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The Employer Handbook Blog
Checking the Wrong Boxes on an EEOC Charge Has Real Consequences. This Case Is a Good Example.
She filed an EEOC charge. She just didn’t file the right one.
TL;DR: A federal appeals court affirmed summary judgment for an employer on both a Title VII race discrimination claim and a retaliation claim. The race discrimination claim failed because the employee couldn’t show the employer’s stated reasons for its decisions were pretextual. The retaliation claim failed for a more basic reason: the employee never included retaliation in her EEOC charge. This is a non-precedential Sixth Circuit decision.
A Counseling Session, a Walk-Out, and a Do-Not-Hire List
The employee worked as a career counselor at a military transition assistance call center at Fort Knox, Kentucky, and had been serving informally as third-shift lead since 2018. In 2021, a new installation manager replaced her in that role with a more experienced colleague. On August 26, 2021, the program manager called her in for a counseling session over unauthorized schedule swaps. She refused to sign the disciplinary warning, said “I’m done” twice, walked out, cursed at a colleague who asked for her access card, and left the building. The program manager reported to HR that she had quit. The employer placed her on a do-not-hire list.
She filed an EEOC charge in December 2021 alleging race discrimination. She did not check the retaliation box, did not use the word “retaliation” anywhere in the narrative, and did not include any language that would have prompted the EEOC to investigate a retaliation claim. She later argued that an online EEOC inquiry she had submitted and an email she sent during the EEOC’s investigation should have preserved the retaliation claim. The court disagreed. Neither document was verified, neither described retaliatory conduct with sufficient precision, and neither requested agency action on a retaliation claim. The court affirmed summary judgment for the employer on both claims.
Why the Retaliation Claim Died Before It Started
The requirement to file an EEOC charge before bringing a discrimination or retaliation claim in federal court exists for two reasons: it gives the employer notice of what conduct is being challenged, and it gives the EEOC a chance to investigate and conciliate before a lawsuit is filed. When a retaliation claim doesn’t appear in the charge, neither purpose is served.
Three things this case makes clear about EEOC charge exhaustion and retaliation claims.
Three Things This Case Makes Clear About EEOC Exhaustion and Retaliation
The retaliation box on an EEOC charge is not a formality, and narrative language does the legal work
An employee who complains internally about discrimination and is later terminated has a potential retaliation claim. But that claim evaporates at the courthouse door if the EEOC charge doesn’t include it. Courts may find exhaustion where a retaliation claim reasonably could have grown out of the investigation of the charge that was filed. That didn’t save the employee here because nothing in her charge would have prompted the EEOC to investigate retaliation as a separate theory. Checking the retaliation box helps. Otherwise, the charge narrative needs to describe retaliatory conduct specifically enough that the EEOC would know to look for it.
An online EEOC inquiry may not constitute a charge
The employee submitted an online EEOC inquiry and sent an email to the EEOC during its investigation, and argued both should count toward exhaustion. The court said no. For a communication to constitute a charge, it must be verified, describe the alleged conduct with sufficient precision, and signal that the employee wants the agency to take action. That’s a fact-specific finding, not a categorical rule, but the risk it identifies is real: employees who rely on an initial online submission without following through to a formal verified charge may not have satisfied exhaustion requirements.
A failed Title VII exhaustion argument doesn’t foreclose every avenue
Title VII, the ADA, and the ADEA all require EEOC charge filing before a federal lawsuit can be brought. Section 1981 does not. Many state anti-discrimination laws have their own requirements, and some don’t require charge filing at all. An employee whose Title VII retaliation claim is barred for failure to exhaust isn’t necessarily out of options, and employers receiving a charge that omits retaliation should know that the absence of a retaliation box doesn’t automatically end the exposure.
Employers reviewing EEOC charges from former employees should note what’s in them and what isn’t. What isn’t there probably can’t be added later under statutes requiring exhaustion, but the door may still be open elsewhere.