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Case number 21-7055, Tiffany Washington at Belant versus Washington Metropolitan Area Transit Authority.

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Ms.

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Rucker for the Belant, Ms.

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Cole for the Appaloo.

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Ms.

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Rucker, good morning.

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Please proceed.

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Thank you.

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And good morning, your honors.

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May it please the court, Donna Rucker on behalf of Tiffany Washington.

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And we are before the court today, your honors, to assert that we believe that the trial court erred

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when in fact it determined that the termination claim contained in Miss Washington's third charge, somehow another was a duplicate of what she had in her second charge and therefore could not proceed and go forward in this particular case.

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And we assert this contention for several reasons.

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First, while we note and recognize that in Miss Washington's second charge at issue here, there was a mention of her termination

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We believe that the record is clear that if you review that second charge where termination is actually indicated, it is certainly not properly presented to the EEOC such that it provides notice to WMATA or satisfy the standards of what needs to be stated for exhaustion.

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And specifically, there are simply generalized statements that are indicated within the second charge compared, however, to the third charge that was timely filed

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within the timeframe of Miss Washington's termination and specifically asserts what is needed to put WMATA as well as the Commission on Notice, which is considered to be a very important element of presenting cases to the EEOC.

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If these cases and claims are stated,

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but not properly presented showing a prima facie case for setting forth allegations that will allow individuals to know what is being asserted and what is being contended.

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It is not, I would argue, properly before the Commission.

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And such is the case with respect to the second claim.

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The third charge presented by Ms.

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Washington specifically identifies termination.

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And it is undisputed.

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It is uncontroverted on this record, both by WMATA and by reference by the court in its order that the termination charge is timely presented in the third charge.

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What is at issue here is the court's- The termination charge was presented in the second charge.

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It was actually indicated your honor, as I stated, it was indicated in the in the second charge, our position in this particular case is that the checking of the box or the indication of it alone did not satisfy the standards of presenting it and having it properly before the commission.

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Several claims are challenged as is done by WMATA and other defendants in court when a plaintiff makes statements either in a charge of discrimination or a complaint that does not properly state a claim.

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And that is what is contended here with respect to the second charge.

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It is- Your strongest authority for that.

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My authority for the exhaustion factor in terms of it stating properly a claim.

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Your indulgence, Your Honor.

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We would look at how it is distinguished in what Cooper versus Xerox, which we reference in our brief, basically indicating that merely checking a box or even failing to check a box does not necessarily control the scope of the charge.

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And so what we're saying here is that it is presented in the third charge, the fact that the termination was part of what she's claiming

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It specifically states the bases.

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There is also a hostile or retaliatory hostile work environment claim that is submitted in the third charge that was not a part of the second charge.

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And the court in this particular case as we review the order specifically indicates that excuse me that the termination being at

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may not serve as a basis, but the court doesn't reach that point because it concludes that because the third charge references a termination that was part of another charge, the second charge, it is therefore stale.

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So the court never reaches the decision as to whether or not a continuing violation could advance both the termination claim as well as those other claims that were.

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Were there any facts

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in the third claim that were within 180 days of that claim other than the termination?

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I think the record is clear in this case, Your Honor, that the other claims are both in 2018.

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There are three different points, which would be 2018 dates.

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And so in order for those claims to be actionable under a hostile work environment continuing violation under Morgan,

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they would need to be a part of a current claim.

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And what we are articulating is that current claim is the termination claim, which, as I stated, is undisputed as being timely for purposes of presentation to the commission.

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It runs into a particular issue, according to the trial court, because it somehow or another was an attempt to, quote, revive, end quote,

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what was placed into the second chart, but we argue that it is very significant to recognize that this particular situation is quite different than what was argued by WMATA and referenced by the court in that the other cases that were referenced speaks to situations and circumstances where

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A right to sue letter was received, the 90 days expired, and council went back in to get a second right to sue letter.

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In this particular case, that is certainly not what we have here.

