PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LINDA JONES, an Individual,
Plaintiff-Appellant,
v. No. 07-1680
CALVERT GROUP, LIMITED,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(8:06-cv-02892-DKC)
Argued: October 30, 2008
Decided: January 5, 2009
Before TRAXLER and SHEDD, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
Vacated in part and reversed and remanded in part by pub-
lished opinion. Judge Traxler wrote the opinion, in which
Judge Shedd and Senior Judge Hamilton joined.
COUNSEL
Theodore Scot Allison, Washington, D.C., for Appellant.
Henry Adam Platt, SAUL EWING, L.L.P., Washington, D.C.,
for Appellee.
2 JONES v. CALVERT GROUP, LIMITED
OPINION
TRAXLER, Circuit Judge:
Linda Jones appeals a district court order that, as is relevant
here, granted summary judgment against her on her claims
that Calvert Group, Ltd. terminated her in retaliation for filing
an Equal Employment Opportunity Commission ("EEOC")
charge and because of her age, sex, and race. We vacate the
judgment on the merits on each of these claims. Regarding the
age, sex, and race claims, we remand for dismissal of the
claims for lack of subject matter jurisdiction because of
Jones’s failure to exhaust administrative remedies. With
regard to the retaliation claim, we remand for further proceed-
ings.
I.
Because this is an appeal from the grant of summary judg-
ment to Calvert, we review the facts in the light most favor-
able to Jones. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).
Jones is an African-American female who was 56 years old
when she filed her complaint on November 3, 2006. She was
employed by Calvert as a computer operator and technical
analyst from 1989 until her termination. She "performed her
job successfully at all times." J.A. 5.
On approximately May 1, 2003, Jones filed a complaint of
race, age, and sex discrimination with the Maryland Commis-
sion on Human Relations ("the first charge") alleging that
Calvert had discriminated against her on the basis of her race,
sex, and age when it selected a white male under the age of
40 instead of her for a particular position for which she was
qualified. The complaint was resolved in February 2004 by a
written agreement, under which Calvert was obligated to pro-
JONES v. CALVERT GROUP, LIMITED 3
vide Jones with certain training and assistance to enable her
to qualify for future promotions.
Shortly thereafter, Jones received her first ever negative
performance evaluation. She then filed a second formal dis-
crimination charge ("the second charge") claiming that, in
retaliation for her filing the first charge, she had been denied
mentoring opportunities, management had scrutinized her per-
formance unduly, and she had received a negative perfor-
mance review. She alleged, "I believe I am being forced to
work in a hostile environment and subjected to differential
treatment in retaliation for filing" the first charge. J.A. 18.
The second charge was before the Maryland Commission on
Human Relations from July 6, 2005, until July 10, 2006.
Then, on August 6, 2006, the Commission issued Jones a
right-to-sue letter.
Calvert terminated Jones on or about October 19, 2006,
allegedly for "not taking ‘ownership’ of her work assign-
ments." J.A. 6.
On November 3, 2006, Jones filed suit in federal district
court alleging that she was terminated in violation of Title VII
because of her race and sex and in retaliation for engaging in
protected Title VII activity, and that she was terminated on
the basis of her age in violation of the Age Discrimination in
Employment Act ("ADEA"). The suit also alleged that
Jones’s termination constituted a breach of her employment
contract with Calvert.
Calvert moved to dismiss the complaint for failure to state
a claim. See Fed. R. Civ. P. 12(b)(6). As is relevant here, Cal-
vert maintained that Jones had failed to exhaust her adminis-
trative remedies for the Title VII and ADEA claims. Jones
opposed the motion. Converting the motion to one for sum-
mary judgment regarding the federal claims, see Fed. R. Civ.
P. 12(b), the district court entered judgment against Jones on
4 JONES v. CALVERT GROUP, LIMITED
the Title VII and ADEA counts and dismissed her breach of
contract claim for failure to state a claim.1
II.
Title VII of the Civil Rights Act of 1964 makes it an "un-
lawful employment practice" to "discharge any individual . . .
because of such individual’s race, color, religion, sex, or
national origin." 42 U.S.C.A. § 2000e-2(a)(1) (West 2003).
