United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
employment discrimination case comes before the court on the
parties' responses to the court's order to show cause
why the court should not sua sponte dismiss this
case because Plaintiff Lekisha Reddick did not timely file an
EEOC charge for her Title VII race discrimination claim.
(Docs. 44 and 45). This exercise will clarify that the
timeliness of Ms. Reddick's EEOC charge is no longer an
issue in this case.
March 25, 2019, the court granted Defendant Republic Parking
System's motion for summary judgment on all of Ms.
Reddick's claims except for her race discrimination claim
based on Republic's failure to promote her on July 1,
2014. (See Docs. 38 and 39). For this claim, as the
court stated in its memorandum opinion on Republic's
motion for summary judgment, Ms. Reddick presented evidence
that Republic did not promote her to Assistant Manager on
July 1, 2014 because she is African-American based on her
supervisor's statement that he needed a “white
face” to “soften” the look of
Republic's staff. (See Doc. 38 at 9- 11). Ms.
Reddick discovered this evidence on July 25, 2014 at the
latest. (Id. at 12).
Reddick did not file a charge of discrimination with the EEOC
until September 22, 2015, approximately eight months after
the 180-day deadline to do so under Title VII expired.
See 42 U.S.C. § 2000e-5(e)(1). Republic did not
raise this issue in its motion for summary judgment, but the
court, recognizing that “the ‘[f]ailure to file a
timely charge with the EEOC results in a bar of the claims
contained in the untimely charge, '” ordered the
parties to show cause why the court should not sua
sponte dismiss this case for Ms. Reddick's failure
to timely exhaust her administrative remedies. (Doc. 40 at 1)
(quoting Jordan v. City of Montgomery, 283 Fed.Appx.
766, 767 (11th Cir. 2008)) (quoting in turn Alexander v.
Fulton County, Ga., 207 F.3d 1303, 1332 (11th Cir.
Reddick and Republic filed their responses to the court's
order to show cause, so this issue is ripe for resolution.
(Docs. 44 and 45, respectively). For the following reasons,
the court will not dismiss Ms. Reddick's remaining race
discrimination claim as untimely.
filing a charge of discrimination with the EEOC is
not required to invoke a district court's
subject matter jurisdiction over a Title VII claim. Fort
Bend Cty., Texas v. Davis, 587 U.S. ___, 139 S.Ct. 1843,
1850 (2019). Rather, the requirement that a plaintiff timely
file a charge of discrimination, “like a statute of
limitations, is subject to waiver, estoppel, and equitable
tolling.” Sturniolo v. Sheaffer, Eaton, Inc.,
15 F.3d 1023, 1025 (11th Cir. 1994) (quotations and citations
omitted). And if a defendant fails to timely raise the
defense that the plaintiff did not timely file a charge of
discrimination, the defendant waives that defense and the
claim supported by an untimely EEOC charge may proceed.
Fort Bend Cty., 139 S.Ct. at 1849-50.
courts in the Eleventh Circuit have consistently found that a
defendant waives the untimely EEOC charge defense when the
defendant never specifically raises the defense in a
responsive pleading, motion to dismiss, or motion for summary
judgment. See Shufford v. Alabama Medicaid Agency,
2019 WL 386203, at *6 (M.D. Ala. Jan. 30, 2019)
(“[D]efendants' motion for summary judgment is
silent on the issue of administrative exhaustion. Therefore,
the court deems defendants to have waived any affirmative
defenses relating to the timeliness of plaintiff's EEOC
charge . . . .”); Hill v. Bd. of Sch. Comm'rs
of Mobile Cty., Ala., 2014 WL 1604004, at *6 (S.D. Ala.
Apr. 22, 2014) (“[T]he Board did not raise this
affirmative defense in either a motion to dismiss or in the
motion for summary judgment. Thus, the Court finds that the
Board has waived its affirmative defense of statute of
limitations and its affirmative defense of failure to exhaust
administrative remedies.”); Tarmas v. Mabus,
2010 WL 3746636, at *5 (M.D. Fla. Sept. 21, 2010),
aff'd sub nom. 433 Fed.Appx. 754 (11th Cir.
2011) (“In its Answer, the Navy asserted as an
affirmative defense that Tarmas had failed to exhaust his
administrative remedies . . . and has reiterated this in its
summary judgment motion as grounds for dismissal of the
earlier claims. Thus, the Navy has not waived its right to
assert exhaustion . . . .”); Ham v. City of
Atlanta, Georgia, 2009 WL 10668310, at *7 (N.D.Ga. July
22, 2009), aff'd sub nom. 386 Fed.Appx. 899
(11th Cir. 2010) (“[B]ecause exhaustion is not a
jurisdictional requirement and is subject to waiver,
defendants have waived this argument by not timely raising it
in their motion for summary judgment.”).
Republic did not raise Ms. Reddick's untimely EEOC charge
as a defense in its motion for summary judgment or in a
motion to dismiss. And it did not specifically raise
the defense in a responsive pleading. Instead, in its answer
to the amended complaint, Republic only generally asserted
that it “lacks information sufficient to form a belief
as to the truth of Paragraph 7 of the [Amended]
Complaint”-where Ms. Reddick asserted that she timely
exhausted her administrative remedies-“and therefore
denies same and demands strict proof thereof.” (Doc. 21
at 2). Also, in its answer, Republic generally contended that
“Plaintiff's claims are barred by the applicable
statutes of limitations or are otherwise untimely, ”
but did not identify any statutes of limitations or explain
why the claims are untimely. (Id. at 5).
Republic never raised Ms. Reddick's untimely EEOC charge
as a defense in this case. Because of its failure to timely
do so, Republic waived the defense. The court thus has no
reason to dismiss Ms. Reddick's remaining race
discrimination claim that survived summary judgment.
separate order, the court will set this case for pretrial.