TABLE OF AUTHORITIES.......................................................................... iii

STATEMENT OF INTEREST........................................................................ 1

STATEMENT OF THE ISSUE....................................................................... 2

STATEMENT OF THE CASE....................................................................... 2

A. Statement of Facts................................................................................. 2

B. District Court’s Decision...................................................................... 6

ARGUMENT.................................................................................................. 7

Jones Exhausted his Administrative Remedies........................................ 7

A. The District Court Applied an Unduly Stringent Standard Regarding the Content of an EEOC Charge...................................................................... 7

B. Jones Alleged the Same Violation of Title VII in his Complaint as He did in his Charge........................................................................................................ 12

C. Even if the Violation Alleged in Jones’s Complaint is Somehow Distinct from that Alleged in his Charge, He Nonetheless Exhausted his Administrative Remedies. 21

CONCLUSION............................................................................................. 25

CERTIFICATE OF COMPLIANCE............................................................ 26

CERTIFICATE OF DIGITAL SUBMISSION & PRIVACY REDACTIONS 27

CERTIFICATE OF SERVICE....................................................................... 28

Table of Authorities

Page(s)

Cases

Arbaugh v. Y&H Corp.,
546 U.S. 500 (2006)..................................................................................... 8

Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)................................................................................... 20

Brown v. Hartshorne Public School District,
864 F.2d 680 (10th Cir. 1988).................................................................. 22

Burlington Industries, Inc. v. Ellerth,
524 U.S. 742 (1998)............................................................................ passim

Davidson v. America Online, Inc.,
337 F.3d 1179 (10th Cir. 2003)................................................................ 24

Deravin v. Kerik,
335 F.3d 195 (2d Cir. 2003)............................................................... 11, 22

EEOC v. Shell Oil Co.,
466 U.S. 54 (1984)................................................................................. 9, 10

Federal Express Corp. v. Holowecki,
552 U.S. 389 (2008)................................................................................... 12

Gad v. Kansas State University,
787 F.3d 1032 (10th Cir. 2015).................................................................. 8

Green v. Donahoe,
760 F.3d 1135 (10th Cir. 2014) ................................................................. 1

Green v. Brennan,

.... 136 S. Ct. 1769 (2016)................................................................................. 1

Gregory v. Daly,
243 F.3d 687 (2d Cir. 2001)..................................................................... 16

Gunnell v. Utah Valley State College,
152 F.3d 1253 (10th Cir. 1998).......................................................... 10, 11

Hulsey v. Pride Restaurants, LLC,
367 F.3d 1238 (11th Cir. 2004)................................................................ 17

Jones v. Denver Post Corp.,
203 F.3d 748 (10th Cir. 2000).................................................................. 22

Jones v. U.P.S., Inc.,
502 F.3d 1176 (10th Cir. 2007).......................................................... 11, 19

MacKenzie v. Denver,
414 F.3d 1266 (10th Cir. 2005)................................................................ 22

Martin v. Nannie & The Newborns, Inc.,
3 F.3d 1410 (10th Cir. 1993).................................................................... 24

Martinez v. Potter,
347 F.3d 1208 (10th Cir. 2003)................................................................ 22

McKenzie v. Illinois Department of Transportation,
92 F.3d 473 (7th Cir. 1996)...................................................................... 20

Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57 (1986)......................................................................... 13, 14, 15

Mitchell v. City & County of Denver,
112 F. App’x 662 (10th Cir. 2004)....................................................... 8, 22

Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75 (1998)..................................................................................... 17

Pinkerton v. Colorado Department of Transportation,
563 F.3d 1052 (10th Cir. 2009).......................................................... passim

Schnellbaecher v. Baskin Clothing Co.,
887 F.2d 124 (7th Cir. 1989).................................................................... 24

Shikles v. Sprint/United Management Co.,
426 F.3d 1304 (10th Cir. 2005).................................................................. 8

Stevens v. Saint Elizabeth Medical Center, Inc.,
533 F. App’x 624 (6th Cir. 2013)............................................................. 25

United States v. Kwai Fun Wong,
135 S. Ct. 1625 (2015)................................................................................. 8

Wolf v. Northwest Indiana Symphony Society,
250 F.3d 1136 (7th Cir. 2001).................................................................. 17

