Hamilton v. Promise Healthcare ( 2023 )

Case: 23-30190 Document: 00516928918 Page: 1 Date Filed: 10/12/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 12, 2023
No. 23-30190 Lyle W. Cayce
____________ Clerk
Marilyn Hamilton,
Plaintiff—Appellant,
versus
Promise Healthcare,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:18-CV-102
______________________________
Before Graves, Higginson, and Ho, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
Marilyn Hamilton, then proceeding pro se, filed suit against Promise
Healthcare1 alleging gender-based discrimination and retaliatory discharge
under Title VII. Promise Healthcare moved to dismiss under Rule 12(b)(1),
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
As both the district court and the appellee noted, the correct legal name of the
entity that employed Hamilton was Promise Hospital of Ascension, Inc. d/b/a Promise
Hospital Baton Rouge. As the district court and both parties continued to identify the
appellee as Promise Healthcare, we do the same here.
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No. 23-30190
arguing that Hamilton failed to exhaust her administrative remedies prior to
filing suit. The district court dismissed Hamilton’s claims with prejudice,
finding that Hamilton did not exhaust her administrative remedies and that
the court therefore lacked subject matter jurisdiction over the cause of action.
Because the district court erred by treating Title VII’s exhaustion
requirement as jurisdictional, we VACATE and REMAND for further
proceedings consistent with this opinion.
I.
Hamilton worked as a Human Resource professional for Promise
Healthcare. According to her pro se complaint, in January 2017, Hamilton
notified Promise Healthcare’s Regional Director of Human Resources that
she was filing a complaint with the Equal Employment Opportunity
Commission (EEOC) against Promise Healthcare’s CEO, who Hamilton
alleges “fired or forced/encouraged 5-7 women to resign in a 6 month
period.” Hamilton was terminated several weeks later, despite having
received a raise not long before.
On February 1, 2018, Hamilton filed suit against Promise Healthcare
in the United States District Court for the Middle District of Louisiana.
Hamilton appeared to allege both gender-based discrimination and
retaliatory discharge under Title VII of the Civil Rights Act of 1964. 2 In her
complaint, Hamilton represented that she filed a charge with the EEOC and
that she received a determination from the EEOC, as well as a right-to-sue
letter.
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2
On appeal, Hamilton contends she also alleged race discrimination as well as
subsequent termination; however, neither claim appears to have been asserted in
Hamilton’s pro se complaint.
2
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In June 2019, Promise Healthcare moved to dismiss Hamilton’s
claims, arguing that Hamilton failed to exhaust her administrative remedies
prior to filing suit—namely, that Hamilton did not file a charge of
discrimination with the EEOC, but rather only filed an unverified intake
questionnaire. Contending that the exhaustion requirement was
jurisdictional, Promise Healthcare argued that dismissal under Rule 12(b)(1)
was required. Promise Healthcare also moved to dismiss under Rule 12(b)(6),
arguing that Hamilton’s complaint was too vague and failed to allege a
sufficient claim of discrimination.
Hamilton, then represented by counsel, opposed the motion, arguing
that she did exhaust her administrative remedies because, inter alia, her
intake questionnaire constituted a charge of discrimination under Price v.
Southwestern Bell Tel Co., 687 F.2d 74 (5th Cir. 1982).3
In March 2023, the district court issued its memorandum and order,
granting Promise Healthcare’s motion to dismiss under Rule 12(b)(1). Citing
our court’s decision in Pacheco v. Mineta, 448 F.3d 783, 788 n.7 (5th Cir.
2006), the district court observed that our case law was split as to whether
administrative exhaustion implicated subject matter jurisdiction. Because
Hamilton did not raise waiver or estoppel arguments, the district court opted
to analyze exhaustion in jurisdictional terms.4 Because the district court
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3
The district court stayed its proceedings after Promise Healthcare entered
bankruptcy in July 2019. In September 2022, the bankruptcy court approved a stipulation
between the bankruptcy trustee and Hamilton to partially lift the automatic stay to allow
Hamilton to prosecute her claims against Promise Healthcare. In January 2023, the district
court lifted its stay and the case recommenced.
4
In so doing, the district court generally cited Evenson v. Sprint/United Mgmt. Co.,
2008 WL 4107524 (N.D. Tex. Aug. 21, 2008) for the proposition that exhaustion could be
analyzed in jurisdictional terms for the purposes of a Rule 12(b)(1) motion “when the result
of the decision would be the same” as if exhaustion were assumed to be a prerequisite.
3
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viewed exhaustion in terms of subject matter jurisdiction, it wrote that
Hamilton bore the burden of proof in proving exhaustion. Relying upon
EEOC documents attached by Promise Healthcare to its motion to dismiss,
the district court found that Hamilton failed to meet her burden in proving
that her intake questionnaire constituted a formal charge of discrimination
because it was not verified. As such, the district court determined that
Hamilton did not exhaust her administrative remedies, which deprived the
court of subject matter jurisdiction.5 The court then dismissed Hamilton’s
case with prejudice.