The ADEA makes it "unlawful for an employer . . . to dis-
charge any individual . . . because of such individual’s age."
29 U.S.C.A. § 623(a)(1) (West 1999).
Before a plaintiff may file suit under Title VII or the
ADEA, he is required to file a charge of discrimination with
the EEOC. See 42 U.S.C.A. § 2000e-5(f)(1) (West 2003)
(Title VII); 29 U.S.C.A. § 626(d) (West 1999) (ADEA). Title
VII establishes two possible limitation periods for filing a dis-
crimination charge with the EEOC. See 42 U.S.C.A. § 2000e-
5(e)(1). "The basic limitations period is 180 days after the
alleged unlawful employment practice. However, the limita-
tions period is extended to 300 days when state law proscribes
the alleged employment practice and the charge has initially
been filed with a state deferral agency." Tinsley v. First Union
Nat’l Bank, 155 F.3d 435, 439 (4th Cir. 1998). The same limi-
tation periods apply regarding ADEA claims. See 29 U.S.C.A.
§ 626(d). The 300-day period applies in this case.
The charge must be in writing and verified under oath or
affirmation under penalty of perjury. See Edelman v. Lynch-
burg College, 535 U.S. 106, 112 (2002). A charge is suffi-
cient "only if it is ‘sufficiently precise to identify the parties,
and to describe generally the action or practices complained
of.’" Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir.
2005) (quoting 29 C.F.R. § 1601.12(b) (2004)). The scope of
1
We note that Jones seeks no relief from this court regarding the dis-
missal of her breach of contract cause of action.
JONES v. CALVERT GROUP, LIMITED 5
the plaintiff’s right to file a federal lawsuit is determined by
the charge’s contents. See Bryant v. Bell Atl. Md., Inc., 288
F.3d 124, 132 (4th Cir. 2002). "Only those discrimination
claims stated in the initial charge, those reasonably related to
the original complaint, and those developed by reasonable
investigation of the original complaint may be maintained in
a subsequent Title VII lawsuit." Evans v. Techs. Applications
& Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996). Thus, a claim
in formal litigation will generally be barred if the EEOC
charge alleges discrimination on one basis, such as race, and
the formal litigation claim alleges discrimination on a separate
basis, such as sex. See id.; Bryant, 288 F.3d at 132-33.
Importantly, a failure by the plaintiff to exhaust administra-
tive remedies concerning a Title VII claim deprives the fed-
eral courts of subject matter jurisdiction over the claim. See
Davis v. North Carolina Dep’t of Corr., 48 F.3d 134, 138-40
(4th Cir. 1995) (holding that removal of Title VII action was
improper because plaintiff’s failure to exhaust administrative
remedies deprived the federal courts of subject matter jurisdic-
tion).2 The same is true of claims made under the ADEA. See
29 U.S.C.A. § 626(d); Vance v. Whirlpool Corp., 707 F.2d
483, 486-89 (4th Cir. 1983) (holding that plaintiff’s failure to
wait 60 days after filing federal administrative charge before
bringing suit in federal district court deprived district court of
subject matter jurisdiction).
A.
Jones first contends that the district court erred in ruling
that because the second charge did not allege discrimination
on the basis of age, sex, or race, she failed to exhaust her
administrative remedies for those claims. We disagree.
2
Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), is not to the
contrary. In Zipes, the Court held only that the untimeliness of an adminis-
trative charge does not affect federal jurisdiction over a Title VII claim,
see Zipes, 455 U.S. at 393, and Davis noted that the holding in Zipes was
so limited, see Davis, 48 F.3d at 140.
6 JONES v. CALVERT GROUP, LIMITED
The second charge alleged that Jones was being retaliated
against because she had filed the first charge; it did not allege
that she was discriminated against based on her age, sex, or
race. Indeed, she checked only the "retaliation" box on her
EEOC charge and left unchecked the boxes for "age," "sex,"
or "race." The district court therefore properly determined that
Jones failed to exhaust her administrative remedies with
regard to those claims. See Evans, 80 F.3d at 963.
