Has a Plaintiff Really Exhausted His or Her Administrative Remedies in Discrimination-based Employment Lawsuits? A Tenth Circuit Prospective

Has a Plaintiff Really Exhausted His or Her Administrative Remedies in Discrimination-based Employment Lawsuits? A Tenth Circuit Prospective

The United States Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing Title VII of the Civil Rights Act of 1964 (“Title VII”), the Pregnancy Discrimination Act, the Equal Pay Act of 1963 (“EPA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), Title I of the Americans with Disabilities Act of 1990 (“ADA”), Sections 102 and 103 of the Civil Rights Act of 1991, Sections 501 and 505 of the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

Before a would-be-plaintiff can commence a civil action in United States District Court, he or she must first exhaust administrative remedies by filing a complaint, called a charge, with the EEOC.  Exempt from this general rule is a claim involving age discrimination (if the EEOC receives at least 30 days written notice of the intent to commence an action in court) or a claim involving gender-based pay discrimination under the Equal Pay Act.[i]  In addition to the charge, an employer will also be served with a notice of charge, indicating a claimant has filed a charge of discrimination against him, her, or it under one or more of the several federal laws the EEOC is responsible for enforcing.

Once the EEOC has completed its investigation and made a determination, it will issue to the charging party a Dismissal and Notice of Rights letter, often called a “right to sue letter.”  Once a charging party receives the right to sue letter, he or she has ninety days to commence an action in federal court or any such action will be barred.

It is not uncommon, however, for a plaintiff to bring additional discrimination-based claims for relief in a subsequent civil complaint, which may entitle a defendant to dismissal for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure12(b)(1), on the ground plaintiff failed to exhaust his or her administrative remedies beyond the charged claim with the EEOC.

Exhaustion of Administrative Remedies is a Jurisdictional Prerequisite

A plaintiff’s exhaustion of his or her administrative remedies is a “jurisdictional prerequisite” to filing a suit in federal court for employment discrimination.[ii]  A plaintiff may not assert a discrimination claim with respect to conduct not first asserted in the charge of discrimination filed with the EEOC.[iii]  The formal charge serves to define the scope of the EEOC’s investigation and to notify the defendant of the charges against it.  This individual filing requirement is intended to protect employers by giving them notice of the discrimination claims being brought against them, in addition to providing the EEOC with an opportunity to conciliate the claims.[iv]  Thus, courts limit the scope of a plaintiff’s claims to the matters raised in the EEOC charge and such matters that could reasonably be expected to arise therefrom.[v]

The Tenth Circuit has explained, “[w]hen an employee seeks judicial relief for incidents not listed in the original charge to the EEOC, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge before the EEOC.”[vi]  Further, “an act committed by an employer in retaliation for the filing of an EEOC complaint is reasonably related to that complaint, obviating the need for a second EEOC complaint.”[vii]

The EEOC charge form has boxes for a claimant to check indicating the basis for his or her charge of discrimination.  Specifically, the charge form has boxes for “race,” “color,” “sex,” “religion,” “national origin,” “age,” “retaliation,” “disability,” “genetic information,” and “other (specify).”  The Tenth Circuit has consistently held a party’s failure to mark a box for a particular type of discrimination in the charge creates a presumption he or she was not asserting claims represented by boxes not checked.[viii]

The presumption can be rebutted only if the charging party’s factual allegations as set forth in the charge describe facts supporting the additional basis being asserted.[ix] If a plaintiff fails to assert claims with the EEOC which are subsequently asserted in a lawsuit and the new claims are not reasonably related to the EEOC charge, a plaintiff has failed to exhaust his or her administrative remedies and the court does not have subject matter jurisdiction over the plaintiff’s un-exhausted claims.[x]  To be sure, if there is no reading of a plaintiff’s EEOC charge allowing a court to find the allegations support a claim, a plaintiff cannot rebut the presumption he or she did not consider asserting any such claim at the time of his charge.[xi]

A Defendant’s Remedy

In the event a comparative review of the civil complaint with the EEOC notice and charge reveals additional discrimination-based claims for relief which were not properly submitted to the EEOC for review, a defendant may utilize Federal Rule of Civil Procedure 12(b)(1), which empowers a court to dismiss a complaint for lack of jurisdiction over the subject matter.  The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction.[xii]

As is inevitable with a motion to dismiss in this discrimination-based employment context, a defendant will both want and need to provide the court with the EEOC notice and charge as exhibits in support thereof.  Fortunately, a party moving for dismissal for lack of subject matter jurisdiction may go beyond the allegations contained in the complaint and may challenge the facts upon which subject matter jurisdiction is based, without the concern the motion will be converted into a Federal Rule of Civil Procedure Rule 56 motion.[xiii]  When a Rule 12(b)(1) motion “challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).”[xiv]

Colorado State Court Discrimination-Based Claims

While the primary focus of this article is federal lawsuits, it is important to note the State of Colorado’s Civil Rights Division (“CCRD”) is similar to the EEOC and is responsible for investigating claims of discrimination based upon certain protected classes; namely, race, color, religion, creed, national origin, ancestry, sex, pregnancy, age, sexual orientation (including transgender status), physical or mental disability, marriage to a co-worker, and retaliation for engaging in protected activity.[xv]

Indeed, Colorado is a “deferral state,” meaning the CCRD is authorized to investigate claims of employment discrimination based on Title VII.  Since Colorado and the federal government have reciprocal enforcement agreements, claimants have 180 days to file with the CCRD or 300 days to file with the EEOC.[xvi]

Just as is done with the EEOC, a claimant files a charge of discrimination with the CCRD.  Upon completion of its investigation, the Civil Rights Division issues a “right to sue letter”  The charging party then has ninety days from the date the notice is mailed if he or she does not pursue an appeal with the CCRD or within ninety days after an appeal is dismissed by the CCRD.[xvii]  Similar to the federal procedure discussed above, “no person may file a civil action in a district court in this state based on an alleged discriminatory or unfair practice…without first exhausting the proceedings and remedies available to him…”[xviii]

Colorado Rule of Civil Procedure 12(b)(1) governs a motion to dismiss on the ground of lack of subject matter jurisdiction and is a defendant’s remedy in the event a plaintiff fails to properly exhaust his or her administrative remedies.[xix]  Therefore, discrimination-based claims brought in Colorado state courts should be evaluated in the same manner as discussed in the sections above, with attention being paid to the notice and charge to determine if a motion to dismiss is viable.


Upon assignment and receipt of the civil complaint alleging discrimination-based claims for relief, defense counsel should obtain and carefully review the EEOC notice and charge in order to ensure the plaintiff has not brought claims which were not, but should have been, first raised with the EEOC.

Beyond the EEOC charge form boxes, defense counsel should also pay close attention to the notice of charge description, as well as the narrative section of the charge, because the presumption the charging party did not consider asserting the omitted claim at the time of the charge by failing to mark a particular box on the EEOC charge form can be rebutted only if the charging party’s factual allegations describe facts supporting the additional basis.

If the review of these essential documents reveals a claim for relief has been asserted in the civil complaint which was not first asserted with the EEOC, a motion to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure12(b)(1), should be evaluated and pursued if viable.

As noted above, counsel defending a state court action arising from allegations of discrimination may also undertake the same general review of the CCRD notice and charge to determine whether a plaintiff has properly exhausted his or her administrative remedies with the CCRD before serving a civil complaint.


[i] https://www.eeoc.gov/federal/fed_employees/lawsuit.cfm.

[ii] See  Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005); Green v. JP Morgan Chase Bank Nat. Ass’n, 501 Fed. Appx. 727, 732 (10th Cir. 2012) (citing Jones v. Runyon, 91 F.3d 1398, 1399 & n. 1 (10th Cir. 1996)).

[iii] Holmes v. Utah Dep’t of Workforce Servs., 483 F.3d 1057, 1070 (10th Cir. 2007); Apsley v. Boeing Co., 691 F.3d 1184, 1210 (10th Cir. 2012) (finding a Title VII plaintiff must exhaust her administrative remedies for each alleged individual discriminatory act).

[iv] Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1195 (10th Cir. 2004).

[v] MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005).

[vi] Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994) (citing Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir.1988) (quoting Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973)).

[vii] Id.

[viii] Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 (10th Cir. 1998); see also Belcher v. Boeing Commercial Airplane Group, 105 Fed. Appx. 222, 226 (10th Cir, 2004).

[ix] Id. at 1260; Belcher, 105 Fed. Appx. at 227.

[x] See Atkins v. Southwestern Bell Telephone Co., 137 Fed. Appx. 115, 118 (10th Cir. 2005).

[xi] See Jones, 502 F.3d at 1183; Gunnell, 152 F.3d at 1260.

[xii] See Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir. 1974); Behagen v. Amateur Basketball Ass’n, 744 F.2d 731, 733 (10th Cir. 1984).

[xiii] Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001).

[xiv] Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir. 2002); see also Davis ex rel. Davis v. United States, 343 F.3d 1282, 1295 (10th Cir. 2003).

[xv] https://www.colorado.gov/pacific/dora/civil-rights/employment-discrimination.

[xvi] 42 U.S.C. § 2000e-5(e)(1).

[xvii] C.R.S. § 24-34-306(2)(b)(I)(B)

[xviii] C.R.S. § 24-34-306(13).

[xix] C.R.C.P. 12(b)(1).

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