No. 14-1028

IN THE

Supreme Court of the United States

MICHAEL DUBLE,

Petitioner,

v.

FEDEX GROUND PACKAGE SYSTEM, INC.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

April 28, 2015

BARAK BABCOCK

Counsel of Record

FEDEX GROUND PACKAGE

SYSTEM, INC.

1000 FedEx Drive

Moon Township, PA 15108

barak.babcock@fedex.com

(412) 859-5763

Counsel for Respondent

i

QUESTION PRESENTED

Before a person may sue under various federal anti-

discrimination statutes, he or she must first exhaust

her claim with the federal Equal Employment Oppor-

tunity Commission (EEOC) or a counterpart state or

local agency. See 42 U.S.C. § 2000e-5. Each “unlaw-

ful employment practice” must be exhausted.

In this case, petitioner filed a charge alleging that

he had been transferred to a new position and that

the transfer was an unlawful act of either discrimina-

tion or retaliation. When the agency asked him

whether he wanted to litigate the circumstances of

his subsequent termination as well, he declined and

said that he “did not wish to focus on his termina-

tion.” He subsequently sued over both the transfer

and the termination.

The question presented is:

When an employer allegedly retaliates against a

charging party for filing a discrimination charge

while the charge is pending with the agency, but the

charging party declines the opportunity to amend his

charge to add the new retaliation claim and informs

the agency that he does not wish to focus on the al-

leged new retaliation, may he subsequently sue for

retaliation and invoke a judicially-created exception

to the exhaustion requirement?

ii

RULE 29.6 STATEMENT

FedEx Ground Package System, Inc. is a wholly

owned subsidiary of FedEx Corporation, a publicly

traded company. No other publicly held company

owns 10% or more of either corporation’s stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................ i

RULE 29.6 STATEMENT ............................................ii

TABLE OF AUTHORITIES ......................................... v

INTRODUCTION ......................................................... 1

STATEMENT ................................................................ 2

A. ADA Claims Must Be Exhausted................. 2

B. Petitioner’s Employment With FedEx

Ground .......................................................... 3

C. Petitioner Files A Charge Alleging That

His Transfer Was Unlawful ......................... 6

D. The Agency Dismisses The Charge

Relating To Petitioner’s Transfer ................ 8

E. The District Court Proceedings ................... 9

F. The Eleventh Circuit’s Non-

Precedential Affirmance ............................. 10

REASONS FOR DENYING THE WRIT .................... 11

I. This Case Does Not Warrant Supreme

Court Review. .................................................... 12

A. There Is No Circuit Split On The Issue

Decided By The Court Of Appeals. ............ 12

B. The Decision Below Presents, At Most,

An Intra-Circuit Conflict. ........................... 15

iv

C. The Broader Issue, Not Presented By

This Case, Of Whether The Exceptions

To The Exhaustion Requirement

Survive Morgan, Is Not The Subject Of

A “Widespread Circuit Divide,” As

Petitioner Suggests. ................................... 16

II. The Facts Of This Case Make It A Poor

Vehicle For Certiorari Review. ......................... 20

A. Petitioner’s Actions Before The Agency

Make This Case A Uniquely Unsuitable

Vehicle To Consider Whether Post-

Charge Retaliation Claims Are Exempt

From The Statutory Exhaustion

Requirement. .............................................. 21

B. Petitioner’s Second “Question

Presented” Is Not, In Fact, Presented

By This Case, Nor Does It Warrant

Review. ........................................................ 23

III. The Decision Below Is Correct. ........................ 28

A. Requiring Exhaustion For Retaliation

That Occurs During Pending EEOC

Proceedings Is Consistent With The

Statutory Framework. ................................ 28

B. Requiring Exhaustion Of Petitioner’s

Retaliation Claim Is Consistent With

The Policies Underlying Exhaustion

Provisions. ................................................... 30

CONCLUSION ........................................................... 33

APPENDIX A: Investigative Report and

Recommended Order .................................................. 1a

APPENDIX B: FedEx Ground Position

Statement .................................................................. 21a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) ................................................ 31

Baker v. Buckeye Cellulose Corp.,

856 F.2d 167 (11th Cir. 1988) .................. 10, 11, 13

Bennett v. Chatham Cnty. Sheriff Dep’t,

315 F. App’x 152 (11th Cir. 2008) ........................ 18

Bonner v. City of Prichard,

661 F.2d 1206 (11th Cir. 1981) ............................ 11

Brown v. Gen. Servs. Admin.,

425 U.S. 820 (1976) .............................................. 17

Bryant v. Rich,

530 F.3d 1368 (11th Cir. 2008) ............................ 27

Clockedile v. N.H. Dep’t of Corr.,

245 F.3d 1 (1st Cir. 2001) ..................................... 14

Crawford v. Babbitt,

186 F.3d 1322 (11th Cir. 1999) ............................ 23

Delisle v. Brimfield Twp. Police Dep’t,

94 F. App’x 247 (6th Cir. 2004) ............................ 18

Doe v. Oberweis Dairy,

456 F.3d 704 (7th Cir. 2006) ................................ 32

vi

Eberle v. Gonzales,

240 F. App’x 622 (5th Cir. 2007) .......................... 19

EEOC v. Joe’s Stone Crabs, Inc.,

296 F.3d 1265 (11th Cir. 2002) ............................ 18

Filer v. Donley,

690 F.3d 643 (5th Cir. 2012) ................................ 31

Fitzgerald v. Sec’y, U.S. Dep’t of Veterans

Affairs,

121 F.3d 203 (5th Cir. 1997) ................................ 22

Franceschi v. U.S. Dep’t of Veterans Affairs,

514 F.3d 81 (1st Cir. 2008) ................................... 19

Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009) .............................................. 28

Gupta v. E. Tex. State Univ.,

654 F.2d 411 (5th Cir. 1981) .......................... 11, 21

Hague v. Univ. of Tex. Health Sci. Ctr. at

San Antonio,

560 F. App’x 328 (5th Cir. 2014) .......................... 19

Jones v. Calvert Grp., Ltd.,

551 F.3d 297 (4th Cir. 2009) ................................ 16

Jones v. Calvert Grp., Ltd.,

551 F.3d 297 (4th Cir. 2009) ................................ 16

Ledbetter v. Goodyear Tire & Rubber Co., Inc.,

550 U.S. 618 (2007) ........................................ 18, 19

Martinez v. Potter,

347 F.3d 1208 (10th Cir. 2003) ................ 13, 17, 31

vii

Mohasco Corp. v. Silver,

447 U.S. 807 (1980) .............................................. 30

Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002) .......................................passim