Jones nevertheless maintains that even if she failed to
exhaust her administrative remedies regarding these claims,
the district court erred in entering judgment against her on the
merits. On this point we agree with Jones. Because Jones’s
failure to exhaust administrative remedies deprived the dis-
trict court of subject matter jurisdiction over the claims, "the
only function remaining to the court [wa]s that of announcing
the fact and dismissing the cause[s]." Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 94 (1998). Thus, the district court
had no authority to award judgment on the merits. See Sino-
chem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 127 S.
Ct. 1184, 1191 (2007); see also Vance, 707 F.2d at 489.
Accordingly, we vacate the judgment against Jones on those
claims and remand to the district court to dismiss them for
lack of subject matter jurisdiction.
B.
Jones next contends that the district court erred in ruling
that she failed to exhaust her administrative remedies with
regard to the retaliation claim. We agree.
Jones specifically argues that the district court’s ruling is at
odds with our decision in Nealon v. Stone, 958 F.2d 584 (4th
Cir. 1992). In Nealon, a public sector Title VII case, the plain-
tiff filed an EEOC charge alleging that the U.S. Army had
violated her rights under the Equal Pay Act of 1963 and Title
VII, by paying her less than it paid a man who performed a
similar job. After the EEOC made a finding of no reasonable
JONES v. CALVERT GROUP, LIMITED 7
cause, the plaintiff filed a complaint in federal court alleging
Equal Pay Act and Title VII violations and alleging, for the
first time, that she was retaliated against in violation of Title
VII for filing the earlier EEOC charge.3 On appeal from the
district court’s dismissal of the retaliation claim for failure to
exhaust administrative remedies, we explained that our circuit
had previously left open the question of "whether a plaintiff
asserting a Title VII claim of retaliation for filing a previous
EEOC charge must exhaust administrative remedies before
suing in federal court." See Nealon, 958 F.2d at 590 (citing
Aronberg v. Walters, 755 F.2d 1114, 1115 n.1 (4th Cir.
1985)). Noting that "[a]ll other circuits that have considered
the issue have determined that a plaintiff may raise the retalia-
tion claim for the first time in federal court," and "find[ing]
these rationales persuasive," we "adopt[ed] th[at] position."
Id. Justifying our adoption of the rule, we explained that it "is
the inevitable corollary of our generally accepted principle
that the scope of a Title VII lawsuit may extend to any kind
of discrimination like or related to allegations contained in the
charge and growing out of such allegations during the pen-
dency of the case before the Commission." Id. (internal quota-
tion marks omitted). We reasoned that a claim of "retaliation
for the filing of an EEOC charge as discrimination" is indeed
"like or reasonably related to and growing out of such allega-
tions." Id. (internal quotation marks & alteration omitted).
And, we noted that "practical concerns" also supported the
rule in that a plaintiff that has already been retaliated against
one time for filing an EEOC charge will naturally be reluctant
to file a separate charge, possibly bringing about further retal-
iation. See id.
Addressing the facts of the case, we reasoned that the
EEOC charge that the plaintiff alleged prompted the retalia-
tory discrimination had been submitted in good faith, and that
because conciliation with the Army had not improved her
3
The Nealon opinion is silent regarding the nature and timing of the
retaliation.
8 JONES v. CALVERT GROUP, LIMITED
position following the first EEOC charge, it would not have
been likely to do so had she filed a second charge. See id.
Thus, we held she was entitled to have her retaliation claim
considered by the district court. See id.
Calvert contends that the Nealon rule applies only to cases
in which the alleged retaliatory act occurred during the pen-
dency of the administrative investigation of the prior EEOC
charge. Calvert maintains that unless that is the case, we
would have been wrong when we explained in Nealon that the
rule we were adopting was the "inevitable corollary" of the
rule that "the scope of a Title VII lawsuit may extend to any
kind of discrimination like or related to allegations contained
in the charge and growing out of such allegations during the
pendency of the case before the Commission." Calvert also
maintains if Jones were allowed to proceed with her retalia-
tion claim in federal court without first filing a new EEOC
charge, Calvert would be denied the opportunity to explain its
action to the EEOC or to seek conciliation and Jones would
avoid being "subjected to the requirement that she be ‘serious
enough and sure enough to support [her allegations] by oath
subject to liability for perjury.’" Br. of Appellee, at 31 (quot-
ing Edelman, 535 U.S. at 113 (alteration in brief)).