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And therefore we argue and present that the floodgates are safely closed with any concern that you may have, excuse me, litigants trying to go back and get multiple right to sue letters so that it could advance a claim where a 90 day period has passed.

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Is the Cooper decision your best authority?

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Well, it is the authority.

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With your indulgence, I believe we would stand on the brief, Your Honor, with respect to the other authorities that we cite.

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I think the judge, if you would indulge me, specifically says, and this is at A,

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362 of the Joint Appendix where I'm reading from the opinion.

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Again, your indulgence, Your Honor.

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Oh, excuse me, it's A360.

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And the court actually references that prior to bringing a civil action under Title VII or the Rehabilitation Act, an employee must exhaust her administrative remedies, excuse me, by filing a charge with the EEOC within 180 days of the alleged discriminatory incident and file suit within 90 days of the final administrative action.

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And that's basically what I'm trying to understand is we don't even have to get into the subtleties of whether you knew about the claim at the time you filed.

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If you knew about the charge at the time you file the second claim because you did.

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And it's stated there, but it wasn't stated adequately.

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You say it's not a situation where

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your client became aware of information that was previously unavailable to her.

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And I guess I'm not clear as to why the usual rule that you have a window to file and you either successfully file and make your claim or you don't.

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Your theory, I think something about, well, complaints can be dismissed without prejudice, true.

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but that's a different situation.

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And I wonder whether or not here we don't have a situation where she knew about the termination charge that she could have brought and she didn't.

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And so now she wants to come in later and raise this.

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And I don't see any end to this sort of theory of yours

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So I can give you where the end is, Your Honor, and that is specifically where the question or the issue here is that at the time that Ms.

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Washington is presenting her claim back, it is still a timely claim.

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This is not, I mean, even if- Doesn't matter is what I'm getting at under the usual rule that it may have been timely in your theory of the case, but as far as what she knew when she filed the second

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didn't she have all the information she needed and for one reason or another check the box but didn't do what she had to do and isn't she bound by that action?

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It's not as though she learned something later or there was some infirmity that prevented her from presenting

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the claim properly as part of the second charge.

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And so what I would say, Your Honor, to that is this is a situation where even if Miss Washington knew that she was going to be terminated, she did not know all of the particular facts related to how that came about.

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She specifically states in that second charge,

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I don't know the details about this.

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Well, but that's not because she didn't explore it, all right?

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She knew about it.

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She knew about the discovery.

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I just, you say there's an end, but I don't see the end in your theory.

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I'm trying to get there, Your Honor, with respect to pointing out that when she brought, and I see that my time is up, may I continue?

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Go ahead.

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Thank you.

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When Ms.

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Washington brought her charge the third time, she was fully aware of all of the circumstances that caused her to believe not only was this a wrongful termination, but it was a discriminatory and retaliatory termination that was part of a continuing hostile work environment and was such that she was able to fully and completely articulate what it is.

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She would not have had that opportunity if when she was trying to present her third charge that the timeline for making that claim had expired.

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That is not the case here.

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So that brings, Your Honor, the end to what you are speaking about.

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Had Ms.

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Washington attempted to come back with this third charge and her timeline for presenting it had expired, that presents the end that we are speaking about.

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But we do not stand on saying that all of the facts

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that establishes, especially when you look at her saying, I don't know all of the details.

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She is specifically saying that in her second charge.

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By the time she's submitting her timely third charge, and again, it's uncontroverted on this record, that her third charge for termination was timely.

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She was able to articulate fully not only discriminatory factors, but factors that would support a retaliatory hostile work environment claim

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And in doing so, not only does it present the discrete claim of termination, but it also allows for that event to be a part of the older claims of of hostile work environment or unfair treatment under Morgan.

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But what what procedure, if any, is there to would there have been for her to amend the second charge rather than

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Okay, so she would have had an opportunity to, the right to sue letter had already issued.

