On June 19, 2015, the Second Circuit vacated the Southern District of New York’s decision to dismiss a complaint for lack of subject matter jurisdiction, concluding that the administrative exhaustion requirement of Title VII of the Civil Rights Act of 1964 (“Title VII”) is not a jurisdictional prerequisite to suit in federal court, but rather a necessary precondition to suit subject to equitable exceptions.
In Fowlkes v. Ironworkers Local 40, Plaintiff-Appellant Cole Fowlkes, a journeyman ironworker who self-identifies as male but was born biologically female, alleged that his labor union, Ironworkers Local 40 (“Local 40”), and two of its business agents, Danny Doyle and Kevin O’Rourke, discriminated against him on the basis of gender and retaliated against him for filing an prior action against them by refusing to refer Fowlkes for work through Local 40’s hiring hall. Fowlkes alleges that, in as early as 2005, Local 40 refused to refer him to jobs for which he was qualified, giving those jobs to less-qualified individuals, because of his gender and gender-related complaints.
On May 29, 2007, Fowlkes initiated proceedings before the Equal Employment Opportunity Commission (“EEOC”), charging Local 40 with discrimination and alleging that it subjected him to retaliation and gender-based discrimination in violation of Title VII. The EEOC issued Fowlkes a “Right to Sue” letter dated July 20, 2007, notifying him that the EEOC had decided not to take further action against Local 40 and advising that Fowlkes could pursue his Title VII claims by filing a federal suit against Local 40 within 90 days of his receipt of the letter. Fowlkes, however, proceeding without counsel, did not file his claim until January 25, 2008—more than 180 days later. The district court dismissed his complaint as untimely.
In July 2011, Fowlkes filed a second federal suit, again proceeding without counsel, alleging that the defendants subjected him to harassment and refused to refer him for work based on his gender, which the district court construed as stating federal claims under Title VII. The district court then held that Fowlkes’s failure to exhaust administrative remedies (namely, obtaining a second “Right to Sue” letter) prior to filing his Title VII claims deprived the court of subject matter jurisdiction over those claims. A federal court must have subject matter jurisdiction, either through federal question or diversity, to hear a case.
On appeal, and now represented by counsel, Fowlkes argued that the district court erred in dismissing his amended complaint because the exhaustion of administrative remedies before filing a Title VII action in federal court is not a jurisdictional requirement, but rather a precondition of suit that may be subject to equitable exceptions. The Second Circuit agreed, citing Zipes v. Trans World Airlines, Inc. in which the Supreme Court of the United States held: “[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that … is subject to waiver, estoppel, and equitable tolling.” The distinction between a jurisdictional requirement and an administrative prerequisite is that, with respect to the former, a court on its own may dismiss a complaint for lack of subject matter jurisdiction, whereas, with respect to the latter, a defendant must assert as an affirmative defense a failure to exhaust administrative remedies (in response to which a plaintiff may assert an equitable exception). In other words, a court has no authority to create an equitable exception to a jurisdictional requirement, but may subject a mandatory (but non-jurisdictional) precondition to an equitable exception. The Second Circuit recognized several equitable exceptions, such as: (i) that administrative exhaustion would be futile because the EEOC did not recognize the grounds on which complainant’s suit rests; and (ii) that a prior charge filed with the EEOC was “reasonably related” to the more-recent-at-issue allegation of discrimination. Ultimately, the Second Circuit vacated the district court’s decision, instructing the district court to reconsider on remand whether futility, “reasonable relatedness,” or any other equitable doctrine excuses Fowlkes’s failure to exhaust his administrative remedies.
Fowlkes v. Ironworkers Local 40 highlights the importance of securing legal counsel prior to brining claims to a federal court or an administrative agency. An employment attorney understands the procedural obstacles a plaintiff must navigate to successfully litigate his or her claim. If you believe your employer has discriminated against you and have a case pending before the EEOC, please contact The Harman Firm, LLP.