Woodman v. Runyon,
132 F.3d 1330 (10th Cir. 1997).......................................................... 20, 21

Statutes

42 U.S.C. § 2000e-2(a)(1).............................................................................. 13

42 U.S.C. § 2000e-5(b).................................................................................... 9

42 U.S.C. § 2000e-5(e)(1)................................................................................ 8

42 U.S.C. § 2000e-12(a)................................................................................... 9

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq..... passim

Regulations

29 C.F.R. § 1601.12......................................................................................... 9

29 C.F.R. § 1601.12(a)(3).......................................................................... 9, 11

29 C.F.R. § 1601.12(b)....................................................................... 10, 11, 19

Rules

Fed. R. App. P. 29(a)....................................................................................... 2

STATEMENT OF INTEREST

The U.S. Equal Employment Opportunity Commission (“EEOC”) is charged with the interpretation and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. In this Title VII case, the district court concluded that the plaintiff, Bryan “Shane” Jones, did not exhaust his administrative remedies before filing suit. In support of this conclusion, the district court erroneously found that the violation of Title VII listed in Jones’s complaint was not “‘within the scope of the administrative investigation that could reasonably be expected to follow from the allegations raised in the charge.’” Appellant’s Appendix (“Applt. App.”) at 075 (quoting Green v. Donahoe, 760 F.3d 1135, 1140 (10th Cir. 2014), vacated on other grounds by Green v. Brennan, 136 S. Ct. 1769 (2016)).

This appeal presents important questions regarding what individuals must state in a charge to support a subsequent judicial complaint, whether charges of discrimination must state legal theories of discrimination, and what the proper standard is for determining whether allegations in a complaint are “like or reasonably related” to those in an EEOC charge for purposes of administrative exhaustion. Because the answer to these questions will impact the enforcement of Title VII and other anti-discrimination statutes, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUE [1]

Did the district court err in finding that Jones failed to exhaust his administrative remedies before filing suit challenging sexual harassment under Title VII?

STATEMENT OF THE CASE

A. Statement of Facts

Needham Trucking, LLC, (“Needham Trucking” or “the defendants”) is a provider of “oil and gas waste hauling.” Applt. App. at 023. The plaintiff, Bryan “Shane” Jones, alleged in his complaint that in May 2014, soon after he began working as a mechanic for Needham Trucking, Julie Needham, an owner of the company and Jones’s direct supervisor, said to him that “he should engage in sex with her if he wanted to continue his employment.” Applt. App. at 008. Jones declined this proposition, but the sex-based harassment continued. Id. For example, Needham invited Jones to “accompany her to a remote area of the trucking company where they could be alone.” Id. Needham also allegedly “bragged to . . . Jones that she had previously had sexual intercourse with the man who immediately [preceded Jones] as the mechanic for the trucking company.” Id. Because he repeatedly rebuffed Needham’s sexual overtures, Jones asserts that “Needham became angry and threatened retribution and retaliation against [him] unless he agreed to her demands.” Applt. App. at 009. Nevertheless, Jones “still refused and was fired as a result.” Id.

About seven weeks after Jones’s termination, he submitted an intake questionnaire to the EEOC, indicating that he wanted to file a charge of discrimination. Applt. App. at 045. He checked the boxes for “sex” and “retaliation” when answering the question: “What is the reason (basis) for your claim of employment discrimination?” Applt. App. at 043. Jones also wrote on the intake questionnaire that the basis for his claim was “sex harresment” (sic), and he noted that the action he believed to be discriminatory was his firing by Julie Needham, whom he identified as “Owner + Supervisor.” Id. In another portion of the questionnaire, Jones responded to a question seeking the identity of persons “treated better than you.” There, Jones identified John Marshall, his predecessor as a mechanic for Needham Trucking, who was allegedly “treated better because he had sex with [Julie] Needham.” Id.

Based on the intake questionnaire, the EEOC prepared a Form 5 document, entitled a “Charge of Discrimination” (“EEOC charge” or “charge”). See Applt. App. at 041. There, as in the intake questionnaire, the boxes were checked for “sex” and “retaliation.” Id. Moreover, in the “particulars” section, Jones’s charge says:

I have been employed with Needham Trucking LLC since on or about May, 2014. During my employment I was subjected to sexual remarks by owner, Julie Needham. I complained to General Manager, Jonathan Needham and Stephanie Needham about the sexual harassment. Nothing was done. On or about November 3, 2014, Julie Needham terminated my employment.