Occidental Life Ins. Co. of Cal. v. EEOC,

432 U.S. 355 (1977) .................................... 3, 30, 31

Oubichon v. N. Am. Rockwell Corp.,

482 F.2d 569 (9th Cir. 1973) ................................ 21

Payne v. Salazar,

619 F.3d 56 (D.C. Cir. 2010) ................................ 17

Richter v. Advance Auto Parts, Inc.,

686 F.3d 847 (8th Cir. 2012) ................................ 19

Rivera v. Puerto Rico Aqueduct & Sewers Auth.,

331 F.3d 183 (1st Cir. 2003) ................................. 17

Sapp v. Potter,

413 F. App’x 750 (5th Cir. 2011) .......................... 17

Scott v. Eastman Chem. Co.,

275 F. App’x 466 (6th Cir. 2008) .......................... 19

Sherman v. Chrysler Corp.,

47 F. App’x 716 (6th Cir. 2002) ............................ 18

Simmons-Myers v. Caesars Entm’t Corp.,

515 F. App’x 269 (5th Cir. 2013) .......................... 17

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

133 S.Ct. 2517 (2013) ........................................... 28

viii

Wedow v. City of Kansas City,

442 F.3d 661 (8th Cir. 2006) .......................... 19, 20

West v. Gibson,

527 U.S. 212 (1999) .............................................. 31

Statutes

Americans with Disabilities Act (ADA) ...................... 2

42 U.S.C. § 12112(a) ............................................... 2

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

42 U.S.C. § 12203(a) ............................................... 2

Title VII of the Civil Rights Act of 1964

42 U.S.C. § 2000e-5 .......................................passim

42 U.S.C. § 2000e-5(b) ...................................... 3, 30

42 U.S.C. § 2000e-5(c) ............................................ 2

42 U.S.C. § 2000e-5(e) ...................................... 2, 28

42 U.S.C. § 2000e-5(f) ............................................. 3

42 U.S.C. § 2000e-12(d) ........................................ 17

Lilly Ledbetter Fair Pay Act of 2009, Pub.

L. No. 111–2, 123 Stat. 5 ...................................... 29

Other Authorities

29 C.F.R. § 1601.12(b) ................................................. 3

29 C.F.R. § 1601.13(a)(3)-(4) ........................................ 2

Enforcement & Litigation Statistics, U.S.

EEOC, http://www.eeoc.gov/eeoc/statistics/

enforcement/index.cfm (last visited Apr. 27,

2015)...................................................................... 32

Sup. Ct. R. 10 ............................................................. 12

BRIEF FOR THE RESPONDENT

IN OPPOSITION

________________________

INTRODUCTION

In this case, petitioner waited two years to assert

in federal court, for the first time, that FedEx

Ground had terminated him in retaliation for his fil-

ing an EEOC charge of discrimination. Petitioner

never exhausted the retaliatory termination claim

before the responsible agency. Although his discrim-

ination charge was pending at the time of his termi-

nation, and the responsible agency was investigating

that charge, petitioner affirmatively declined to

amend his charge based on the alleged retaliatory

termination or to file a new charge. Petitioner even

told the agency that he “did not wish to focus on the

termination but rather” on the entirely distinct em-

ployment practices that were the subject of his

charge.

Petitioner asserts that the circuits disagree about

whether this Court’s decision in National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101 (2002), ab-

rogated the judicially-created exception to the ex-

haustion requirement for post-charge acts of retalia-

tion. But most of the circuits—including the Elev-

enth Circuit—have never reached this issue. And, on

the more general question of whether post-charge

acts can ever be exempt from the exhaustion re-

quirement, the Eleventh Circuit’s answer is and al-

ways has been yes—that sometimes plaintiffs can sue

for retaliation without exhausting. In other words,

the Eleventh Circuit is on petitioner’s side of the

purported split; on the other side is a circuit where

2

the rule is less favorable to him. The purported split

therefore had nothing to do with why petitioner lost

below, nor did this Court’s decision in Morgan, which

played virtually no role in the Eleventh Circuit’s de-

cision.

Rather, the Eleventh Circuit correctly held in an

unpublished decision that on these facts, petitioner

was not excused from exhausting. Because petition-

er had the opportunity to amend his charge to in-

clude the new allegation but chose not to do so, he

failed to satisfy the exhaustion requirement with re-

spect to that claim.

STATEMENT

A. ADA Claims Must Be Exhausted

The Americans with Disabilities Act (ADA) prohib-

its discrimination against a qualified individual on

the basis of his disability or perceived disability. 42

U.S.C. § 12112(a). Separately, the ADA prohibits

employers from retaliating against an employee be-

cause that employee filed a disability-discrimination

charge. Id. § 12203(a). Like other federal anti-

discrimination statutes, the ADA requires an em-

ployee to file a charge with the federal Equal Em-

ployment Opportunity Commission (EEOC) or a

state or local counterpart agency. See id. § 12117(a)

(incorporating 42 U.S.C. § 2000e-5); see also id.

§ 2000e-5(c), 29 C.F.R. § 1601.13(a)(3)-(4) (providing

for involvement of state and local agencies). The

charge must be properly filed, within a prescribed

time period, before the employee may file a discrimi-

nation claim in court. See 42 U.S.C. § 2000e-5(e),

(f)(1)(A). If the employee wishes to add to the charge,

he may amend it to “alleg[e] additional acts which

3

constitute unlawful employment practices,” and if

the new acts are “related to or growing out of the

subject matter of the original charge,” the amended

charge “will relate back to the date the [original]

charge was first received.” 29 C.F.R. § 1601.12(b).

Once a charge is filed, the agency gives the em-

ployer prompt notice of the charge, “including the

date, place and circumstances of the alleged unlawful

employment practice.” 42 U.S.C. § 2000e-5(b). The

agency then investigates the charge to determine

whether there is reasonable cause to believe the

charge is true. If the agency finds no reasonable

cause, the charging party may file suit; if the agency

finds reasonable cause, it attempts to conciliate the

violation and, if that is unsuccessful, the agency may

file suit itself. Id. § 2000e-5(b), (f).

Among other purposes, this exhaustion require-

ment allows the agency to fulfill its investigative role

and promote voluntary compliance with anti-

discrimination laws “by informal methods of confer-

ence, conciliation, and persuasion.” 42 U.S.C. §

2000e-5(b); see also Occidental Life Ins. Co. of Cal. v.

EEOC, 432 U.S. 355, 359-60, 368 (1977) (describing

the EEOC’s investigative and dispute-settling func-

tions). Failing to exhaust discrimination or retalia-

tion claims therefore not only circumvents the statu-

tory scheme, it undermines the agency’s role in in-

vestigating and resolving employment disputes.

B. Petitioner’s Employment With FedEx

Ground

Petitioner Michael Duble worked as a FedEx

Ground service manager in Miami, Florida, begin-

ning in September 1997. Pet. App. 16-17. In March

4

2007, petitioner began working as a Pick-Up and De-

livery (“P&D”) Service Manager. Id. at 17. In this

position, he often performed the “Gatekeeper func-

tion” of standing outside at the entrance gate to

speak to returning contractors regarding any unde-

livered packages. Id. at 17-18. Petitioner performed

his job duties for more than a year without incident

or request for an accommodation, including the

Gatekeeper function, which he began performing in

February 2008. On April 11, 2008, however, he in-

formed his supervisor and his senior manager that

he has multiple sclerosis (MS), that the heat exacer-

bates his condition, and that he therefore could not

perform the Gatekeeper function. Id. at 18-19.1

After initially resisting FedEx Ground’s requests

for a doctor’s note articulating his work limitations,

Petitioner finally provided a note from his doctor

stating he needed “to work in an environment that is

inside and away from heat.” Pet. App. 21. FedEx

Ground accommodated this restriction by never

again asking petitioner to perform the Gatekeeper

function or to perform “Customer Service Rides,”

which sometimes involved riding in vans without air

conditioning. Id. at 3, 21.

In December 2008 and January 2009, FedEx

Ground discovered that certain operational needs of

the Miami facility were not being met when a Dis-

trict Managing Director noticed that a van line was

being operated without a manager. Pet. App. 3, 21.

It conducted a needs analysis of the facility, includ-

ing a review of all managers’ job assignments. Pet.

