Arkansas Worker’s Promotion Bias Claim Revived by 8th Cir.

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By Jay-Anne B. Casuga

Arkansas must continue to defend against a promotion bias claim brought by a 54-year-old black female worker who initiated proceedings by sending a letter to a federal civil rights agency, a federal appeals court ruled Dec. 8.

The decision provides an example of an activity that can satisfy a worker’s administrative exhaustion requirement in federal employment discrimination cases. Exhaustion requires employees to first file discrimination charges with the Equal Employment Opportunity Commission before they can bring a private bias lawsuit against an employer.

Here, Arkansas Department of Workforce Services employee Emma Rush sent an unverified letter to the EEOC alleging she wasn’t promoted because of her sex, race, and age. Unverified means the letter was signed without being sworn under penalty of perjury or affirmed before a notary public. The agency requested a verified bias charge from Rush but nevertheless issued her a right-to-sue letter. Two days later, Rush sent a verified charge via certified mail and three months later sued Arkansas in federal court.

A federal judge dismissed Rush’s lawsuit in part because she didn’t initially file a verified bias charge with the EEOC. The U.S. Court of Appeals for the Eighth Circuit reversed the dismissal, finding that the lack of an initial verified charge was remedied by evidence of Rush’s later-filed verified charge and the agency’s right-to-sue letter.

Judges Roger Wollman, C. Arlen Beam, and Bobby Shepherd joined in the unsigned opinion.

Rush of Fort Smith, Ark., represented herself. Robert T. James of the Arkansas Attorney General’s Office in Little Rock represented the state.

The case is Rush v. State Ark. DWS , 2017 BL 439320, 8th Cir., No. 17-1457, motion to dismiss reversed and remanded 12/8/17 .

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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