No reason was given for the sexual harassment. No reason was given for not stopping the sexual harassment. No reason was given for my retaliatory termination.

Id. Jones signed and dated the charge, attesting “under penalty of perjury that the [allegations listed] above [were] true and correct.” Id.

After receiving a Notice of Right to Sue from the EEOC, Jones filed a complaint with the district court. See Applt. App. at 6-15. There, he captioned his “First Cause of Action” as “Sexual Harassment.” Applt. App. at 009. In the narrative portion beneath that caption on the complaint, Jones described the alleged sex discrimination, saying that Julie Needham subjected him to “sexually harassing conduct” that was “frequent,” “severe,” and “physically threatening and/or humiliating.” Applt. App. at 010. He added as part of this same claim that Julie Needham not only harassed him based on his sex but also “wrongfully terminated” him because he “rejected [her] unwanted sexual advances.” Id.

The defendants responded to the complaint with a partial motion to dismiss. See Applt. App. at 016-040. As relevant here, they contended that Jones’s complaint set forth a discrete “claim” of “quid pro quo sexual harassment” that must be dismissed for failure to exhaust his administrative remedies. Applt. App. at 035-037. In support of this argument, the defendants said: “[t]he Charge is barren of any allegations related to a separate ‘distinct’ claim for quid pro quo sexual harassment, specifically, it lacks any allegations that tangible job benefits were conditioned on Plaintiff’s submission to conduct of a sexual nature and that adverse job consequences resulted from Plaintiff’s refusal to submit to the conduct.” Applt. App. at 036.

B. District Court’s Decision

The district court agreed with the defendants and granted their motion. In so doing, the district court found that Jones was required, for exhaustion purposes, to state facts in his charge to support an allegation that Needham “conditioned concrete employment benefits on [his] submission to sexual conduct and had [him] fired when [he] did not comply.” Applt. App. at 075 (citing Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1060 (10th Cir. 2009)). The court took as a given that the charge did not contain such facts, so it reviewed the allegation in Jones’s intake questionnaire—that John Marshall was “treated better because he had sex with Ms. Needham”—and concluded, with little analysis and no citation to authority, that this statement “cannot fairly be read to raise allegations of quid pro quo sexual harassment.” Id. The district court then dismissed what it characterized as “the quid pro quo sexual harassment claim.” Id.

ARGUMENT

Jones Exhausted his Administrative Remedies.

A. The District Court Applied an Unduly Stringent Standard Regarding the Content of an EEOC Charge.

In dismissing Jones’s sexual harassment claim for failure to exhaust administrative remedies, the district court misconstrued Title VII’s statutory pre-suit charge-filing requirement by requiring a level of specificity that the statute and regulations do not. Before filing suit under Title VII, a plaintiff must first pursue administrative remedies by presenting the alleged violations in a timely filed charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1) (“[A] charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred.”); see also Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005).[2] This charge-filing requirement is intended “to put an employer on notice of a violation prior to the commencement of judicial proceedings[, which] in turn serves to facilitate internal resolution of the issue rather than promoting costly and time-consuming litigation.” Mitchell v. City and Cty. of Denver, 112 F. App’x 662, 666 (10th Cir. 2004) (internal quotations and citations omitted)).

Title VII “prescribes only minimal requirements pertaining to the form and content of charges of discrimination.” EEOC v. Shell Oil Co., 466 U.S. 54, 67 (1984). The statute specifies only that “[c]harges shall be made in writing under oath or affirmation.” 42 U.S.C. § 2000e-5(b). With respect to the content of such charges besides being “in writing” and “under oath,” Congress expressly left the details to the EEOC, stating: “Charges . . . shall contain such information and be in such form as the Commission requires.” Id. To this end, Congress directed the EEOC to promulgate procedural regulations to implement Title VII. See 42 U.S.C. § 2000e-12(a) (setting forth that the EEOC has “authority . . . to issue . . . suitable procedural regulations to carry out provisions of” Title VII).