1 Petitioner had been diagnosed with MS in September 2006,

but had not previously informed his employer of his diagnosis

or sought any job restrictions due to his MS. Pet. App. 18.

5

App. 3-4, 21-22. As part of this needs analysis, Fed-

Ex Ground reevaluated its ability to maintain peti-

tioner’s position as a service manager in light of his

work limitations, given that the essential job func-

tions of his position involved working outside and he

was performing non-managerial clerical functions

due to his work limitations. Id. at 21-23. Initially,

petitioner was given the option of taking short-term

disability leave for approximately three months or

being reclassified to a clerk position, which would

have permitted him to perform largely administra-

tive work and avoid the outside work that was inher-

ent in the duties of service managers. Id. at 23.

When petitioner opposed these options, FedEx

Ground provided him with the job descriptions for

P&D Service Manager and Dock Service Manager

and asked him to obtain a letter from his doctor af-

firming that he could perform the duties listed in

those descriptions notwithstanding his medical con-

dition. Id. at 4-5, 23-24.

Petitioner’s doctor provided a letter explaining that

petitioner could perform the duties listed in either of

these job descriptions “without difficulty or interfer-

ence from the standpoint of his neurologic condition.”

Pet. App. 24. Upon receipt of this letter in February

2009, FedEx Ground placed petitioner in the only

available managerial position at its Miami facility:

Pre-Load Service Manager. Id.; App., infra, 7a.2 For

the duration of his tenure as Pre-Load Service Man-

2 The Investigative Report and Recommended Order issued by

the Miami-Dade County Office of Human Rights and Fair Em-

ployment Practices (“the agency”), which Petitioner quotes ex-

tensively but does not include in his Petition Appendix, is ap-

pended to this brief. App., infra, 1a-20a.

6

ager, petitioner never expressed to FedEx Ground or

his medical providers any difficulties performing his

job duties. Id.

C. Petitioner Files A Charge Alleging That His

Transfer Was Unlawful

Nevertheless, on March 6, 2009, petitioner filed a

charge of discrimination with the EEOC and the

Florida Commission on Human Relations, alleging

that his transfer was unlawful. In his charge, peti-

tioner alleged that he had never requested any work

accommodation and that by transferring him to Pre-

Load Service Manager, FedEx Ground was discrimi-

nating against him because of his disability or per-

ceived disability and retaliating against him for his

complaints. Pet. App. 49-50. The charge was re-

ferred to the Miami-Dade Commission on Human

Rights,3 which notified FedEx Ground of the charge

and commenced an investigation.

During its investigation of petitioner’s allegations,

FedEx Ground’s in-house counsel requested the re-

trieval of emails sent to and from petitioner’s FedEx

Ground email account. The retrieval revealed that

petitioner had sent and received numerous emails

during work hours with inappropriate content and

language, including nudity and other offensive imag-

es. Because these emails violated multiple company

policies, FedEx Ground terminated petitioner on No-

vember 19, 2009. Pet. App. 5.

3 The petition and decisions below refer to the responsible agen-

cy as the EEOC, but in fact the local agency investigated and

dismissed petitioner’s charge.

7

Petitioner did not notify the investigating agency

about his termination or seek to amend his charge or

file a new charge based on his termination. The

agency first learned about petitioner’s termination

from FedEx Ground, which included the following

two sentences regarding the termination in a back-

ground section of its Position Statement titled

“Charging Party’s Employment History”: “Respond-

ent terminated Charging Party’s employment on

[November 19, 2009] for inappropriate use of Re-

spondent’s computer resources. Specifically, Re-

spondent terminated Charging Party after learning

that he had utilized Respondent’s internet and email

systems to view and send inappropriate images,

jokes and messages.” App., infra, 26a-27a.

During the May 2, 2011 rebuttal conference con-

ducted by the agency, the agency asked petitioner

about his termination from FedEx Ground. Petition-

er stated that he was terminated because he sent a

“political email message” to a co-worker and, when

pressed further, declined to provide any details.

App., infra, 8a. During the rebuttal conference, peti-

tioner affirmatively “expressed that he did not wish

to focus on his termination and did not wish to

amend his charge to include termination because he

has consulted with his attorney and believes that he

was terminated for cause.” Id. at 8a; see also id. at

16a (“Charging Party conceded that he was fired for

cause and expressed that he did not wish to focus on

the termination but rather the transfer to the grave-

yard shift.”).4 The agency had no further contact

4 Although petitioner asserts (Pet. 5) that he did not make these

statements, he did not argue in the Eleventh Circuit that the

district court clearly erred in finding that he made these state-

8

with FedEx Ground regarding petitioner’s termina-

tion and, given the affirmative statement by peti-

tioner that he did not wish to focus on his termina-

tion, FedEx Ground provided no evidence or addi-

tional information to the agency regarding the ter-

mination. Petitioner did not appeal the agency’s

findings or determinations to a larger panel of agen-

cy members, see App., infra, 19a-20a.

D. The Agency Dismisses The Charge Relating

To Petitioner’s Transfer

Just one month later, the agency issued its deci-

sion, which determined that there was “no probable

cause to believe that a discriminatory employment

practice has occurred.” App., infra, 1a. In reporting

the history of events and positions of the parties, the

decision referred to FedEx Ground’s statement that

petitioner was terminated as a result of the inappro-

priate emails. Id. at 8a. But, repeatedly noting peti-

tioner’s affirmative statement that he did not wish to

address his termination, id. at 8a, 16a, the agency

focused its findings and analysis on petitioner’s

transfer to the Pre-Load position. Indeed, nowhere

in its “Summary of Findings” did the agency discuss

or make findings with respect to petitioner’s termi-

nation. Id. at 10a-11a. The agency similarly made

no mention of petitioner’s termination in its “Retalia-

tion Analysis.” Id. at 16a-19a.

The only discussion of petitioner’s termination ap-

pears in the agency’s analysis of “Disparate Treat-

ment based on Disability.” App., infra, 16a. The

agency once again noted that petitioner “conceded

ments, nor does he challenge this finding in his petition. See

infra pp. 26-27 & n.16.

9

that he was fired for cause and expressed that he did

not wish to focus on the termination but rather the

transfer to the graveyard shift.” Id. It also stated

that the investigation conducted pursuant to the

charge filed by petitioner did “not reveal[] any infor-

mation to substantiate that [petitioner’s] termination

was a result of any unlawful discriminatory action on

the part of Respondent.” Id.

E. The District Court Proceedings

Petitioner filed suit in federal district court under

the ADA and Florida law. In his complaint, petition-

er did not just attack the transfer to the Pre-Load

position; he also asserted for the first time that he

was terminated because of his disability and in retal-

iation for his filing an EEOC discrimination charge.

After discovery, FedEx Ground moved for sum-

mary judgment, arguing, among other things, that

petitioner’s termination-based claims had not been

exhausted as required by 42 U.S.C. § 2000e-5, and

that no triable issue of fact existed regarding the

merits of the termination claims. The parties each

presented substantial evidence to the district court

regarding petitioner’s termination from FedEx

Ground, including hundreds of pages of deposition

testimony, numerous witness affidavits, dozens of

pages of exhibits depicting the inappropriate and of-

fensive emails that petitioner sent or received at

work, and evidence regarding the disciplinary treat-

ment of others who sent or received inappropriate

emails while at work.