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This case, as we can see, is not a situation as being concerned, that we are concerned about, or I should say the appellant is concerned about, or the court should be concerned about, with respect to opening the floodgate, so as

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Judge Rogers indicated that somehow or another, not having an N. There is an N as stated, and it doesn't open the floodgates because in this particular case, we're not getting a second bite, so to speak.

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What is the answer though to the judge's question?

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And so that's what I'm trying to get to.

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So I'm sorry, Your Honor.

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Can you give me the question that you asked me?

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So you're saying that because the right to sue letter had issued on the second charge, you couldn't amend it any further at that point, right?

[00:13:00] Speaker 01:
Well, in that, and I am remembering, if I'm remembering correctly, the right, exactly, the right to sue actually the complaint in federal court

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And the third charge we're pending at the same time.

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So there's this undercurrent notion that this process is being used to circumvent the timeline requirements of filing and getting a 90 day notice and then using it.

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But we were not motivated by that.

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And that is evidenced by the fact that when you look at the actual complaint that ultimately got dismissed, the third charge was pending within the EEOC.

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It was present in there.

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So it wasn't a stopgap action.

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It wasn't something done to come back and try to react to a dismissal and get a second bite at it.

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It is actually analyzing the particular facts and holding and standing on what

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defendants do every day in the court is look at a charge.

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Had Miss Washington's charge proceeded as was stated, it would face and did face a motion to dismiss or could have a motion to dismiss a failure to state a claim and not being properly exhausted.

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And then we go to your honest point of can you amend it?

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And that's the question.

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That's the end point.

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that I'm pointing out for the judge.

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Either you can or you cannot.

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And in this instance, Ms.

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Washington- If we conclude that the second charge was insufficient, then we lose.

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If we conclude that she had properly articulated a termination claim in her second charge, then she would be arguing duplicatively in her third charge.

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That is correct, Your Honor.

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And the catalyst here, the point here is there is simply an, so to speak, honorable mention of a wrongful termination, but no facts, circumstances, or allegations that would support

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And the court of course did not reach these issues.

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When we presented the case at bar, because the judge concluded that the reference to the termination in the third charge just simply made the actual case.

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not one that could proceed as a matter of law.

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And so the actual idea of 90-day timeliness or whether or not it was a meritorious claim that could be advanced or whether that first or second charge had a proper claim never actually got addressed by the court.

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But in this particular case- So as far as you're aware, is there any rule of procedure that would have denied you the right to amend

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As part of the second charge.

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What my understanding is, and you know I'm happy to provide any thought authority subsequent to this argument.

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But you don't have any right now.

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I just want to be clear.

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I don't have any authority right now.

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All right, so there's nothing that you know that would bar you from doing that.

[00:15:59] Speaker 01:
Well, I would argue, Your Honor, that I'm barred once the commission dismisses the case.

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It no longer has the case.

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That case is gone, and there's nothing.

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I know, and that's what I'm getting, the analogy in civil litigation.

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He or she knew about the termination, and the fact that she didn't do her homework before she raised it in the second complaint, that's not something that

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she can rely on the facts, but she could have filed it and then file the motion for particulars or something like that.

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I'd like to hear from Apple Lee counsel, maybe she can answer Judge Wilkins questions specifically.

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May I offer, Your Honor, as a final point that it presupposes that this information was available at the time that she presented her sentence?

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She was terminated.

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Oh, correct.

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All right, so she can investigate why.

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She can, but it determines whether or not she was able to do that prior to the dismissal of her sentence.

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Why couldn't she?

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But I'm saying it presupposes that she could have.

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I'm asking why, if I'm dismissed from employment, why can't I find out why and on what basis?

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before I file my complaint.

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And if the opposing party refuses or prospective proposing party refused to provide that information, that's a different situation than we have here.

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And anyway, could we hear from counsel for Appellee?

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And if I get a chance to respond.

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Thank you, Your Honor.

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All right, Judge Wilkins, do you have any questions?

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No.

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All right, then.

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Ms.

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Rucker, we'll give you a couple of minutes in reply.

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And Ms.

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Cole, good morning.

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Thank you.

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Good morning.

