (and not pleading in the alternative), she need not file that second EEOC charge. While, as of now, the Fifth Circuit retains its pre-Morgan exception, allow-ing plaintiffs to bring otherwise unexhausted claims of retaliation taken because of a previously-filed EEOC charge,14 the Fifth Circuit’s curiously stringent narrowing of the exception gives pause to wonder if it is also heading in the direction of the Tenth.

The Eleventh Circuit continues to align with the majority of circuits, recognizing, post-Morgan, that where it is the filing of the administrative charge which is alleged to have prompted the retaliatory

14 In the unpublished case of Eberle v. Gonzales, 240 F. App’x 622, 628 (5th Cir. 2007), the Fifth Circuit acknowledged Morgan’s holding, and found that the exception to exhaustion requirement remains in force. See also, Hague v. Univ. of Texas Health Sci. Ctr. at San Antonio, 560 F. App’x 328, 331 (5th Cir. 2014) (allowing unexhausted charge of retaliation where alleged to be taken for filing EEOC charge).

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post-charge act, there is no need to separately ex-haust the administrative process. Thomas v. Miami-Dade Public Health Trust, 369 F. App’x 19, 23 (11th Cir. 2010) (district court could consider un-exhausted post-charge acts of retaliation “to the extent [plain-tiff] contended they were caused by the filing of her EEOC charge”).15 Although it continues to maintain the exhaustion exception, the Eleventh Circuit has, for the first time (via the case at bar), modified the exception, adding its own twist, distinct from any other circuit. Now, claimants who bring action in the Eleventh Circuit need only file a second or amended EEOC charge when the post-charge retaliation occurs prior to litigation; if the retaliatory act occurs during the lawsuit, there is no need to return to the EEOC. App. 7-10.16 To date, the Eleventh Circuit is the only circuit that distinguishes between post-charge retali-atory conduct occurring prior to litigation, versus post-charge retaliatory conduct which occurs during litigation.17

15 See also, Mathis v. Leggett & Platt, 263 F. App’x 9, 12 (11th Cir. 2008); Bennett v. Chatham Cnty. Sheriff Dep’t, 315 F. App’x 152, 162, n.7 (11th Cir. 2008). 16 See Robinson v. Koch Foods of Alabama, No. 2:13-CV-557-WKW, 2014 WL 4472611, at *2 (M.D. Ala. Sept. 11, 2014) (noting Duble altered Eleventh Circuit law such that now retaliatory acts which occur after the EEOC charge but before the filing of the lawsuit, must be separately exhausted).

17 No other circuit has found the timing of the post-charge retaliation to be a determinative factor as regards the applicabil-ity of the exhaustion exclusion. Those courts which have touched upon the distinction find that the sounder approach is to require

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As the above demonstrates, the circuit courts are in complete disarray with regard to whether the pre-Morgan exception to exhaustion for post-charge retaliatory acts is applicable, and to what extent. The Tenth Circuit is now polarized, leaving a prominent post-Morgan circuit split between it and the First, Second, Third, Fourth, Sixth, Seventh, Ninth, and D.C. Circuits, while the Fifth, Eighth and Eleventh Circuits are off on tangents of their own, retaining the exhaustion exception yet modifying it in altogeth-er different ways. At present, the right to judicial redress for post-charge acts taken in retaliation for filing an EEOC charge, is manifestly dependent upon the federal judicial circuit in which suit is brought.

that the post-charge act occur during the pendency of the EEOC investigation, not the ensuing litigation, as such furthers the purpose of administrative exhaustion, to wit, to allow the EEOC the first opportunity to investigate discriminatory practices. See, e.g., Everett v. Cent. Mississippi, Inc. Head Start Program, 444 F. App’x 38, 45 (5th Cir. 2011) (post-charge retaliatory termination occurred “during the pendency of the case before the commis-sion”); Sapp v. Potter, 413 F. App’x 750, 752 (5th Cir. 2011) (“A person cannot reasonably expect a concluded [EEOC] investiga-tion to include an event that has not yet occurred.”); Clockedile, 245 F.3d at 5 (“It is a stretch to describe acts that occurred after agency proceedings have ended, [ ], as ‘within’ the scope of the agency investigation.”); see also, Mandel, 706 F.3d at 163 (parameters of civil action “are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before the EEOC.”) (empha-sis added); Turner, 804 F.2d at 1226 (same).

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D. Courts, the EEOC and litigants are clamoring for guidance from this Court.

This ever-mounting confusion will undoubtedly become worse as more circuits fashion their own rules regarding the necessity or extent to which employees suffering retaliation for filing EEOC charges must separately exhaust their post-charge retaliation claims. Several courts have, accordingly, acknowl-edged the need to have this Court decide the issue so courts, legal practitioners and litigants do not have to speculate as to how to proceed.18 Aside from the instant petition for certiorari, at least three other petitions, from three separate circuits, including the Fifth, Eighth and D.C. Circuits, have been filed, asking that this Court decide the issue; all have been denied or dismissed.19 And, given that the EEOC (the very entity charged with enforcing and administering

18 While the D.C. Circuit has deliberately sidestepped the issue of whether Morgan has abrogated prior circuit law, see, e.g., Payne, 619 F.3d at 65, other circuits have sharply criticized sister circuits’ analysis of the issue. See, e.g., Richter, 686 F.3d at 853 n.2. Circuits do agree, though, that there currently exists a pronounced circuit discord with regard to the exhaustion issue, see, e.g., Sapp, 413 F. App’x at 752 & n.2, and, as much of this law is found in unpublished circuit opinions, it appears that courts are clamoring for guidance from our Highest Court. 19 See, Simmons-Myers v. Caesars Entm’t Corp., 134 S.Ct. 117, 187 L.Ed.2d 36 (2013) (petition for writ of certiorari denied); Nurriddin v. Griffin, 128 S.Ct. 1473, 170 L.Ed.2d 296 (2008) (petition for certiorari denied). See also, Richter v. Advance Auto Parts, Inc., 133 S.Ct. 1491, 185 L.Ed.2d 391 (2013) (petition for certiorari dismissed).

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anti-discrimination laws in the employment arena) has filed amicus briefs at the circuit level, document-ing the conflict amongst circuits, it is apparent that the EEOC would also like this Court to resolve the matter.20

Some fourteen years ago, the First Circuit acknowledged the necessity for a uniform edict on this issue, and prophesized, “[s]omeday the Supreme Court will bring order to this subject”. Clockedile, 245 F.3d at 6. Respectfully, it is imperative that this Honorable Court grant certiorari in order to resolve the conflict among the courts of appeals, and decide, once and for all, whether, prior to seeking judicial review of post-charge acts taken in retaliation for filing the EEOC charge, a claimant must file a second or amended EEOC charge specifically alleging the post-charge retaliatory conduct. Without a ruling by this Court, the divergence in the circuit law will only get worse.

20 See Brief of the Equal Employment Opportunity Commis-sion in Support of Plaintiff-Appellant’s Petition for Rehearing En Banc, Richter v. Advance Auto Parts, Inc., appearing at App. 52-73. See also, Clockedile, 245 F.3d at 4 (noting the appearance of the EEOC, as amicus curiae on the exhaustion issue).

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II. The Purpose of Exhaustion Is Irrefutably Fulfilled Where The EEOC Investigates and Makes an Express Determination With Regard to Unexhausted Post-Charge Acts of Retaliation

“The purpose of the [administrative exhaustion] requirement is to trigger an investigation, which gives notice to the alleged wrongdoer of its potential liability and enables the EEOC to initiate conciliation procedures in an attempt to avoid litigation.” Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004); see also, Gregory v. Georgia Dep’t of Human Res., 355 F.3d 1277, 1279-80 (11th Cir. 2004). At issue herein is whether the EEOC’s investigation and determination of a post-charge retaliation claim suffices to render that claim exhausted for purposes of judicial review.

Looking first to his EEOC charge, it is apparent that Michael Duble specifically alleged that he was “being retaliated against for [his] complaints in violation of the Americans with Disabilities Act”, that his pre-charge transfer was “an obvious attempt to get [him] to quit”, that FedEx’s retaliation was “con-tinuing”, and that he feared he was being “targeted for termination”. App. 47-51. While the EEOC was investigating his claims of retaliation, Duble was, in fact, terminated, as predicted in his EEOC charge. Not only were the claims of ongoing retaliation and foretold fear of termination sufficient to put the EEOC on notice that the employer might terminate Duble should he complain again, the EEOC was specifically advised, by Duble, that he had been

26

terminated. Significantly, after being notified of the termination, the EEOC investigated the claim, along with Duble’s other pre-charge claims, and specifically determined, “this investigation has not revealed any information to substantiate that [Duble’s] termina-tion was a result of any unlawful discriminatory action on the part of [FedEx].”

The EEOC’s “investigation of a particular claim creates a strong inference that such a claim was presented”, and that the exhaustion requirement is fulfilled. Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280-81 (5th Cir. 1994) (unexhausted claim of dispar-ate treatment properly before the court where “EEOC determination concluded that ‘[t]he investigation discovered no evidence that Charging Party was asked to resign and was subsequently discharged because of her sex’”). Where the EEOC has under-taken and completed an actual investigation of a claim, such claim is administratively exhausted. See Clockedile, 245 F.3d at 5 (“an actual investigation by the agency, correlates fairly well with the dual aims of the statutory scheme: to give the agency a chance to conciliate (the exhaustion goal), and to provide quick notice to the employer (the statute of limita-tions goal).”) (citations omitted); Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006) (district court may adjudicate claims that fall “within the scope of the EEOC’s actual investigation”) (emphasis in original; citations omitted).

Moreover, the fact that the EEOC addressed Duble’s termination in its Determination Letter

27

demonstrates that the termination claim was, in fact, exhausted. See EEOC v. General Electric Co., 532 F.2d 359, 366 (4th Cir. 1976) (finding lawsuit was not limited to the acts alleged in EEOC charge, but can also comprise discriminatory acts “included in the reasonable cause determination of the EEOC”). Where the Commission completes its investigation of a claim, makes a determination as to that claim, and issues a determination letter to the parties indicating its finding as to that claim, a “final” agency determi-nation on such claim has been made, and the claim thus exhausted. See 29 C.F.R. § 1601.19(a).21 Because the EEOC investigated and made a final determina-tion as to the lawfulness of Duble’s termination, the termination has been effectively exhausted.

FedEx was neither denied notice of Duble’s termination claim, nor prejudiced, and its ability to defend itself was in no way impeded, where FedEx was made aware of and did defend the termination in its statement to the EEOC. The administrative

21 The EEOC procedural regulations regarding the issuance of letters of determination provide, in pertinent part:

Where the Commission completes its investigation of a charge and finds that there is not reasonable cause to believe that an unlawful employment practice has occurred or is occurring as to all issues addressed in the determination, the Commission shall is-sue a letter of determination to all parties to the charge indicating the finding. The Commission’s letter of determination shall be the final determina-tion of the Commission.

29 C.F.R. § 1601.19(a) (emphasis added).

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process was certainly not circumvented by the ab-sence of a second formal EEOC charge. Where, as here, the investigatory and conciliatory procedures of the EEOC were already triggered and underway, it serves no purpose to require a second formal charge alleging retaliation for filing the EEOC charge, particularly where the EEOC had the opportunity to, and did, investigate Duble’s termination. And, where post-charge claims of retaliation for filing an EEOC charge are at issue, “a second conciliation could not be expected to be any more fruitful than the first.” Jones, 551 F.3d at 302. The facts of this case demon-strate that Petitioner Duble did effectively exhaust his retaliatory termination claim. In finding to the contrary, and strictly requiring a formal EEOC charge alleging the post-charge retaliatory termina-tion, the Eleventh Circuit elevates form over sub-stance, and imposes upon litigants a nonsensical procedural hurdle not envisioned by anti-discrimination laws.

Whether or not a claim for post-charge retaliato-ry termination can be deemed administratively exhausted where the claimant informs the EEOC of the claim, the employer addresses the claim in its response statement to the EEOC, the EEOC investi-gates the claim and issues a letter of determination specifically addressing the post-charge retaliatory termination claim, presents an important issue with significant practical consequences, and a compelling issue for this Court to decide.

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CONCLUSION

Petitioner respectfully requests that this Honor-able Court invite the Solicitor General to file a brief expressing the views of the United States as regards one or more of the issues involved herein.

For the foregoing compelling reasons, Petitioner respectfully requests the Supreme Court of the Unit-ed States to grant the petition for a writ of certiorari.

Respectfully submitted,

ROBERT A. ADER, ESQ. ELIZABETH B. HITT, ESQ. Counsel of Record ADER & HITT, P.A. 100 S.E. 2nd Street, Suite 3550 Miami, Florida 33131-2154 305.371.6060 aderlaw@aol.com bethhitt@aol.com

Attorneys for Petitioner

App. 1

572 Fed.Appx. 889

United States Court of Appeals, Eleventh Circuit.