The district court granted summary judgment for

FedEx Ground. Pet. App. 16-44. Relevant here, the

court determined that petitioner had failed to ex-

10

haust his discriminatory and retaliatory termination

claims. Id. at 27-38. The court acknowledged that

under Eleventh Circuit precedent, a plaintiff need

not separately exhaust certain “post-charge” claims,

including claims alleging retaliation that “grow[] out

of an earlier charge.” Id. at 30-34 (quoting Baker v.

Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.

1988)). But the court thought that even if that ex-

ception to the exhaustion requirement remains good

law in light of subsequent developments in the law—

a question it did not decide—the exception could not

excuse petitioner’s failure to exhaust. Id. at 34. In

this case, unlike in the Eleventh Circuit cases peti-

tioner cited, petitioner’s termination occurred while

agency proceedings were still pending and long be-

fore he filed his lawsuit. Id. at 36. The court consid-

ered “significant to [its] analysis” that petitioner had

acknowledged before the agency that he was termi-

nated for cause and not as a result of his initial

EEOC charge, and that petitioner had affirmatively

stated that he did not wish to amend his EEOC

charge or file a new charge. Id. at 37.

F. The Eleventh Circuit’s Non-Precedential Af-

firmance

The Eleventh Circuit affirmed in an unpublished,

per curiam decision.5 The court of appeals explained

that circuit precedent requires exhaustion of “allega-

tions of new acts of discrimination,” including retali-

5 Although the district court’s exhaustion analysis applied

equally to Petitioner’s discriminatory retaliation claim and re-

taliatory termination claim, he did not appeal the decision with

respect to his discriminatory retaliation claim. Pet. App. 6 n.2.

Thus, the only claim relevant to this petition is petitioner’s re-

taliatory termination claim.

11

ation. Pet. App. 7. It also noted that under prior de-

cisions in Gupta v. East Texas State University, 654

F.2d 411, 414 (5th Cir. 1981),6 and Baker v. Buckeye

Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988),

claims that “grow[] out of a charge that is properly

before the court” are excepted from this exhaustion

requirement. Id. at 7-8.

The court of appeals determined, though, that the

Gupta and Baker exception did not apply to petition-

er’s case because the alleged retaliatory termination

occurred while agency proceedings were still pend-

ing, nearly two years before he filed suit in federal

district court. Pet. App. 9. In Baker and Gupta, by

contrast, the court was able to exercise “ancillary ju-

risdiction” over the plaintiffs’ retaliation claims be-

cause they accrued after the case was already in fed-

eral court. Id. at 8-9. The court of appeals further

reasoned that the exhaustion requirement was not

met in this case because petitioner “had the oppor-

tunity to amend his EEOC charge or file a new

charge relating to his termination” but “chose not to”

do so. Id. at 10.

REASONS FOR DENYING THE WRIT

The court of appeals’ unpublished decision does not

warrant further review. There exists no circuit split

regarding the narrow issue decided by the court of

appeals below: whether an individual who had the

opportunity to amend his EEOC charge to include a

claim for allegedly retaliatory termination that oc-

6 The Eleventh Circuit has adopted as binding precedent all

decisions of the former Fifth Circuit handed down prior to

October 1, 1981. See Bonner v. City of Prichard, 661 F.2d 1206,

1209 (11th Cir. 1981).

12

curred while EEOC proceedings were pending, but

failed to do so, satisfied the ADA’s statutory exhaus-

tion requirement.

Furthermore, the distinctive facts of this case

make it a poor vehicle for this Court’s review because

petitioner expressly and affirmatively declined to

amend his charge during his conference with the re-

viewing agency or provide any details to the agency

regarding his termination, therefore precluding the

agency from performing its investigative and concil-

iatory functions. Finally, requiring exhaustion for

retaliatory termination claims that arise during

pending EEOC proceedings is consistent with the

statutory framework and the purposes of the exhaus-

tion requirement.

I. This Case Does Not Warrant Supreme

Court Review.

At bottom, petitioner’s arguments amount to noth-

ing more than dissatisfaction with the way in which

the court of appeals determined whether the facts of

this case could satisfy a widely-accepted exception to

the exhaustion requirement. At best, petitioner has

an argument that a panel of the Eleventh Circuit

misapplied circuit precedent in an unpublished deci-

sion. Neither is a sufficient basis for certiorari re-

view. Sup. Ct. R. 10. And this case simply does not

implicate any conflict.

A. There Is No Circuit Split On The Issue

Decided By The Court Of Appeals.

Petitioner suggests that this case concerns a mat-

ter of “wide-spread” and “unresolved dispute” among

the circuit courts regarding an employee’s ability to

13

pursue in court claims asserting retaliation for hav-

ing previously filed an EEOC charge. Pet. 7-8.7 But

the Eleventh Circuit already applies the basic rule

petitioner wants: that certain retaliation claims can

be sufficiently related to an exhausted discrimination

claim that they need not be separately exhausted.

As petitioner himself notes, “[t]he Eleventh Circuit

continues to align with the majority of circuits” on

this point. Pet. 20; accord Pet. 21, 22. Petitioner’s

claim failed in the Eleventh Circuit despite the fa-

vorable law. And the sole outlier circuit applies a

rule that is, if anything, less favorable to petitioner.

See Martinez v. Potter, 347 F.3d 1208, 1210 (10th

Cir. 2003) (holding that “each discrete incident of

[discriminatory or retaliatory] treatment constitutes

its own ‘unlawful employment practice’ for which

administrative remedies must be exhausted”). Peti-

tioner therefore is simply incorrect in claiming that

this case implicates a circuit conflict.

Ever since Gupta and Baker, the Eleventh Circuit

has been on record endorsing the proposition that

some retaliation claims need not be exhausted. See

Pet. App. 9, 34. Indeed, district courts in the Elev-

enth Circuit continue to apply that rule where ap-

propriate. See id. at 32-33 (citing cases). The deci-

sion below did not abrogate, or even question, that

rule. Instead, it simply held that on the facts of this

case, following that rule was not appropriate because

of the timing: petitioner’s termination did not occur

7 Petitioner’s current position—that “the circuit courts are in

complete disarray” on this issue—lies in stark contrast to the

position he assumed before the Eleventh Circuit, where he ar-

gued that the Tenth Circuit stands alone against the decisions

of nearly every other circuit court. Pet. C.A. Reply Br. 4-8.

14

at a time when the courts had ancillary jurisdiction

over it, but rather came at a time when petitioner

could easily have amended his charge to bring the

termination to the agency’s attention and allow the

agency to fulfill its investigative and conciliatory

functions. He did not do so. Id. at 9-10.

Thus, the determinative question here was one of

timing, and petitioner does not even attempt to iden-

tify a conflict on that timing question with any other

precedential court of appeals decision. And none ex-

ists: not a single circuit has issued a published opin-

ion squarely examining whether a retaliation excep-

tion to the exhaustion requirement can still be justi-

fied when the retaliation occurs during agency pro-

ceedings and can easily be brought to the agency’s

attention. The most petitioner offers on this point

(see Pet. 21 & n.17) is a footnote that string-cites a

few inapposite cases. All but one are unpublished,

and the remaining one does not meaningfully discuss

timing in its holding. See Clockedile v. N.H. Dep’t of

Corr., 245 F.3d 1, 5 (1st Cir. 2001). And because the

decision below is unpublished, even the Eleventh

Circuit has not definitively taken sides on this ques-

tion.

