No. 17-1110

 

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

 

 

LATESHIA PATILLO,

          Plaintiff/Appellant,

 

v.

 

SYSCO FOODS OF ARKANSAS, LLC,

          Defendant/Appellee.

 

 

On Appeal from the United States District Court

for the Eastern District of Arkansas

Hon. J. Leon Holmes, District Judge

 

 

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION AS AMICUS CURIAE IN SUPPORT OF

PLAINTIFF/APPELLANT AND IN FAVOR OF REVERSAL

 

 

JAMES L. LEE

Deputy General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

LORRAINE C. DAVIS

Assistant General Counsel

 

JEREMY D. HOROWITZ

Attorney

 

 

U.S. EQUAL EMPLOYMENT

   OPPORTUNITY COMMISSION

Office of General Counsel

131 M St., N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................................................. ii

 

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

 

STATEMENT OF THE ISSUES......................................................................................... 2

 

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

 

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

 

          B.      District Court Decision..................................................................................... 4

 

ARGUMENT............................................................................................................................. 5

 

          I.       Patillo’s Intake Questionnaire Constitutes a Timely Charge................... 5

 

          II.      The District Court Erred in Dismissing the Allegations Relating to Patillo’s First EEOC Charge................................................................................................... 15

 

CONCLUSION....................................................................................................................... 17

 

CERTIFICATE OF COMPLIANCE............................................................................... 19

 

 

 

 

TABLE OF AUTHORITIES

Page(s)

 

Cases

 

Aly v. Mohegan Council, Boy Scouts of America, 711 F.3d 34 (1st Cir. 2013)...................... 7

 

Ashcroft v. Iqbal, 556 U.S. 662 (2009).................................................................................... 17

 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)............................................................ 17

 

Brooks v. Midwest Heart Group, 655 F.3d 796 (8th Cir. 2011)..................................... 8, 11

 

Cobb v. Stringer, 850 F.2d 356 (8th Cir. 1988).............................................................. 13, 14

 

Duncan v. Delta Consolidated Industries, Inc., 371 F.3d 1020 (8th Cir. 2004)................... 14

 

Edelman v. Lynchburg College, 535 U.S. 106 (2002)..................................................... 5, 8, 11

 

EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988)............................................ 7

 

EEOC v. Shell Oil Co., 466 U.S. 54 (1984).......................................................................... 12

 

Estelle v. Gamble, 429 U.S. 97 (1976).................................................................................... 17

 

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

 

Hodges v. Northwest Airlines, Inc., 990 F.2d 1030 (8th Cir. 1993)....................................... 9

 

Kline v. Kansas City Fire Department, 175 F.3d 660 (8th Cir. 1999)................................. 15

 

Miles v. Bellfontaine Habilitation Center, 481 F.3d 1106 (8th Cir. 2007)........................... 12

 

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).................................... 16

 

Nichols v. American National Insurance Co., 154 F.3d 875 (8th Cir. 1998)...................... 14

 

Robinson v. American Red Cross, 753 F.3d 749 (8th Cir. 2014).................................. 14, 15

 

Ross v. Douglas County, 234 F.3d 391 (8th Cir. 2000)................................................. 12, 13

 

Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455 (8th Cir. 1998)....................................... 8, 9

 

Shempert v. Harwick Chemical Corp., 151 F.3d 793 (8th Cir. 1998).................................... 9

 

Tademy v. Union Pacific Corp., 614 F.3d 1132 (10th Cir. 2008)......................................... 16

 

Whitson v. Stone County Jail, 602 F.3d 920 (8th Cir. 2010)................................................ 17

 

Wilkerson v. Grinnell Corp., 270 F.3d 1314 (11th Cir. 2001)............................................... 9

 

Williams v. CSX Transportation Co., 643 F.3d 502 (6th Cir. 2011).................................... 7

 

Williams v. Little Rock Municipal Water Works, 21 F.3d 218 (8th Cir. 1994).......... 14, 15

 

Williams v. Target Stores, 479 F. App’x 26 (8th Cir. 2012)................................................ 12

 

Wilson v. Arkansas Department of Human Services, --- F.3d ---, 2017 WL 780869 (8th Cir. 2017)       17

 

Young v. Hayes, 218 F.3d 850 (8th Cir. 2000)........................................................................ 9

 

 

Statutes

 

Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634................................ 6, 7

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17........ passim

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

42 U.S.C. § 2000e-5(e)(1)........................................................................................... 1, 5, 7

