LOIS M. DAVIS, Plaintiff - Appellant,
FORT BEND COUNTY, Defendant-Appellee.
from the United States District Court for the Southern
District of Texas
KING, JONES, [*] and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, CIRCUIT JUDGE.
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
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.
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."
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
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. 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
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
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.
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