Moreover, the Eleventh Circuit’s unpublished deci-

sion does not even touch upon what petitioner char-

acterizes as the key issue, to which petitioner de-

votes most of his brief—the impact of this Court’s de-

cision in National Railroad Passenger Corp. v. Mor-

gan, 536 U.S. 101 (2002), on the requirement to ex-

haust retaliation claims. Pet. 10-24; see also Pet. 13

(“[T]he question now before this Court” is “if, and to

what extent, Morgan applies to post-charge acts of

15

retaliation . . . .”).8 Morgan played virtually no role

in the court of appeals’ decision below. Indeed, Mor-

gan was cited only once, for the rather unremarkable

proposition that retaliatory termination constitutes a

discrete act of unlawful discrimination. Pet. App. 9.

In short, petitioner’s claim failed because of a tim-

ing issue that no published appellate decision has

addressed head-on. With no circuit conflict on that

issue, there is no reason to review the Eleventh Cir-

cuit’s unpublished decision.

B. The Decision Below Presents, At Most, An

Intra-Circuit Conflict.

At bottom, petitioner simply disagrees with the

way the panel applied Eleventh Circuit precedent—

which petitioner referred to in his briefing below as

the “Gupta Rule”—to his case. Petitioner complains

that the panel’s basis for distinguishing that prior

circuit precedent did not appear in earlier cases. See

Pet. 6-7. But even if that amounted to an intra-

circuit conflict—and it does not—such a conflict

would properly be resolved by the court of appeals,

not this Court. This case is a particularly inappro-

priate one in which to consider a dispute over circuit

precedent, because the decision below is nonprece-

dential and affects only petitioner himself.

8 In Morgan, this Court held that “[e]ach incident of discrimina-

tion and each retaliatory adverse employment decision consti-

tutes a separate actionable ‘unlawful employment practice,’”

536 U.S. at 114, and thus 42 U.S.C. § 2000e-5 requires a charge

related to each discrete act to be filed within the applicable lim-

itations period “after the discriminatory act occurred,” id. at

113.

16

C. The Broader Issue, Not Presented By This

Case, Of Whether The Exceptions To The

Exhaustion Requirement Survive Morgan, Is

Not The Subject Of A “Widespread Circuit

Divide,” As Petitioner Suggests.

As explained above, the court of appeals’ decision

in this case was based not on Morgan, but rather on

its determination that the pre-Morgan “Gupta Rule”

did not apply to the specific facts of this case. But

even if the impact of Morgan on the exhaustion re-

quirement were presented by this case, that question

has not sufficiently percolated through the circuit

courts to warrant this Court’s review. Although peti-

tioner argues that the circuit courts are in “complete

disarray,” Pet. 22, and suffer from “considerable un-

rest” following this Court’s decision in Morgan, Pet.

10, the petition considerably overstates any post-

Morgan split. Contrary to petitioner’s contentions,

most of the circuits simply have not examined the

impact of Morgan on the retaliation exception at all.

Only the Fourth and Tenth Circuit have squarely

confronted the impact of Morgan on the exhaustion

exceptions and reached definitive positions in prece-

dential opinions. The Fourth Circuit concluded that

Morgan “addresses only the issue of when the limita-

tions clock for filing an EEOC charge begins ticking

with regard to discrete unlawful employment prac-

tices” and does not affect “exhaustion requirements

for claims of related, post-charge events.” Jones v.

Calvert Grp., Ltd., 551 F.3d 297, 303 (4th Cir. 2009).

The Tenth Circuit concluded that “Morgan requires a

. . . plaintiff to exhaust administrative remedies for

each individual discriminatory or retaliatory act,”

including “claims based on incidents occurring after

17

the filing” of an EEOC charge. Martinez, 347 F.3d at

1210-11. But notably, the Tenth Circuit decided the

issue in a federal-sector Title VII case against the

Postmaster General; federal-sector cases have their

own “rigorous” exhaustion procedure, Brown v. Gen.

Servs. Admin., 425 U.S. 820, 833 (1976), and do not

borrow all aspects of Section 2000e-5. See 42 U.S.C.

§ 2000e-12(d).

Except for those two decisions, the federal courts of

appeals have developed little to no law on this sub-

ject since Morgan. Most references to the potential

impact of Morgan have come only in dictum, in deci-

sions expressly stating that that they need not reach

and were not reaching the issue. See, e.g., Rivera v.

Puerto Rico Aqueduct & Sewers Auth., 331 F.3d 183,

189 (1st Cir. 2003) (discussing Morgan but stating

that it did “not need to decide” the exhaustion issue

because the plaintiff failed to establish her claim on

the merits); Simmons-Myers v. Caesars Entm’t Corp.,

515 F. App’x 269, 274 n.1 (5th Cir. 2013) (“We need

not answer” whether Gupta is “applicable after the

Supreme Court’s decision in Morgan.”), cert. denied,

134 S. Ct. 117 (2013);9 Payne v. Salazar, 619 F.3d 56,

65 (D.C. Cir. 2010) (determining that it “need not de-

cide whether Morgan” abrogated the pre-Morgan ex-

9 While petitioner characterizes Simmons-Myers as a case that

narrowed the exhaustion exceptions “in response to Morgan,”

Pet. 17, 19-20, in reality the Fifth Circuit expressly declined to

address the impact of Morgan, instead holding that the facts of

the case did not fall within the pre-Morgan exceptions. 515 F.

App’x at 273-74 & n.1; see also Sapp v. Potter, 413 F. App’x 750,

753 n.2 (5th Cir. 2011) (“We need not address” whether “the

Supreme Court’s Morgan decision abolished or narrowed the

Gupta exception . . . because the facts of this case do not sup-

port the exception’s application.”).

18

haustion exceptions because the case did not fall

within the pre-Morgan exception).10

The court below is one of those that has expressly

left the issue open. See Bennett v. Chatham Cnty.

Sheriff Dep’t, 315 F. App’x 152, 162 n.7 (11th Cir.

2008) (declining to decide “whether, after [Morgan],

discrete acts of retaliation must be exhausted . . .

[b]ecause the parties d[id] not raise this issue”);

EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272

& n.5 (11th Cir. 2002) (noting Morgan but declining

to reach whether unexhausted post-charge events

were actionable because the issue “ha[d] not been

presented squarely”). And as already discussed, the

decision in this case does nothing to change that.

Furthermore, several of the circuits and cases peti-

tioner cites as opining on the impact of Morgan on

the retaliation exception in fact did not discuss Mor-

gan with respect to this issue at all. For example,

petitioner states that “[i]n Lyons v. England, 307

F.3d 1092 (9th Cir. 2002), the Ninth Circuit analyzed

Morgan at length” and concluded that the plaintiffs’

post-charge claims “were not barred for failure to ex-

haust.” Pet. 15. But the Ninth Circuit did not cite

Morgan even once in its discussion of administrative

exhaustion. See Lyons, 307 F.3d at 1103-05. The on-

ly mention of Morgan is found in an entirely separate

10 The Sixth Circuit has discussed this issue, but only in un-

published decisions, and has not reached a definitive position.

Compare Delisle v. Brimfield Twp. Police Dep’t, 94 F. App’x 247,

252-54 (6th Cir. 2004) (discussing Morgan but determining that

the plaintiff was not required to exhaust his post-charge retali-

ation claim), with Sherman v. Chrysler Corp., 47 F. App’x 716,

721 (6th Cir. 2002) (citing Morgan and holding that retaliation

claims based on acts subsequent to the filing of an EEOC

charge were not exhausted).

19

section of the opinion addressing whether the plain-

tiffs’ pre-limitations period claims were time-barred.

See id. at 1105-08 (holding that such claims were

time-barred under Morgan). The same is true with

respect to Hague v. University of Texas Health Sci-

ence Center at San Antonio, 560 F. App’x 328 (5th

Cir. 2014), Franceschi v. U.S. Department of Veterans

Affairs, 514 F.3d 81 (1st Cir. 2008), Scott v. Eastman

Chem. Co., 275 F. App’x 466 (6th Cir. 2008), and

Eberle v. Gonzales, 240 F. App’x 622, 628 (5th Cir.

2007), none of which discusses Morgan with respect

to the retaliation exception but all of which petition-

er passes off as if they had. See Pet. 14, 15, 20

n.14.11

The only other circuit to directly confront the via-

bility of the exhaustion exceptions in light of Mor-

gan—the Eighth Circuit—is still working through

the precise impact of Morgan. That court has

acknowledged that Morgan does have implications

for exhaustion jurisprudence, not just statute of limi-

tations cases. See Richter v. Advance Auto Parts,

Inc., 686 F.3d 847, 850-53 (8th Cir. 2012). But at the

same time, the Eighth Circuit has declined to aban-

don the exhaustion exceptions “in toto” and indicated

that the extent to which the exceptions continue to

apply must be determined on a fact-specific basis, see

Wedow v. City of Kansas City, 442 F.3d 661, 674 (8th

Cir. 2006).12

11 As petitioner concedes, the Second, Third, and Seventh Cir-

cuits have not so much as mentioned the impact of Morgan on

the exhaustion exceptions. Pet. 15-16. 12 Petitioner attempts to argue that he would have prevailed

under the Eighth Circuit standard. Pet. 19 n.12. That depends

on the notion that the Eighth Circuit would consider the allega-

20

This handful of decisions hardly establishes “com-

plete disarray” as to the broader issue—Morgan’s

impact—that the petition presents but that this case

does not. Indeed, to a significant extent, petitioner is

concerned not with the current position of the circuits

regarding Morgan, but with the wholly speculative

question of where the circuits might end up on this

issue. See Pet. 19 (concern that the Eighth Circuit

“might be heading th[e] way” of the Tenth Circuit”);

Pet. 20 (concern about whether the Fifth Circuit “is

also heading in the direction of the Tenth”). The un-

published decision in this case gives this Court no

reason to halt the percolation of this issue through

the lower courts.

II. The Facts Of This Case Make It A Poor

Vehicle For Certiorari Review.

Even if the questions presented might warrant re-

view in an appropriate case, the facts of this case

make it a poor vehicle for this Court’s review. Far

from exhausting his retaliatory-termination claim in

all but name, as petitioner contends in his second

question presented, petitioner resisted exhaustion at

every juncture.

tion of retaliation petitioner did exhaust (transfer in retaliation

for his internal complaints about the accommodation he re-

ceived) to be “of a like kind to” the allegation he did not (termi-

nation in retaliation for his filing an EEOC charge). Wedow,

442 F.3d at 674.

21

A. Petitioner’s Actions Before The Agency

Make This Case A Uniquely Unsuitable Ve-

hicle To Consider Whether Post-Charge Re-

taliation Claims Are Exempt From The

Statutory Exhaustion Requirement.

This is not a case in which petitioner lacked the

opportunity to amend his agency charge. To the con-

trary, he had the opportunity but told the agency he

did not want to pursue it. He therefore cannot con-

tend that the exhaustion requirement would have

required him to return to the agency, file a new

charge, and wait on an entirely new investigation,

and thus that enforcing the statutory exhaustion re-

quirement would present a needless, overly proce-

dural technicality or would have resulted in undue

delay. See Gupta, 654 F.2d at 414 (exhaustion excep-

tion justified because “[r]equiring prior resort to the

EEOC would mean that two charges would have to

be filed in a retaliation case” and “would serve no

purpose except to create additional procedural tech-

nicalities”); Oubichon v. N. Am. Rockwell Corp., 482

F.2d 569, 571 (9th Cir. 1973) (“To force an employee

to return to the state agency every time he claims a

new instance of discrimination in order to have the

EEOC and the courts consider the subsequent inci-

dents along with the original ones would erect a

needless procedural barrier.”). In this case, petition-

er was terminated in November of 2009, and it was

not until nineteen months later that the agency ren-

dered a decision on his original charge. This time

period provided ample opportunity for him to bring

his termination to the agency’s attention and allow it

to investigate whether any retaliation occurred

(while memories were still fresh) and, if so, attempt

conciliation of the claims. Instead, petitioner simply

22

sat on his claim, discouraged the agency from inquir-

ing into it, and chose not to assert it until two years

later.

This also is not a case in which petitioner was un-

aware that he could or should amend his charge to

assert a retaliatory termination claim or was misled

by the agency into believing that amending his

charge or filing a new charge was unnecessary. In-

stead, the investigating agency asked petitioner

whether he wanted to amend his charge to include a

termination-based claim, and he expressly declined

to do so. App., infra, 8a.

Finally, as discussed in more depth below, see infra

pp. 22-27, this also is not a case in which petitioner’s

claim was effectively, even if not formally, exhausted

because he provided information and evidence to the

agency regarding his termination, and thus the

agency was able to fulfill its investigative function.

See Fitzgerald v. Sec’y, U.S. Dep’t of Veterans Affairs,

121 F.3d 203, 208 (5th Cir. 1997) (“The exhaustion

doctrine requires a good faith effort by the aggrieved

employee to provide all relevant and available infor-

mation to the investigating agency.”). Instead, the

issue of petitioner’s termination was not discussed

until the rebuttal conference (just one month before a

decision was rendered by the agency); the agency

neither sought nor received any information from

FedEx Ground regarding the termination aside from

a two-sentence statement reporting the fact of his

termination and the reason for it, App., infra, 27a;

petitioner declined to provide any details about his

termination, id. at 8a (and the bare information he

provided—the reason for his termination—was false,

id.); and there is no evidence in the record that the

23

agency conducted any investigation regarding the

termination.13 Indeed, the magnitude of the factual

record presented to the district court on the termina-

tion-based issues, see supra p. 8, demonstrates the

extent to which the agency would have benefited

from actual ventilation of this claim.

Plainly stated, the unique facts of this case demon-

strate that nearly every purpose of the exhaustion

requirement was undermined by petitioner’s conduct

in this case. See infra pp. 29-31 (discussing purposes

of the statutory exhaustion requirement). On these

facts, this case does not present an appropriate,

much less compelling, vehicle for this Court’s consid-

eration.

B. Petitioner’s Second “Question Presented” Is

Not, In Fact, Presented By This Case, Nor

Does It Warrant Review.

Petitioner argues that even if a charging party fails

to formally amend his EEOC discrimination charge

or file a new charge to allege adverse employment

action in retaliation for filing the EEOC charge, the

statutory exhaustion requirement is satisfied where

the charging party notifies the agency about the al-

legation, the agency investigates it, and the agency

makes an express determination regarding the post-

charge retaliation. Petitioner may prefer those facts,

but they are not the facts of this case. Here petition-

13 “Where an agency or the EEOC requests information relevant

to resolving the employee's complaint and the employee fails to

provide that information, the employee has failed to exhaust

her administrative remedies.” Crawford v. Babbitt, 186 F.3d

1322, 1326 (11th Cir. 1999).

24

er gave no such notification and the agency rendered

no such determination.