42 U.S.C. § 2000e-12(a)....................................................................................................... 1

 

Rules and Regulations

 

Federal Rule of Appellate Procedure 29(a).......................................................................... 2

Federal Rule of Civil Procedure 12(b)................................................................................... 4

29 C.F.R. § 1601.1...................................................................................................................... 1

29 C.F.R. § 1601.3(a)................................................................................................................. 5

29 C.F.R. § 1601.9...................................................................................................................... 5

29 C.F.R. § 1601.12(b)............................................................................................... 5, 7, 8, 11

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with interpreting, administering, and enforcing various federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits employment discrimination based on race.  See 42 U.S.C. §§ 2000e to 2000e-17.  Congress explicitly delegated to the EEOC the authority “to issue, amend, or rescind suitable procedural regulations to carry out” Title VII’s provisions.  42 U.S.C. § 2000e-12(a).  Under this authority, the EEOC has established the mechanism through which an individual files an EEOC charge before she may file a discrimination suit in federal court.  See 42 U.S.C. §§ 2000e-5(b), 5(e)(1); 29 C.F.R. § 1601.1.  The EEOC therefore has a strong interest in the interpretation of those regulations.

In its opinion dismissing the case, the district court held that an EEOC “intake questionnaire” does not qualify as a “charge” that activates the Commission’s investigative machinery and serves as a prerequisite to suit.  This conclusion contradicts the EEOC’s position, which the Supreme Court explicitly adopted in Federal Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008), that such a questionnaire does constitute a charge when, as here, it expresses the charging party’s wish that the EEOC take remedial action on her behalf.  To ensure the proper interpretation of Title VII and its accompanying regulations, the EEOC offers its views to the Court.  See Fed. R. App. P. 29(a).

 

STATEMENT OF THE ISSUES[1]

1.  Does an intake questionnaire satisfy the charge-filing requirements of Title VII, so long as it is submitted within the limitations period, identifies the parties, describes the actions complained of, indicates a desire to pursue remedial action, and is subsequently verified?

2.  Did the district court err in dismissing the employee’s properly pleaded hostile work environment claim on the ground that neither her charges nor her intake questionnaire contained specific allegations of ongoing discrimination?

STATEMENT OF THE CASE

A.         Statement of the Facts

Defendant Sysco Foods of Arkansas (Sysco) hired Plaintiff Lateshia Patillo as a cashier on January 31, 2011.  She subsequently became a Will Call Associate.  R.18 at 8.[2]  On September 1, 2015, she filed an EEOC charge alleging she had been denied promotions and had her hours reduced, which she attributed to discrimination based on her race and sex and in retaliation for (1) making prior complaints about discrimination, (2) settling a worker’s compensation claim, and (3) using FMLA leave. R.20-1 at 3.  She received a right-to-sue letter on September 8, 2015.  R.20-2 at 3.

Patillo resigned on October 20, 2015.  R.20-3.  She submitted a signed EEOC intake questionnaire on March 21, 2016, alleging race discrimination and retaliation for her previous EEOC charge.  R.18 at 11-14.  In this questionnaire Patillo detailed allegations arising from events that occurred after she filed the earlier charge.  She claimed that she was forced to perform multiple jobs simultaneously, denied necessary assistance she had been promised to help her carry out her job duties, and harassed about her performance of her job duties, all of which she attributed to race discrimination and retaliation for her earlier complaints of discrimination.  Id.  The intake questionnaire form she filled out states, “Please check one of the boxes below to tell us what you would like us to do with the information you are providing on this questionnaire. … If you want to file a charge, you should check Box 2.”  Id. at 14.  Patillo checked Box 2, which states, “I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above.”  Id.

On June 13, 2016, Patillo submitted a verified Charge of Discrimination to the EEOC alleging race discrimination and retaliation.  R.20-3.  The charge states that her hours were reduced beginning in May 2015, she was given an unqualified assistant, and she was “forced to resign because of the stressful conditions” on October 20, 2015.  Id.  She received a right-to-sue letter on this charge on July 8, 2016.  R.20-4.

Patillo filed a form complaint in federal court against Sysco on October 6, 2016, alleging race discrimination and retaliation.  R.2.  The complaint alleges race-based failure to promote, reduction of hours beginning on May 4, 2015, and harassment from March 26, 2015, through her October 20, 2015, resignation.  Id.

B.         District Court’s Decision

Sysco filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (6), contending that Patillo’s discrimination claims were time-barred because she had not filed a timely discrimination charge with the EEOC.  R.16.  In its reply brief, Sysco argued that Patillo’s intake questionnaire — which had been filed within 180 days of her constructive discharge — “cannot constitute a charge of discrimination for purposes of meeting the relevant statute of limitations.”   R.20 at 3.

The district court granted Sysco’s motion to dismiss.  R.23.  It held that all allegations relating to her September 2015 EEOC charge were time-barred because she had not filed suit within 90 days of receiving her right-to-sue letter on that charge and had made no allegations of “an ongoing pattern or practice of discrimination” to which those earlier allegations might relate.  Id. at 3-4.  As to her constructive discharge allegation, which the court described as “the only new allegation[] in the complaint and the [second] charge underlying the complaint,” id. at 4, the court held that the intake questionnaire did not constitute a “charge” within the meaning of Title VII and the subsequent EEOC charge was not filed within 180 days of her resignation, so to the extent her hostile environment and retaliation claims were based on that allegation they were time-barred.  Id. at 3-4.

ARGUMENT

I.            Patillo’s Intake Questionnaire Constitutes a Timely Charge.

Before filing suit under Title VII, an individual must first exhaust her administrative remedies by filing an EEOC “charge … within one hundred and eighty days after the alleged unlawful employment practice occurred.”  42 U.S.C. § 2000e-5(e)(1).  The statute itself does not define the term “charge,” stating instead that “[c]harges shall … be in such form as the Commission requires.”  Id. § 2000e-5(b).  The EEOC regulations, in turn, specify that a charge against an employer must “identify the parties” and “describe generally the action or practices complained of.”  29 C.F.R. § 1601.12(b).  The charge must also be “in writing under oath or affirmation.”  42 U.S.C. § 2000e-5(b); see also 29 C.F.R. §§ 1601.3(a), 1601.9.  Pursuant to the EEOC’s long-standing regulations, if a verification is filed after the initial charge, it “relate[s] back to the date the charge was first received.”  29 C.F.R. § 1601.12(b); see Edelman v. Lynchburg Coll., 535 U.S. 106, 109 (2002).

Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), involved precisely the issue presented in this case: whether an intake questionnaire a charging party submits to the EEOC constitutes a “charge” sufficient to satisfy the charge-filing requirement.  The plaintiff in Holowecki filed an intake questionnaire and signed affidavit within the charge-filing limitations period alleging her employer was discriminating against older workers in violation of the Age Discrimination in Employment Act (ADEA); she later filed suit based on the same allegations.  552 U.S. at 394.  Her employer moved to dismiss the suit, contending that because the questionnaire and affidavit did not qualify as the “charge” required under the statute, the plaintiff never satisfied the necessary prerequisites to filing suit.  Id.  The Court rejected this argument, concluding that when an intake questionnaire contains the necessary information about the parties, describes the actions complained of, and indicates a charging party’s desire that the EEOC take remedial action on her behalf (as opposed to expressing a preference for more information from the EEOC), it constitutes a “charge.”  Id. at 402. 

The Court explained that the system for filing a discrimination claim under both Title VII and the ADEA “must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes.  It thus is consistent with the purposes of the [ADEA] that a charge can be a form, easy to complete, or an informal document, easy to draft.”[3]  Id. at 403.  In affirming the EEOC’s flexible definition of a “charge” for purposes of the anti-discrimination statutes, the Court explained that the EEOC’s approach is entirely appropriate for a “‘remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.’”  Id. at 402-03 (quoting EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 124 (1988)).  Importantly, the filing provisions of the ADEA and Title VII are nearly identical, “the former having been patterned after the latter.”  Commercial Office Prods., 486 U.S. at 123-24.  Because Congress, in drafting Title VII, expected individuals without detailed legal knowledge to play a pivotal role in enforcing the statute, “[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.”  Holowecki, 552 U.S. at 406; see also Williams v. CSX Transp. Co., 643 F.3d 502, 510 (6th Cir. 2011).    

  Under Holowecki, then, Patillo’s intake questionnaire constitutes a timely charge under Title VII.  Patillo submitted it on March 21, 2016, within 180 days of October 20, 2015, the date of her alleged constructive discharge.  See R.18 at 11-14; 42 U.S.C. § 2000e-5(e)(1).  Because the questionnaire identifies Patillo, Sysco, and the alleged discriminatory actions, it meets the charge requirements identified in 29 C.F.R. § 1601.12(b).  It indicates an unambiguous desire to file a charge of discrimination.  R.18 at 14.  Patillo subsequently filed a verified charge document based on the intake questionnaire attesting under penalty of perjury that it was true and correct.  R.20-3 at 2.  This verification relates back to the date of the intake questionnaire, satisfying the verification requirement of Title VII and the implementing regulations.  See 29 C.F.R. § 1601.12(b) (“A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein.  Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received.”); Edelman, 535 U.S. at 109 (“The issue here is the validity of an EEOC regulation permitting an otherwise timely filer to verify a charge after the time for filing has expired.  We sustain the regulation.”); Brooks v. Midwest Heart Grp., 655 F.3d 796, 801 (8th Cir. 2011) (noting that an otherwise timely charge may be verified after expiration of the limitations period).

In erroneously determining that Patillo’s intake questionnaire did not constitute a charge, the district court relied on a pre-Holowecki Eighth Circuit case, Schlueter v. Anheuser-Busch, Inc., 132 F.3d 455, 458 (8th Cir. 1998), to conclude that “intake questionnaires are not typically viewed as EEOC ‘charges’ within the meaning of [Title VII] because they are not verified.”[4]  R.23 at 3.  Because Holowecki abrogates Schlueter, however, the district court’s reliance on Schlueter was misplaced.[5]  

The district court also cited Wilkerson v. Grinnell Corp., 270 F.3d 1314 (11th Cir. 2001), to support its holding that courts do not usually treat intake questionnaires as charges.  In that case, however, the court held that the intake questionnaire did constitute a charge.  Id. at 1321-22.  The court concluded that where (as here) an intake questionnaire contains the basic information required under the regulations and “the circumstances of the case would convince a reasonable person that the charging party manifested her intent to activate the administrative process,” an intake questionnaire serves as a fully valid charge under Title VII.  Id. at 1321.  The case therefore provides no support for the district court’s contrary conclusion (and would have been overruled by Holowecki if it did). 

Sysco made several arguments to the district court that the court did not specifically address in its opinion.  None of these additional arguments is persuasive.  First, Sysco contended in its reply brief that “the EEOC did not consider the intake questionnaire a charge of discrimination.”  R.20 at 4 n.6.  It apparently bases this argument on language in the form intake questionnaire stating that a charge must be filed within 180 days of the charging party learning of the discrimination.[6]  R.18 at 14.  But the same paragraph goes on to state, “If you want to file a charge, you should check Box 2.”  Id.  This is precisely what Patillo did in this case.  

Explaining in the intake questionnaire that an individual may either request additional information or file a charge, depending on the box she checks — while simultaneously emphasizing the time limit that applies to any decision to file a charge — is fully consistent with the EEOC’s dual functions under Title VII: the Commission has the responsibility of both “enforcing antidiscrimination laws and disseminating information about those laws to the public.”  Holowecki, 552 U.S. at 400.  Allowing individuals to indicate their preference on the form allows the Commission to separate enforcement requests from information requests and tailor its response to each.  Sysco’s claim that language in the questionnaire highlighting the 180-day period for charge filing somehow renders the questionnaire ineffective as a charge ignores the language on the form itself, the EEOC’s longstanding regulations, and the clear holding of Holowecki.[7]  Sysco’s argument on this point is thus mistaken and entirely unsupported.

Sysco objected in the same reply brief that Patillo’s intake questionnaire was unverified.  R.20 at 3 n.5.  It does not dispute, however, that Patillo subsequently submitted a verified Charge of Discrimination.  R.20-3.  As explained above, this verification relates back to her intake questionnaire, rendering the charge timely.  See 29 C.F.R. § 1601.12(b) (relation-back provision); Edelman v. Lynchburg Coll., 535 U.S. 106, 109 (2002) (upholding the validity of the relation-back provision); Brooks, 655 F.3d at 801.

Sysco also implied that Patillo cannot rely on the date she submitted her intake questionnaire because the copy she filed with the court does not have an EEOC file stamp indicating when it was received.  R.20 at 3 & n.5.  If Sysco wishes to argue that Patillo did not, in fact, submit the intake questionnaire within 180 days of her constructive discharge, it may argue this as an affirmative defense.  In response to such a defense, Patillo could introduce evidence showing that she did submit the intake form to the EEOC in a timely fashion, a point to which the appropriate EEOC representative could testify in a sworn affidavit.  At this point in the litigation, however, Patillo need not present such evidence merely to survive a motion to dismiss.  See Miles v. Bellfontaine Habilitation Ctr., 481 F.3d 1106, 1107 (8th Cir. 2007); Williams v. Target Stores, 479 F. App’x 26, 28 (8th Cir. 2012) (“To the extent that there existed doubt as to whether [the plaintiff] had timely exhausted his administrative remedies, it was [the defendant’s] burden to prove its affirmative defense of lack of exhaustion, and any doubt on the issue must be resolved in favor [of the plaintiff].”).

Sysco argued to the district court that Patillo cannot sue on a constructive discharge claim because the claim was not contained in her intake questionnaire (even though it was clearly spelled out in the subsequent charge of discrimination based on her questionnaire).  R.20 at 4-5.  The basis for this argument is unclear.  The purpose of the charge-filing requirement is twofold: (1) to give the EEOC the first opportunity to investigate allegations of discrimination and attempt to secure their voluntary resolution, and (2) to notify the respondent of the charges against it.  EEOC v. Shell Oil Co., 466 U.S. 54, 68, 74-75 (1984).  In keeping with these goals, a plaintiff may file suit on any claim “that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge.”  Ross v. Douglas Cty., 234 F.3d 391, 395 (8th Cir. 2000) (citation omitted).  The requirement is not intended to trap unwary pro se claimants into forfeiting their rights; instead, as this Court has explained, “[b]ecause persons filing charges with the EEOC typically lack legal training, those charges must be interpreted with the utmost liberality in order not to frustrate the remedial purposes of Title VII.”  Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988); see generally Holowecki, 550 U.S. at 406 (noting that documents an employee files with the EEOC should be interpreted, to the extent possible, to protect her available rights and remedies). 

Here, Patillo’s intake questionnaire informed the EEOC that she believed she had been discriminated against based on her race and retaliated against for complaining about the discrimination.  R.18 at 12.  Although Patillo did not specifically use the term “constructive discharge” in her questionnaire responses, she alleged that the discrimination occurred until October 20, 2015, which Sysco clearly knew was the date of her resignation, and which a reasonable investigation revealed was the day she believed she had been forced to resign due to the intolerable conditions to which she was subjected.  R.20-3.  To the extent Sysco contends that the language in the intake questionnaire must be identical to that of the subsequent charge document or complaint, decades of precedent, including Ross, Cobb and Holowecki, show that this argument is legally incorrect.  Patillo’s intake questionnaire was timely and, once verified in her subsequent charge document, it fulfilled the administrative prerequisites necessary to bring this suit.

Similarly, the district court acknowledged in a footnote that Patillo “includes additional allegations of discrimination in the complaint” (though it did not specify which allegations this footnote referred to), but stated that it could not consider such allegations unless they were “include[d] in the underlying EEOC charge.”  R.23 at 2 n.1.  This is incorrect as a matter of law.  This Court “do[es] not require that subsequently-filed lawsuits mirror the administrative charges.”  Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1025 (8th Cir. 2004), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031, 1059 (8th Cir. 2011) (en banc); see also Nichols v. Am. Nat’l Ins. Co., 154 F.3d 875, 886 (8th Cir. 1998) (“A Title VII plaintiff must file a charge of discrimination with the EEOC before bringing a civil suit, but the scope of the subsequent action is not necessarily limited to the specific allegations in the charge.”).  Instead, a plaintiff “may seek relief for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge.”  Id. at 887; see also Cobb, 850 F.2d at 359 (“[T]he sweep of any subsequent judicial complaint may be as broad as the scope of the EEOC investigation which could reasonably be expected to grow out of the charge of discrimination.” (internal citation omitted)).[8]  To the extent the district court refused to consider a discrimination allegation included in Patillo’s complaint solely because it was not specified in her EEOC charge, without considering whether that allegation would have emerged from a reasonable investigation into her EEOC charge of discrimination, that decision constitutes reversible legal error.

II.         The District Court Erred in Dismissing the Allegations Relating to Patillo’s First EEOC Charge.

The district court concluded that the violations alleged in Patillo’s first EEOC charge were no longer actionable because she did not sue within 90 days of receiving a right-to-sue notice on that earlier charge.  R.23 at 3.  Despite her claim that the discrimination against her “continued ‘on an ongoing basis,’” the district court concluded that Patillo had not included any allegations “in either the charges or the intake questionnaire from which the Court could find that any alleged violations consisted of ‘an ongoing pattern or practice of discrimination, rather than an amalgamation of discrete, isolated instances.’”  Id. (quoting Kline v. Kansas City Fire Dep’t, 175 F.3d 660, 665 (8th Cir. 1999)).  Based on its determination that Patillo had not alleged an ongoing hostile work environment, the court concluded that all claims relating to her first EEOC charge were time-barred.  This conclusion is incorrect as both a legal and factual matter.

Legally, to assert a timely claim of a hostile work environment, a plaintiff need only allege that a single act contributing to such an environment took place during the limitations period to establish liability for earlier acts.  National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105, 115-21 (2002).  This is because a hostile environment claim is “based on the cumulative effect of individual acts,” and “[t]heir very nature involves repeated conduct.”  Id. at 115.  It is because of the ongoing nature of the violation that “consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability,” so long as part of the pattern of harassment occurred during the limitations period.  Id. at 118.  Allowing a plaintiff to raise such allegations even after the expiration of the 90-day period accords with Title VII’s goal of encouraging voluntary resolution before involving the courts.  See Tademy v. Union Pac. Corp., 614 F.3d 1132, 1151 (10th Cir. 2008) (“[T]here is no policy justification for penalizing [the plaintiff] because he took preliminary steps toward challenging his treatment earlier in the sequence of events comprising the single hostile work environment — thereby giving his employer earlier notice of the problem and an opportunity to correct it without the necessity of litigation.”).  Thus, to the extent Patillo’s initial complaint was premised on acts that may be part of a broader hostile work environment claim, those acts are still actionable.

Factually, Patillo did allege in her intake questionnaire that she was subjected to a “hostile work environment.”  R.18 at 12.  Whether the allegations in her earlier EEOC charge relate to the hostile environment claim in her intake questionnaire or, alternatively, constitute a series of discrete events is not an issue that is appropriate for final decision at the dismissal stage.  In the absence of discovery it is difficult to parse which allegations relate to discrete activities and which describe a more general pattern of harassment.  This is particularly true where the EEOC charges and district court complaint were all filed by a plaintiff appearing pro se.  See Holowecki, 552 U.S. at 402, 406 (“[P]ro se litigants are held to a lesser pleading standard than other parties.”); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding that pro se documents are “to be liberally construed” and held to “less stringent standards than formal pleadings drafted by lawyers” (internal citations omitted)); Whitson v. Stone Cty. Jail, 602 F.3d 920, 922 n.1 (8th Cir. 2010). 

Patillo’s complaint alleges a hostile work environment stemming from race discrimination and retaliation in violation of Title VII.  R.2 at 1-3.  These allegations state a claim for relief that is plausible on its face.  See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Wilson v. Ark. Dep’t of Human Servs., --- F.3d ---, 2017 WL 780869, at *2 (8th Cir. 2017).  Dismissal of the validly pleaded allegations supporting Patillo’s hostile environment claim prior to discovery constitutes reversible error.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

 

Respectfully submitted,

 

JAMES L. LEE

Deputy General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

LORRAINE C. DAVIS

Assistant General Counsel

 

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

 

 

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rules 29(d) and 32(a)(7)(B).  This brief contains 4,625 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2016 word processing program, with 14-point proportionally spaced type for text and footnotes.  The ECF submission was scanned for viruses with Trend Micro OfficeScan, most recently on March 29, 2017.  According to the program, this submission is free of viruses.

 

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

 

Dated: March 30, 2017

CERTIFICATE OF SERVICE

I, Jeremy D. Horowitz, hereby certify that I electronically filed the foregoing brief with the Court via the appellate CM/ECF system.  I also certify that I will file 10 copies of the foregoing brief with the Court and will serve the following counsel of record within five days of receipt of notice that the brief has been accepted for filing, pursuant to Eighth Circuit Local Rule 28A(d):

 

Plaintiff/Appellant:

Lateshia Patillo

114 Overland Trail

Jacksonville, AR  72076

(501) 256-7276

 

 

 

Counsel for Defendant/Appellee:

Dennis P. Duffy

Baker & Hostetler

881 Main Street, Suite 1100

Houston, TX  77002-4995

(713) 646-1364

dpduffy@bakerlaw.com

 

 

s/Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

  Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov