Fourth Circuit: Employee Can File New Retaliation Claim with Related Discrimination Suit

In a recent decision, the United States Court of Appeals for the Fourth Circuit confirmed that a viable retaliation suit can proceed in federal court with an untimely discrimination claim. The retaliation claim need not be filed with the Equal Employment Opportunity Commission (“EEOC”) before it is filed in federal court.  The decision is Hentosh v. Old Dominion University, No. 13-2037 (4^th Cir. Sep. 24, 2014).

The plaintiff, a Caucasian professor at Old Dominion University (“ODU”), filed a charge of discrimination with the EEOC, claiming that she was discriminated and retaliated against based upon her race. The EEOC found that the charge was filed more than 300 days after the adverse treatment alleged, and thus dismissed the charge as untimely.  The plaintiff then brought a federal court lawsuit asserting both race discrimination and retaliation.  Her retaliation claim alleged that ODU retaliated against her for filing her EEOC charge by denying her tenure.

Like the EEOC, the federal court dismissed the discrimination claim as untimely under the 300-day limitations period. The court did not dismiss the retaliation claim, but later granted ODU’s motion for summary judgment against the retaliation claim.  The plaintiff subsequently filed her retaliation claim as a second EEOC charge, and then re-filed the retaliation claim in federal court based on that second charge.

On appeal, the plaintiff claimed that the dismissal of the discrimination claim should have ended her first federal lawsuit. That way, the plaintiff could pursue the re-filed retaliation claim.  The Fourth Circuit disagreed.  It ruled that the retaliation claim was properly brought and decided on summary judgment, even though the alleged retaliation occurred after the first EEOC charge.  The Fourth Circuit confirmed that a plaintiff can bring a related retaliation claim directly in federal court, without first filing a charge with the EEOC.

While this decision favored the employer, the legal principle applied should give employers pause. Unlike a discrimination claim, employers cannot defend a related retaliation claim based on a simple failure to file with the EEOC.  As this decision shows, employers should remain vigilant against punishing employees for filing charges of discrimination.  A retaliation claim will often proceed further than the underlying discrimination claim.