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Davis v. Fort Bend County

United States Court of Appeals, Fifth Circuit

June 20, 2018

LOIS M. DAVIS, Plaintiff - Appellant,
v.
FORT BEND COUNTY, Defendant-Appellee.

          Appeal from the United States District Court for the Southern District of Texas

          Before KING, JONES, [*] and ELROD, Circuit Judges.

          JENNIFER WALKER ELROD, CIRCUIT JUDGE.

         Once again Lois Davis appeals the district court's dismissal of her lawsuit against her former employer, Fort Bend County. We previously reversed and remanded, and we do so again today.

         I.

         Lois Davis was an information technology supervisor for Fort Bend County. Davis filed a complaint with Fort Bend's Human Resources Department alleging that the information technology director had sexually harassed and assaulted her. Fort Bend's own investigation led to the director's eventual resignation. According to Davis, her supervisor began retaliating against her because Davis had made a formal complaint against the director, who was a personal friend of her supervisor. When Davis informed her supervisor that she could not work one specific Sunday because she had a "previous religious commitment" to attend a special church service, her supervisor did not approve the absence. After Davis attended the church service and did not report to work, Fort Bend terminated her employment.

         Alleging sexual harassment and retaliation by Fort Bend, she submitted an intake questionnaire and filed a charge with the Texas Workforce Commission. While her case was still pending before the Texas Workforce Commission, she amended her intake questionnaire to include religious discrimination but did not amend her charge. Specifically, she added the word "religion" in the box labeled "Employment Harms or Actions."

         After the Texas Workforce Commission issued a right-to-sue letter, Davis filed her lawsuit in district court. She alleged both retaliation and religious discrimination under Title VII and intentional infliction of emotional distress. The district court granted summary judgment on all claims, and Davis timely appealed.

         In her first appeal, Davis argued that the district court erred when it granted summary judgment for Fort Bend, and we affirmed summary judgment on her retaliation claim but reversed on her religious discrimination claim.[1] See Davis v. Fort Bend County, 765 F.3d 480, 491 (5th Cir. 2014), cert denied, 135 S.Ct. 2804 (2015). On the religious discrimination claim, we held that genuine disputes of material fact existed as to whether: (1) Davis held a bona fide religious belief that she needed to attend the Sunday service; and (2) Fort Bend would have suffered an undue hardship in accommodating Davis's religious observance. Id. at 487, 489. Fort Bend filed a petition for writ of certiorari challenging this determination, and the Court denied it.

         On remand, Fort Bend argued to the district court-for the first time- that Davis had failed to exhaust her administrative remedies on her religious discrimination claim. Agreeing with Fort Bend, the district court held that administrative exhaustion is a jurisdictional prerequisite in Title VII cases. Thus, the district court reasoned, Davis's contention that Fort Bend had waived this argument was "irrelevant." It determined that Davis had failed to exhaust her administrative remedies. Accordingly, the district court dismissed with prejudice Davis's religious discrimination claim.

         On appeal, Davis argues that failure to exhaust administrative remedies under Title VII is not a jurisdictional bar to suit. Rather, administrative exhaustion is only a prudential prerequisite for suit, and Fort Bend has waived any exhaustion argument. In the alternative, Davis raises two other arguments: (1) that she did exhaust her administrative remedies; and (2) that requiring her to exhaust further would have been futile.

         II.

         A.

         We review questions of subject matter jurisdiction de novo. See Nat'l Football League Players Ass'n v. Nat'l Football League, 874 F.3d 222, 225 (5th Cir. 2017). We also review de novo a district court's determination that a plaintiff did not exhaust ...


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