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Thank you.

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May it please the court?

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Janice Cole on behalf of Washington Metropolitan Area Transit Authority.

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Your honors have identified the problem here in Ms.

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Washington's position.

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One of the cases that she herself relied on in her brief, Golden Versus Management and Training Corporation,

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makes mention of the fact that the exhaustion requirement is simply that the plaintiff exhausts each claim.

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And it does not require the plaintiff to include all the evidence pertaining to each claim.

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And that is what Miss Washington did.

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She could not, in fact, have done it any clearer.

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There are the boxes that she had in the amended

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complaint, which is at a 101.

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And she checked the boxes for sex, retaliation,

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for disability and race.

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In addition, for that very first charge, she checked the box other and next to it she wrote wrongful termination.

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And it's important to realize where this filing occurred in relation to the timeline.

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She filed it approximately three weeks after she was terminated

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from her position as a police officer, she received a medical disqualification to which she makes reference in this amended charge.

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She indicates that she was trying to appeal that, that she met with people in relation to that and to the process.

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And when you look at the narrative with the checkboxes, there is nothing more for her to exhaust.

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It is not a requirement that a claimant put every bit of evidence in a charge.

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And indeed, that is part of the discovery process leader in litigation.

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Well, what about her arguments that she may have checked the box, but that's not enough to properly present a claim?

[00:20:12] Speaker 03:
There was a case, I think it's Mills versus Hayden that WMATA cited in its brief, which indicated that one of the judges in this district did a survey and could not find any case where the checking of the box was insufficient to exhaust a claim.

[00:20:36] Speaker 03:
Typically, our positions would be reversed

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in a Title VII claim, it's normally the claimant who would be arguing, I checked the box, and that means all of this other additional type of related claim related to that box can come in.

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Checking the box.

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Let me ask you, in response to my question, just follow through.

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Has that been the position of the commission?

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That merely checking a box is insufficient?

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As far as giving adequate notice to the commission and the other party?

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I am unaware of any authority saying that checking the box is insufficient, your honor.

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My position is that checking the box is absolutely sufficient and that it's typically... Well, what are you relying on?

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You say, absolutely.

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What authority?

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It was in Mills versus Hayden where a judge of this district did do a survey and which 284 F third 14.

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could not find any authority when there was a search in that matter where checking the box was found to be insufficient for exhaustion.

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Checking the box is more to the scope of a claim, not to whether it is exhausted or not.

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For example, as it could be

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whether a hostile work environment, because there's no box for that, whether it was encompassed in a claim, because there's no box.

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And so that might be an issue.

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But here we have not only all the boxes checked, we have then the corresponding complaint that was filed based on the amended second charge

[00:22:50] Speaker 03:
and that was in front of Judge Clark Cotelli, that had the exact same causes of action that were then later set forth in her third complaint, which is the subject of this appeal.

[00:23:07] Speaker 03:
There is no difference.

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They were word for word, the same allegations as the dismissed complaint by Judge Clark Cotelli.

[00:23:18] Speaker 04:
So what about, I guess, your friend on the other side's argument that, well, look, if someone files the charge, and let's say maybe they're uncounseled, and then there's a right to sue letter that issues

[00:23:46] Speaker 04:
And they go meet with a lawyer at that point.

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And the lawyer says, well, I'm not sure that that charge is complete.

[00:23:54] Speaker 04:
And since we don't have like Supreme Court or DC Circuit authority at one point, and we don't want to have any issues with failure to exhaust, we're still within 180 days of the termination.

[00:24:09] Speaker 04:
I'm going to file another charge that really lays out

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all of the details in particulars.

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And then when we get the right to sue letter from that, assuming that we don't see declines to file, then we'll be protected because we can file our complaint after we get that right to sue.

[00:24:38] Speaker 04:
And it's not going to extend this out forever because it still has to be within 180 days of termination.

[00:24:47] Speaker 04:
So what's the big hardship or problem in looking at it that way?