Michael DUBLE, Plaintiff-Appellant, v.

FEDEX GROUND PACKAGE SYSTEM, INC., Defendant-Appellee,

Federal Express Corporation, Defendant.

No. 13-12749 | Non-Argument Calendar. | July 24, 2014.

Robert Ader, Elizabeth B. Hitt, Law Offices of Robert Ader, Pa, Miami, FL, for Plaintiff-Appellant.

Anne Marie Estevez, Carol A. Field, Morgan Lewis & Bockius, LLP, Miami, FL, Allyson Newton Ho, Mor-gan Lewis & Bockius, LLP, Dallas, TX, Christina K. Johansen, Fedex Ground Package System, Inc., Coraopolis, PA, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:11-cv-23550-EGT.

Before PRYOR, MARTIN, and FAY, Circuit Judges.

Opinion

PER CURIAM:

Michael Duble appeals the magistrate judge’s order granting summary judgment to FedEx Ground System Inc. (“FedEx”), in an action alleging disability discrimination and retaliation. We affirm.

App. 2

I. BACKGROUND

Duble worked as a Service Manager for FedEx at one of its facilities in Miami, Florida, from September 1997 to November 2009. His specific responsibilities included pickup and delivery (“P & D”), preload, and outbound duties, which would change depending on FedEx’s business needs. In September 2006, Duble was diagnosed with multiple sclerosis (“MS”).

In March 2007, Duble began working as a P & D service manager. Thereafter, the District Managing Director, George Crosby, issued a mandate for a service manager to be outside each station’s entrance gate to speak to returning contractor drivers about any packages not delivered to ensure they were held accountable. This procedure is known as the “gate-keeper” function. R. at 1341, 3323-24, 3770. Duble was assigned the gatekeeper function in February 2008 and performed his duties until April 2008.

On April 11, 2008, Duble told his supervisor he was completely exhausted and could not perform the gatekeeper function. Duble then went to Senior Manager Bryon Martinez to explain he could not go outside that day because heat affects his MS. Human Resources (“HR”) then became involved. Senior HR Representative Esperanza Cruz met with Duble and completed a Reasonable Accommodation Form (“HREA form”). Duble reported he “is not allowed to get overheated [and] [c]an’t be under the sun or heat.” R. at 1344, 3770. Duble’s suggested accommoda- tion was for someone else to perform the gatekeeper

App. 3

function between 4:30 p.m. and 8:00 p.m. At Cruz’s request, Duble provided FedEx with a letter from his treating physician stating “he has a neurologic con-dition that is subject to fluctuation and can be wors-ened by exposure to heat in his environment,” and he “need[s] to work in an environment that is inside and away from heat for his own protection.” R. at 1381. Following the April 11, 2008, incident, Duble was never asked, nor did he perform, the gatekeeper function again.

In November 2008, Duble’s supervisor asked him to conduct Customer Service Rides (“CSRs”). Duble advised his supervisor, because of his MS, he could not conduct CSRs in vans because they did not have air-conditioning and involved too many stops. At the Miami facility there were approximately 100 non- air-conditioned vans and only six bulk trucks with air-conditioning. FedEx subsequently did not request Duble to perform CSRs in vans.

In December 2008, Crosby went to the Miami facility and noticed one of the van lines was being operated without a manager. Martinez told him FedEx had pulled some of the managers to assist in opening an annex building, so Crosby decided to reassess the station. When they did so, Martinez told Crosby they could not move Duble to the preload dock because he had heat restrictions. Crosby decided they would have to assess the entire station and have HR review if the accommodation for Duble was still needed. FedEx thereafter reevaluated its ability to

App. 4

keep Duble in a managerial role under the con-straints identified by his physician.

Duble was identified as a possible manager to move to preload, because there was not enough managerial work to keep Duble in the limited P & D service manager role. This would have required Duble to work the “graveyard shift,” which he did not want to do. R. at 28, 30, 513. Duble worked different hours than other P & D service managers, and he was unable to perform CSRs in vehicles not equipped with air-conditioning. In January 2009, the Regional HR Manager Michele Miles instructed Kim Luke, an Employee Relations Specialist, to complete a second HREA form, regarding Duble’s continued limitations. Duble stated he could perform the gatekeeper func-tion if the returning delivery trucks pulled up to bay door 32, an alternative FedEx permitted during inclement weather, because this would allow him to stay indoors and not to become overheated. According to the second HREA form, however, this suggested accommodation posed an undue hardship FedEx.

Miles was instructed to offer Duble two options: (1) take short-term disability leave for approximately three months, or (2) be reclassified to a clerk position. On January 20, 2009, Miles, Luke, and Martinez met with Duble. Martinez gave Duble the job descriptions for the P & D and Dock Service Manager positions and told him to take these to his physician to provide a letter affirming Duble could perform the listed duties. Duble’s physician sent a letter explaining Duble could perform either job without difficulty from

App. 5

his neurologic condition. Martinez reassigned Duble to preload.

On March 6, 2009, Duble filed a complaint of discrimination with the Equal Employment Oppor-tunity Commission (“EEOC”) and the Florida Com-mission on Human Relations (“FCHR”). He alleged disability discrimination and retaliation, because FedEx had failed to accommodate. During the EEOC’s investigation, FedEx’s in-house counsel requested retrieval of Duble’s emails. As a result of finding what was considered inappropriate content and language in numerous emails, Duble was termi-nated on November 19, 2009, for violation of FedEx’s email policy.

The EEOC investigation concluded there was no probable cause to believe unlawful discrimination or retaliation had occurred. Duble then filed suit alleg-ing disability discrimination by FedEx under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, and Florida Civil Rights Act (“FCRA”), Fla. Stat. § 710.10. He alleged FedEx had taken adverse actions against him because of his disability by failing to provide him with reasonable accommoda-tions for his MS in his capacity as P & D Service Manager. Further, he alleged FedEx had discriminat-ed against him, based on disability and had retaliated against him for engaging in protected activities by (1) imposing adverse changes in the conditions of his employment, when it transferred him to a different position, and (2) by terminating him.

App. 6

The magistrate judge1 granted FedEx’s motion for summary judgment. The magistrate judge con-cluded Duble failed to exhaust his administrative remedies regarding his termination claims, Duble had not established a prima facie case of failure to accommodate, and Duble’s transfer was not discrimi-natory or retaliatory. On appeal, Duble argues the magistrate judge erred by granting summary judg-ment to FedEx on (1) his retaliatory termination claim,2 because he was not barred for failure to ex-haust his administrative remedies; (2) his discrimina-tion claim for failure to accommodate, because FedEx failed to accommodate his disability by requiring him to choose between two options that were unacceptable accommodations; and (3) his discriminatory and retali-atory transfer claims, because he suffered an adverse action because of his disability and his protected expression, and FedEx’s proffered legitimate, non-discriminatory reason for its action was pretext.

1 The parties consented to jurisdiction before the magistrate judge. 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. 2 Because Duble does not challenge on appeal the magis-trate judge’s entry of summary judgment in favor of FedEx on his discriminatory termination claim, Duble has abandoned that argument. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir.2004).

App. 7

II. DISCUSSION

A. Retaliatory-Termination Claim

We review de novo whether the requirement of exhaustion of administrative remedies applies to a claim. Lanfear v. Home Depot, Inc., 536 F.3d 1217, 1221 (11th Cir.2008). Exhaustion of administrative remedies is a matter in abatement that should be raised in a motion to dismiss, or treated as such if raised in a motion for summary judgment. Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir.2008).

Prior to filing an action in federal court for dis-crimination or retaliation, a plaintiff must file an administrative charge with the EEOC. Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir.2004) (discussing the exhaustion requirement in Title VII actions). The purpose of the exhaustion requirement is to allow the EEOC the first opportuni-ty to investigate the alleged practices and to perform its role “in obtaining voluntary compliance and pro-moting conciliation efforts.” Id. (citation and internal quotation marks omitted). We have cautioned “that allegations of new acts of discrimination are inappro-priate” for a post-charge judicial complaint. Id. at 1279-80. Consequently, “a plaintiff ’s judicial com-plaint is limited by the scope of the EEOC investiga-tion which can reasonably be expected to grow out of the charge of discrimination.” Id. at 1280 (citation and internal quotation marks omitted).

It is unnecessary for a plaintiff to exhaust admin-istrative remedies prior to filing a judicial claim of

App. 8

retaliation if that claim grew “out of an earlier charge,” because the “the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court.” Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.1988) (quoting Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. Unit A Aug.1981)). This exception, however, does not apply, when no other properly raised judicial claim exists to which the retaliation claim may attach.

In Gupta, the plaintiff filed two EEOC charges and then commenced his lawsuit arising out of those charges. 654 F.2d at 413. While the case was pending, the plaintiff was notified his employment contract would not be renewed for the following year. Id. He argued the termination was a retaliatory action against him, but he never filed a charge with the EEOC alleging the retaliation. Under those circum-stances, we concluded it was unnecessary for the plaintiff to file a charge with the EEOC before amending his complaint to include retaliation, be-cause the claim grew out of the administrative charge that properly was before the district judge. Id. at 414.

We applied the Gupta rule in Baker, where the plaintiff had filed a lawsuit in district court pursuant to a right-to-sue letter. 856 F.2d at 168. While the complaint was pending, she filed a motion for prelim-inary injunction and sought to enjoin allegedly retali-atory actions taken by her employer as a result of the suit. Id. She did not file a separate charge with the EEOC regarding these actions, and her employer

App. 9

argued the district judge had no jurisdiction to enter-tain the motion, because she had not exhausted her administrative remedies for those actions. Id. We held she did not have to exhaust her administrative remedies for the district judge to have jurisdiction over the motion. Id. at 169.

In Gupta, we determined the plaintiff could proceed on retaliation claims growing out of EEOC charges that already were before the district judge. See Gupta, 654 F.2d at 414 (“[T]he district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is proper-ly before the court.”). In Baker, we did not state whether the administrative charge already had to be before the district judge, but noted the “complaint had been pending for four months in the district court,” when the plaintiff filed a motion for prelimi-nary injunction. Baker, 856 F.2d at 168-69.

Duble’s termination claims relate to a discrete act of alleged discrimination that occurred after he filed his initial charge pertaining to FedEx’s purport-ed failure to accommodate. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 2073, 153 L.Ed.2d 106 (2002) (“Each incident of discrimination and each retaliatory adverse employ-ment decision constitutes a separate actionable ‘unlawful employment practice.’ ”). Moreover, Duble was terminated in November 2009 and did not file suit in district court until September 2011. Because this case is factually distinguishable from Gupta and Baker, we conclude the Gupta rule does not apply.

App. 10

Duble’s EEOC claim was still pending, when he was terminated, ostensibly for violating FedEx’s email policy, and he had the opportunity to amend his EEOC charge or file a new charge relating to his termination. Duble, however, chose not to amend or file a new charge. Therefore, Duble failed to exhaust his administrative remedies regarding his termina-tion claims.

B. Failure-to-Accommodate Claim

We review de novo “a grant of summary judg-ment on ADA claims, construing the facts in the light most favorable to the non-moving party.” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir.2007). A movant is entitled to summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We also may affirm a judg-ment on any legal grounds, regardless of the district judge’s grounds and reasoning. Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir.2004).

We apply the burden-shifting analysis of Title VII employment-discrimination claims to ADA claims. Holly, 492 F.3d at 1255. To establish a prima face case of employment discrimination based on a disability, the plaintiff must show “(1) he is disabled; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of his disability.” Id. at 1255-56.

App. 11

Under the second prong,3 to establish a plaintiff was otherwise qualified, he must prove he is a person with a disability who, “with or without reasonable accommodation, can perform the essential functions” of the job. 42 U.S.C. § 12111(8). He must prove he is able to perform the essential functions of his job without accommodation, or he is able to perform those functions with a reasonable accommodation. Holly, 492 F.3d at 1256. “An accommodation is ‘rea-sonable’ and necessary under the ADA, in turn, only if it enables the employee to perform the essential functions of the job.” Id. We have noted “prior ac-commodations do not make an accommodation rea-sonable.” Wood v. Green, 323 F.3d 1309, 1314 (11th Cir.2003). “[A]n employer who goes beyond the de-mands of the law to help a disabled employee incurs no legal obligation to continue doing so.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1257 n. 3 (11th Cir.2001).

To establish the third prong, the plaintiff must show the employer discriminated against him on the basis of his disability. Holly, 492 F.3d at 1261-62. “An employer’s failure to reasonably accommodate a disabled individual itself constitutes discrimination under the ADA, so long as that individual is ‘other-wise qualified,’ and unless the employer can show undue hardship.” Id. at 1262. After Duble asserted he could not perform the gatekeeper function because of

3 The facts are undisputed that Duble was disabled within the context of the ADA.

App. 12

the hot weather in Miami, FedEx did not require him to perform that function. FedEx also did not require him to perform the CSRs in its vans, because the vans did not have air-conditioning. Accordingly, the record does not show FedEx failed to accommodate Duble for the two functions his MS prevented him from performing.

Regardless of whether these functions were essential or marginal, or whether Duble perceived the lack of requests to perform these functions as accom-modations, the record shows FedEx did not require him to perform any job beyond his medical limita-tions. After the January 2009 meeting in which Miles offered Duble the two options of taking short-term disability leave or accepting a demotion, Miles al-lowed Duble to acquire another letter from his physi-cian that lifted his restrictions. FedEx did not require him to perform the gatekeeper function or CSRs while awaiting that letter, and FedEx did not transfer him to preload until after it received the requested letter from his physician. If these two functions were marginal, then FedEx adequately accommodated Duble by not requiring him to complete them. If they were essential, FedEx was not required to accommo-date Duble. See Wood, 323 F.3d at 1314 (explaining a previously provided accommodation does not necessari-ly make that accommodation reasonable). Therefore, Duble failed to provide evidence that FedEx unlaw-fully discriminated against him by failing to accom-modate his disability. See Lucas, 257 F.3d at 1260 (recognizing the ADA may require an employer to restructure a job “by altering or eliminating some of

App. 13

its marginal functions,” but employers are not re-quired to eliminate essential functions of a position).

C. Discriminatory and Retaliatory-Transfer

Claims

The ADA prohibits employers from discriminat-ing against qualified individuals on the basis of disability, regarding the discharge of employees or other terms, conditions, and privileges of employ-ment. 42 U.S.C. § 12112(a). A “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” § 12111(8). The retaliation section of the ADA states that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” § 12203(a). Under the FCRA, it is unlawful for an employer to discriminate against any person, because that person has opposed any practice which is an unlawful employment practice under the FCRA, or because that person has made a charge or partici-pated in any manner in an investigation, proceeding, or hearing under the FCRA. Fla. Stat. § 760.10(7).

We evaluate ADA and FCRA retaliation cases under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817,

App. 14

1824, 36 L.Ed.2d 668 (1973). Holly, 492 F.3d at 1255; Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1333 (11th Cir.1999). First, the plaintiff must estab-lish a prima facie case, which raises a presumption that the employer’s decision was more likely than not based on an impermissible factor. Richardson v. Leeds Police Dep’t, 71 F.3d 801, 805 (11th Cir.1995). To establish a prima facie case for retaliation under the ADA, the plaintiff must show “(1) he engaged in a statutorily protected expression; (2) he suffered an adverse employment action; and (3) there was a causal link between the adverse action and his pro-tected expression.” Lucas, 257 F.3d at 1260.

“An employment action is considered ‘adverse’ only if it results in some tangible, negative effect on the plaintiff ’s employment.” Id. at 1261. We have held the question of whether an action is adverse is objective, such that “[a]n ADA plaintiff must demon-strate that a reasonable person in his position would view the employment action in question as adverse.” Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1449 (11th Cir.1998). An action is not adverse simply because the plaintiff dislikes it or disagrees with it. Id. The plaintiff ’s subjective preference of one posi-tion over another is generally not relevant to deter-mine whether an action was adverse. Id. at 1452.

The record does not show Duble suffered an ad-verse action, satisfying the requirements for a prima facie case of discrimination or retaliation under the ADA or FCRA. In January 2009, FedEx undertook a needs analysis of the Miami facility and reviewed all

App. 15

of the managers and their assignments. FedEx de-termined Duble was an ideal candidate to move from his P & D Service Manager position, where he was not performing the gatekeeper function or CSRs, to a Preload Service Manager position. Duble’s transfer was considered a lateral move and did not involve a loss in salary or benefits. Although Duble provided evidence the decision greatly inconvenienced his personal life, an action is not adverse solely because the plaintiff disliked or disagreed with it. See Doe, 145 F.3d at 1449.

AFFIRMED.

App. 16

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No. 11-23550-CIV-TORRES MICHAEL DUBLE,

Plaintiff,

vs.

FEDEX GROUND PACKAGE SYSTEM, INC.,

Defendant. /

ORDER ON DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

(Entered May 20, 2013)

This matter is before the Court on Defendant’s Motion for Summary Judgment (“Motion”). [D.E. 120]. The Court has reviewed the Motion, Plaintiff ’s Response [D.E. 125], Defendant’s Reply [D.E. 151], the parties supplemental filings [D.E. 160-166], relevant authority, and the record evidence submitted in support of and in opposition to the Motion, and has considered the arguments of counsel presented at the December 19, 2012 hearing. For the reasons outlined below, Defendant’s Motion is GRANTED.

I. BACKGROUND

Plaintiff, Michael Duble, worked as a service manager for Defendant, FedEx Ground Package System, Inc., in one of its facilities in Miami, Florida,

App. 17

from September 1997 to November 2009. [D.E. 112 at ¶7]. Although Plaintiff was a service manager throughout his employment with Defendant, his specific responsibilities sometimes changed depend-ing Defendant’s business needs. In September 2006, Plaintiff was diagnosed with Multiple Sclerosis (“MS”), a physical impairment that substantially limits his major life activities. [D.E. 1 at ¶¶20-21].

Defendant’s Miami facility’s operations are loosely divided between Pick-Up and Delivery (“P&D”), Pre-Load (a/k/a the “a.m. shift”), and Out-bound (a/k/a the “p.m. shift”). [D.E. 112 at ¶3]. The staff needed for Pre-Load requires more people and managers than is required to perform Outbound. Id. In March 2007, following the loss of a significant account at the Miami facility, Plaintiff began working as a P&D service manager, a position he held for two years. [D.E. 112 at ¶7]. Thereafter, George Crosby, the District Managing Director in charge of the Miami Facility, testified that he became aware that packages were not always promptly delivered and contractors in his district were not held sufficiently accountable for missed deliveries and scanning code errors and failures. Id. at 12. As a result, in February 2008, Crosby issued a district-wide1 mandate for a service manager to be outside at each station’s entrance gate to speak to returning drivers about any

1 The district consists of the geographic territory running from Cocoa Beach west to Orlando and Ocala south to Key West. [D.E. 112 at ¶2].

App. 18

packages not delivered so as to ensure their account-ability. Id; [D.E. 127 at ¶4]. This procedure is known as the “Gatekeeper function.” [D.E. 112 at ¶13].

Beginning on February 18, 2008, Plaintiff was the service manager assigned to the Gatekeeper function. [D.E. 112 at ¶13]. Plaintiff was assigned to perform the Gatekeeper function because, among other reasons, he arrived at and left work later than the other service managers. Id. The Gatekeeper function runs Monday through Friday and typically starts between 4:00 p.m. and 5:00 p.m., when drivers begin returning to the facility, and can last between two to five hours depending upon when the last driver returns. [D.E. 112 at ¶ 14]. Plaintiff contends, however, that, at first, he was only asked to check on certain drivers, and was only outside for ten to fifteen minutes each day (less than the full Gatekeeper function). [D.E. 127 at ¶5].

Plaintiff performed his duties without incident or an accommodation request from September 2006 (when he was diagnosed with MS) until April 11, 2008. [D.E. 112 at ¶16]. On that day, Plaintiff ’s then-supervisor, Mark Crews, asked Plaintiff to go outside and perform the Gatekeeper function, as was Plain-tiff ’s assigned responsibility. Id. at 16. Plaintiff re-sponded that he was completely exhausted and could not perform the Gatekeeper function that day. Id. Following this conversation, Plaintiff went to Byron Martinez (the Senior Manager of the Miami facil- ity), and explained that he had just advised Crews that he could not go outside that day to perform the

App. 19

Gatekeeper function because heat affects his MS. [D.E. 127 at ¶6]. Later that day, Plaintiff called Esperanza Cruz, the Human Resources recruiting specialist assigned to the Miami facility, and asked her to check his employee file to see if it mentioned his MS or a heat restriction. Id. Plaintiff ’s employee file did not mention either.

On April 14, 2008, Martinez emailed Michele Miles (the regional Human Resources director) and informed her of the April 11 incident. Id. at 7. Mar-tinez explained that Plaintiff advised him that he was unable to perform his assigned Gatekeeper function duties because of his MS. Id. Martinez also stated in the email that he told Plaintiff on April 11 that he needed a note or email from his doctor by April 14 stating that he has MS. Id.; [D.E. 112 at ¶19]. In response to Martinez’s request for a doctor’s note, Plaintiff provided a computer print-out entitled “An Overview of Heat Intolerance and MS.” [D.E. 112 at ¶ 19].

On April 15, 2008, Miles responded to Martinez’s email and stated that “[w]e need to ask [Plaintiff] if he needs accommodation for his condition. [Cruz] can complete a Reasonable Accommodation Form (‘HREA Form’) with him to make that determination. He will also need verification from his doctor as to his limita-tion but it does not have to disclose the nature of his illness.” Id. On April 16, 2008, Plaintiff called Cruz and explained the April 11 incident. [D.E. 127 at ¶8]. During that telephone conversation, Cruz reiterated to Plaintiff the substance of Miles’ email from the day

App. 20

before, i.e., that if Plaintiff wanted an accommoda-tion, he needed to provide Defendant with a note from his doctor stating his work limitations. [D.E. 112 at ¶20]. Plaintiff and Cruz met in person on April 24, 2008. Id. at 21. When asked if he had the doctor’s note that Cruz previously requested, Plaintiff re-sponded that he did not; instead, he explained to Cruz that he did not understand why he needs to bring a doctor’s note because “we can look up in the internet [what] MS is and what its limitations are sometimes.” Id. Cruz told Plaintiff he had until April 29, 2008 to bring the doctor’s letter regarding his work limitations. Id. Directly following that meeting, Cruz completed the HREA form which states that Plaintiff reported that he “is not allowed to get over-heated. Can’t be under the sun or heat.” Id. at 22. Plaintiff ’s suggested accommodation was for someone else to perform the Gatekeeper function between 4:30 p.m. and 8:00 p.m. Id.; [D.E. 127 at 9]. On April 25, 2008, Cruz advised Plaintiff that he had until May 2, 2008 to provide the information regarding his work limitations.

On or about April 28, 2008, Plaintiff provided Defendant with a letter from his doctor stating that “he has a neurologic condition that is subject to fluctuation and can be worsened by exposure to heat in his environment,” he has been “under treatment for the past two years with ongoing medications to stabilize his symptoms. . . . [that] can be exacerbated by warm environment or any elevation of his core body temperature,” and that “for this reason, Plaintiff

App. 21

needs “to work in an environment that is inside and away from heat for his own protection.” [D.E. 127 at ¶10]. Plaintiff concedes that he performed the Gate-keeper function a total of five to ten times before April 11, 2008, and that he was never asked to, nor did he, perform the Gatekeeper function after that date. [D.E. 112 at ¶25].2

Approximately six months after Defendant im-plemented the accommodation, Crosby visited the Miami facility and discovered that some operational requirements were not being met. [D.E. 112 at ¶27]. In this regard, Crosby and Martinez agreed that another manager had to be assigned to Pre-Load and they reviewed all of the managers in the facility and their assignments.3 Id. at 28. Defendant also reevalu-ated its ability to keep Plaintiff in a managerial role under the constraints identified by his doctor. [D.E. 127-15 at p.7]. Because most of the essential func-tions of the service manager positions involved work outside of the facility’s climate controlled internal offices, Defendant’s ability to accommodate Plaintiff in his then-current role relied heavily upon the amount of managerial level administrative work that

2 Crews testified that Plaintiff could have performed the Gatekeeper function up to 20 times. [D.E. 127 at ¶5]. 3 Sean McSweeny, Defendant’s Senior Human Resources Manager for the Southern Region [D.E. 127 at p.14], testified that it is not unusual to reassign a service manager to Pre-Load and that managers have the authority to put people where they are needed. [D.E. 112 at ¶40].

App. 22

was available. Id. Plaintiff was identified a possible manager to move to Pre-Load because: (1) there was not enough managerial level work to keep Plaintiff in the P&D service manager role because he was per-forming fewer managerial functions at that time; (2) Plaintiff worked different hours than the other P&D service managers (arriving at and leaving work later); and (3) Plaintiff advised Defendant that he could not perform “Customer Service Rides” (“CSRs”) (that are used in the field to evaluate customer ser-vice) in delivery vehicles that were not equipped with air-conditioning. [D.E. 112 at ¶28]; [D.E. 127-15 at p.7].

