Court Revives Transgender Worker's Claims Versus Union Despite Lack of EEOC Charge

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By Kevin McGowan

June 19 — A transgender ironworker's failure to exhaust administrative remedies on sex discrimination and retaliation claims against his union doesn't require dismissal of his lawsuit under Title VII of the 1964 Civil Rights Act because failure to exhaust doesn't deprive a district court of jurisdiction, the U.S. Court of Appeals for the Second Circuit ruled June 19.

Reviving a lawsuit filed against Ironworkers Local 40 and two union business agents, the Second Circuit said although Title VII requires a claimant to exhaust administrative remedies before suing, that prerequisite isn't jurisdictional and the lawsuit can proceed if the bias claimant proves an equitable defense to the exhaustion requirement.

The district court on remand must give Cole Fowlkes an opportunity to prove his failure to file an EEOC charge in 2011 can be excused because it would have been “futile” given the agency's erstwhile position that Title VII doesn't cover transgender bias claims, the Second Circuit said.

“Though our circuit has not had occasion to consider this particular equitable defense in the context of EEOC Title VII exhaustion, Fowlkes may have a colorable argument that filing a charge alleging discrimination based on his transgender status would have been futile,” Judge Susan L. Carney wrote.

It was not until 2012 that the EEOC altered its views and said discrimination based on an individual's transgender status does constitute sex discrimination under Title VII.

Judges Pierre N. Leval and Denny Chin joined in the decision.

No Jurisdictional Bar 

Fowlkes is a biological woman who identifies as a man, the court recounted. He alleged Local 40 refused to refer him from its hiring hall because of his sex and in retaliation for a prior Title VII lawsuit against the union.

The U.S. District Court for the Southern District of New York dismissed Fowlkes's claims, ruling it lacked subject matter jurisdiction because he failed to file an Equal Employment Opportunity Commission charge and exhaust his remedies before the agency. The district court said absent any federal jurisdiction, it also couldn't assert supplemental jurisdiction over Fowlkes's state and city law claims.

Citing U.S. Supreme Court precedent, however, the Second Circuit said failure to exhaust administrative remedies under Title VII isn't jurisdictional.

The Supreme Court in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 28 FEP Cases 1 (U.S. 1982) and its progeny has made clear that filing a timely EEOC charge or otherwise exhausting agency remedies “is not a jurisdictional prerequisite to suit in federal court,” but rather a requirement “subject to waiver, estoppel and equitable tolling,” the appeals court said.

Some “passing descriptions” of Title VII's exhaustion requirement as “jurisdictional” can be found in past Second Circuit opinions, the court acknowledged. But when circuit decisions have turned on whether administrative exhaustion is a “jurisdictional prerequisite,” the appeals court consistently has held it is not, Carney wrote.

“We therefore take this opportunity to underscore that the failure of a Title VII plaintiff to exhaust administrative remedies raises no jurisdictional bar to the claim proceeding in federal court,” the court said.

‘Futility' Among Potential Defenses 

At the time Fowlkes filed his 2011 lawsuit, “the EEOC had developed a consistent body of decisions that did not recognize Title VII claims based on the complainant's transgender status,” the court said.

In Macy v. Holder, the EEOC in April 2012 changed its position and said discrimination based on an individual's transgender status can be sex discrimination under Title VII, the court said.

“Fowlkes's failure to exhaust potentially could be excused on the grounds that, in 2011, the EEOC had ‘taken a firm stand' against recognizing his Title VII discrimination claims,” the court said.

A second equitable defense potentially available to Fowlkes is that his most recent allegations may be “reasonably related” to his bias claims against the union in the EEOC charge he filed in 2007, the court said.

The EEOC had issued Fowlkes a right to sue notice on the earlier charge and he had sued under Title VII, but more than 90 days after receiving the agency notice. The district court in 2010 granted the union defendants summary judgment because Fowlkes had failed to file a timely lawsuit.

“Here, Fowlkes alleges in his amended complaint that he was not referred for work as retaliation for having previously sued [the union],” the Second Circuit said. “In addition, the district court may reasonably determine that Fowlkes was discriminated against by defendants ‘in precisely the same manner' in the years leading up to the amended complaint as was alleged in the earlier EEOC charge.”

“Given the contents of Fowlkes's amended complaint and the close resemblance that it bore to his earlier EEOC charge, his more recent allegations may be ‘reasonably related' to those included in his earlier administrative filing with the EEOC,” Carney wrote.

On remand, the district court should consider whether futility is a “cognizable equitable defense” in the Title VII exhaustion context and, if so, whether futility, “reasonable relatedness” or any equitable doctrine excuses Fowlkes's failure to exhaust administrative remedies, the Second Circuit said.

Fair Representation Claim Raised 

Fowlkes argued on appeal that his amended complaint also stated a National Labor Relations Act claim that the union local breached its duty of fair representation in not referring him for jobs for which he was qualified, either because of his transgender status or in retaliation for his prior lawsuit.

“Although he articulated that claim less than plainly, we are inclined to agree with Fowlkes,” the Second Circuit said.

Since Fowlkes wasn't represented by a lawyer before the district court, he is “entitled to special solicitude” and the court will read his pleadings “to raise the strongest arguments that they suggest,” the Second Circuit said. But a pro se complaint also must allege “enough facts to state a claim for relief that is plausible on its face,” the appeals court said, citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007).

“Although Fowlkes's amended pro se complaint did not flag the NLRA, we nevertheless are persuaded, with the benefit of a counseled brief on Fowlkes's behalf, that Fowlkes has stated a plausible claim for breach of the duty of fair representation,” the court said.

The union defendants argued that a six-month limitations period applies to duty of fair representation claims so Fowlkes failed to state a claim because none of the defendants' conduct within the six months prior to Fowlkes's lawsuit can plausibly be deemed a violation of the union's duty.

But Fowlkes alleged the local would not provide him with employment throughout 2011, the year he filed suit, the court said. Fowlkes also alleged he received only 67 hours of work through the hiring hall in all of 2011 and was told by the union business agents in mid-2011 he “could forget about getting any work.”

“Based on the foregoing, Fowlkes plausibly stated a duty of fair representation claim based on conduct occurring within the six-month statute of limitations period,” the court said.

The district court also must reconsider whether to exercise supplemental jurisdiction over Fowlkes's claims under the New York State Human Rights Law and the New York City Human Rights Law, the Second Circuit said.

Robert T. Smith, Tami Kameda Sims and Howard R. Rubin of Katten Muchin Rosenman LLP in Washington and Los Angeles represented Fowlkes on appeal. John S. Groarke and Jennifer D. Weekley of Colleran O'Hara & Mills LLP in Woodbury, N.Y., represented Ironworkers Local 40 and the individual defendants.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the court opinion is available at

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