McDonald-Cuba v. Santa Fe Protective Services, Inc., No. 10-2151 (10th Cir. May 9, 2011)

By Paul Mollica

The Tenth Circuit continues a split in the circuits by holding – once again – that an employee must lodge separate EEOC charges for acts of retaliation that occur after the first charge is filed – in this case, even after a civil action is commenced. The Fourth Circuit fairly recently held otherwise.

McDonald-Cuba v. Santa Fe Protective Services, Inc., No. 10-2151 (10th Cir. May 9, 2011): Most circuits had held, up until the decision of National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), that employees who had already filed a complaint of retaliation under Title VII or other claim that requires the filing of an EEOC charge did not have to file a fresh charge for post-charge retaliation. Since Morgan, the Fourth and Tenth Circuits have revisited this issue. The Fourth Circuit in Jones v. Calvert Group, Ltd., 551 F.3d 297 (4th Cir. 2009), adhered to its former view that a follow-on charge is not required.

The Tenth Circuit takes the view in this case, though, that a separate charge must be filed for each incident. The panel applies the circuit’s prior ruling in Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003), which held – in light of Morgan – that post-charge retaliation had to be the subject of a separate EEOC charge. This case presents especially difficult facts because, as the panel notes, “the question here is whether the rule in Martinez applies when the alleged retaliatory act occurs as part of the federal court proceedings themselves.”

In the present case, the employee alleged sex discrimination in pay. After she filed her EEOC charge and Title VII lawsuit, the employer filed counterclaims that the plaintiff evidently believed were retaliatory. She added a claim for Title VII retaliation without filing a second charge with the EEOC.

The Tenth Circuit – which is also in the minority of circuits as treating the EEOC charge-filing requirement as an matter of subject-matter jurisdiction – holds that McDonald-Cuba’s retaliation claim must be dismissed for lack of jurisdiction.

“The fact that the plaintiff had already resorted to litigation did not excuse the exhaustion requirement for later, discrete acts of retaliation. The only significant difference between Martinez-which we are required to follow as binding circuit precedent-and this case is that here the alleged retaliatory act involves an action taken in connection with federal proceedings themselves. McDonald-Cuba fails to supply a convincing rationale for distinguishing  Martinez on this basis, however. We conclude that a plaintiff must exhaust administrative remedies as to discrete acts of alleged retaliation that involve the filing of a counterclaim in federal court.”

So plaintiffs in the Tenth Circuit (and indeed, any circuit where this issue has not yet been decided post-Morgan) are forewarned to file EEOC charges for each and every incident, even during the course of litigation.