In early-mid January 2009, Miles directed Kim Luke (an Employee Relations Specialist) to complete a second HREA form regarding Plaintiff in order to understand Plaintiff ’s continued limitations. [D.E. 127 at ¶¶12-13]; [D.E. 127-15 at p.7]. Plaintiff com-municated to Luke that he could perform the Gate-keeper function if the returning delivery trucks pulled up to bay door 32, an alternative that Defen-dant permitted during inclement weather. [D.E. 112 at ¶30]; [D.E. 127 at ¶17]. In other words, the second HREA form stated that Plaintiff ’s suggested accom-modation was “to stay indoors and not get overheat-ed.” [D.E. 112 at ¶31]. The HREA form further stated that Plaintiff ’s suggested accommodation would pose an undue hardship to the Miami facility because one of the essential functions of P&D managers is to perform the Gatekeeper function and because Plain-tiff cannot regularly perform that duty or CSRs

App. 23

“because he cannot be exposed to heat for a long period of time.” Id. The HREA form also indicated that Plaintiff was performing clerical functions that are outside of his classification as a service manager.4 Id. Accordingly, Luke suggested in the HREA form that, as an alternative to his current position, “[Plain-tiff] can take a demotion to an Admin[istrative] Clerk.” Id.

After consulting with a Human Resources Com-pliance Manager and Defendant’s legal representa-tive, Miles was instructed to offer Plaintiff two options as accommodations going forward: (1) take short-term disability leave for approximately three months; or (2) be reclassified into a clerk position (which entailed a cut in pay). [D.E. 112 at ¶33]; [D.E. 127 at n.9]. On January 20, 2009, Miles, Luke, and Martinez met with Plaintiff to discuss these options. Id. During the meeting, Defendant asserts that Plaintiff stated that he never asked for an accom-modation in the first place and that he could do anything, could work in any area, and had no

4 Crosby testified that, to be effective, the Gatekeeper function must be performed at the gate so that drivers returning with undelivered packages could not sneak into the facility and “skate” out of the back door. [D.E. 112 at ¶32]. Crews testified that Defendant has used bay door 32 when it was raining so that packages do not get wet, but he further testified that it “pre-sented all types of safety risks” such as the drivers not being able to see sufficiently as they pulled in and out of the bay door, it was slippery, and there was a two-foot step down from the dock to the delivery van. Id.

App. 24

restrictions. Id. Plaintiff, however, disputes that he made these statements. [D.E. 127 at p.3, ¶33]. Never-theless, apparently in response to Plaintiff ’s state-ments, Martinez handed him job descriptions for the P&D and Dock service manager positions. [D.E. 112 at ¶34]. Plaintiff was instructed to take the job de-scriptions to his doctor and have the doctor provide a second letter affirming that Plaintiff could perform the listed duties. [D.E. 127 at ¶23].

On February 25, 2009, and after reviewing the job descriptions, Plaintiff ’s doctor issued a letter explaining that Plaintiff “could perform either [ser-vice manager] job without difficulty or interference from the standpoint of his neurologic condition.” [D.E. 127 at ¶33]. Upon receipt of the second doctor’s letter stating that Plaintiff could perform either job, and given the Miami facility’s need for a service manager to be assigned to Pre-Load, Martinez reassigned Plaintiff to Pre-Load. [D.E. 112 at ¶36]. After being transferred to Pre-Load, Plaintiff did not complain to Defendant or his doctor that he was unable to per-form his duties or that his condition was worsening or otherwise adversely affected. Id.

On March 6, 2009, Plaintiff filed a complaint of discrimination with the Equal Employment Oppor-tunity Commission (“EEOC”) and the Florida Com-mission on Human Relations (“FCHR”), alleging disability discrimination and retaliation on the basis that Defendant failed to accommodate Plaintiff. [D.E. 112 at ¶41]. The subsequent investigation concluded that there was no probable cause to believe unlawful

App. 25

discrimination or retaliation had occurred. [D.E. 148-1 at p.10].

Plaintiff remained in the position of a Pre-Load service manager until he was terminated on Novem-ber 19, 2009 for, among other reasons, sending inap-propriate emails in violation of Defendant’s email policy. [D.E. 127 at ¶49]. It is undisputed that Plain-tiff chose not to amend his March 6, 2009 EEOC charge following his termination. [D.E. 112 at ¶42]. Specifically, during his May 2, 2011 rebuttal confer-ence, Plaintiff stated that he was terminated because he violated Defendant’s email policy, that he did not wish to focus on his termination, and, after consulting with his attorney, did not wish to amend the EEOC charge to include wrongful termination. Id.

II. ANALYSIS

A. Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.” Fed. R. Civ. P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored infor-mation, affidavits or declarations, stipulations (in-cluding those made for purposes of the motion only), admissions, interrogatory answers or other materials; or showing that materials cited do not establish the

App. 26

absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Id. at 56(c)(1). “In determining whether summary judgment is appropriate, the facts and inferences from the facts are viewed in the light most favorable to the non-moving party, and the burden is placed on the moving party to establish both the absence of a genuine material fact and that it is entitled to judgment as a matter of law.” Matsu-shita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

In opposing a motion for summary judgment, the non-moving party may not rely solely on the plead-ings, but must show by affidavits, depositions, an-swers to interrogatories, and admissions that specific facts exist demonstrating a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Further, the existence of a “scintilla” of evidence in support of the nonmovant’s position is insufficient; there must be evidence on which the jury could reasonably find for the non-movant. Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Likewise, a court need not permit a case to go to a jury when the inferences that are drawn from the evidence, and upon which the non-movant relies, are “implausible.” Matsushita, 475 U.S. at 592-94; Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).

App. 27

B. Plaintiff Failed to Exhaust his Admin-istrative Remedies

No action alleging a violation of the ADA may be brought unless the alleged discrimination has been made the subject of a timely-filed EEOC charge. See Gillis v. Sports Auth., Inc., 123 F. Supp. 2d 611, 614-15 (S.D. Fla. 2000) (citing 42 U.S.C. § 2000e-5). Similarly, prior to filing suit for alleged violations of the Florida Civil Rights Act (“FRCA [sic]”), a plaintiff must first exhaust his administrative remedies under the FRCA [sic] by filing a timely charge of discrimina-tion with the FCHR.5 Id. at 615; see Weaver v. Fla. Power & Light, Case No. 95-8519-CIV-RYSKAMP, 1996 WL 479117, at *8 (S.D. Fla. July 16, 1996). Thus, an “action for equitable relief and damages . . . may be initiated only after the plaintiff has exhausted his or her administrative remedy.” Fla. Stat. § 760.07.6

5 Section 760.10(1) of the FRCA [sic] states that it is unlawful for an employer to “discharge or to fail to refuse to hire any individual, or otherwise to discriminate any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.” Fla. Stat. § 760.10(1)(a) (2012). The FRCA [sic] also prohibits an employer from “discriminat[ing] against any person . . . because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.” Id. at § 760.10(7). 6 Although Plaintiff alleges violations of both the ADA and FCRA, claims brought under the FCRA are analyzed under the same framework as the ADA and, thus, will not be addressed separately in this Order. See Knowles v. Sheriff, 460 F. App’x

(Continued on following page)

App. 28

“Because the FCRA is ‘patterned after Title VII of the Civil Rights Act of 1964,’ Florida courts will look to federal case law interpreting Title VII to guide their interpretations of the FCRA.” Garcia v. Baptist Health S. Fla., Inc., No. 12-23765-CIV. 2013 WL 632963, *2 (S.D. Fla. Feb 20, 2013) (citing Valenzuela v. GlobeGround N. Am., LLC., 18 So. 3d 17, 21 (Fla. 3d DCA 2009)). “Indeed, ‘[i]t is well settled that when Florida statutes are adopted from an act of Congress, the Florida Legislature also adopts the construction placed on that statute by the federal courts insofar as that construction is not inharmonious with the spirit and policy of Florida’s general legislation of the subject.’ ” Garcia, 2013 WL 632963, at *2 (citing Green v. Burger King Corp., 728 So. 2d 369, 370 (Fla. 3d DCA 1999)).

In its Motion, Defendant challenges Plaintiff ’s allegations of discriminatory or retaliatory termina-tion. [D.E. 120 at pp. 9-11]. Defendant argues that these allegations pertain to the discrete discrimi-natory act of Plaintiff ’s termination, an act that Plaintiff did not mention in his EEOC charge because it occurred after he filed the charge. Id. Defendant contends that Plaintiff must have exhausted his ad-ministrative remedies for the alleged discrete dis-criminatory act (i.e., termination) that occurred after he filed his EEOC charge regarding Defendant’s

833, 835 (11th Cir. 2012); Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263-64 (11th Cir. 2007) (stating that the FCRA is analyzed under the same framework as the ADA).

App. 29

alleged failure to accommodate Plaintiff (discussed in the next section). Accordingly, because Plaintiff did not file a separate EEOC charge for his termination, Defendant asserts that Plaintiff cannot now maintain his claims for discriminatory or retaliatory termina-tion. Id.

Plaintiff responds to Defendant’s Motion by highlighting several opinions from and within the Eleventh Circuit for the proposition that “when a retaliation claim is based on adverse actions taken against the employee after the initial EEOC charge is filed, it can be said that the retaliation claim grows out of a properly filed employment discrimination charge, and it is not necessary for a plaintiff to file a second charge specifically alleging retaliation.” Hou-ston D. Army Fleet Servs., 509 F. Supp. 2d 1033, 1043-44 (M.D. Ala. 2007). Plaintiff further argues that he need not amend his previous EEOC charge or file a second EEOC charge because his termination claim naturally grew out of his first discrimination charge (pertaining to the Defendant’s failure to accommo-date), thus forging a reasonable connection between his complaint and his original EEOC charge. [D.E. 125 at pp. 5-6].

“In light of Title VII’s exhaustion requirement that a plaintiff file a charge with the EEOC before filing a complaint in federal court, a ‘plaintiff ’s judi-cial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’ Neverthe-less, courts in the past have been ‘extremely reluctant

App. 30

to allow procedural technicalities to bar claims brought under [Title VII].’ ” Garcia, 2013 WL 632963, at *4 (citing Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1280 (11th Cir. 2004)). “Accordingly, courts traditionally have not been inclined to strictly inter-pret the scope of an EEOC charge.” Garcia, 2013 WL 632963, at *4.

However, in interpreting the filing requirements of Title VII, the Supreme Court held in its 2002 Morgan decision that [e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). For this reason, “discrete discrimina-tory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charg-es.” Id. Discrete discriminatory acts include “termina-tion, failure to promote, denial of transfer, or refusal to hire.” Id. at 114. Thus, Morgan found that a plain-tiff could not maintain an action for discrete discrim-inatory acts that occurred before the 300-day timely filing period for filing a charge with the EEOC. See id.

Morgan, however, did not address whether its rule equally barred actions for discrete discriminatory acts that occurred after the plaintiff filed his or her EEOC charge. The Eleventh Circuit has not conclu-sively addressed this issue. See Terhune v. Potter, No. 8:08-cv-1218-T-23MAP, 2009 WL 2382281, *3 n.1 (M.D. Fla. July 31, 2009). In fact, “post-Morgan district court decisions within the Eleventh Circuit have resulted in a stark split of opinion.” Garcia,

App. 31

2013 WL 632963, at *4. At least one district court in the Eleventh Circuit has followed the Tenth Circuit and interpreted Morgan to bar non-exhausted, dis-crete discriminatory acts occurring after a plaintiff files an EEOC charge. See Haugabrook v. Valdosta City Sch., No. 7:10-CV-60 (HL), 2012 WL 1014789, *5 (M.D. Ga. Mar. 22, 2012) (“The law is clear that a discrete incident of discriminatory treatment, like the failure to promote, is ‘its own “unlawful employment practice” for which administrative remedies must be exhausted.’ ” (quoting Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003))).7

“Additionally, shortly after the Supreme Court ruled in Morgan, the Eleventh Circuit intimated that it considered Morgan to require exhaustion of post-charge, discrete discriminatory acts.” Garcia, 2013 WL 632963, at *4 (referring to EEOC v. Joe’s Stone

7 In Martinez, the plaintiff ’s initial EEOC charge alleged retaliatory treatment occurring in May 1999. 347 F.3d at 1210. In May 2002, the plaintiff sought to litigation subsequent alleged discriminatory disciplinary actions taken against him, including a September 2000 written reprimand and his April 2001 termination. Id. The plaintiff never filed formal EEOC charges about the September 2000 and April 2001 incidents. Id. Although the plaintiff argued that these incidents were a “continuing violation” of the May 1999 incident, Martinez found that the latter events were “clearly discrete and independent actions.” Id. at 1211. Martinez held that “[b]ecause the rule in Morgan requires a Title VII plaintiff to exhaust administrative remedies for each individual discriminatory or retaliatory act, and precludes reliance upon a continuing violation theory, we affirm the judgment of the district court.” Id.

App. 32

Crabs, Inc., 296 F.3d 1265 n.5 (11th Cir. 2002), where the court noted that “Title VII requires a charge to be filed ‘after the alleged unlawful employment practice’ occurred,” 42 U.S.C. § 2000e-5(e)(1), and that “ ‘[o]c-curred’ means that the practice took place or hap-pened in the past” (quoting Morgan, 536 U.S. at 102)). Moreover, this Court has held – without relying on Morgan – that “after a charge is filed with the EEOC, allegations of new acts of discrimination are inappropriate.” Ramsay v. Broward Cnty. Sheriff ’s Office, No. 05-61959-CIV. 2007 WL 6861073, *5 (S.D. Fla. May 24, 2007). Nevertheless, this Court went on to state in Ramsay that a plaintiff may not need to separately exhaust a subsequent act of retaliation “when [the act] grows out of an administrative charge that is properly before the court.” ld. at *15 (quoting Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981));8 see Thomas v. Miami-Dade Public Health Trust, 369 F. App’x 19, 23 (11th Cir. 2010) (noting that “district court could only consider claims to the extent [the plaintiff contended they were caused by the filing of her EEOC charge, and any other causes for such actions were properly not considered”).

Despite the foregoing decisions, “several district courts within the Eleventh Circuit have declined to apply Morgan to post-charge retaliation claims.”

8 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

App. 33

Garcia, 2013 WL 632963, at *4. For example, some courts have insisted that “Morgan did not address the issue of whether related, after-occurring incidents can be included within the scope of a timely filed adminis-trative complaint.” Sumrall v. Potter, No. 4:03CV103-SPM, 2007 WL 1202722, *1 (N.D. Fla April 22, 2007). By extension, these courts have chosen instead to follow this Circuit’s pre-Morgan law that permits “a related, after-occurring incident of retaliation [to] be included within the scope of a timely filed adminis-trative complaint.” Id. at *2 (citing Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 168-69 (11th Cir. 1988)); see Lewis v. Eufaula City Bd. of Educ., No. 2:1 lcv1093-MHT, 2012 WL 6042218, *11 (M.D. Ala. Dec. 4, 2012) (“[I]t is settled law that ‘it is unnecessary for a plaintiff to [file a subsequent EEOC charge before raising in federal court] a retaliation claim growing out of an earlier charge.’ ” (quoting Baker, 856 F.2d at 169)).

This line of earlier Eleventh Circuit cases, re-ferred to by some as the “Gupta exception,” allows a plaintiff to proceed in a district court on an unex-hausted retaliation claim if that claim is alleging retaliation for properly bringing an exhausted claim before the district court. 654 F.2d at 414; Baker, 856 F.2d at 168-69. Some circuits have since held that Morgan abolished or narrowed the Gupta exception. See, e.g., Martinez, 347 F.3d at 1211 (abolishing the Gupta exception in the Tenth Circuit); Wedow v. City of Kansas City, 442 F.3d 661, 672-76 (8th Cir. 2006) (narrowing the exhaustion requirement in the Eighth

App. 34

Circuit and finding that a plaintiff need not separate-ly exhaust her administrative remedies with respect to subsequent retaliatory acts of an ongoing and continuing nature). We need not address the potential abolition of the Gupta exception because the facts of this case do not support the application of the hold-ing in Gupta. Instead, the record demonstrates that Plaintiff ’s termination is akin to the type of “discrete discriminatory acts” at issue in Morgan, and is not a continuing violation of Plaintiff ’s failure to accommo-date claim that served as the sole basis of his EEOC charge.

In other words, even if the rationale of Gupta and Baker survive post-Morgan, the holdings of those decisions are also distinguishable from our case in that they adjudicated the retaliation claims at issue therein in conjunction with a court’s existing jurisdic-tion. Aside from the reality that the concept and confines of ancillary jurisdiction have evolved and been materially restricted since the time of Gupta and Baker,9 we, unlike those courts, cannot rely on

9 See, e.g., Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002) (“Removal is governed by statute, and invocation of ancillary jurisdiction, like invocation of the All Writs Act, does not dispense with the need for compliance with statutory requirements.”) (holding that ancillary jurisdiction was not enough to support removal of action that did not independently meet original jurisdiction requirements); Peacock v. Thomas, 516 U.S. 349, 355 (1996) (“ ‘[A]ncillary jurisdiction typically involves claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal

(Continued on following page)

App. 35

any out-dated concept of broad ancillary jurisdiction to adjudicate Plaintiff ’s unexhausted termination claim. In Gupta, the plaintiff filed two EEOC charges and then commenced his lawsuit arising out of those charges. 654 F.2d at 413. While the lawsuit was pending, the plaintiff was notified that his employ-ment contract would not be renewed for the following year. Id. Although he never filed a third EEOC charge, he contended that the newly alleged discrimi-natory conduct “was in retaliation for his filing [two prior] charges with the EEOC.” Id. Under these circumstances, the court found that it had ancillary jurisdiction over the alleged discriminatory conduct that would have been the subject of plaintiff ’s would-be third EEOC charge. Id. at 414. Critically im-portant to that analysis was the Court’s finding that

court.’ Ancillary jurisdiction may extend to claims having a factual and logical dependence on ‘the primary lawsuit,’ but that primary lawsuit must contain an independent basis for federal jurisdiction. . . . In a subsequent lawsuit involving claims with no independent basis for jurisdiction, a federal court lacks the threshold jurisdictional power that exists when ancillary claims are asserted in the same proceeding as the claims conferring federal jurisdiction. Consequently, claims alleged to be factually interdependent with and, hence, ancillary to claims brought in an earlier federal lawsuit will not support federal jurisdiction over a subsequent lawsuit.”) (citations omitted); Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 378 (1994) (reject-ing broad application of ancillary jurisdiction doctrine that recognizes federal courts’ jurisdiction over some matters (other-wise beyond their competence) that are incidental to other matters properly before them; “The doctrine of ancillary jurisdic-tion can hardly be criticized for being overly rigid or precise, but we think it does not stretch so far as that statement suggests.”).

App. 36

sound policy reasons allowed for consideration of unexhausted claims that grew out of an administra-tive charge “properly before the court.” Id.

Similarly, in Baker, the Eleventh Circuit reversed the district court’s determination that it lacked ancillary jurisdiction to consider the plaintiffs motion for preliminary injunction where the plaintiff had filed a complaint four months prior. 856 F.2d at 170. But here, this Plaintiff ’s EEOC charge regarding Defendant’s alleged failure to accommodate and his discriminatory/retaliatory termination claim both occurred prior to the filing of the instant lawsuit. Accordingly, under Gupta and Baker, there is no basis of ancillary jurisdiction by which we can adjudicate Plaintiff ’s termination claim. Thus, the holdings in Gupta and Baker do not apply here, especially in the face of the more analogous circumstances adjudicated in Morgan.

We recognize that this Court has endorsed the application of the Eleventh Circuit’s pre-Morgan case law to post-charge retaliation claims. See Ramsay, 2007 WL 6861073, *15. But again, that has only been permitted where plaintiffs proceeded on non-exhausted, post-charge retaliation claims that “grow out of an administrative charge that is properly before the court.” Garcia, 2013 WL 632963, at *5 (quot-ing Charles v. AFSCME Local 121, No. 09-22279-CIV.

App. 37

2010 WL 2026686, *6 (S.D. Fla. May 21, 2010)) (ci-tations and quotations omitted).10

A different analysis must govern the outcome here. We find that Plaintiff failed to exhaust his administrative remedies vis-á-vis his termination claims. Those claims pertain to a discrete act of discrimination that occurred after he filed his initial charge pertaining to Defendant’s purported failure to accommodate. As this Court held in Ramsay, “after a charge is filed with the EEOC, allegations of new acts of discrimination are inappropriate.” Ramsay, 2007 WL 6861073, at *5. Also significant to our analysis is Plaintiff ’s acknowledgment that he was terminated for violating Defendant’s email policy – not for a continuing violation that was the basis of his initial EEOC charge – and that he never wished to amend his EEOC charge or file a new charge relating to his termination. [D.E. 113, p.7, at ¶19]. Thus, having had the opportunity to amend his EEOC charge or file a new charge and choosing not to do so, Plaintiff failed to exhaust his administrative remedies for the dis-crete discriminatory act of termination.

10 A “post-charge” claim is said to grow out of, or is reasona-bly related to, the claims in an EEOC charge if “(1) the subse-quent conduct would fall within the reasonably expected scope of the EEOC investigation of the administrative charges; [or] (2) the claim is one alleging retaliation against the employee for filing an EEOC charge.” Paine v. Domino’s Pizza, LLC, No. 10-23158-CIV. 2011 WL 1102788, *2 (S.D. Fla. Mar. 24, 2011) (quoting Warn v. Florida, 212 F. Supp. 2d 1349, 1357 (N.D. Fla. 2002)).

App. 38

For the foregoing reasons, the Court must grant Defendant’s Motion for Summary Judgment as to Plaintiff ’s claims for discriminatory or retaliatory termination. See Garcia, 2013 WL 632963, at *6 (dismissing the plaintiff ’s claims for discriminatory termination because they “pertain to a discrete act of discrimination that occurred after she filed her charge” and were not administratively exhausted); Haugabrook, 2012 WL 1014789, at *5 (granting summary judgment in favor of the defendant on the plaintiff ’s discrimination claim that was based upon “a discrete incident of discriminatory treatment” because the plaintiff “did not exhaust [her] claim prior to filing her Amended Petition”); Martinez, 347 F.3d at 1210 (affirming summary judgment where the plaintiff failed to exhaust his administrative remedies prior to filing suit and chose not to amend his previ-ously-filed EEOC charge).

C. Defendant Provided Reasonable Accom-

modations

Plaintiff claims that Defendant discriminated against him in violation of the ADA and FCRA by failing to provide reasonable accommodations for his disability. To establish a prima facie case of discrim-ination under the ADA, Plaintiff must show that: (1) he has a disability; (2) he is a “qualified” individu-al with or without a reasonable accommodation; and (3) he was discriminated against because of his dis-ability. Knowles, 460 F. App’x at 835.

App. 39

A “qualified individual” for purposes of the ADA is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.” 42 U.S.C. § 12111(8). If a qualified individual with a disability can perform the essential functions of the job with a reasonable ac-commodation, then the employer is required to pro-vide the accommodation unless doing so would be an undue hardship on the employer. See 42 U.S.C. § 12112(b)(5)(A).

An accommodation is “reasonable,” and, thus, required by the ADA, only if it enables the employee to perform the essential functions of the job. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). “While it is true that the ADA may require an employer to restructure a particular job by altering or eliminating some of its marginal functions, employers are not required to transform the position into anoth-er one by eliminating functions that are essential to the nature of the job as it exists.” Id. at 1260 (empha-sis added); see 29 C.F.R. § 1630.2(n)(1) (2012) (“The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term ‘essential functions’ does not include the marginal functions of the position.”). “Determining whether a particular job duty is an essential function involves a factual in-quiry to be conducted on a case-by-case basis.” Lucas, 257 F.3d at 1258. The Eleventh Circuit has stated that, “in conducting this inquiry, ‘consideration shall be given to the employer’s judgment . . . and if an

App. 40

employer has prepared a written description . . . for the job, this description shall be considered evidence of the essential functions of the job.’ ” Id.; quoting Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000); see 29 C.F.R. § 1630.2(n)(2)-(3) (listing addi-tional factors to consider in determining whether a particular job function is essential).

“The plaintiff bears the burden of identifying a reasonable accommodation, and an employer is not required to accommodate an employee in any manner in which the employee desires. . . . [O]nly after the employee has satisfied that burden and the employer failed to provide the accommodation can the employee prevail on a discrimination claim.” Knowles, 460 F. App’x at 835. Significantly, “[t]he plaintiff bears the ultimate burden of persuasion with respect to show-ing that an accommodation is reasonable.” Id.

As an initial matter, there is no dispute that Plaintiff is disabled within the meaning of the ADA. [D.E. 120 at p.11]. The first prong of the test for a failure to accommodate claim is thus satisfied. We next address the second and third prongs required to state a prima facie case.

Defendant argues that Plaintiff is not a “quali-fied” individual and was unable to perform at least one of the essential tasks of his job (i.e., performing the Gatekeeper function or CSRs), with or without an accommodation. Id. at 13-14. Plaintiff ’s failure to ac-commodate claim is partially rooted in the April 11, 2008 incident whereby Plaintiff was asked to perform

App. 41

the Gatekeeper function as he had done for the prior two months. Plaintiff stated that he could not per-form the Gatekeeper function that day because he was completely exhausted and the heat affected his MS. Plaintiff s doctor later provided Defendant with a letter stating that Plaintiff needed “to work in an environment that is inside and away from heat for his own protection.”