The EEOC’s regulation, 29 C.F.R. § 1601.12, indicates the level of detail a charge should contain. As relevant here, that provision first states that “[e]ach charge should contain . . . [a] clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” Id. § 1601.12(a)(3). The regulation further provides that “[n]otwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” Id. § 1601.12(b) (emphasis added). See also Shell Oil, 466 U.S. at 62 n.11 (observing that Title VII does not require individuals to set out detailed facts in their charges); Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10th Cir. 1998) (holding that allegations are “minimally sufficient to satisfy the requirements for the contents of a charge of discrimination and the purposes of the notice requirement” when they “identif[y] the type of discrimination complained of, the alleged harasser, and an approximate time period”).

Jones’s charge satisfies these criteria. It is plainly in writing and he signed it under oath. Most importantly for present purposes, Jones described generally the alleged violation, stating that he “was subjected to sexual remarks by . . . Julie Needham, [and] [o]n or about November 3, 2014, Julie Needham terminated [his] employment.” Applt. App. at 041. The charge makes clear, in other words, that the practices and actions complained-of are Needham’s “sexual remarks” and her decision to terminate Jones’s employment. This is a “clear and concise statement of the facts,” 29 C.F.R. § 1601.12(a)(3), and it plainly “describe[s] generally the action or practices complained of.” 29 C.F.R. § 1601.12(b). It identifies the type of discrimination, sexual harassment, the alleged harasser, Julie Needham, and the pertinent time period. See Gunnell, 152 F.3d at 1260.

Also, this Court and others have explained that courts must “liberally construe charges filed with the EEOC in determining whether administrative remedies have been exhausted as to a particular claim.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007). This liberal exhaustion standard is “based on the recognition that EEOC charges frequently are filled out by employees without the benefit of counsel and that their primary purpose is to alert the EEOC to the discrimination that a plaintiff claims he is suffering.” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (internal citations, quotations, and alterations omitted).

The district court applied an unduly stringent standard when it required from Jones a statement in his charge that “Needham ‘conditioned concrete employment benefits on his submission to sexual conduct and had him fired when he did not comply.’” Applt. App. at 075 (quoting Pinkerton, 563 F.3d at 1060) (internal alterations omitted). Requiring such detail in a charge contravenes Title VII, the pertinent EEOC regulations, and the relevant case law, which establish that a charge must merely describe the alleged discrimination in general terms. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 406 (2008) (describing charge-filing standard as “permissive” and instructing that “[d]ocuments filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies”).

B. Jones Alleged the Same Violation of T itle VII in his Complaint as He did in his Charge.

The district court’s conclusion is premised on the misconception that a plaintiff must allege, at the charge-filing stage, “quid pro quo sexual harassment” as a separate violation of Title VII, as distinct from “hostile work environment” harassment. The distinction drawn by the district court, between “quid pro quo” and “hostile work environment” harassment, has no statutory basis. To the contrary, the terms “quid pro quo” and “hostile work environment” do not appear anywhere in Title VII. Rather, the relevant statutory text prohibits “discriminat[ion] against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual’s. . . sex.” 42 U.S.C. § 2000e-2(a)(1). Title VII does not explicitly prohibit harassment, but in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986), the Supreme Court explained that “[t]he phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” (internal citations and quotations omitted). It was thus established in Meritor that sex-based harassment is one form of sex-based disparate treatment under Title VII. Id.

Having established that sexual harassment is cognizable under Title VII’s general prohibition against sex discrimination, the Meritor Court then distinguished between cases where sexually harassing conduct was “directly linked to the grant or denial of an economic quid pro quo,” and those cases where the conduct created a “hostile environment” but did not result in economic harm. Id. at 65. Therefore, Meritor not only made clear that sexual harassment is a form of sex discrimination under Title VII, it also held that sexual harassment is actionable in two situations: (1) when it is connected to economic benefits of employment (what was traditionally known as “quid pro quo” cases), and (2) when it does not result in a tangible employment action, but is severe or pervasive enough to alter the terms or conditions of employment. Id. at 67.

Meritor did not decide, however, when and under what circumstances an employer is vicariously liable for harassment perpetrated by its agents and employees. The Supreme Court granted certiorari in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751 (1998) “to assist in defining the relevant standards of employer liability.” There, the Court observed that, “[c]ases based on threats [to retaliate against an employee for denying sexual advances] which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment.” Id. It then added, however, that “in the wake of Meritor, [the terms quid pro quo and hostile work environment] acquired their own significance” because courts acted as though the “standard of employer responsibility turned on which type of harassment occurred.” Id. at 752-53. The Ellerth Court clarified that “[t]he terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.” Id. at 751 (emphasis added).

And, as to the proper standard for employer liability, the Ellerth Court said:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken [as a result of the harassment], a defending employer may raise an affirmative defense to liability or damages . . . . No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Id. at 765. Therefore, Ellerth reaffirmed the holding of Meritor—that actionable sexual harassment may fall into two categories: those cases that involve a tangible employment action and those that do not. Id. It also clarified that this is so regardless of whether the conduct at issue involves a supervisor’s sexual advances, which was traditionally known as “quid pro quo” harassment, or whether it involves “offensive conduct in general,” which is referred to as “hostile work environment” harassment. Id. at 753.

For purposes of this case, two lessons may be distilled from the Supreme Court’s decisions in this area. First, the labels “quid pro quo” and “hostile work environment” find their origins in the same statutory text and merely describe certain workplace conditions that, if proven, would constitute a single unlawful employment practice: an alteration in the terms or conditions of employment on the basis of sex. See, e.g., Gregory v. Daly, 243 F.3d 687, 698 (2d Cir. 2001) (stating that the “traditional categories of ‘hostile work environment’ and ‘quid pro quo’ harassment do not reflect statutory proscriptions that separate ‘harassment’ from other forms of discrimination. Rather, the high Court has indicated that these labels, to the extent they are useful at all, are so merely as descriptions of varying workplace conditions that violate Title VII’s basic prohibition on sex discrimination in terms or conditions of employment”) (citing Ellerth, 524 U.S. at 751-52 and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78-81 (1998)); see also Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1246 (11th Cir. 2004) (rejecting the employer’s argument that the plaintiff was “required to plead [quid pro quo] as a separate claim” in her complaint because “it is not a separate claim[,]” but rather “a label used to describe one of two ways sexual harassment can rise to the level of violating Title VII”).

It is also clear from Ellerth that the relevant standard for employer liability turns not on what type of harassment occurred, but rather on whether the harassment culminated in a tangible employment action. See 542 U.S. at 765; see also Wolf v. Nw. Ind. Symphony Soc’y, 250 F.3d 1136, 1141-42 (7th Cir. 2001) (observing that in Ellerth the Court “abandoned the commonly used categories of hostile work environment harassment and quid pro quo harassment, opting instead to distinguish between cases in which the supervisor takes a tangible employment action against the subordinate and those in which she does not”).

Therefore, there was no legitimate basis for the district court’s decision in this case to disaggregate Jones’s allegation of a single violation of Title VII into the “quid pro quo” and “hostile work environment” categories. First, it bears emphasizing that Jones did not plead “quid pro quo” as a separate cause of action in his complaint. The district court construed his allegations in this manner based on the defendants’ erroneous arguments in their motion to dismiss. Moreover, it is evident that the Title VII violation described in Jones’s complaint is equivalent to the one listed in his charge. For example, in his charge, Jones stated that Needham Trucking’s “owner, Julie Needham” “subjected [him] to sexual remarks,” and that she “terminated [his] employment.” Applt. App. at 041. Jones’s charge identifies “sex” as the basis for the discrimination, and it says that “[n]o reason was given for the sexual harassment. No reason was given for not stopping the sexual harassment. No reason was given for [the] retaliatory termination.” Id. Similarly, in his complaint, Jones alleged a single federal cause of action—“sexual harassment”—consisting of sexual remarks by Julie Needham culminating in his termination. Applt. App. at 009-011. In other words, Jones alleged in his charge that he was fired as a result of sexual harassment—the very same Title VII violation he advanced in his complaint.[3]

To be sure, Jones’s complaint is more detailed than his charge. For example, he did not explicitly describe Needham’s “sexual remarks” as “quid pro quo” in his charge. Nor did he state specifically in the charge that Needham “conditioned concrete employment benefits on his submission to sexual conduct and had him fired when he did not comply.” But this is appropriate given the liberal construction afforded an EEOC charge. See, e.g., Jones, 502 F.3d at 1186. It also comports with the requirement that an EEOC charge merely must “describe generally” the alleged discrimination. 29 C.F.R. § 1601.12(b). Moreover, whereas a judicial complaint must “state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), an EEOC charge is sufficient so long as it “give[s] notice of an alleged violation to the charged party and [gives] the administrative agency an opportunity to conciliate the claim.” Woodman v. Runyon, 132 F.3d 1330, 1342 (10th Cir. 1997). And, it is well-established that “a plaintiff need not allege in an EEOC charge each and every fact that combines to form the basis of each claim in [his] complaint.” McKenzie v. Ill. Dep’t of Transp., 92 F.3d 473, 482 (7th Cir. 1996) (internal quotations and citations omitted). Thus, to the extent Jones’s charge lacked a detailed description of the alleged violation, it is not fatal to his claim.

The district court relied on Pinkerton, 563 F.3d at 1059-60, for the proposition that “[t]o establish quid pro quo sexual harassment, [the] plaintiff must prove that Julie Needham ‘conditioned concrete employment benefits on his submission to sexual conduct and had him fired when he did not comply.’” Applt. App. at 075. This may be true, but it misses the point. Pinkerton addressed what evidence a plaintiff must submit to the trier of fact in order to prevail on a “quid pro quo argument” at trial. 569 F.3d at 1059-60. Here, the question is simply whether Jones’s charge was sufficient to give notice of the alleged violation to the employer and permit the EEOC to commence an investigation so that it might resolve the issue before it reached litigation. See Woodman, 132 F.3d at 1342 (explaining the “twofold purpose of the exhaustion requirement”).

Jones’s charge plainly satisfied these objectives. He set forth an allegation of sex discrimination resulting in a termination, which is precisely what he alleged in his complaint. And Needham Trucking did not argue that it lacked notice of the allegation before litigation commenced. Moreover, the charge gave the EEOC more than enough information to investigate Jones’s allegations and, if appropriate, try to secure voluntary compliance. Thus, the district court’s reliance on Pinkerton was misplaced.

C. Even if the Violation Alleged in Jones’s Complaint is Somehow Distinct from that Alleged in his Charge, He Nonetheless Exhausted his Administrative Remedies.

Even assuming that Jones somehow failed to present the same violation of Title VII in his complaint as he did in his charge, this Court’s precedents compel the conclusion that he nonetheless properly exhausted his administrative remedies. Indeed, a well-established principle in the context of administrative exhaustion is that an employee may “seek[ ] judicial relief for incidents not listed in his [EEOC] charge” if they are “like or reasonably related to the allegations of the EEOC charge.” Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (citing, inter alia, Jones v. Denver Post Corp., 203 F.3d 748, 755 (10th Cir. 2000), and Brown v. Hartshorne Pub. Sch. Dist., 864 F.2d 680, 682 (10th Cir. 1988)).

This Court has elaborated on this standard by explaining that allegations in a complaint are sufficiently like or reasonably related to those in an EEOC charge when “‘the conduct [alleged in the complaint] would fall within the scope of the [EEOC] investigation which can reasonably be expected to grow out of the charge that was made.’” Mitchell, 112 F. App’x at 667 (quoting Deravin, 335 F.3d at 200-01); see also MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005) (“A plaintiff’s claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.”).

Here, the Title VII violation alleged in Jones’s complaint can be expected to grow out of a reasonable EEOC investigation. For example, an obvious question an investigator might ask when presented with the statement in Jones’s charge—that he “was subjected to sexual remarks by owner, Julie Needham”—is “what were those remarks?” The answer to this question would likely lead to the discovery that Needham said to Jones, as Jones recounts in his complaint, “that he should engage in sex with her if he wanted to continue his employment.” Similarly, in light of the statement in Jones’s charge that “Julie Needham terminated [his] employment,” a reasonable investigation would likely discover that this allegedly occurred, according to Jones, because he “rejected [her] unwanted sexual advances.” Thus, the allegations in Jones’s complaint were, at a minimum, “like or reasonably related” to those in his charge.[4]

This conclusion has even greater force when one considers, as the district court did, Jones’s EEOC intake questionnaire. Indeed, in that document not only did Jones say he was sexually harassed and fired by Julie Needham, but he also identified a comparator, John Marshall, who he contended was “treated better because he had sex with Ms. Needham.” Applt. App. at 043. Implicit in this statement is the same allegation found in Jones’s complaint—that he “rejected the unwanted sexual advances made by . . . Julie Needham and was wrongfully terminated.” Applt. App. at 010. And it fits squarely with the articulation of a “quid pro quo” theory of harassment as set forth by this Court in Pinkerton. See 563 F.3d at 1060 (holding that plaintiff’s “quid pro quo argument” depends on a showing that her supervisor “conditioned concrete employment benefits on her submission to sexual conduct and had her fired when she did not comply”); see also Stevens v. Saint Elizabeth Med. Ctr., Inc., 533 F. App’x 624, 628-29 (6th Cir. 2013) (stating that the scope of a plaintiff’s claim should be determined not by “magic words,” but instead by the “substance of a plaintiff’s allegations”). Thus, notwithstanding the district court’s conclusion to the contrary, Jones’s intake questionnaire can indeed “fairly be read to raise allegations of quid pro quo sexual harassment.” Applt. App. at 075.

CONCLUSION

For the foregoing reasons, the district court’s judgment should be vacated and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 4,789 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in Palatino Linotype 14 point.

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

Dated: October 4, 2016

CERTIFICATE OF DIGITAL SUBMISSION & PRIVACY REDACTIONS

I hereby certify that (1) all required privacy redactions (in this document, none) have been made to this document, (2) the hard copies to be submitted to the Court are exact copies of the version submitted electronically, and (3) the electronic submission was scanned for viruses with the most recent version of a commercial virus scanning program, Trend Micro OfficeScan, version 12.815.00 (updated October 4, 2016) and, according to that program, is free of viruses.

s/Philip M. Kovnat

PHILIP M. KOVNAT

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4769

philip.kovnat@eeoc.gov

Dated: October 4, 2016

[1] The EEOC takes no position on any other issue in this appeal.

[2] The district court stated that “[e]xhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII.” Applt. App. at 073 (internal citations omitted). However, in Gad v. Kansas State University, 787 F.3d 1032, 1034 (10th Cir. 2015), this Court overruled earlier decisions which so held, explaining that such a rule “cannot be squared with current law” as it “is at odds with the Supreme Court’s instructions in subsequent cases.” Id. at 1039 (citing, inter alia, Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006), and United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015)). Therefore, the district court was incorrect that exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII. Rather, it is a condition precedent to Title VII lawsuits, subject to equitable exceptions.

[3] Unlike some of its sister circuits, this Court, even after Ellerth, has characterized “quid pro quo” harassment as a distinct “claim.” See Pinkerton, 563 F.3d at 1060 (internal citations omitted). However, the Pinkerton court clarified that it “use[s] the ‘quid pro quo’ terminology only insofar as it might be useful to show that the harassment culminated in a tangible employment action.” Id. at 1060 n.4 (citing Ellerth, 524 U.S. at 753-54). Thus, this Court uses the term “quid pro quo” as shorthand for cases involving sexual harassment resulting in a tangible employment action. Because Jones’s complaint and charge allege that Julie Needham sexually harassed and terminated him, his case fits squarely within this definition of the term “quid pro quo.”

[4] Jones requested and received a Notice of Right to Sue before the EEOC began an investigation. Therefore, no actual EEOC investigation occurred in this case. However, the question is not what investigation in fact ensued, but rather whether the alleged violation in the complaint would theoretically “fall within the scope of an EEOC investigation which would reasonably grow out of the charges[.]” Martin v. Nannie & The Newborns, Inc., 3 F.3d 1410, 1416 n.7 (10th Cir. 1993), abrogated on other grounds by Davidson v. Am. Online, Inc., 337 F.3d 1179 (10th Cir. 2003); see also Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 128 (7th Cir. 1989) (“[I]t is not the scope of the actual investigation pursued that determines what complaint may be filed, but what EEOC investigation could reasonably be expected to grow from the original [charge]”).