We are not persuaded, however. Regardless of whether
Calvert presents persuasive arguments that the rule we
adopted in Nealon should have included a pendency require-
ment, the language of the opinion is clear that the rule we
actually adopted in fact included no such requirement. Nor
would such a requirement have fit within our reasoning in that
case, in which we explained that a plaintiff should be excused
from exhausting claims alleging retaliation for the filing of a
previous EEOC charge largely because such a plaintiff would
be expected to be gun shy about incurring further retaliation
after an additional EEOC charge and because a second concil-
iation could not be expected to be any more fruitful than the
first. See Nealon, 958 F.3d at 590. Indeed, Gottlieb v. Tulane
University of Louisiana, 809 F.2d 278 (5th Cir. 1987), on
JONES v. CALVERT GROUP, LIMITED 9
which we relied in Nealon, involved a retaliation claim that
arose after the pendency of the EEOC charge. See Gottlieb,
809 F.2d at 280 (noting that alleged retaliation occurred after
Title VII action had been filed); see also Clockedile v. New
Hampshire Dep’t of Corr., 245 F.3d 1, 6 (1st Cir. 2001)
(holding that retaliation claim arising after issuance of right-
to-sue letter does not require filing of new charge "so long as
the retaliation is reasonably related to and grows out of the
discrimination complained of to the agency"); Baker v. Buck-
eye Cellulose Corp., 856 F.2d 167, 168-69 (11th Cir. 1988)
(holding that claim that plaintiff was retaliated against for fil-
ing Title VII lawsuit could be litigated in federal court with-
out new EEOC charge).
Calvert further maintains that even if our precedent at one
time allowed a claim to relate back to an EEOC charge even
when the claim arose after the charge was no longer pending,
that precedent has been overruled, at least as it applies to dis-
crete unlawful employment acts, by National Railroad Pas-
senger Corp. v. Morgan, 536 U.S. 101 (2002), and its
progeny. In Morgan, a plaintiff sued Amtrak, alleging that he
had been subjected to discrete acts and suffered a racially hos-
tile work environment throughout his employment. The issue
in Morgan was whether the plaintiff was legally barred from
recovering for discrete acts that preceded the EEOC charge by
more than 300 days, but that were related to the facts alleged
in a timely filed charge. See Morgan, 536 U.S. at 106. The
Court concluded that he was. The Court noted that Title VII
explicitly provides that a "charge under this section [42
U.S.C. § 2000e-5] shall be filed within one hundred and
eighty days [or 300 days when applicable] after the alleged
unlawful employment practice occurred." Id. at 109 (quoting
42 U.S.C.A. § 2000e-5(e)(1)) (emphasis in opinion). The
Court determined that a discrete unlawful employment action,
such as termination, "occur[s]" on the day it takes place,
regardless of whether it is related to subsequent events that
are alleged in a timely EEOC charge. See Morgan, 536 U.S.
110-13. The Court therefore held that "discrete discriminatory
10 JONES v. CALVERT GROUP, LIMITED
acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges." Id. at 113; see
also Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct.
2162, 2169 (2007).
Although Calvert asserts that Morgan required Jones to file
a new EEOC charge alleging that she was terminated in retali-
ation for her first charge, we do not read Morgan that broadly.
Morgan addresses only the issue of when the limitations clock
for filing an EEOC charge begins ticking with regard to dis-
crete unlawful employment practices. In this respect, it con-
cerns only Congress’s clear preference as expressed in Title
VII for "prompt processing of all charges of employment dis-
crimination." Morgan, 536 U.S. at 109. It does not purport to
address the extent to which an EEOC charge satisfies exhaus-
tion requirements for claims of related, post-charge events.
See Wedow v. City of Kansas City, Mo., 442 F.3d 661, 673-75
(8th Cir. 2006). But see Martinez v. Potter, 347 F.3d 1208,
1210-11 (10th Cir. 2003) (holding that after Morgan claims
of discrete employment actions are not exhausted by virtue of
earlier EEOC charge even when the claim is reasonably
related to the EEOC charge). Nealon therefore remains bind-
ing precedent. See Etheridge v. Norfolk & W. Ry. Co., 9 F.3d
1087, 1090 (4th Cir. 1993) (explaining that prior panel’s deci-
sion binds subsequent panel absent a superseding contrary
Supreme Court decision or an en banc decision of this court
overruling it).