As established above, Plaintiff was assigned to the Gatekeeper function on February 18, 2008 and performed that duty without incident or complaint until April 11, 2008. Because the Gatekeeper function is typically performed outside (and not inside a climate controlled office), and Plaintiff and his doctor advised Defendant that Plaintiff could no longer be in the sun or outside for the two to five hours required to perform the Gatekeeper function, Plaintiff, as he must, identified to Defendant a potentially reasona-ble accommodation: allow Plaintiff to perform the Gatekeeper function by having the returning delivery trucks pull up to bay door 32. This arrangement, however, is only utilized during inclement or rainy weather so that undelivered packages do not get wet upon return to the Miami facility. Using the bay door also “presented all types of safety risks.” Moreover, Crosby testified that, to be effective, the Gatekeeper function must be performed at the gate so that driv-ers returning with undelivered packages could not sneak into the facility and “skate” out of the back door. Therefore, Plaintiffs suggested accommodation of permitting the Gatekeeper function to be regularly

App. 42

performed at bay door 32 would have posed an undue hardship to the Miami facility and was not a reason-able accommodation. See Scott-Bolton v. Ala. Bd. of Pardons & Paroles, No. 7:12-cv-0800-LSC, 2013 WL 1282344, *7 (N.D. Ala. Mar. 25, 2013) (awarding sum-mary judgment in favor of the defendant/employer and rejecting the plaintiff ’s argument that the em-ployer did not bind itself to allowing the plaintiff to work indefinitely using a temporary accommodation permitted in the past); Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1528 (11th Cir. 1997) (affirming summary judgment in favor of the defendant/employer and noting that although the employer had previ-ously made accommodations that pertained the to the essential functions of the plaintiff ’s job, the employ-er’s decision to cease making those accommodations did not violate the ADA); Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th Cir. 1994) (affirming summary judgment in favor of the defendant/employer and noting that the plaintiff ’s suggested accommodation was not reasonable and “would have placed an undue hardship on the [employer]”).

Plaintiff also acknowledges that he was only able to perform CSRs in Defendant’s air-conditioned delivery vans – as opposed to its non-air-conditioned delivery vehicles – because he could not be exposed to heat for long periods of time. Defendant asserts that there were approximately 100 non-air-conditioned vans assigned to the Miami facility (none of which Plaintiff could use for CSRs), while there were six air-conditioned vans that Plaintiff could use. [D.E.120 at

App. 43

p.14]. Even assuming, as we must at this procedural stage, that performing CSRs was an essential func-tion of Plaintiff ’s job, Plaintiff concedes that he was not asked or pressured to perform any CSRs after the April 11, 2008 incident. [D.E. 112-1 at pp.155:12-156:3]. We thus find that Defendant’s conduct of not requiring Plaintiff to perform CSRs after April 11, 2008 belies his claim that Defendant failed to reason-ably accommodate his request to not perform CSRs in non-air-conditioned vans.

In January 2009, Defendant undertook a “needs analysis” of the Miami facility and reviewed all of the managers and their assignments. Defendant then determined that Plaintiff was an ideal candidate to move from his then-current service manager position (where he was not performing the Gatekeeper func-tion or CSRs) to a Pre-Load service manager position. Although Defendant was transferred to a new posi-tion and placed on a night shift, we find that Defen-dant’s actions were reasonable and in good-faith as they were based on Defendant’s business needs. Such reassignment of personnel is permissible even after a previous period of accommodation. See, e.g., Holbrook, 112 F.3d at 1528 (affirming summary judgment on an accommodation claim where the employer provided the requested accommodation “for quite some time” and “with relatively minor disruption or inconven-ience”); see also Webb v. Donley, 347 F. App’x 443, 446 (11th Cir. 2009) (“the fact that an employer previously has granted a requested accommodation does not render that accommodation reasonable”); Wood v.

App. 44

Green, 323 F.3d 1309, 1314 (11th Cir. 2003) (“prior accommodations do not make an accommodation reasonable”).

III. CONCLUSION

For the reasons stated above, it is hereby OR-DERED AND ADJUDGED that Defendant’s Motion for Summary Judgment [D.E. 120] is GRANTED. Final Judgment in favor of Defendant will be sepa-rately entered.

DONE AND ORDERED in Chambers at Miami, Florida, this 20th day of May, 2013.

/s/ Edwin G. Torres EDWIN G. TORRES United States Magistrate Judge

App. 45

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

-----------------------------------------------------------------------

No. 13-12749-BB

-----------------------------------------------------------------------

MICHAEL DUBLE,

Plaintiff-Appellant,

versus

FEDEX GROUND PACKAGE SYSTEM, INC.,

Defendant-Appellee,

FEDERAL EXPRESS CORPORATION,

Defendant.

-----------------------------------------------------------------------

Appeal from the United States District Court for the Southern District of Florida

-----------------------------------------------------------------------

ON PETITION(S) FOR REHEARING AND PETI-TION(S) FOR REHEARING EN BANC

(Filed Sep. 23, 2014)

BEFORE: PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate

App. 46

Procedure), the Petition(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Peter Fay UNITED STATES CIRCUIT JUDGE

ORD-42

App. 47

CHARGE OF DISCRIMINATION

This form is affected by the Privacy Act of 1974; See Privacy Act State-ment before completing this form.

AGENCY

___ FEPA

___ EEOC

CHARGE NUMBER

090305178

510-2009-02 804

FLORIDA COMMISSION ON HUMAN RELATIONS and EEOC

State or local Agency, if any (Received Jun. 9, 2009)

FXG LEGAL DEPT (Received Mar. 6, 2009)

EEOC Miami District Office

NAME (Indicate Mr., Ms., Mrs.) Mr. Michael Duble

HOME TELEPHONE (Include Area Code) (305) 218-1116

STREET ADDRESS 17101 SW 88th Avenue

CITY, STATE AND ZIP CODE

Miami, FL 33157

DATE OFBIRTH

10/18/1967NAMED IS THE EMPLOYER, LABOR ORGANI-ZATION, EMPLOYMENT AGENCY, APPREN-TICESHIP COMMITTEE, STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME (If more than one list below.)

NAME FedEx Ground Package System, Inc.

NUMBER OF EMPLOYEES

500+

TELEPHONE (Include Area Code)(412) 262-6021

STREET ADDRESS 1000 FedEx Drive

CITY, STATE AND ZIP CODE Moon Township, PA15108-9373

COUNTY

App. 48

NAME TELEPHONE NUMBER (Include Area Code)

STREET ADDRESS

COUNTY

CAUSE OF DISCRIMINA-TION BASED ON (Check appropriate box(es)) ___ RACE ___ COLOR ___ SEX ___ RELIGION ___ AGE RETALIATION ___ NATIONAL ORIGIN DISABILITY ___ OTHER

DATE DISCRIMINA-TION TOOK PLACE EARLIEST (ADEA/EPA) LATEST (ALL) 3/4/2009 CONTINUING ACTION

THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):

I have been employed by FedEx Ground since the year 1998 at its facility located in Medley, Florida.I have multiple sclerosis (“MS”). On April, 11, 2008, I was having an exacerbation of my MS where I was feeling extremely fatigued. My direct manager, Mark Crews, insisted that I go outside and check the vans as they returned. I told him how I was feeling and that I could not go outside and expose myself to the sun and heat. I then had to go to my Senior Manag-er, Byron Martinez, who agreed that I do not have to go outside. After that, Mark Crews began to ignore me. I complained to Mr. Martinez, but things did not improve. When things did not improve, I spoke with Employee Relations Manager, Kim Luke about the situation. She in turn informed Regional HR Man-ager, Michele Miles, who instructed me to obtain a letter from my doctor stating that heat makes my condition worse. I had my doctor write the letter and things improved.

App. 49

In January, 2009, I received a call from Kim Luke who informed me that the incident was not closed and they needed me to fill out one final paper to close the file. She also asked me what accommoda-tions I needed and I told her none. She then referred to my doctor’s letter regarding heat affecting my MS. I reminded her that human resources required thatletter and practically dictated what the letter needed to state. On January 20, 2009, Michele Miles and Kim Luke came to the facility to meet with me.

They told me that FedEx was no longer able to accommodate me having MS and that I had two options. Either go on short term disability for six months or take a 50% pay cut and be demoted to a clerk. I never requested any accommodation and asked what accommodation they were referring to.They could not answer me.

I also asked what job functions was I not able to perform and they could not answer that either. After a brief recess, I was brought back in the room and was told that on January 22, 2009, I would be pro-vided with a listing of those job functions. I would then have to visit my doctor to obtain another letter stating that I could perform the tasks listed.

I then met with Sean McSweeney, Senior Manager, Field HR, and expressed my belief that I was being harassed because of my MS and targeted for termi-nation. Sean told me that there would be no retalia-tion for anything I told him. He told me that I would not be terminated, and to go to the doctor and have him sign off that I was physically able to perform the job duties and he would take care of the rest. I complied with this order and my doctor stated that I could perform all of the essential

App. 50

functions of my job. I provided that letter to HR on February 25, 2009. Within 24 hours of receipt of the letter, I was informed by Byron Martinez that Michele Miles had performed a job needs analysis on the terminal and after 2 years as a P & D Ser-vice Manager, I was going to be transferred back to the dock. This would mean a move to the graveyard shift after being on the day shift for 9 years. This change is to take place on March 10, 2009. This would create a great hardship for my family situa-tion. I asked why was I the one being moved when there are others with less seniority who were not. I did not get an answer. This is an obvious attempt to get me to quit.

I am being discriminated against because of my disability or perceived disability and being retaliated against for my complaints in violation of the Ameri-cans with Disabilities Act, as amended, and the Florida Civil Rights Act.

I want this charge filed with both the EEOC and the State or local Agency, if any. I will advise the agen-cies if I change my address or telephone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures.

NOTARY (When neces-sary for State and local Requirements)

/s/ David Chonin I swear or affirm that I have read the above charge and that it is true to the best of my knowledge, information and belief. [Notary Stamp]

App. 51

I declare under penalty of perjury that the foregoing is true and correct

/s/ Michael Duble Charging Party (Signature)

Date

SIGNATURE OF COMPLAINANT /s/ Michael Duble

SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE (Day, month, and year)March 6, 2009

App. 52

2012 WL 4061602 (C.A.8) (Appellate Brief) United States Court of Appeals, Eighth Circuit.

Mischelle RICHTER, Plaintiff-Appellant, v.

ADVANCE AUTO PARTS, INC., Defendant-Appellee.

No. 11-2570. September 5, 2012.

On Appeal from the United States District Court for the Western District of Missouri

Brief of the Equal Employment Opportunity Commission in Support of Plaintiff-Appellant’s

Petition for Rehearing En Banc

P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Daniel T. Vail, Acting Assistant General Counsel, Barbara L. Sloan, Attorney.

Equal Employment, Opportunity Commission, Office of General Counsel, 131 M Street, N.W., 5th Floor, Washington, D.C. 20507, (202) 663-4721, fax: (202) 663-7090, barbara.sloan@eeoc.gov.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................. ii

RULE 35(b) STATEMENT ................................... vi

STATEMENT OF INTEREST ............................. 1

FACTUAL STATEMENT AND DECISIONS AT ISSUE ............................................................... 2

App. 53

ARGUMENT

Rehearing En Banc is Warranted Because the Majority’s Decision Conflicts with Long-Standing Eighth Circuit Prece-dent, Consistent with Other Circuits, that a Plaintiff Like Richter Need Not File a New or Amended Charge to Pre-serve a Claim That Her Employer Retal-iated Against Her for Filing a Charge, And Overruling this Precedent is not Required by Morgan ..................................... 5

CONCLUSION ..................................................... 15

CERTIFICATE OF COMPLIANCE ..................... 16

ADDENDUM

Panel Decision

CERTIFICATE OF SERVICE

*ii TABLE OF AUTHORITIES

CASES

Anderson v. Block, 807 F.2d 145 (8th Cir. 1986) .......... 6

Babrocky v. Jewel Food Co., 773 F.2d 857 (7th Cir. 1985) .......................................................... 14-15

Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th Cir. 1988) ........................................................ iii

Burlington Industries v. Ellerth, 524 U.S. 742(1998) ............................................................... 8-9

Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53(2006) ................................ 11-12

App. 54

Clockedile v. New Hampshire Department of Cor-rections, 245 F.3d 1 (1st Cir. 2001) ........ ii, 6, 7, 8, 14

Delaware State College v. Ricks, 449 U.S. 250(1980) ................................................................. 10

Delisle v. Brimfield Township Police Depart-ment, 94 F. App’x 247 (6th Cir. 2004) (un-published) .......................................................... iii, 11

Duncan v. Delta Consolidated Industries, 371 F.3d 1020 (8th Cir. 2004) .............................. 3-4, 6, 7

Eberle v. Gonzales, 240 F. App’x 622 (5th Cir. 2007) (unpublished) ................................................ 11

