Nancy Clockedile v. New Hampshire Department Of Corrections 00-1541 00-1578 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Nos. 00-1541, 00-1578 NANCY CLOCKEDILE, Plaintiff-Appellant/Cross-Appellee, v. NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, Defendant-Appellee/Cross-Appellant, On Appeal from the United States District Court for the District of New Hampshire BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT/CROSS-APPELLEE C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7010 Washington, D.C. 20507 TABLE OF CONTENTS Page STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . .. . . . . . . . . . 3 STATEMENT OF THE CASE . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 3 1. Nature of Case and Course of Proceedings Below . . . . . . . . . . . . . . . . . . 3 2. Statement of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. District Court decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A PLAINTIFF MAY RAISE IN COURT A CLAIM OF RETALIATION FOR FILING A CHARGE WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WITHOUT FILING A SECOND CHARGE BECAUSE THE RETALIATION WOULD REASONABLY BE EXPECTED TO BE UNCOVERED IN AN EEOC INVESTIGATION OF THE ORIGINAL CHARGE . . . . . . . . 8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 TABLE OF AUTHORITIES Cases Page(s) Abeita v. Transamerica, 159 F.3d 246 (6th Cir. 1998) 12 Anderson v. Reno, 190 F.3d 930 (9th Cir. 1999) 11, 13, 15 Ang v. Proctor & Gamble Co., 932 F.2d 540 (6th Cir. 1991) 11, 15 Anjelino v. New York Times Co., 200 F.3d 73 (3rd Cir. 1999)..............11,12 Babrocky v. Jewel Food Co., 773 F.2d 857 (7th Cir. 1985) 10, 19 Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th Cir. 1988) ................................................11,12, 13 Brown v. Hartshorne Public School District # 1, 864 F.2d 680 (10th Cir. 1988) 12 Carter v. South Central Bell, 912 F.2d 832 (5th Cir. 1990) 11 Davis v. Sodexho, Columbia College Cafeteria, 157 F.3d 460 (6th Cir. 1998) 9, 10, 11 EEOC v. General Electric Co., 532 F.2d 359 (4th Cir. 1976) 10 Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3rd Cir. 1984) 17, 19 Ingels v. Thiokol Corp., 42 F.3d 616 (10th Cir. 1994) 14 Johnson v. General Electric Co., 840 F.2d 132 (1st Cir. 1988)...................................................... passim TABLE OF AUTHORITIES -- (cont'd) Cases Page(s) Kirkland v. Buffalo Board. of Ed., 622 F.2d 1066 (2d Cir. 1980) 11, 12, 13, 17 Lattimore v. Polaroid Corp., 99 F.3d 456 (1st Cir. 1996) 18, 23-25 Malarkey v. Texaco, Inc., 983 F.2d 1204 (2nd Cir. 1993) 114, 15 Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1989) 12, 16 Martin v. Nanny and the Newborns, Inc., 3 F.3d 1410 (10th Cir. 1993) 22 McKenzie v. Illinois Department of Transport, 92 F.3d 473 (7th Cir. 1996) 115, 16 Miller v. I.T. & T. Corp., 755 F.2d 20 (2d Cir. 1985) 17 Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992) 11, 12, 16 Owens v. New York City Housing Authority, 934 F.2d 405 (2nd Cir. 1991) 13, 17 Powers v. Grinnel Corp., 915 F.2d 34 (1st Cir. 1990) 9-11, 18, 19 Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970) 10, 11, 17 Seymore v. Shawver & Sons, Inc., 111 F.3d 794 (10th Cir. 1997) 10, 13, 15 Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000) 22, 25 Waiters v. Parsons, 729 F.2d 233 (3rd Cir. 1984) 21, 22 TABLE OF AUTHORITIES -- (cont'd) Cases Page(s) Wentz v. Maryland Casualty Co., 869 F.2d 1153 (8th Cir. 1989) 12, 13 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) 9 Statutes Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(d) 7 Title I of the Americans With Disabilities Act of 1990, 42 U.S.C. § 12117(a) 9 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 1 42 U.S.C. § 2000e-5(f)(1) 9 EEOC Compliance Manual (CCH), Vol. I, Section 13.1 14 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Nos. 00-1541, 00-1578 NANCY CLOCKEDILE, Plaintiff-Appellant/Cross-Appellee, v. NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, Defendant-Appellee/Cross-Appellant, On Appeal from the United States District Court for the District of New Hampshire BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT/CROSS-APPELLEE STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged with the enforcement, interpretation and administration of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case raises the issue of whether a plaintiff can bring a Title VII claim in court alleging that the defendant retaliated against her for filing an EEOC charge if she did not file a second charge mentioning the retaliation for filing the first charge. The district court, relying on this court's decision in Johnson v. General Electric Co., 840 F.2d 132 (1st Cir. 1988), dismissed the plaintiff's claim that she was retaliated against for filing a charge with the EEOC because she did not return to the EEOC and file a second charge referring to the alleged retaliatory acts. The rationale of the Johnson decision - that a Title VII plaintiff cannot bring a retaliation claim in court unless that particular claim was brought to the attention of the EEOC - is inconsistent with this court's general standards for determining whether allegations in an EEOC charge support the claims in a subsequent judicial complaint. Every other court of appeals to have considered the issue, has held that a plaintiff may allege