Are You Exhausted? Second Circuit Denies Retaliation Claim for Plaintiff Who Did Not Timely File Underlying ActionIf an employee files an EEOC charge alleging discrimination and retaliation, never files a lawsuit on that charge, and several years later files another charge that he has suffered retaliation because he filed the first charge—can he still pursue claims from his first charge? In legal speak: Can a claim of alleged ongoing retaliatory behavior survive the EEOC exhaustion requirement when the underlying discrimination claims were time-barred because the plaintiff failed to file suit within 90 days after receiving his right-to-sue letter? In Duplan v. City of New York, the Second Circuit held that a plaintiff cannot avoid Title VII’s exhaustion requirement by asserting retaliation for filing a claim of discrimination that he failed to pursue.

Refresher on Title VII Exhaustion

Before an employee can file a Title VII claim, the following administrative remedies must be exhausted:

(1) He or she must file a charge of discrimination with the EEOC within 180 days (or in some jurisdictions, such as New York, 300 days) after the alleged unlawful employment practice occurred, and

(2) He or she must file a lawsuit within 90 days of receiving a right-to-sue letter.

If an employee does not file a charge or a lawsuit within those deadlines, he or she cannot pursue those Title VII claims. In some instances, however, if a plaintiff is pursuing Title VII claims and then wants to include retaliation claims that arose after the first charge was filed, courts have held that the retaliation claims may not need a separate charge of discrimination.

Facts of Mr. Duplan’s Case

Louis Duplan, a gay black man from Haiti, filed complaints with the city, the EEOC, and the New York State Division of Human Rights (NYSDHR) in July and August of 2011 asserting that he was denied a promotion for discriminatory reasons and in retaliation for complaining about discrimination.

Duplan alleged that in 2011 his direct supervisor made derogatory comments about black people, gay people, and Haitians. He also alleged that on two occasions his supervisor gave preferential treatment to white women. Duplan further complained of being stripped of several substantive and managerial responsibilities. Duplan received his right-to-sue letter on July 30, 2012, but never filed a civil action.

Two years later, in September 2014, Duplan reported to several supervisory employees that he felt he was subjected to continued retaliation following his 2011 complaint. On October 23, 2014, he filed a second complaint with the EEOC and the NYSDHR and received a right-to-sue letter in June 2015. He filed a civil action on July 10, 2015, alleging retaliation and hostile work environment under Title VII.

In previous rulings, the Second Circuit deemed that, in certain circumstances, it may be unfair, inefficient or contrary to the purposes of Title VII to require separate exhaustion for new violations “reasonably related” to the initial claim. The “reasonably related” doctrine applies to cases where the EEOC charge or a timely filed suit based on the underlying discrimination charge is still pending. In Duplan, however, the court refused to extend its existing precedent, reasoning that the conduct about which Duplan complained occurred after the EEOC’s investigation and Duplan did not file suit within 90 days after receiving the right-to-sue letter on his 2011 complaint.

What Does This Mean?

Be careful about retaliation claims. There are still limited situations in which a plaintiff may not have to file a new charge of discrimination before adding retaliation claims to a pending lawsuit. During a time when retaliation claims continue to be the most frequently filed claims – 51.6% of all charges filed – employers should proactively avoid claims of retaliation.