“[B]ecause exhaustion is not a jurisdictional requirement and is subject to waiver, defendants have waived this argument by not timely raising it in their motion for summary judgment.”
How later courts described this case
- “[B]ecause exhaustion is not a jurisdictional requirement and is subject to waiver, defendants have waived this argument by not timely raising it in their motion for summary judgment.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEKISHA REDDICK, ]
]
Plaintiff, ]
]
v. ] CIVIL ACTION NO.
] 2:17-cv-00728-KOB
REPUBLIC PARKING SYSTEM, ]
]
Defendant. ]
MEMORANDUM OPINION
This employment discrimination case comes before the court on the parties’
responses to the court’s order to show cause why the court should not sua sponte
dismiss this case because Plaintiff Lekisha Reddick did not timely file an EEOC
charge for her Title VII race discrimination claim. (Docs. 44 and 45). This
exercise will clarify that the timeliness of Ms. Reddick’s EEOC charge is no longer
an issue in this case.
I. BACKGROUND
On March 25, 2019, the court granted Defendant Republic Parking System’s
motion for summary judgment on all of Ms. Reddick’s claims except for her race
discrimination claim based on Republic’s failure to promote her on July 1, 2014.
(See Docs. 38 and 39). For this claim, as the court stated in its memorandum
opinion on Republic’s motion for summary judgment, Ms. Reddick presented
evidence that Republic did not promote her to Assistant Manager on July 1, 2014
because she is African-American based on her supervisor’s statement that he
needed a “white face” to “soften” the look of Republic’s staff. (See Doc. 38 at 9–
11). Ms. Reddick discovered this evidence on July 25, 2014 at the latest. (Id. at
12).
But Ms. Reddick did not file a charge of discrimination with the EEOC until
September 22, 2015, approximately eight months after the 180-day deadline to do
so under Title VII expired. See 42 U.S.C. § 2000e-5(e)(1). Republic did not raise
this issue in its motion for summary judgment, but the court, recognizing that “the
‘[f]ailure to file a timely charge with the EEOC results in a bar of the claims
contained in the untimely charge,’” ordered the parties to show cause why the
court should not sua sponte dismiss this case for Ms. Reddick’s failure to timely
exhaust her administrative remedies. (Doc. 40 at 1) (quoting Jordan v. City of
Montgomery, 283 F. App’x 766, 767 (11th Cir. 2008)) (quoting in turn Alexander
v. Fulton County, Ga., 207 F.3d 1303, 1332 (11th Cir. 2000)).
Ms. Reddick and Republic filed their responses to the court’s order to show
cause, so this issue is ripe for resolution. (Docs. 44 and 45, respectively). For the
following reasons, the court will not dismiss Ms. Reddick’s remaining race
discrimination claim as untimely.
II. ANALYSIS
Timely filing a charge of discrimination with the EEOC is not required to
invoke a district court’s subject matter jurisdiction over a Title VII claim. Fort
Bend Cty., Texas v. Davis, 587 U.S. ---, 139 S. Ct. 1843, 1850 (2019). Rather, the
requirement that a plaintiff timely file a charge of discrimination, “like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling.” Sturniolo v.
Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025 (11th Cir. 1994) (quotations and citations
omitted). And if a defendant fails to timely raise the defense that the plaintiff did
not timely file a charge of discrimination, the defendant waives that defense and
the claim supported by an untimely EEOC charge may proceed. Fort Bend Cty.,
139 S. Ct. at 1849–50.
District courts in the Eleventh Circuit have consistently found that a
defendant waives the untimely EEOC charge defense when the defendant never
specifically raises the defense in a responsive pleading, motion to dismiss, or
motion for summary judgment. See Shufford v. Alabama Medicaid Agency, 2019
WL 386203, at *6 (M.D. Ala. Jan. 30, 2019) (“[D]efendants’ motion for summary
judgment is silent on the issue of administrative exhaustion. Therefore, the court
deems defendants to have waived any affirmative defenses relating to the
timeliness of plaintiff’s EEOC charge . . . .”); Hill v. Bd. of Sch. Comm’rs of
Mobile Cty., Ala., 2014 WL 1604004, at *6 (S.D. Ala. Apr. 22, 2014) (“[T]he
Board did not raise this affirmative defense in either a motion to dismiss or in the
motion for summary judgment. Thus, the Court finds that the Board has waived its
affirmative defense of statute of limitations and its affirmative defense of failure to
exhaust administrative remedies.”); Tarmas v. Mabus, 2010 WL 3746636, at *5
(M.D. Fla. Sept. 21, 2010), aff’d sub nom. 433 F. App’x 754 (11th Cir. 2011) (“In
its Answer, the Navy asserted as an affirmative defense that Tarmas had failed to
exhaust his administrative remedies . . . and has reiterated this in its summary
judgment motion as grounds for dismissal of the earlier claims. Thus, the Navy has
not waived its right to assert exhaustion . . . .”); Ham v. City of Atlanta, Georgia,
2009 WL 10668310, at *7 (N.D. Ga. July 22, 2009), aff’d sub nom. 386 F. App’x
899 (11th Cir. 2010) (“[B]ecause exhaustion is not a jurisdictional requirement and
is subject to waiver, defendants have waived this argument by not timely raising it
in their motion for summary judgment.”).
Here, Republic did not raise Ms. Reddick’s untimely EEOC charge as a
defense in its motion for summary judgment or in a motion to dismiss. And it did
not specifically raise the defense in a responsive pleading. Instead, in its answer to
the amended complaint, Republic only generally asserted that it “lacks information
sufficient to form a belief as to the truth of Paragraph 7 of the [Amended]
Complaint”—where Ms. Reddick asserted that she timely exhausted her
administrative remedies—“and therefore denies same and demands strict proof
thereof.” (Doc. 21 at 2). Also, in its answer, Republic generally contended that
“Plaintiff’s claims are barred by the applicable statutes of limitations or are
otherwise untimely,” but did not identify any statutes of limitations or explain why
the claims are untimely. (Id. at 5).
So Republic never raised Ms. Reddick’s untimely EEOC charge as a defense
in this case. Because of its failure to timely do so, Republic waived the defense.
The court thus has no reason to dismiss Ms. Reddick’s remaining race
discrimination claim that survived summary judgment.
By separate order, the court will set this case for pretrial.
DONE and ORDERED this 25th day of June, 2019.
____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE