It is an undisputed point of law that employees of the Federal Government are protected by discriminatory practices under the Civil Rights Act at 42 U.S.C. § 2000e-16(c). Full stop, blog over, nothing new to report here. However, let’s not be premature, we may still have questions. What happens if an individual amends his charge subsequent to the initial filing, must he wait an additional 180 days to file his complaint for civil action from the date of the amendment or from the date of the initial charge under 42 U.S.C. § 2000e-16(c)? This is just the question that Fourth Circuit, Judge Wynn, answered on January 8th. Stewart v. Iancu, No. 17-1815, 2019 U.S. App. LEXIS 524 (4th Cir. Jan. 8, 2019).

In Stewart, the Plaintiff worked as a patent examiner at the U.S. Patent and Trademark Office (PTO) and suffered from bulging disk in his lower back, radiculopathy from compression of his sciatic nerve, as well as post and continuous traumatic stress disorder. Id. at 2. Subsequently, the Plaintiff made his reasonable accommodations request in April 2014, which was partially granted on September 19, 2014. Id. On July 14 2015, the Plaintiff filed a formal complaint with the PTOs Equal Employment Opportunity and Diversity office (EEO Office), which challenged the denial of his request for accommodations, asserted a hostile work environment and discrimination, and alleged various claims of retaliation. Id. at 3.  Ultimately the Plaintiff amended his administrative complaint eight times. Id. Each amendment was followed by a notice from the EEO office informing the Plaintiff: (1) the he could amend his formal complaint at any time before the investigation is complete and any new claims “must be like or related to the claims raised” in the original complaint; and (2) he may “file a civil action in an appropriate United States District Court at any time after 180 days have passed from the date [he] filed [his] original complaint.” Id.; 29 C.F.R. § 1614.407(b). Ultimately, the Plaintiff filed a pro se civil action in the District Court for the Eastern District of Virginia on February 29, 2016, more than 180 days after the filing of the original administrative complaint, alleging numerous violations of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Id. at 4.

                Subsequent to the Plaintiff filing his lawsuit, the PTO filed a motion to dismiss arguing that the Plaintiff was premature due to failure to exhaust his administrative remedies under  42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.407. Id. The PTO believed that the Plaintiff was required to wait to file a civil action until the conclusion of the agency’s investigation period, which is extended when employees amend their administrative complaint to the earlier of 180 days after the last amendment or 360 days after the filing of the initial complaint. Id.; 29 C.F.R. §§ 1614.106(e)(2); 1614.108(f).On March 17, 2017, the district court held that the Plaintiff had failed to exhaust his administrative remedies because under Section 1614.407(b), he was required to wait until July 8, 2016, the earlier of 180 days after Stewart’s last amendment or 360 days after the filing of his initial complaint, to file a civil action in federal court. Id. at 5.  The Plaintiff timely appealed the decision alleging violations of the Rehabilitation Act and Title VII. Id. Rehabilitation Act Claims must comply with the same administrative procedures that cover federal employees Title VII claims. Id. at 5. As such, 42 U.S.C. § 2000e-16, amended Title VII regarding federal employees to state that Federal employees may file a civil action based upon their administrative complaint (1) within 90 days of receipt of notice of final agency action or (2) after 180 days of filing of the initial charge with the agency, if there has been no final agency action. Id. at 5.

The Court first determined that Title VII’s 180-day waiting period found in 42 U.S.C. § 2000e-16(c)2000e-16(c) is not a jurisdictional bar[1][2]. Id. at 6.  Ultimately, the Supreme Court held that “’only if the statutory text “plainly show[s] that Congress imbued a procedural bar with jurisdictional consequences’ should a court treat a rule as jurisdictional.” Id. at 10; United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015). Congress has done nothing in the statutory language to tag Section 2000e-16(c) as jurisdictional; therefore, dismissal under 12(b)(1) was inappropriate. Id. at 13.  Upon conducting a de novo review for dismissal under 12(b)(6) failure to state a claim, the Court held that the statute’s use of the modifier “initial” demonstrates the possibility of subsequent amendments. Id. at 15. Furthermore, allowing agencies to repeatedly delay individuals’ ability to go to court, simply because they have amended their administrative complaints, would frustrate a “congressional policy to make the courts the final tribunal for the resolution of controversies over charges of discrimination after all administrative remedies have been exhausted.” Id. at 17 (quoting Koger v. Ball, 497 F.2d 702, 706 (4th Cir. 1974)). Furthermore, Title VII is a remedial scheme where laypersons are expected to initiate the actions. Id. at 18.  The PTO repeatedly informed the Plaintiff that he may amend his action any time after 180 days had passed from the filing of his initial complaint; therefore allowing the agency to confuse litigants would further frustrate the purpose of Title VII. Id. 

Subsequently, the court dismissed the PTO’s arguments that the statutory text is ambiguous, that the EEOC’s regulations support tethering the 180-day waiting period to the extended investigation period for amended complaints; and that reversal would incentivize gamesmanship. Id. at 18. Ultimately, the PTO was not entitled to Chevron deference in the interpretation of terms, it has long been held that courts may adjudicate claims not raised before the agency as long as they are like or related and grow out of the allegations, and there are already procedural guardrails to gamesmanship. Id. at 19-29. As such, Section 2000e-16(c)’s 180-day waiting period for filing a civil action, absent agency final action, commences with the filing of the initial administrative complaint, regardless of subsequent amendments to that complaint.

[1] The District Court dismissed the Plaintiff’s Claim under Rule 12(b)(1) lack of subject matter jurisdiction. Stewart v. Iancu, No. 17-1815, 2019 U.S. App. LEXIS 524, at 7.

[2] The Court stated that it does not hold that all exhaustion requirements in Title VII are non-jurisdictional because this will turn on the statutory language of the provision at issue.  Id. at 13.