Supreme Court of the United States

Transcription

1 No IN THE Supreme Court of the United States MICHAEL DUBLE, v. Petitioner, 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 BARAK BABCOCK Counsel of Record FEDEX GROUND PACKAGE SYSTEM, INC FedEx Drive Moon Township, PA barak.babcock@fedex.com (412) April 28, 2015 Counsel for Respondent

2 QUESTION PRESENTED Before a person may sue under various federal antidiscrimination statutes, he or she must first exhaust her claim with the federal Equal Employment Opportunity Commission (EEOC) or a counterpart state or local agency. See 42 U.S.C. 2000e-5. Each unlawful 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 discrimination 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 termination. 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 alleged new retaliation, may he subsequently sue for retaliation and invoke a judicially-created exception to the exhaustion requirement? i

3 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.

4 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 REASONS FOR DENYING THE WRIT I. This Case Does Not Warrant Supreme Court Review A. There Is No Circuit Split On The Issue Decided By The Court Of Appeals B. The Decision Below Presents, At Most, An Intra-Circuit Conflict

5 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 II. The Facts Of This Case Make It A Poor Vehicle For Certiorari Review 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 B. Petitioner s Second Question Presented Is Not, In Fact, Presented By This Case, Nor Does It Warrant Review III. The Decision Below Is Correct A. Requiring Exhaustion For Retaliation That Occurs During Pending EEOC Proceedings Is Consistent With The Statutory Framework B. Requiring Exhaustion Of Petitioner s Retaliation Claim Is Consistent With The Policies Underlying Exhaustion Provisions CONCLUSION APPENDIX A: Investigative Report and Recommended Order... 1a APPENDIX B: FedEx Ground Position Statement... 21a

6 v TABLE OF AUTHORITIES Page(s) Cases Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 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) Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) Brown v. Gen. Servs. Admin., 425 U.S. 820 (1976) Bryant v. Rich, 530 F.3d 1368 (11th Cir. 2008) Clockedile v. N.H. Dep t of Corr., 245 F.3d 1 (1st Cir. 2001) Crawford v. Babbitt, 186 F.3d 1322 (11th Cir. 1999) Delisle v. Brimfield Twp. Police Dep t, 94 F. App x 247 (6th Cir. 2004) Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006)... 32

7 vi Eberle v. Gonzales, 240 F. App x 622 (5th Cir. 2007) EEOC v. Joe s Stone Crabs, Inc., 296 F.3d 1265 (11th Cir. 2002) Filer v. Donley, 690 F.3d 643 (5th Cir. 2012) Fitzgerald v. Sec y, U.S. Dep t of Veterans Affairs, 121 F.3d 203 (5th Cir. 1997) Franceschi v. U.S. Dep t of Veterans Affairs, 514 F.3d 81 (1st Cir. 2008) Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) 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) Jones v. Calvert Grp., Ltd., 551 F.3d 297 (4th Cir. 2009) Jones v. Calvert Grp., Ltd., 551 F.3d 297 (4th Cir. 2009) 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

8 vii Mohasco Corp. v. Silver, 447 U.S. 807 (1980) 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) Payne v. Salazar, 619 F.3d 56 (D.C. Cir. 2010) Richter v. Advance Auto Parts, Inc., 686 F.3d 847 (8th Cir. 2012) Rivera v. Puerto Rico Aqueduct & Sewers Auth., 331 F.3d 183 (1st Cir. 2003) Sapp v. Potter, 413 F. App x 750 (5th Cir. 2011) Scott v. Eastman Chem. Co., 275 F. App x 466 (6th Cir. 2008) Sherman v. Chrysler Corp., 47 F. App x 716 (6th Cir. 2002) Simmons-Myers v. Caesars Entm t Corp., 515 F. App x 269 (5th Cir. 2013) Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct (2013)... 28

9 viii Wedow v. City of Kansas City, 442 F.3d 661 (8th Cir. 2006)... 19, 20 West v. Gibson, 527 U.S. 212 (1999) Statutes Americans with Disabilities Act (ADA) U.S.C (a) U.S.C (a) U.S.C (a)... 2 Title VII of the Civil Rights Act of U.S.C. 2000e-5...passim 42 U.S.C. 2000e-5(b)... 3, U.S.C. 2000e-5(c) U.S.C. 2000e-5(e)... 2, U.S.C. 2000e-5(f) U.S.C. 2000e-12(d) Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No , 123 Stat Other Authorities 29 C.F.R (b) C.F.R (a)(3)-(4)... 2 Enforcement & Litigation Statistics, U.S. EEOC, enforcement/index.cfm (last visited Apr. 27, 2015) Sup. Ct. R

10 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 filing an EEOC charge of discrimination. Petitioner never exhausted the retaliatory termination claim before the responsible agency. Although his discrimination charge was pending at the time of his termination, 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 employment 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), abrogated the judicially-created exception to the exhaustion requirement for post-charge acts of retaliation. But most of the circuits including the Eleventh Circuit have never reached this issue. And, on the more general question of whether post-charge acts can ever be exempt from the exhaustion requirement, the Eleventh Circuit s answer is and always 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

11 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 decision. Rather, the Eleventh Circuit correctly held in an unpublished decision that on these facts, petitioner was not excused from exhausting. Because petitioner had the opportunity to amend his charge to include the new allegation but chose not to do so, he failed to satisfy the exhaustion requirement with respect to that claim. STATEMENT A. ADA Claims Must Be Exhausted The Americans with Disabilities Act (ADA) prohibits discrimination against a qualified individual on the basis of his disability or perceived disability. 42 U.S.C (a). Separately, the ADA prohibits employers from retaliating against an employee because that employee filed a disability-discrimination charge. Id (a). Like other federal antidiscrimination statutes, the ADA requires an employee to file a charge with the federal Equal Employment Opportunity Commission (EEOC) or a state or local counterpart agency. See id (a) (incorporating 42 U.S.C. 2000e-5); see also id. 2000e-5(c), 29 C.F.R (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 discrimination 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

12 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 (b). Once a charge is filed, the agency gives the employer 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 requirement allows the agency to fulfill its investigative role and promote voluntary compliance with antidiscrimination laws by informal methods of conference, conciliation, and persuasion. 42 U.S.C. 2000e-5(b); see also Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, , 368 (1977) (describing the EEOC s investigative and dispute-settling functions). Failing to exhaust discrimination or retaliation claims therefore not only circumvents the statutory scheme, it undermines the agency s role in investigating and resolving employment disputes. B. Petitioner s Employment With FedEx Ground Petitioner Michael Duble worked as a FedEx Ground service manager in Miami, Florida, beginning in September Pet. App In March

13 4 2007, petitioner began working as a Pick-Up and Delivery ( P&D ) Service Manager. Id. at 17. In this position, he often performed the Gatekeeper function of standing outside at the entrance gate to speak to returning contractors regarding any undelivered packages. Id. at 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 On April 11, 2008, however, he informed his supervisor and his senior manager that he has multiple sclerosis (MS), that the heat exacerbates his condition, and that he therefore could not perform the Gatekeeper function. Id. at 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 District 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, including 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.

14 5 App. 3-4, As part of this needs analysis, Fed- Ex Ground reevaluated its ability to maintain petitioner s position as a service manager in light of his work limitations, given that the essential job functions of his position involved working outside and he was performing non-managerial clerical functions due to his work limitations. Id. at 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 administrative work and avoid the outside work that was inherent 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 affirming that he could perform the duties listed in those descriptions notwithstanding his medical condition. Id. at 4-5, Petitioner s doctor provided a letter explaining that petitioner could perform the duties listed in either of these job descriptions without difficulty or interference 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 Employment Practices ( the agency ), which Petitioner quotes extensively but does not include in his Petition Appendix, is appended to this brief. App., infra, 1a-20a.

15 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, petitioner alleged that he had never requested any work accommodation and that by transferring him to Pre- Load Service Manager, FedEx Ground was discriminating against him because of his disability or perceived disability and retaliating against him for his complaints. Pet. App The charge was referred 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 retrieval of s sent to and from petitioner s FedEx Ground account. The retrieval revealed that petitioner had sent and received numerous s during work hours with inappropriate content and language, including nudity and other offensive images. Because these s violated multiple company policies, FedEx Ground terminated petitioner on November 19, Pet. App The petition and decisions below refer to the responsible agency as the EEOC, but in fact the local agency investigated and dismissed petitioner s charge.

16 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 background section of its Position Statement titled Charging Party s Employment History : Respondent terminated Charging Party s employment on [November 19, 2009] for inappropriate use of Respondent s computer resources. Specifically, Respondent terminated Charging Party after learning that he had utilized Respondent s internet and systems to view and send inappropriate images, jokes and messages. App., infra, 26a-27a. During the May 2, 2011 rebuttal conference conducted by the agency, the agency asked petitioner about his termination from FedEx Ground. Petitioner stated that he was terminated because he sent a political message to a co-worker and, when pressed further, declined to provide any details. App., infra, 8a. During the rebuttal conference, petitioner 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 graveyard 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-

17 8 with FedEx Ground regarding petitioner s termination and, given the affirmative statement by petitioner that he did not wish to focus on his termination, FedEx Ground provided no evidence or additional information to the agency regarding the termination. Petitioner did not appeal the agency s findings or determinations to a larger panel of agency 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 decision, 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 inappropriate s. Id. at 8a. But, repeatedly noting petitioner 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 termination. Id. at 10a-11a. The agency similarly made no mention of petitioner s termination in its Retaliation Analysis. Id. at 16a-19a. The only discussion of petitioner s termination appears in the agency s analysis of Disparate Treatment 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 & n.16.

18 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 information 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, petitioner 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 retaliation for his filing an EEOC discrimination charge. After discovery, FedEx Ground moved for summary 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 offensive s that petitioner sent or received at work, and evidence regarding the disciplinary treatment of others who sent or received inappropriate s while at work. The district court granted summary judgment for FedEx Ground. Pet. App Relevant here, the court determined that petitioner had failed to ex-

19 10 haust his discriminatory and retaliatory termination claims. Id. at 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 (quoting Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988)). But the court thought that even if that exception 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 petitioner cited, petitioner s termination occurred while agency proceedings were still pending and long before he filed his lawsuit. Id. at 36. The court considered significant to [its] analysis that petitioner had acknowledged before the agency that he was terminated 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 Affirmance The Eleventh Circuit affirmed in an unpublished, per curiam decision. 5 The court of appeals explained that circuit precedent requires exhaustion of allegations of new acts of discrimination, including retali- 5 Although the district court s exhaustion analysis applied equally to Petitioner s discriminatory retaliation claim and retaliatory 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 retaliatory termination claim.

20 11 ation. Pet. App. 7. It also noted that under prior decisions 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 petitioner s case because the alleged retaliatory termination occurred while agency proceedings were still pending, 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 jurisdiction over the plaintiffs retaliation claims because they accrued after the case was already in federal 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 opportunity 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, See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

21 12 curred while EEOC proceedings were pending, but failed to do so, satisfied the ADA s statutory exhaustion 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 reviewing agency or provide any details to the agency regarding his termination, therefore precluding the agency from performing its investigative and conciliatory 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 exhaustion requirement. I. This Case Does Not Warrant Supreme Court Review. At bottom, petitioner s arguments amount to nothing 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 decision. Neither is a sufficient basis for certiorari review. 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 matter of wide-spread and unresolved dispute among the circuit courts regarding an employee s ability to

22 13 pursue in court claims asserting retaliation for having previously filed an EEOC charge. Pet 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 favorable 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 ). Petitioner 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 Eleventh Circuit continue to apply that rule where appropriate. See id. at (citing cases). The decision 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 argued that the Tenth Circuit stands alone against the decisions of nearly every other circuit court. Pet. C.A. Reply Br. 4-8.

23 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 Thus, the determinative question here was one of timing, and petitioner does not even attempt to identify a conflict on that timing question with any other precedential court of appeals decision. And none exists: not a single circuit has issued a published opinion squarely examining whether a retaliation exception to the exhaustion requirement can still be justified when the retaliation occurs during agency proceedings 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 question. Moreover, the Eleventh Circuit s unpublished decision does not even touch upon what petitioner characterizes as the key issue, to which petitioner devotes most of his brief the impact of this Court s decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), on the requirement to exhaust retaliation claims. Pet ; see also Pet. 13 ( [T]he question now before this Court is if, and to what extent, Morgan applies to post-charge acts of

24 15 retaliation.... ). 8 Morgan played virtually no role in the court of appeals decision below. Indeed, Morgan 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 timing 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 Circuit 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 But even if that amounted to an intracircuit 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 inappropriate one in which to consider a dispute over circuit precedent, because the decision below is nonprecedential and affects only petitioner himself. 8 In Morgan, this Court held that [e]ach incident of discrimination and each retaliatory adverse employment decision constitutes 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 limitations period after the discriminatory act occurred, id. at 113.

25 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 requirement were presented by this case, that question has not sufficiently percolated through the circuit courts to warrant this Court s review. Although petitioner argues that the circuit courts are in complete disarray, Pet. 22, and suffer from considerable unrest 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 precedential opinions. The Fourth Circuit concluded that Morgan addresses only the issue of when the limitations clock for filing an EEOC charge begins ticking with regard to discrete unlawful employment practices 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

26 17 the filing of an EEOC charge. Martinez, 347 F.3d at 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 subject since Morgan. Most references to the potential impact of Morgan have come only in dictum, in decisions 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 decide 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 & 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 support the exception s application. ).

27 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 petitioner cites as opining on the impact of Morgan on the retaliation exception in fact did not discuss Morgan 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 exhaust. Pet. 15. But the Ninth Circuit did not cite Morgan even once in its discussion of administrative exhaustion. See Lyons, 307 F.3d at The only mention of Morgan is found in an entirely separate 10 The Sixth Circuit has discussed this issue, but only in unpublished decisions, and has not reached a definitive position. Compare Delisle v. Brimfield Twp. Police Dep t, 94 F. App x 247, (6th Cir. 2004) (discussing Morgan but determining that the plaintiff was not required to exhaust his post-charge retaliation 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).