[00:24:54] Speaker 03:
So, Your Honor, the response would be first, the process is to amend the charge, which is what exactly this claimant did.

[00:25:01] Speaker 03:
She amended that second charge because before the amending date of April 25th of 2019, she had simply had the very first paragraph that she had been experiencing discrimination and harassment since

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while a police officer and it was based on race and sex and retaliation.

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She then, after she was terminated, amended that charge to include a lot of information about leading up to her termination and the termination itself.

[00:25:45] Speaker 03:
So she engaged in that process as she should.

[00:25:50] Speaker 04:
But in my hypothetical, after the right to sue leather issues, she goes to meet with counsel and counsel is still concerned that it's not complete enough.

[00:26:04] Speaker 04:
So they filed another charge because once the right to sue leather issues, you can't amend the charge, right?

[00:26:12] Speaker 04:
Because the charge has been,

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you know, adjudicated, so to speak, by the EOC at that point, right?

[00:26:22] Speaker 03:
Correct, Your Honor.

[00:26:22] Speaker 03:
She is now within her 90-day time period in which she has to file.

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And the case law says, to the extent that there is other unexpired charges which are still timely and can be exhausted in front of the EOC,

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then a claimant can proceed through that process, but they cannot overlap.

[00:26:46] Speaker 03:
And with the same charges, especially where we hear we have a discrete act, and that's the only anchor event that is timely in this third charge.

[00:26:58] Speaker 03:
So sometimes we have a lot of moving parts to consider, but as a general proposition in response to your question,

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And as Judge Lamberth said in Price versus Greenspan, one looks to what is not stale and what is not expired and which has not been raised before.

[00:27:22] Speaker 03:
So to the extent that there is a right to sue letter that controls some charges that have already been exhausted, one cannot artificially extend that time period by refiling another charge.

[00:27:37] Speaker 03:
if that answers the question.

[00:27:40] Speaker 03:
Thank you.

[00:27:41] Speaker 03:
And here, that is indeed what the plaintiff attempted to do.

[00:27:46] Speaker 03:
Her motivation is not at part of the analysis.

[00:27:53] Speaker 03:
There was another issue.

[00:27:55] Speaker 03:
I don't know if the court's willing to hear, because I see I'm out of time.

[00:27:58] Speaker 03:
But there was another untimeliness issue that the court would like to hear.

[00:28:02] Speaker 00:
But we have that on your brief.

[00:28:05] Speaker 00:
If there are no more questions,

[00:28:07] Speaker 00:
Thank you.

[00:28:08] Speaker 00:
And Ms.

[00:28:09] Speaker 00:
Rucker, why don't you take one minute.

[00:28:13] Speaker 01:
Thank you very much, Your Honors.

[00:28:15] Speaker 01:
So what I wanted to point out is in response to this particular case is the distinction between the information that is simply placed in a charge and an information that is presented to the commission.

[00:28:27] Speaker 01:
What is absent here is any charge of discrimination for

[00:28:32] Speaker 01:
termination or for hostile work environment, retaliatory hostile work environment being presented in that second charge.

[00:28:39] Speaker 01:
It is clearly present in the third charge.

[00:28:42] Speaker 01:
Both the court and counsel for WMATA acknowledges that it was timely presented.

[00:28:48] Speaker 01:
And this is a particular situation where the federal court provided complainant in Avenue in a vehicle to come back in with respect to her termination claim by issuing a non-prejudicial dismissal.

[00:29:02] Speaker 01:
And the right to sue letter in this case is not stale.

[00:29:06] Speaker 01:
It was actually

[00:29:07] Speaker 01:
issued on a properly concluded federal court charged with the EEOC.

[00:29:14] Speaker 01:
And this case should be allowed to proceed with respect to the merits and through discovery on the particular allegations here.

[00:29:22] Speaker 01:
Thank you all for your time.

[00:29:24] Speaker 01:
All right.

[00:29:25] Speaker 01:
Thank you, counsel, madam.

[00:29:26] Speaker 01:
Clerk, if you would call the next case.