On appeal, the parties continue to focus their argument on whether
Hamilton’s intake questionnaire meets the statutory and EEOC
requirements to constitute a charge of discrimination, such that Hamilton
would have exhausted her administrative remedies prior to suit and would
have placed Promise Healthcare on notice as to Hamilton’s Title VII claims.
II.
We review questions of subject matter jurisdiction de novo. See Nat'l
Football League Players Ass’n v. Nat’l Football League, 874 F.3d 222, 225 (5th
Cir. 2017). We also review a district court’s determination that a plaintiff did
not exhaust their administrative remedies de novo. Ruiz v. Brennan, 851 F.3d
464, 468 (5th Cir. 2017).
III.
A.
Title VII of the Civil Rights Act provides for private causes of action
arising out of employment discrimination and gives federal courts subject-
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5
Because the district court found that it lacked jurisdiction, it did not reach
Promise Healthcare’s 12(b)(6) arguments.
4
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matter jurisdiction to resolve such disputes. See 42 U.S.C. § 2000e-5(f). Title
VII plaintiffs are required to exhaust their administrative remedies by filing a
charge of discrimination with the EEOC before filing suit in federal court.
Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 337 (5th Cir. 2021).
The Supreme Court held in Federal Express Corp. v. Holowecki that a
submission to the EEOC, such as an intake questionnaire paired with an
affidavit, may constitute a charge if it meets the statutory and regulatory
definitions of a charge and manifests an objective intent for the EEOC to take
remedial action. 552 U.S. 389, 402, 405 (2008); see also EEOC v. Vantage
Energy Servs., Inc., 954 F.3d 749, 754 (5th Cir. 2020) (recognizing that
Holowecki’s holding, which involved ADEA claims, extends to Title VII
claims).
In Ernst v. Methodist Hosp. Sytem, our court set forth the requirements
for a written submission to satisfy the statutory and EECO requirements of a
Title VII charge:
An employee alleging discrimination under Title VII must
submit a charge to the EEOC. See 29 C.F.R. § 1601.7(a). That
charge must “be in writing and signed and . . . verified.” Id. §
1601.9. To satisfy the verification requirement, a charge must
be “sworn to or affirmed before a notary public, designated
representative of the [EEOC], or other person duly authorized
by law to administer oaths . . . or supported by an unsworn
declaration in writing under penalty of perjury.” Id. §
1601.3(a). Substantively, a charge must include the name and
contact information of the person making the charge, the same
information of the accused individuals, a factual statement of
the allegations, the size of the employer, and disclosure of
whether the allegations have already been brought to a state or
local agency. See id. § 1601.12(a).
5
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1 F.4th at 337–38. Our court then held that an unverified intake
questionnaire, by itself, does not constitute a charge of discrimination under
these requirements and therefore would not satisfy a plaintiff’s exhaustion
requirement. Id. at 338.
B.
In our court’s Davis v. Fort Bend County decision, we addressed our
previously split precedent as to whether Title VII’s administrative
exhaustion requirement is jurisdictional or simply a prerequisite to suit,
subject to waiver and estoppel. 893 F.3d 300, 303 (5th Cir. 2018). Our court
held that the administrative exhaustion requirement was not jurisdictional,
id. at 306, and the Supreme Court affirmed. Fort Bend Cnty., Texas v. Davis,
139 S. Ct. 1843 (2019).
Therefore, the district court erred when it interpreted the exhaustion
requirement as jurisdictional and dismissed the suit under Rule 12(b)(1).6 We
now turn to whether that error was harmless.
As our court explained in Davis, because the exhaustion requirement
in the Title VII context is not jurisdictional, failure to exhaust is an
affirmative defense.7 893 F.3d at 307. The party asserting exhaustion as an
affirmative defense bears the burden in demonstrating non-exhaustion.
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (citing Jones v. Bock, 549
U.S. 199, 216 (2007)). While affirmative defenses, such as non-exhaustion,
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6
While Hamilton did not challenge the applicable legal standard upon which the
district court reviewed whether Hamilton exhausted her administrative remedies, “[a]
party cannot waive, concede, or abandon the applicable standard of review.” United States
v. Vasquez, 899 F.3d 363, 380 (5th Cir. 2018), as revised (Aug. 24, 2018).
7
Promise Healthcare specifically pleaded failure to exhaust as an affirmative
defense in its answer to Hamilton’s complaint.