Having concluded that the rule in Nealon contains no pen-
dency requirement and that it has not been overruled, we are
still left with the question of how it applies in this case.
Nealon certainly tells us that Jones’s retaliation claim relates
back to the first EEOC charge. See Nealon, 958 F.3d at 590;
see also Brown v. Hartshorne Public Sch. Dist. No. 1, 864
F.2d 680, 682 (10th Cir. 1988) ("[A]n act committed by an
employer in retaliation for the filing of an EEOC complaint
is reasonably related to that complaint, obviating the need for
a second EEOC complaint." (emphasis added)). But the first
JONES v. CALVERT GROUP, LIMITED 11
charge did not give rise to any formal litigation and is not
before us. Thus, even to the extent that the retaliation claim
relates back to the first charge, that does not authorize us to
consider the claim. See Franceschi v. U.S. Dep’t of Veterans
Affairs, 514 F.3d 81, 86-87 (1st Cir. 2008) (holding that even
though claim that plaintiff was retaliated against for filing an
EEOC charge related back to that charge, claim was not prop-
erly exhausted because EEOC charge was not properly before
the court) (collecting cases).
The critical question therefore is whether Jones’s retaliation
claim relates back to the charge that is properly before us, the
second charge. We conclude that it does. Jones’s second
charge alleged a pattern of conduct by her employer in retalia-
tion for her filing the first charge that included denying her
mentoring opportunities, unduly scrutinizing her performance,
and giving her a negative performance review. The charge
also indicated that the retaliatory behavior was ongoing. See
J.A. 18 ("I am being forced to work in a hostile environment
and subjected to differential treatment in retaliation for filing
[the earlier EEOC charge]." (emphasis added)). Particularly in
light of the indication in the second charge that Calvert’s
retaliatory conduct was continuing, we conclude that the
alleged retaliatory termination was merely the predictable cul-
mination of Calvert’s alleged retaliatory conduct, and, accord-
ingly, we conclude that the claim of retaliatory termination
was reasonably related to the allegations of the second charge.
Cf. Smith v. First Union Nat’l Bank, 202 F.3d 234, 248 (4th
Cir. 2000) (holding that claim that because plaintiff consulted
with counsel regarding alleged harassment, she was forced to
work on her alleged harasser’s floor and not offered other
positions was reasonably related to EEOC charge that she was
chastised and threatened with termination based on the same
retaliatory motive); Wedow, 442 F.3d at 673-75 (holding that
EEOC charge served to exhaust retaliation claims arising after
the charge was filed when charge alleged ongoing retaliatory
denial of work opportunities and opportunities for promotion
12 JONES v. CALVERT GROUP, LIMITED
and post-charge claims were based on allegations that plaintiff
continued to suffer similar retaliatory denials).
Of course, the nature of the retaliation alleged in the pres-
ent case is slightly different from the retaliation alleged in
Nealon—in Nealon, the plaintiff claimed she suffered retalia-
tion for filing the charge before the court, whereas Jones
claims she suffered a continuation of the retaliation she
alleged in the charge. Nevertheless, we see no reason why that
distinction should make any difference; the "practical con-
cerns" that we cited in Nealon as justifying excusing the
plaintiff from filing an additional EEOC charge apply with
equal force when the claimed retaliation is a continuation of
the treatment alleged in the charge before the court. See
Clockedile, 245 F.3d at 5-6. Thus, we hold that the Jones’s
retaliation claim related back to her second charge and the
district court erred in ruling otherwise. We therefore vacate
the judgment against Jones on this claim and remand to the
district court for further proceedings.
III.
In sum, we vacate the judgment against Jones on the merits
of her age, sex, and race claims and we remand to the district
court for dismissal of those claims for lack of subject matter
jurisdiction because of Jones’s failure to exhaust administra-
tive remedies. For the reasons we have discussed, however,
we vacate the judgment against Jones on her retaliation claim
and we remand to the district court for further proceedings on
that claim.
VACATED IN PART AND
REVERSED AND REMANDED IN PART