retaliation for filing a Title VII charge in court without returning to the EEOC. Requiring a plaintiff to file a second charge alleging retaliation for filing a previous charge creates an unnecessary burden on the victim of employment discrimination without furthering the remedial purposes of Title VII. Accordingly, the Commission urges this court to reconsider its ruling in Johnson. Alternatively, the Commission urges the court not to extend Johnson to this case where, unlike the plaintiff in Johnson, the plaintiff did include some retaliation allegations in her EEOC charge. STATEMENT OF THE ISSUE<1> Whether the district court erred in concluding that the plaintiff could not include in her Title VII action a claim of retaliation for filing a charge with the Equal Employment Opportunity Commission because she did not file a second charge specifically challenging the retaliatory acts alleged in her judicial complaint. STATEMENT OF THE CASE 1. Nature of Case and Course of Proceedings Below. This is an appeal from a final judgment dismissing this action. Plaintiff alleged that the defendants violated Title VII by sexually harassing her and retaliating against her for complaining about the sexual harassment. Joint Appendix to the Briefs ("J.A.") at 5-16. The case was tried to a jury, and, on October 29, 1999, the jury found in favor of the defendant on the sexual harassment claims, but found in favor of the plaintiff on the retaliation claims. Id. at 85-86. The jury awarded the plaintiff $129,111 in compensatory damages and back pay. Id. at 87. On April 12, 2000, the district court granted defendant's motion for judgment as a matter of law as to plaintiff's retaliation claims. Id. at 150. The plaintiff filed a timely notice of appeal on April 17, 2000. Id. at 152. 2. Statement of facts. Nancy Clockedile began working for the New Hampshire Department of Corrections ("DOC") in March 1995, as a counselor in the state prison. J.A. at 6. On December 8, 1995, Clockedile filed a charge with the New Hampshire Human Rights Commission and the EEOC,<2> alleging that her supervisor, John Martin, sexually harassed her. Id. at 179-80. She also alleged in the charge that, after she complained of the harassment to Martin and asked him to stop, he retaliated against her by canceling her classes without notifying her, refusing to permit her to implement plans for her staff, trying to make her teach without proper safety staffing, and degrading and humiliating her in such a fashion that she could not do her job. Id. at 180. In January 1997, after obtaining a notice of right to sue, Clockedile initiated this action. J.A. at 5. In addition to the allegations of sexual harassment and retaliation by Martin that she had stated in her EEOC charge, Clockedile challenged in her complaint adverse actions taken by other managers and employees of DOC allegedly in retaliation for her filing an EEOC charge. Id. at 9. Among other things, Clockedile alleged that, after she filed her charge, DOC transferred her from her office to a desk in a hallway adjacent to a toilet, transferred her from the community corrections department to the mental health unit, and modified her work assignments. Id. at 10, 199; Add. at 26-27. Clockedile testified that, when she continued to complain to DOC officials that other employees were being sexually harassed and that she was being retaliated against because she filed a charge, DOC's sexual harassment investigator warned Clockedile not to "meddle" in sexual harassment complaints of other employees. J.A. at 205. Three days after Clockedile filed suit DOC's Director of medical and forensic services gave her a warning letter asserting that she had violated DOC's policies by 1) failing to comply with directives to provide physician's certificates for her medical leave in 1996; 2) making sexual harassment and retaliation complaints against other employees but refusing to cooperate with the DOC's investigation of those allegations; and 3) involving herself in the investigation of another employee's sexual harassment claim, in violation of the earlier order not to meddle in other parties' sexual harassment complaints. Id. at 169-71. On February 11, 1997, Clockedile took medical leave, but never returned to work. DOC fired her on May 9, 1997. Id. at 156-58. 3. District Court decision. The district court granted DOC's motion for judgment as a matter of law on the retaliation claims, holding that those claims were not within the scope of Clockedile's EEOC charge. The court noted that every court of appeals to address the issue, except the First Circuit, holds that "a Title VII claimant is not barred from litigating a retaliation claim that arises after the original EEOC charge is filed even though the claimant did not present the retaliation claim to the EEOC in an amended charge." Add. at 32-33. The First Circuit, the district court stated, "stands alone" in requiring a complainant to specifically notify the EEOC of a retaliation claim that occurs after the complainant filed the original charge. Id. at 33 (citing Johnson v. General Electric Co., 840 F.2d 132, 133-34 (1st Cir. 1988)). The district court rejected plaintiff's argument that this case differs from Johnson because Clockedile included allegations of retaliation in her original charge. Add. at 37. The district