6
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may be asserted on a 12(b)(6) motion, dismissal on that basis is appropriate
only if the defense is evident on the face of the complaint. See EPCO Carbon
Dioxide Prods., Inc. v. JP Morgan Chase Bank, 467 F.3d 466, 470 (5th Cir.
2006).
Because the district court did not analyze exhaustion under the
12(b)(6) standard but instead viewed it as jurisdictional and analyzed it under
12(b)(1), the district court determined that Hamilton had not met her
burden—a burden that should have been borne by Promise Healthcare—in
proving that she exhausted her administrative remedies. The district court
specifically found that “because [Hamilton’s] Intake Questionnaire
remained unverified, and was not supplemented by a verified Charge of
Discrimination, it cannot on its own satisfy Title VII’s filing requirement.”
Because we are reviewing exhaustion under the 12(b)(6) standard, we
must accept “all well-pleaded facts as true and view[] those facts in the light
most favorable to [Hamilton].” Meador v. Apple, Inc., 911 F.3d 260, 264 (5th
Cir. 2018) (quotation marks and citation omitted). In her pro se complaint,
Hamilton alleges that she filed a charge of discrimination with the EEOC and
that she received both a right-to-sue letter and an EEOC determination letter.
Although Hamilton attached neither document to her complaint, she
referenced the right-to-sue letter. This letter is central to her claim, so we
may consider it as appended by Promise Healthcare to its motion to dismiss.
See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000).
Additionally, although the complaint does not reference the intake
questionnaire or allege that it served as a charge of discrimination, “it is
clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters
of public record.” Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir.
2007). We may therefore also consider it as appended to the motion to
dismiss.
7
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While the EEOC documents submitted by Promise Healthcare do not
prove that Hamilton submitted a verified intake questionnaire or affidavit,
these records also do not disprove Hamilton’s allegation in her complaint
that she filed a charge of discrimination.
Hamilton’s EEOC file contains two different versions of her intake
questionnaire, each signed and dated February 10, 2017. In the first
questionnaire in the EEOC file, Hamilton checked both Box 1 (that she
wanted to talk to an EEOC employee prior to deciding whether to file a
charge) and Box 2 (that she wanted to file a charge of discrimination and
authorizing the EEOC to investigate), though there appears to be an
annotation of “No” above Box 2. In the second questionnaire in the EEOC
file, Hamilton only checked Box 2, evidencing an intent to file a charge of
discrimination. Both questionnaires are marked with the same charge
number, 461-2017-00701. Because we must view the facts in the light most
favorable to Hamilton, we will consider the second intake questionnaire, in
which Hamilton checked only Box 2, in our analysis, and whether that
document may constitute a charge of discrimination.
The intake questionnaires forms submitted by Hamilton explicitly
state that “this questionnaire may serve as a charge if it meets the elements
of a charge.” The EEOC Activity Log contained within the EEOC file
references affidavits uploaded in conjunction with Hamilton’s intake
questionaries on both February 10, 2017, and on February 24, 2017, though
these affidavits do not appear in that same file. The EEOC’s Charge Detail
Inquiry appears to provide that while Hamilton did not want to file a formal
charge of discrimination on February 10, 2017, she did affirmatively state she
wanted to file one on February 24, 2017. While the parties dispute the
meaning of these entries and the meaning of the contradictory intake
questionnaires, these disputes appear better suited for resolution by
summary judgment than on a Rule 12(b)(6) motion, where again, we must
8
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view the facts in a light most favorable to Hamilton. The resolution of these
disputes goes toward both whether the intake questionnaire, and perhaps
corresponding affidavits, meet the statutory and agency requirements to
constitute a charge of discrimination and whether these document(s)
manifested an objective intent for the EEOC to take remedial action. See
Holowecki, 552 U.S. at 402.
Whether Hamilton filed a charge when she submitted her intake forms
is one question for the district court; whether that charge was verified is
another. “An intake questionnaire that ‘is not verified as required by EEOC
regulations . . . cannot be deemed a charge.’” Ernst, 1 F.4th at 338. Neither
Hamilton’s complaint nor the intake form reference Hamilton speaking
under oath or affirmation to the EEOC representative. Promise Healthcare’s
memorandum in support of its motion to dismiss argues that the intake
questionnaire was thus unverified. On appeal, Hamilton argues for the first
time that the charge was verified when the EEOC uploaded her intake forms
and affidavits. As with the status of the intake forms, we find that this issue
is better suited for resolution by the district court in the first instance. As we
have often said, we are a court of review, not first view.
IV.
On the record and the briefing before us, it is not clear as a matter of
law that Promise Healthcare has met its burden in proving that Hamilton did
not exhaust her administrative remedies prior to filing suit. Therefore, we are
unable to find that the district court’s error as to the legal standard and the
burden of proof were harmless. We VACATE and REMAND for further
proceedings consistent with this opinion.
9