In an opinion likely to prove useful to employers defending a termination based on a constructive discharge theory, a Houston Court of Appeals held that a resigning employee whose charge of discrimination lacks an allegation of constructive discharge, fails to exhaust his administrative remedies on that theory. In court of appeals opinion, Parker was an African American pharmacy supervisor for the Harris County Hospital District from 2006 until 2012. He reported to the pharmacy operations manager, who in turn reported to the Director of Ambulatory Pharmacy Services.
Parker didn’t like the way his supervisor was treating him and complained about it to the Director of Ambulatory Pharmacy Services. He ultimately took an FMLA leave of absence claiming he was stressed due to the hostile work environment his supervisor placed on him. While on leave, Parker filed a charge of discrimination complaining of race and sex discrimination and retaliation. Importantly, the charge never mentioned constructive discharge. With his charge of discrimination, he also filed an intake questionnaire and attached a statement to the questionnaire. The intake questionnaire largely tracked the language used in the charge of discrimination but also added the allegation that, “I will be constructively discharged by my employer on October 30, 2012.” Parker was terminated on October 16, 2012 following an investigation that confirmed he violated various corporate policies. He filed a lawsuit shortly after receiving a right to sue letter.
The employer challenged Parker’s constructive discharge theory arguing that he failed to exhausted his administrative remedies on that theory because he did not identify constructive discharge in the allegations of discrimination in the charge. Parker pointed to his intake questionnaire as proof that he identified his constructive discharge theory to the EEOC.
The court of appeals held that to consider the content of an intake questionnaire to establish that the charging party exhausted his administrative remedies, the facts in the intake questionnaire must be a reasonable consequence of a claim in the charge AND the employer had actual knowledge of the contents of the questionnaire during the course of the agency investigation. Stated another way, the allegations in the intake questionnaire cannot be read to expand the scope of the charge; rather, it can only be used to supplement claims contained in the actual charge of discrimination itself. Because the charge of discrimination did not mention constructive discharge and there was no evidence the employer had actual notice of the content of the intake questionnaire, the court of appeals concluded Parker had not exhausted his administrative remedies on his constructive discharge theory and affirmed the trial court’s dismissal of that allegation.
As I noted in a recent post, employers are not routinely provided copies of the employee’s intake questionnaire. Where the charge fails to mention certain legal theories such as disparate impact, constructive discharge, patter or practice allegations or the continuing violation theory, the Parker opinion may support a conclusion that the charging party failed to exhaust administrative remedies. This can be the case even where those theories may be mentioned in the intake questionnaire if the employer was not aware of those theories during the course of the investigation.
You can download the full opinion in Harris County Hospital District v. Parker here.
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