Second Circuit Revives Unexhausted Title VII Claim After Pro Se Appeal

Curtis Hardaway's pro se appeal of the Federal District Court of Connecticut's sua sponte dismissal of his Title VII lawsuit against the Hartford Public Works Department was surprisingly successful in winning a reversal and remand.

The district court dismissed Hardaway's third amended complaint on a rather significant technicality: he failed to plead facts to show that he satisfied the exhaustion of administrative remedies requirement under Title VII. The Second Circuit reasoned that the district court could not dismiss the case sua sponte as the exhaustion requirement was not a jurisdictional requirement, but rather an affirmative defense.

Facts of the Case

Hardaway alleged that he faced discrimination in violation of Title VII and retaliation for reporting OSHA complaints. Specifically, he claimed that after complaining about safety and unfair treatment to OSHA, he was belittled, denied overtime opportunities and demoted.

His court complaint listed several specific choice phrases that were used against him in the workplace. Most centered on the fact that he was a "troublemaker" as a result of making reports to OSHA. He also alleged that he was told that if he stopped complaining, he would be granted overtime again, and his demotion would go away. He was terminated three months after he filed a third OSHA complaint.

What's This Appeal About?

Interestingly, though the appeal clarifies Title VII's administrative exhaustion requirement, this appeal might not save Hardaway's case. The dismissal occurred early in the pleading stage.

Given that he did not plead exhaustion, when the case resumes in district court, the defense will likely plead it as an affirmative defense. Then, Hardaway will have to meet the high burden of showing that he should be excused from the exhaustion requirement in a motion to dismiss.

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