By Kelsey Kolb
On September 24, in Hentosh v. Old Dominion University, the Fourth Circuit affirmed the United States District Court for the Eastern District of Virginia’s order granting summary judgment to Old Dominion University (“ODU”), defendant employer, in a retaliation suit brought by an employee, Patricia Hentosh. In doing so, the Fourth Circuit held that a court retains subject matter jurisdiction over an employee’s “reasonably related” Title VII retaliation claim against her employer even if it dismisses the employee’s underlying administrative claim of discrimination for lack of subject matter jurisdiction.
Hentosh originally filed a race discrimination claim against ODU with the United States Equal Employment Opportunity Commission (“EEOC”). The EEOC dismissed her charge as untimely. In the midst of the EEOC’s investigation, Hentosh applied for tenure at ODU, but was denied. Hentosh filed suit against ODU alleging that she was denied tenure on two theories: (1) the same discrimination that she claimed in her EEOC complaint; and (2) retaliation by ODU against her for engaging in an EEOC discrimination claim.
The district court granted in part ODU’s motion to dismiss on the ground that it did not have subject matter jurisdiction over either of Hentosh’s discrimination claims. The first discrimination claim, alleging specific acts of adverse conduct by ODU, was dismissed due to Hentosh’s failure to timely file her EEOC complaint within its required 300-day window. The district court found that it lacked subject matter jurisdiction because Hentosh’s untimely complaint led to her failure to properly exhaust her administrative remedies. The second discrimination claim, alleging that ODU’s denial of tenure was discriminatorily decided, was dismissed because this claim was “neither within the scope of the charge nor reasonably related to the charge” for it to be considered as exhausting her administrative options.
The point of contention in this appeal was the district court’s denial of ODU’s motion to dismiss Hentosh’s retaliation claim. The district court cited Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992), and found that Hentosh’s retaliation claim could stand without filing a new EEOC charge, and therefore, be brought for the first time in federal court. After establishing jurisdiction over the retaliation claim, the district court granted summary judgment in favor of ODU because Hentosh failed to establish that ODU only rejected her tenure application due to its desire to retaliate against her for filing the EEOC claim.
Hentosh’s appeal argued that when the district court dismissed her two discrimination claims for lack of subject matter jurisdiction, it subsequently lacked subject matter jurisdiction over her retaliation claim and therefore, committed reversible error by failing to dismiss that claim as well. Hentosh cited to Mezu v. Morgan State Univ., 367 F. App’x 385 (4th Cir. 2010), an unpublished opinion, arguing that “retaliation claims cannot ‘relate to’ discriminatory conduct alleged in an untimely EEOC charge.”
The Fourth Circuit deemed the unpublished opinion “neither controlling nor persuasive” and further, in direct conflict with Nealon, the published precedent to which it ultimately deferred. Under Nealon, “a plaintiff may raise for the first time in federal court the claim that her employer retaliated against her for filing with the EEOC in violation of Title VII.” The rationale for allowing the retaliation claim to stand alone is that the court traditionally has jurisdiction over claims that are deemed “reasonably related to” allegations in an administrative charge. The court found that Hentosh’s retaliation claim was “like or related to” the discrimination claim brought by the untimely EEOC charge.
The Fourth Circuit ultimately held that the district court properly retained and exercised subject matter jurisdiction over Hentosh’s retaliation claim because it was “reasonably related to” her prior discrimination claims—that the court would have had jurisdiction over, had she timely filed. Therefore, the court affirmed the district court’s grant of summary judgment in favor of ODU.