Petitioner repeatedly asserts that he specifically

advised the agency that he had been terminated, e.g.,

Pet. 5, 25-26, that the EEOC undertook an investiga-

tion of his termination, Pet. 5, 9, 26, 27, 28, that

FedEx Ground defended its termination of petitioner

in its Position Statement, Pet. 27, and that the

EEOC made a specific determination regarding his

retaliatory termination claim, Pet. 5, 9, 26, 27. Peti-

tioner cites literally nothing in support of any of

these factual assertions, which are neither correct

nor supported by the record.14

First, there is no evidence in the record that peti-

tioner contacted the agency and informed it of his

termination. In fact, and consistent with the record

below, the agency first learned of petitioner’s termi-

nation through FedEx Ground’s Position Statement,

which was filed nearly a year after petitioner was

terminated. In that Position Statement, FedEx

Ground simply noted, in a background section

providing a brief summary of petitioner’s employ-

ment history, that petitioner had been terminated

14 The likely reason that petitioner cites nothing from the rec-

ord in support of these assertions is that petitioner never made

these factual assertions in the district court—not in his com-

plaint, not in his summary judgment opposition, and not in the

affidavit that he filed in connection with his summary judgment

opposition. Consequently, FedEx Ground had no opportunity to

develop a record on this issue. On this basis, this issue should

be deemed waived. Even if this deficiency does not result in

waiver, though, the lack of a factual record developed on the

assertions that provide the factual premise for this issue cer-

tainly makes this case an unsuitable vehicle for the Court to

consider this question.

25

from his employment with FedEx Ground due to in-

appropriate emails that were sent to and from his

work email account. App., infra, 26a-27a. Indeed, it

was this two-sentence statement that triggered the

agency to ask petitioner about his termination dur-

ing the May 2011 rebuttal conference. And during

that rebuttal conference, petitioner refused to pro-

vide any information to the agency regarding his

termination, aside from a factually erroneous state-

ment that he was terminated for sending “a political

email message to a co-worker.” Id. at 8a.

Second, there is no evidence in the record that the

agency conducted any investigation regarding peti-

tioner’s termination. At no point did the agency seek

any information from FedEx Ground regarding peti-

tioner’s termination and, given that petitioner ex-

pressly disclaimed any desire to address the issue or

include it in his charge, FedEx Ground provided no

additional information or evidence regarding the

termination to the agency. Furthermore, as indicat-

ed in the agency’s decision, petitioner declined to

provide to the agency any details or information re-

garding his termination. App., infra, 8a.15

15 In light of these facts, the agency’s statement, in its analysis

of petitioner’s discrimination allegation, that “this investigation

has not revealed any information to substantiate that Charging

Party’s termination was a result of any unlawful discriminatory

action on the part of Respondent,” App., infra 16a, cannot rea-

sonably be interpreted to indicate that that the agency conduct-

ed an “actual investigation” of petitioner’s termination, as peti-

tioner asserts. Pet. 26. Given that the agency sought no infor-

mation or evidence from FedEx Ground regarding petitioner’s

termination, and petitioner declined to provide any, this state-

ment can only reasonably be interpreted to refer to the investi-

26

Third, FedEx Ground in no instance “defend[ed]

the termination in its statement to the EEOC.” Pet.

27. Indeed, the only mention of petitioner’s termina-

tion in FedEx Ground’s Position Statement is in the

brief summary of petitioner’s employment history

with FedEx Ground. In that section, FedEx Ground

simply stated that petitioner was terminated for us-

ing FedEx Ground’s “internet and email systems to

view and send inappropriate images, jokes and mes-

sages.” App., infra, 27a. FedEx Ground’s actual de-

fense in its Position Statement focused solely on peti-

tioner’s EEOC charge—his reassignment to Pre-Load

Service Manager. Id. at 33a-36a.

Fourth, the agency’s Investigative Report and Rec-

ommended Order directly contradicts petitioner’s re-

peated assertion that the agency “made a final de-

termination as to the post-charge retaliatory act.”

Pet. 9; see also id. at 5, 26, 27. The agency’s “Sum-

mary of Findings” makes no mention whatsoever re-

garding petitioner’s termination, App., infra, 10a-

11a, and the only section of the decision discussing

retaliation (clearly labeled “Retaliation Analysis”)

discusses only petitioner’s reassignment to Pre-Dock

Service Manager, id. at 16a-19a, not his termination

of employment. Petitioner is simply incorrect that

the agency reached a decision regarding retaliatory

termination.

Furthermore, the record and lower court decisions

in this case directly contradict petitioner’s argument

that the statutory exhaustion requirement was effec-

tively, even if not formally, satisfied. The district

court found that petitioner informed the agency that

gation of petitioner’s charge of discriminatory and retaliatory

transfer to Pre-Load Service Manager.

27

he did not wish to amend his charge or file a new

charge relating to his termination, that he did not

want to focus his agency proceeding on his termina-

tion, and that he was terminated for cause. Pet.

App. 25, 37. Although petitioner asserts the opposite

in his petition (at 5), he did not challenge the district

court’s finding as clearly erroneous before the Elev-

enth Circuit, nor does he challenge this finding in his

petition.16

In sum, this case does not present the question

whether the statutory exhaustion requirement is ef-

fectively, even if not formally, satisfied where the

charging party notifies the agency about alleged

post-charge retaliatory termination, the agency in-

vestigates it, the employer defends its conduct, and

the agency makes an express determination regard-

ing the post-charge retaliation. And the question ac-

tually presented by this case—whether the exhaus-

tion requirement is met where a charging party in-

forms the agency that he does not want to focus his

charge on his termination, refuses to provide infor-

mation to the agency regarding his termination, and

affirmatively chooses not to amend his charge or file

a new one—certainly does not warrant this Court’s

16 In his Eleventh Circuit opening brief, petitioner acknowl-

edged that the district court made factual findings on this issue,

and argued only that the district court was not permitted to

make findings against him as the non-moving party. Pet. C.A.

Br. 23-24. In doing so, petitioner failed to mention that a dis-

trict court is entitled to engage in factfinding in the course of

deciding whether an exhaustion requirement is satisfied, and in

fact must do so where the evidence conflicts and the dispute is

germane to its decision. See Bryant v. Rich, 530 F.3d 1368,

1376 (11th Cir. 2008); Pet. App. 7. Petitioner never argued, in

the alternative, that this factual finding was clearly erroneous.

28

review, nor is it the subject of disagreement among

the circuits.17

III. The Decision Below Is Correct.

Requiring litigants to exhaust claims for retalia-

tion that occurred while EEOC proceedings were still

pending is consistent with the statutory framework

of federal anti-discrimination laws and the policies

behind the exhaustion requirement.

A. Requiring Exhaustion For Retaliation That

Occurs During Pending EEOC Proceedings

Is Consistent With The Statutory

Framework.

This Court recently reiterated that it is “inappro-

priate in the context of a statute as precise, complex,

and exhaustive as Title VII” to “infer that Congress

meant anything other than what the text does say.”

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517,

2530 (2013); Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 175 (2009) (“Statutory construction must begin

with the language employed by Congress and the as-

sumption that the ordinary meaning of that lan-

guage accurately expresses the legislative purpose.”

(citation omitted)).

The statutory provision governing exhaustion and

timeliness of employment discrimination claims pro-

vides that “[a] charge under this section shall be filed

[with the EEOC or state or local agency] within one

hundred and eighty days [or, in some instances,

within three hundred days] after the alleged unlaw-

17 Petitioner identifies no circuit split regarding his second

Question Presented.

