Filing A Timely Charge Is An Exception Under Administrative Requirements

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I. Burke exhausted her administrative remedies because the retaliation claim is an exception under administrative requirements as it grew out of the allegations from the initial EEOC claim. “Filing a timely charge is a prerequisite to having an actionable claim.” Nat 'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 120 (2002). A plaintiff must file charges with the EEOC for either discriminatory or retaliatory acts no later than 180 or 300 days after their occurrence. Id. at 122. Untimely claims filed with the EEOC will be dismissed in court, even if related to timely retaliatory or discriminatory EEOC charges filed in court. Id. at 113. In Morgan, the court argues that the statutory time restriction furthers the policy of…show more content…
of Corr., 245 F.3d 1, 6 (1st Cir. 2001). Thus, if a plaintiff was retaliated against after filing an EEOC charge, the standard is met. Id. Years later, the First circuit similarly held that “a claim of retaliation for filing an administrative charge with the EEOC is one of the narrow exceptions to the normal rule of exhaustion of administrative remedies” and may be “bootstrapped” to the charge/s filed before. 514 F.3d at 86-87. The standard is met if a plaintiff files a charge with the EEOC and then files a retaliatory claim with the court after receiving the right-to-sue letter on the first charge. Id. However, the Eighth and Tenth circuits held that a plaintiff did not exhaust their administrative remedies unless they filed a separate retaliation charge with the EEOC. E.g. Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851-54 (8th Cir. 2012). Thus, there is a circuit split on whether the rule from Morgan also applies to retaliatory acts that occur after filing an EEOC charge. Id. The Court should follow the First and Fourth circuit holding. Whether the retaliation occurs after filing an EEOC charge or is the culmination of retaliatory conduct alleged already in a prior EEOC charge, “a plaintiff should be excused from exhausting claims alleging retaliation for the filling of a previous EEOC charge” mostly because they “would be expected to be gun shy about incurring further retaliation after an additional EEOC charge.” 551 F.3d at 302. The court in
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