Edelman v. Lynchburg College, 535 U.S. 106 (2002) ................................................................... 9-10

Federal Express Corp. v. Holowecki, 552 U.S. 389(2008) ................................................................. 12

*iii Franceschi v. Department of Veteran Af-fairs, 514 F.3d 81 (1st Cir. 2008) ....................... ii, 11

Gupta v. East Texas State University, 654 F.2d411 (5th Cir. 1981) ...................................... iii, 12

Jones v. Calvert Group, 551 F.3d 297 (4th Cir. 2009) .......................................................... ii, 7, 11, 12

Malarkey v. Texaco, 983 F.2d 1204 (2d Cir. 1993) .......................................................... 7, 8, 12-13

Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1989) ................................................................ iii

Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003) .................................................................. iii, 11

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101(2002) .......................................... passim

App. 55

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1990) ............ ii

Owens v. NYC Housing Authority, 934 F.2d 405 (2d Cir. 1991) ............................................................ ii

Parisi v. Boeing Co., 400 F.3d 583 (8th Cir. 2005) .......................................................................... 6

Powers v. Grinnell Corp., 915 F.2d 34 (1st Cir. 1990) ........................................................................ 14

Richardson v. Commission on Human Rights & Opportunities, 532 F.3d 114 (2d Cir. 2008) ............ 12

Rivera v. Puerto Rico Aqueduct & Sewers Authority, 331 F.3d 183 (1st Cir. 2003) .................. 11

*iv Roark v. City of Hazen, 189 F.3d 758 (8th Cir. 1999) .................................................................. 6

Spengler v. Worthington Cylinders, 615 F3d 481 (6th Cir. 2010) ................................................. iii

Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) ..... ii, 11

Thomas v. Miami Dade Public Health Trust, 369 F. App’x 19 (11th Cir. 2010) (unpub-lished) ...................................................................... 11

Wallin v. Minnesota Department of Corrections, 153 F.3d 681 (8th Cir 1998) .................................. 6, 7

Wedow v. City of Kansas City, 442 F.3d 661 (8th Cir. 2005) ......................................................... passim

Wentz v. Maryland Casualty Co., 869 F.2d 1153 (8th Cir. 1989) ...................................................... ii, 7

Williams v. Little Rock Municipal Water Works, 21 F.3d 218 (8th Cir. 1994) ................................... 5, 6

Zipes v. TWA, 455 U.S. 385(1982) ................................ 9

App. 56

STATUTES and RULES

The Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq .................................................. ii

Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq ................................... passim

42 U.S.C. § 2000e-5(e)(1) ........................................ 9-10

*v 42 U.S.C. §2000e-5(b) .................................. 5, 13, 14

42 U.S.C. § 2000e-5(f)(1) ........................................ 5, 14

Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq ......................................... ii

Title II of the Genetic Information Nondiscrim-ination Act of 2008, 42 U.S.C. §§ 2000ff et seq ........ ii

Federal Rule of Appellate Procedure 32(a)(5)-(6) ............................................................................. 16

Federal Rule of Appellate Procedure 35(b) ................. ii

OTHER AUTHORITY

EEOC Compliance Manual, Vol.11 (Threshold Issues) § 2-IV(C)(1)(a) & n. 185 (May 2000, revised July 2005), available at www.eeoc.gov/ policy/docs/threshold.html ............................. 1, 10-11

EEOC Compliance Manual, Vol.11 (Retaliation) § 8-I(A), available at www.eeoc.gov/policy/docs/ retal/html .................................................................. 8

EEOC Enforcement & Litigation Statistics, All Statutes FY97-FY11, available at www.eeoc. gov/eeoc/statistics/enforcement/all.cfm ............ 13-14

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*vi RULE 35(b) STATEMENT

Rehearing en banc in this case is appropriate because this case presents an issue of exceptional importance: Does National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), require this Court to overrule its long-standing precedent that a claim that the employer retaliated against the plaintiff because she filed a Title VII charge is “like or reasonably related to” the underlying charge so as to excuse the filing of a separate retaliation charge?1

Rehearing en banc is also appropriate because the panel majority’s decision conflicts with decisions from this Court, including Wentz v. Maryland Casual-ty Co., 869 F.2d 1153 (8th Cir. 1989); is not compelled by any Supreme Court authority; and would under-mine enforcement of Title VII. The majority’s decision also conflicts with decisions from most other circuit courts. See, e.g., Franceschi v. Dep’t of Vet. Affairs, 514 F.3d 81, 86-87 (1st Cir. 2008) (discussing Clockedile v. N.H. Dep’t of Corrs., 245 F.3d 1, 3 (1st Cir. 2001)); Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003); Owens v. NYC Housing Auth., 934 F.2d 405, 410-11 (2d Cir. 1991); Jones v. Calvert Grp., 551 F.3d 297,

1 Since the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., Title II of the Genetic Information Nondis-crimination Act of 2008, 42 U.S.C. §§ 2000ff et seq., and Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. have comparable charge-filing provisions, the decision on the issue presented here would also impact enforcement of those statutes.

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301-04 (4th Cir. 2009) (discussing Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1990)); *vii Eberle v. Gonzales, 240 F. App’x 622, 628 (5th Cir. 2007) (dis-cussing Gupta v. E. Tex. St. Univ., 654 F.2d 411, 414 (5th Cir. 1981)) (unpublished); Spengler v. Worthing-ton Cylinders, 615 F.3d 481, 489 n.3 (6th Cir. 2010); Delisle v. Brimfield Twp. Police Dep’t, 94 F. App’x 247, 252-54 (6th Cir. 2004) (unpublished); Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989); Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 168-69 (11th Cir. 1988) (discussing Gupta). But see Mar-tinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003) (under Morgan, retaliation claims arising after or shortly before suit were filed requires new charge). These courts conclude that a plaintiff need not file a separate retaliation charge to allege that her employ-er retaliated against her for filing a charge of em-ployment discrimination with the EEOC since such claims grow out of and/or are “like or reasonably related” to the underlying charge.

*1 STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is the agency charged with enforcing, interpreting, and administering Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and other federal antidiscrimination laws. This appeal raises the question of whether a plaintiff can litigate a Title VII claim that her employer retaliated against her for filing an initial Title VII charge with the EEOC without first filing a new or amended charge

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alleging retaliation. The Commission, like most courts of appeals, takes the position that such a retaliation claim grows out of the original charge and, so, falls within the exception to the charge-filing requirement for claims that are “like or reasonably related to” that charge. See EEOC Compl. Man., Vol.11 (Threshold Issues), § 2-IV(C)(1)(a) & n.185 (May 2000, revised July 2005), available at www.eeoc. gov/policy/docs/threshold.html.

Here, however, the panel majority held that even though the plaintiff had allegedly suffered retaliation for filing her original charge, she is barred from challenging that retaliation in court because she failed to file another charge mentioning the retalia-tion, thereby risking further retaliation. Because this ruling could seriously undermine enforcement of federal employment discrimination law and is not compelled by any Supreme Court authority, the Commission offers its views in support of the plain-tiff ’s petition for rehearing en banc.

*2 FACTUAL STATEMENT

AND DECISIONS AT ISSUE

Mischelle Richter worked as a store manager for Advance Auto Parts. On August 14, 2009, Richter’s supervisor, T.C. Hulett, removed her from her man-agement position, purportedly for failing to making timely bank deposits. Hulett also told her that she had one week in which to apply for a job in the parts

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warehouse, where she would make substantially less money. See Slip op. at 2.

On August 18, 2009, Richter, acting without counsel, filed a discrimination charge with the Com-mission and her state fair employment practices agency. Id. On August 23, she told a company execu-tive that she had filed the charge. Two days later, she was fired. Id. at 3.

After her discharge, Richter wrote to EEOC’s investigator about the investigation. She ended the letter by saying:

I also have new info on possible retaliation[:] the last day I worked was 08/14/09. . . . I spoke with [an executive] on Monday 08-23/09 and told him of the discrimination charges I had put on TC, he was extremely mad!!!!! Laurie Brownrigg “Human Re-sources” called me Wednesday 08/25/09 and told me I was officially terminated.

I’m hoping that EEOC will move forward with my Discrimination/Wrongful Termination case. If not let me know so I can seek out a private attorney. . . .

District Court docket entry (“R.”) 10-2(p.3). The following August, Richter wrote another letter to the Commission which, among other things, reminded the investigator that she had been fired only after telling the company about her *3 charge. R. 10-3(p.2). Nevertheless, the letter Richter received from the EEOC in late August, closing her case, does not mention retaliation. R. 10-4.

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Richter then brought suit alleging in large part that she was fired in retaliation for filing a Title VII discrimination charge. R. 1. The district court dis-missed the claim, and a divided panel of this Court affirmed. Neither the majority nor the dissent dis-cussed Richter’s post-charge contacts with the Com-mission. Rather, the Court focused broadly on whether a plaintiff may pursue a retaliation claim even though she did not allege retaliation in a charge.

The majority rejected Richter’s contention that “retaliation claims arising from a charge filed with the EEOC are excepted from the statutory exhaustion requirement.” Slip op. at 5. The majority held that Richter’s discrimination and retaliation claims allege separate discrete acts, and, in light of Morgan, 536 U.S. at 110-11, each such act required its own charge. Slip op. at 4-9. In the majority’s view, its ruling accords with Wedow v. City of Kansas City, which broadly asserted that “retaliation claims are not reasonably related to underlying discrimination claims.” Id. at 6-7 (citing 442 F.3d 661, 673 (8th Cir. 2005) (citing Duncan v. Delta Consol. Indus., 371 F.3d 1020, 1025 (8th Cir. 2004))). The majority also rea-soned that “[e]xempting retaliation claims from the administrative framework established by Congress could frustrate the conciliation process, which [the Court *4 had] called ‘central to Title VII’s statutory scheme.’ ” Id. at 8-9 (describing “countervailing policy considerations”) (citation omitted).

Judge Bye dissented. In his view, the plaintiff ’s claim should not be barred because retaliation in

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response to a charge is “necessarily reasonably relat-ed to the underlying allegations in the charge.” Dis-sent at 22. The dissent reasoned that not requiring a new charge for such claims accords with rulings from numerous other circuits and would further public policy. See id. at 17-18 (citing cases). Moreover, the dissent explained, Morgan focused on limitations issues and did “not purport to address the extent to which an EEOC charge satisfies exhaustion require-ments for claims of related, post-charge events.” Id. (citation omitted).

Finally, the dissent concluded that Wedow did not “foreclose Richter’s argument that the like-or-reasonably-related-to exception to the exhaustion doctrine applies to subsequent retaliatory acts arising from the filing of the EEOC charge.” Id. at 20-21 (citation omitted). The dissent described Wedow’s retaliation statement, quoted above, as “unnecessari-ly overinclusive.” Id. at 21. Duncan is “inapposite,” the dissent explained, because, in contrast to this case or Wedow, the lawsuit in Duncan alleged dis-crimination as well as retaliation whereas the charge alleged only retaliation. Id. at 21-22 (citations omit-ted).

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*5 ARGUMENT

Rehearing En Banc is Warranted Because the Majority’s Decision Conflicts with Long-Standing Eighth Circuit Precedent, Con-sistent with Other Circuits, that a Plaintiff Like Richter Need Not File a New or Amended Charge to Preserve a Claim that Her Employ-er Retaliated Against Her for Filing a Charge, and Overruling this Precedent is not Required by Morgan.

Rehearing en banc is warranted because the panel majority erred in holding that a plaintiff like Richter, who allegedly was subjected to retaliation for filing a Title VII charge, is barred from challenging that retaliation in court unless she first filed a new or amended charge mentioning the retaliation. This ruling overturns long-standing circuit precedent and conflicts with case law from most other circuits. The ruling is also not compelled by the Supreme Court’s decision in Morgan and would undermine enforce-ment of federal anti-discrimination law.

Section 706(f)(1) of Title VII requires an ag-grieved individual to file a charge with the EEOC before filing suit. 42 U.S.C. § 2000e-5(f)(1). This requirement provides the EEOC with an opportunity to investigate and achieve a voluntary resolution of the complaint. See, e.g., Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994). In addition, because the EEOC has a corollary duty to notify the employer of the charge, 42 U.S.C. § 2000e-5(b),

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the charge-filing requirement also gives the employer notice of the alleged violation.

*6 As this and other Courts have recognized, however, “subsequently-filed lawsuits [need not] mirror the administrative charges.” Duncan, 371 F.3d at 1025; see also, e.g., Clockedile, 245 F.3d at 4. Ra-ther, a judicial complaint may include claims that are “like or reasonably related to” the allegations in the original charge. See, e.g., Anderson v. Block, 807 F.2d 145, 148 (8th Cir. 1986). Stated differently, since the charge is mainly intended to trigger the EEOC’s investigatory and conciliatory process, the “sweep of any subsequent judicial complaint may be [only] as broad as the scope of the EEOC investigation which could reasonably be expected to grow out of the charge.” Duncan, 371 F.3d at 1025 (citations omitted, alteration in Duncan).