29

ful employment practice occurred.” 42 U.S.C. §

2000e-5(e)(1) (emphases added). In Morgan, this

Court parsed the plain meaning of this statutory text

and determined that “[e]ach incident of discrimina-

tion and each retaliatory adverse employment deci-

sion constitutes a separate actionable ‘unlawful em-

ployment practice.’” 536 U.S. at 114. It further de-

termined that “[a] party . . . must file a charge within

either 180 or 300 days of” each discrete retaliatory or

discriminatory act “or lose the ability to recover for

it.” Id. at 110; see also id. at 109-10 (“’[O]ccurred’

means that the practice took place or happened in

the past. The requirement, therefore, that the

charge be filed ‘after’ the practice ‘occurred’ tells us

that a litigant has up to 180 or 300 days after the un-

lawful practice happened to file a charge with the

EEOC.” (alteration in original) (footnote omitted)).

Although Morgan specifically addressed whether

pre-charge conduct falls within this described limita-

tions period, its interpretation of the plain text must

necessarily have the same meaning for post-charge

retaliatory termination claims, given that the statu-

tory language interpreted in Morgan sets forth both

the exhaustion requirement and the statutory peri-

od. As this Court subsequently stated in Ledbetter v.

Goodyear Tire & Rubber Co., Inc., “Morgan is per-

fectly clear that when an employee alleges ‘serial vio-

lations,’ i.e., a series of actionable wrongs, a timely

EEOC charge must be filed with respect to each dis-

crete alleged violation.” 550 U.S. 618, 639 (2007),

superseded in part by statute, Lilly Ledbetter Fair

Pay Act of 2009, Pub. L. No. 111–2, 123 Stat. 5.

Notably, petitioner’s proposed exception to the ex-

haustion requirement is based, as are all of the ex-

30

ceptions to the exhaustion requirement, not on the

text of the statute or even the statutory framework,

but on “practical” or “pragmatic” considerations. See

Pet. 12, 11 n.6, 15 n.8, 28. But this Court in Morgan

eschewed approaches to interpreting procedural pro-

visions governing discrimination claims that are not

“compelled by the text of the statute.” 536 U.S. at

108-09. Just as courts “may not interject an addi-

tional 60-day period into” “a statutory scheme in

which Congress carefully prescribed a series of dead-

lines measured by numbers of days—rather than

months or years,” Mohasco Corp. v. Silver, 447 U.S.

807, 825-26 (1980), neither may they interject excep-

tions to the exhaustion requirement where none ex-

ists in the text itself. Under the plain meaning of the

statute, before asserting his retaliatory termination

claim in federal court, petitioner needed to file a new

charge or amend his existing charge within the stat-

utory period to exhaust his administrative remedies.

B. Requiring Exhaustion Of Petitioner’s

Retaliation Claim Is Consistent With The

Policies Underlying Exhaustion Provisions.

The exhaustion requirement of Title VII and the

ADA serves a variety of purposes. It allows the

EEOC (or a state or local counterpart agency) to in-

vestigate the allegedly unlawful conduct in the first

instance so that if there is reasonable cause to be-

lieve the allegation is true, the agency can work with

the parties to eliminate the unlawful practice “by in-

formal methods of conference, conciliation, and per-

suasion.” 42 U.S.C. § 2000e-5(b); see also Occidental

Life, 432 U.S. at 359-60, 368 (describing the EEOC’s

investigative and dispute-settling functions). Where

those conciliation efforts are unsuccessful, the ex-

31

haustion requirement permits the agency to itself

bring a civil action against an employer. See Occi-

dental Life, 432 U.S. at 359-60. The exhaustion re-

quirement therefore “facilitate[s] the administrative

agency’s investigation and conciliatory functions and

. . . recognize[s] its role as primary enforcer of anti-

discrimination laws.” See Filer v. Donley, 690 F.3d

643, 647 (5th Cir. 2012).

It also furthers the goal of “encouraging quicker,

less formal, and less expensive resolution of dis-

putes.” West v. Gibson, 527 U.S. 212, 219 (1999); see

also Martinez, 347 F.3d at 1211 (exhaustion re-

quirement “serves to facilitate internal resolution of

the issue rather than promoting costly and time-

consuming litigation”). And, it acknowledges that

cooperation and voluntary compliance, not litigation,

are the preferred methods of achieving the goal of

equal employment opportunity. See Alexander v.

Gardner-Denver Co., 415 U.S. 36, 44 (1974). Conse-

quently, the EEOC “does not function simply as a

vehicle for conducting litigation on behalf of private

parties; it is a federal administrative agency charged

with the responsibility of investigating claims of em-

ployment discrimination and settling disputes, if

possible, in an informal, noncoercive fashion.” Occi-

dental Life, 432 U.S. at 368.

The Florida Chapter of NELA repeatedly derides

the statutory exhaustion requirement as a mere

technicality. But far from creating “picayune and

insignificant procedural details,” Fla. Ch. Amicus Br.

2, administrative exhaustion is central to the frame-

work and effectiveness of federal anti-discrimination

laws and the agencies charged with enforcing those

laws. Permitting a litigant who is subject to an ad-

32

verse employment action while agency proceedings

are still pending to make his own choice about

whether to assert a retaliation claim before the

EEOC or sit on it, potentially for years, until he can

file a claim in federal court undermines every pur-

pose underlying the exhaustion requirement, not to

mention those underlying the statutory limitations

period, and turns a mandatory requirement into an

elective one.

Most significantly, it precludes the agency from

having any opportunity to investigate the allegedly

unlawful conduct while memories are still fresh, or to

attempt conciliation of meritorious claims outside of

the time-intensive and costly litigation context. The

possibility of pre-litigation resolution of employment

disputes is not a mere hypothetical benefit of the ex-

haustion requirement. Of the many discrimination

and retaliation charges received each year by the

EEOC (nearly 100,000 in each of the last five years,

http://www.eeoc.gov/eeoc/statistics/enforcement/char

ges.cfm), tens of thousands are successfully resolved

at the agency stage and never reach the courthouse

doors. See Doe v. Oberweis Dairy, 456 F.3d 704, 708-

09 (7th Cir. 2006); Enforcement & Litigation Statis-

tics, U.S. EEOC, http://www.eeoc.gov/eeoc/statistics/

enforcement/index.cfm (last visited Apr. 27, 2015).

Particularly in this case, where the agency sought

to investigate but was denied that opportunity when

petitioner declined to provide any details regarding

his termination and stated that he did not wish to

focus on that issue, forgiving petitioner’s failure to

exhaust would only reward his defiance of the ex-

haustion requirement.

* * * * *

33

The court of appeals decided a narrow issue, in an

unpublished decision, that has not been addressed by

any other circuit. The court correctly held that an

individual who had the opportunity to amend his

EEOC charge to include a claim for retaliatory ter-

mination that occurred while agency proceedings

were pending, but chose not to do so, is not excused

from the statutory exhaustion requirement. This de-

cision creates no circuit split, and petitioner’s claim

that it reflects an intra-circuit disagreement does not

warrant this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

April 28, 2015

BARAK BABCOCK

Counsel of Record

FEDEX GROUND PACKAGE

SYSTEM, INC.

1000 FedEx Drive

Moon Township, PA 15108

barak.babcock@fedex.com

(412) 859-5763

Counsel for Respondent