28 19 section of the opinion addressing whether the plaintiffs pre-limitations period claims were time-barred. See id. at (holding that such claims were time-barred under Morgan). The same is true with respect to Hague v. University of Texas Health Science 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 petitioner passes off as if they had. See Pet. 14, 15, 20 n The only other circuit to directly confront the viability of the exhaustion exceptions in light of Morgan 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 limitations cases. See Richter v. Advance Auto Parts, Inc., 686 F.3d 847, (8th Cir. 2012). But at the same time, the Eighth Circuit has declined to abandon 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) As petitioner concedes, the Second, Third, and Seventh Circuits have not so much as mentioned the impact of Morgan on the exhaustion exceptions. Pet 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-

29 20 This handful of decisions hardly establishes complete 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 unpublished 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 review 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 received) to be of a like kind to the allegation he did not (termination in retaliation for his filing an EEOC charge). Wedow, 442 F.3d at 674.

30 21 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. This is not a case in which petitioner lacked the opportunity to amend his agency charge. To the contrary, he had the opportunity but told the agency he did not want to pursue it. He therefore cannot contend 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 requirement would present a needless, overly procedural technicality or would have resulted in undue delay. See Gupta, 654 F.2d at 414 (exhaustion exception 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 technicalities ); 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 incidents along with the original ones would erect a needless procedural barrier. ). In this case, petitioner was terminated in November of 2009, and it was not until nineteen months later that the agency rendered 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

31 22 sat on his claim, discouraged the agency from inquiring into it, and chose not to assert it until two years later. This also is not a case in which petitioner was unaware 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. Instead, 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 , 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 information 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

32 23 agency conducted any investigation regarding the termination. 13 Indeed, the magnitude of the factual record presented to the district court on the termination-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 demonstrate that nearly every purpose of the exhaustion requirement was undermined by petitioner s conduct in this case. See infra pp (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 consideration. 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 allegation, the agency investigates it, and the agency makes an express determination regarding the postcharge 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).

33 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 investigation 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. Petitioner 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 petitioner contacted the agency and informed it of his termination. In fact, and consistent with the record below, the agency first learned of petitioner s termination 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 employment history, that petitioner had been terminated 14 The likely reason that petitioner cites nothing from the record in support of these assertions is that petitioner never made these factual assertions in the district court not in his complaint, 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 certainly makes this case an unsuitable vehicle for the Court to consider this question.

34 25 from his employment with FedEx Ground due to inappropriate s that were sent to and from his work account. App., infra, 26a-27a. Indeed, it was this two-sentence statement that triggered the agency to ask petitioner about his termination during the May 2011 rebuttal conference. And during that rebuttal conference, petitioner refused to provide any information to the agency regarding his termination, aside from a factually erroneous statement that he was terminated for sending a political message to a co-worker. Id. at 8a. Second, there is no evidence in the record that the agency conducted any investigation regarding petitioner s termination. At no point did the agency seek any information from FedEx Ground regarding petitioner s termination and, given that petitioner expressly 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 indicated in the agency s decision, petitioner declined to provide to the agency any details or information regarding his termination. App., infra, 8a 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 reasonably be interpreted to indicate that that the agency conducted an actual investigation of petitioner s termination, as petitioner asserts. Pet. 26. Given that the agency sought no information or evidence from FedEx Ground regarding petitioner s termination, and petitioner declined to provide any, this statement can only reasonably be interpreted to refer to the investi-

35 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 termination 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 using FedEx Ground s internet and systems to view and send inappropriate images, jokes and messages. App., infra, 27a. FedEx Ground s actual defense in its Position Statement focused solely on petitioner s EEOC charge his reassignment to Pre-Load Service Manager. Id. at 33a-36a. Fourth, the agency s Investigative Report and Recommended Order directly contradicts petitioner s repeated assertion that the agency made a final determination as to the post-charge retaliatory act. Pet. 9; see also id. at 5, 26, 27. The agency s Summary of Findings makes no mention whatsoever regarding 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 effectively, 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.

36 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 termination, 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 Eleventh 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 effectively, even if not formally, satisfied where the charging party notifies the agency about alleged post-charge retaliatory termination, the agency investigates it, the employer defends its conduct, and the agency makes an express determination regarding the post-charge retaliation. And the question actually presented by this case whether the exhaustion requirement is met where a charging party informs the agency that he does not want to focus his charge on his termination, refuses to provide information 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 acknowledged 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 In doing so, petitioner failed to mention that a district 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.