This Court has tweaked the contours of this exception over time. Wedow, 442 F.3d at 672-73. For example, the exception does not normally apply where the charge alleges only retaliation but the plaintiff ’s complaint includes a claim for substantive (e.g., race or sex) discrimination. See, e.g., Duncan, 371 F.3d at 1025-26; Williams, 21 F.3d at 222. Nor does it normally apply to discrimination or retaliation claims that arose before the charge was filed but were omitted from the charge. See, e.g, Parisi v. Boeing Co., 400 F.3d 583, 585-86 (8th Cir. 2005); Roark v. City of Hazen, 189 F.3d 758, 760-61 (8th Cir. 1999); Wallin v. Minn. Dep’t of Corrs., 153 F.3d 681, 688-89 (8th Cir 1998). Nevertheless, this Court, like most other

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circuits, has long recognized that an allegation that the defendant *7 retaliated against the plaintiff for filing an EEOC charge may be included in a Title VII lawsuit even if the plaintiff did not first file a new or amended charge with the Commission complaining of retaliation. See, e.g., Wentz, 869 F.2d at 1154 (al-though plaintiff ’s charge alleged only age discrimina-tion, judicial complaint could include retaliation growing out of the charge because claim was “like or reasonably related to” that charge); see also, e.g., Jones, 551 F.3d at 302-03; Clockedile, 245 F.3d at 4-6 (explaining rule); Malarkey v. Texaco, 983 F.2d 1204, 1208-09 (2d Cir. 1993). Because such retaliatory acts occur after and flow directly from the filing of the original charge, they are, as the dissent here noted, “necessarily reasonably related to the underlying allegations in the charge.” Dissent at 22.2

2 Accordingly, the Commission urges the Court to clarify the statement from Wedow, quoted by the majority and de-scribed by the dissent here as “unnecessarily overinclusive,” that “ ‘retaliation claims are not reasonably related to underlying discrimination claims.’ ” Slip op. at 7 (citations omitted); Dissent at 21. While Wedow attributed this statement to Duncan (442 F.3d at 673), it actually comes from Wallin, 153 F.3d at 688, which held, unremarkably, that the rule does not apply to retaliation claims arising before the charge was filed but omitted from the charge. However, none of these cases, including Wedow, involved the opposite factual scenario at issue here and in Wentz, where the plaintiff allegedly suffered retaliation because she filed a charge alleging substantive discrimination. Wedow did not explain why the like-or-reasonably-related-to rule now excludes post-charge retaliation claims, nor does such an ex-clusion make sense. Moreover, neither the majority decision nor

(Continued on following page)

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*8 This rule excusing the filing of a second charge for such retaliation claims does not undermine the purposes of the charge-filing requirement. The Commission’s firm policy is to “ensur[e] that individ-uals who assert their rights under the laws enforced by the Commission are protected against retaliation.” EEOC Compl. Man., Vol.11 (Retaliation) § 8-I(A), available at www.eeoc.gov/policy/docs/retal/html. Be-cause of the inextricable link between the charge and the resulting retaliation in this context, the Commis-sion ordinarily can be expected to uncover the retalia-tion in a reasonable investigation of the charge. This should be particularly true where, as here, the charg-ing party alerted the Commission by letter during its investigation that her employer was retaliating against her for filing the charge.

Similarly, the employer will have had notice of the original charge, and because the retaliation claim allegedly resulted directly from that charge, the employer will also have sufficient notice of that alleged violation. See Malarkey, 983 F.2d at 1209. Indeed, in cases such as this one where the alleged retaliation involved an “official,” or “company,” act, “there is no need to worry about notice: the employer should already know.” Clockedile, 245 F.3d at 5-6; cf. Burlington Indus. v. Ellerth, 524 U.S. 742, 762-63 (1998) (holding employer liable for harassment culminating

Wedow cites any Eighth Circuit authority holding that a plain-tiff may not challenge retaliation based on the filing of her original charge without first filing a new or amended charge.

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in tangible employment action – “company act” – even *9 if victim did not complain internally since such acts are typically reviewed by upper management and HR and documented in employer’s records).

The panel majority concluded that this rule has, in effect, been superseded by Morgan. See Slip op. at 6-9 (citing 536 U.S. at 110-11, 114). On the contrary, as Judge Bye recognized in his dissent, Morgan does not address, either directly or indirectly, the question presented here. Rather, the issue in Morgan was timeliness – whether the continuing-violation doc-trine is applicable to discrete acts of alleged unlawful discrimination which, although related to the acts alleged in a timely EEOC charge, are otherwise time-barred. The Morgan Court held that the doctrine is not applicable; charges must be brought within 180 (or 300) days of the alleged discriminatory act. 536 U.S. at 110-14.

However, Morgan does not suggest that the Court was upending settled law on the exhaustion of post-charge retaliation claims as to which the continuing violation doctrine has no relevance. The focus of the provision that Morgan interpreted, 42 U.S.C. § 2000e-5(e)(1), is the 180/300-day limitation period. While its legislative history is “sparse,” § 2000e-5(e)(1) appar-ently was designed to prevent “the pressing of ‘stale’ claims.” Zipes v. TWA, 455 U.S. 385, 394 (1982) (adding that “Congress intended the filing period to operate as a statute of limitations”); see also Edelman v. Lynchburg Coll., 535 U.S. 106, 112-13 (2002) (“The point of the time limitation is to encourage a potential

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charging party to raise *10 a discrimination claim before it gets stale, for the sake of a reliable result and a speedy end to any illegal practice that proves out.”). By requiring that charges be filed with the EEOC relatively promptly after the alleged discrimi-natory act, Congress intended to “protect employers from the burden of defending claims arising from employment decisions that are long past.” Del. State Coll. v. Ricks, 449 U.S. 250, 256-57(1980).

Excusing plaintiffs from filing a separate charge for acts occurring after (and because) a charge was filed does not implicate these staleness concerns. Because such claims normally arise during the pen-dency of an EEOC investigation or shortly after the notice of right to sue issues, the challenged conduct is not “long past” but in fact even more recent than the conduct alleged in the underlying charge. Employers do not need special protection from such claims. Morgan’s discussion of § 2000e-5(e)(1) thus does not require that courts overrule their case law recogniz-ing and applying the like-or-reasonably-related-to exception to the charge-filing requirement.

Accordingly, even after Morgan, the Commission and most other circuits that have addressed the issue continue to adhere to the rule that plaintiffs need not file a new or amended charge to challenge retaliation arising from the filing of an earlier charge. See EEOC Compl. Man. § 2-IV(C)(1)(a) & n.185 (“Morgan does not affect existing case law that permits subsequent related acts to be addressed in *11 an ongoing pro-ceeding”); see also Jones, 551 F.3d at 303 (rejecting

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Morgan-based argument); Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 188-89 (1st Cir. 2003) (stating that Morgan “does not address whether a previously filed EEOC complaint must be amended to encompass subsequent discrete acts in order to ren-der such act susceptible to judicial review”); Delisle, 94 F. App’x. at 252-55 (discussing Morgan); see also Franceschi, 514 F.3d at 86-87 (noting exception but not discussing Morgan); Terry, 336 F.3d at 150-51 (same); Thomas v. Miami Dade Pub. Health Trust, 369 F. App’x 19, 23 (11th Cir. 2010) (same) (un-published); Eberle, 240 F. App’x at 628-29 (same) (unpublished). While the majority here cited to Martinez, 347 F.3d at 1210-12 (relying on Morgan to require new or amended charge for post-charge retaliation claims), that is clearly the minority view. This Court should not exacerbate a shallow circuit split by siding with the minority.

Further, as the dissent recognized, there are sound public policy reasons for the like-or-reasonably-related-to exception. The anti-retaliation provision is designed to prevent an employer “from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of [Title VII’s] basic guarantees” by, for example, filing a charge. Burling-ton N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006). Indeed, the Act “depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as *12 witnesses.” Id. How-ever, “a plaintiff that has already been retaliated against one time for filing an EEOC charge will

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naturally be reluctant to file a separate charge, possibly bringing about further retaliation.” Jones, 551 F.3d at 302. Rather than do so, she might well choose not to pursue her claim, thereby undermin- ing enforcement of the statute. See Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114, 121 n.6 (2d Cir. 2008) (noting that “[t]he more effective an employer was at using retaliatory means to scare an employee into not filing future EEOC complaints, the less likely the employee would be able to hold the employer liable for that retaliation be-cause the less likely the employee would risk filing an EEO complaint as to the retaliation”) (citation omit-ted).

At the same time, requiring prior resort to the Commission before proceeding with a retaliation claim would mean a “double filing that would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII.” Gupta, 654 F.2d at 414. And, because the administrative process is designed for laypeople like Richter proceeding without counsel, Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 402-03 (2008), courts should be “reluctant to erect a needless procedural barrier to the private claimant.” Gupta, 654 F.2d at 414; see also Malarkey, 983 F.2d at 208-09 (requiring plaintiffs to “return to the EEOC to com-plain about each [post-charge] retaliatory act” re-gardless of the relationship between the retaliation and the *13 original charge or lawsuit “would create a procedural barrier for plaintiffs contrary to the

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remedial purposes” of anti-discrimination law). This is particularly important where, as here, the lay charging party subsequently brought the retaliation to the EEOC’s attention, albeit apparently to no avail.

The majority cited “countervailing” policy consid-erations. It reasoned that “[e]xempting retaliation claims from the administrative framework estab-lished by Congress could frustrate the conciliation process, which [the Court had] called ‘central to Title VII’s statutory scheme.’ ” Slip op. at 8-9 (citation omitted). In the Commission’s view, however, this concern is overstated.

The rule does not “exempt” all retaliation claims “from the administrative process”; it exempts retal-iation claims arising out of the filing of a charge. In addition, where, as here, the alleged retaliation occurs while the original charge is still pending before the Commission, any conciliation of the charge would normally include the alleged retaliation.

Furthermore, while conciliation is an important feature of EEOC enforcement, only a small fraction of charges actually are conciliated. It does not ap- pear, for example, that the Commission attempted to conciliate Richter’s discrimination claims. Title VII requires the Commission to conciliate only when it determines, after an investigation, “that there is reasonable cause to believe that the charge is true.” 42 U.S.C. § 2000e-5(b). In FY2011, the EEOC found cause in *14 fewer than 5% of charges. See EEOC Enforcement & Litig. Stats., All Statutes FY97-FY11

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(3.8% overall; 4.1% of retaliation charges), available at www.eeoc.gov/eeoc/statistics/enforcement/all.cfm.

The statute also allows charging parties to opt out of the administrative process by requesting a notice of right to sue after 180 days, even if the investigation is not complete. 42 U.S.C. § 2000e-5(f)(1); see Clockedile, 245 F.3d at 5 (suggesting that, due to early right to sue notice, EEOC did not inves-tigate that plaintiff ’s charge). Those charges, too, are not conciliated. Accordingly, simply exempting post-charge claims of retaliation from the administrative process is unlikely to frustrate the Commission’s conciliation efforts in a material way.

In any event, notice of the employer and concilia-tion are duties of the Commission, not the charging party. See 42 U.S.C. § 2000e-5(b). Particularly where, as here, the charging party in fact attempted to call the EEOC’s attention to the alleged retaliation, she should not be penalized if the EEOC failed to follow up and thus missed the opportunity to conciliate the claim. The scope of the complaint that may be filed is determined not “by the scope of the actual investiga-tion pursued” but “what EEOC investigation could reasonably be expected to grow from the original complaint.” Powers v. Grinnell Corp., 915 F.2d 34, 39 n.4 (1st Cir. 1990) (citations omitted); see also Babrocky v. Jewel Food Co., 773 F.2d 857, 864 n.2 (7th Cir. 1985) (where “the EEOC investigation was *15 overly narrow, the proper inquiry would be into what EEOC investigation could reasonably be expected to grow from the original complaint”). “Conditioning a

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plaintiff ’s right to recover on the omissions of other parties would unduly undermine the remedial pur-poses of Title VII.” Babrocky, 773 F.2d at 864 n.2.

In short, this Court’s like-or-reasonably-related-to rule has long provided appropriate and important protection to charging parties who experience retalia-tion as a result of their efforts to enforce their rights, without prejudicing employers. In contrast, the panel majority’s decision could seriously undermine en-forcement of the statute with no countervailing benefits.

CONCLUSION

The Commission thus respectfully urges this Court to rehear this case en banc and hold, consistent with the dissenting opinion, that Richter’s failure to file a separate retaliation charge does not preclude her from pursuing her retaliation claim in court.

Appendix not available.