court concluded that, because the retaliation Clockedile alleged in court involved "different employees, a different time period, and different protected activities" from the retaliation she alleged in her charge, the retaliation allegation in the charge did not provide a basis to distinguish Johnson. Id. at 38. The district court recognized that "there is little to be gained and much to be lost" from the requirement that a plaintiff file an additional charge alleging retaliation for having filed a prior EEOC charge. Add. at 39-40. The district court noted that the charge-filing requirement was intended to give prompt notice to the employer of the claim and to provide an opportunity for early conciliation. Id. at 40. The district court observed, however, that, where the employee has alleged that the employer retaliated against her for filing a charge, the employee's assertion of such an allegation, whether true or not, "signals a deterioration in the relationship between the parties that makes early conciliation unlikely." Id. Consequently, the court stated, imposing a "strict filing requirement to post-charge retaliation claims will rarely serve the purpose that the requirement was intended to fulfill." Id. The district court also recognized that there is an enhanced risk in this Circuit that legitimate post-charge retaliation claims will be lost inadvertently unless employees know of Johnson's filing requirement. Id. at 40-41. The district court opined that, were it "writing on a clean slate," it would not require a "claimant to return to the EEOC before filing a post-charge retaliation claim." Id. at 41. The district court stated, however, that it is "bound by First Circuit precedent." Id. ARGUMENT A PLAINTIFF MAY RAISE IN COURT A CLAIM OF RETALIATION FOR FILING A CHARGE WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION WITHOUT FILING A SECOND CHARGE BECAUSE THE RETALIATION WOULD REASONABLY BE EXPECTED TO BE UNCOVERED IN AN EEOC INVESTIGATION OF THE ORIGINAL CHARGE. After a jury found that DOC had retaliated against Clockedile for filing a Title VII charge and awarded her $129,111 in damages, the district court granted judgment as a matter of law for DOC solely because Clockedile did not return to the EEOC after DOC retaliated against her for filing a charge of discrimination and file another charge specifically challenging the earlier retaliation. In so ruling, the court relied primarily on this court's decision in Johnson. We urge this court to reverse and to reconsider Johnson if necessary because, under established principles, a plaintiff may raise a claim of retaliation for filing a charge with the EEOC without filing a second charge because the retaliation could reasonably be expected to be uncovered in an EEOC investigation of the original charge. Section 706(f)(1) of Title VII requires an aggrieved individual to file a charge with the EEOC before instituting judicial action. 42 U.S.C. § 2000e-5(f)(1). It is undisputed that Clockedile filed a charge with the EEOC; the question presented is whether the content of her charge is sufficient to support the allegations in her judicial complaint. Title VII does not spell out how the allegations in an EEOC charge must relate to the allegations in an ensuing lawsuit.<3> However, the courts have consistently held that the charge-filing requirement, which is not a jurisdictional prerequisite to suit (see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)), should be interpreted flexibly to achieve the statutory purposes. See, e.g., Powers v. Grinnel Corp., 915 F.2d 34, 38-39 (1st Cir. 1990); Davis v. Sodexho, Columbia College Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998). Title VII's charge-filing requirement serves two purposes: to give notice of the alleged violation to the charged party and to provide the EEOC with the opportunity to achieve a voluntary resolution of the complaint. Powers, 915 F.2d at 38-39. See also Davis, 157 F.3d at 463 (stating in an ADEA case that "[t]he purpose of filing a charge of discrimination is to trigger the investigatory and conciliatory procedures of the EEOC so that the Commission may first attempt to obtain voluntary compliance with the law"); Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir. 1997) (same; Title VII); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970) (same; Title VII). Furthermore, courts have consistently held that EEOC charges should be liberally read because they are often filed by individuals unschooled in the technicalities of the law. See Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985), and cases cited therein (charges are read liberally "to effectuate the remedial purposes of Title VII, which itself depends on lay persons, often unschooled, to enforce its provisions"); Davis, 157 F.3d at 463 (same). In light of these principles, courts, including this court, have held that a charge need not include every allegation of a subsequent lawsuit. See, e.g., Powers, 915 F.2d at 38 (EEOC charge "is not a blueprint for the litigation to follow"); EEOC v. General Electric Co., 532 F.2d 359, 364 (4th Cir. 1976) (same); Sanchez, 431 F.2d at 466 ("the specific words of the charge of discrimination need not presage with literary exactitude the judicial pleadings which may follow"); Babrocky, 773 F.2d at 866 (same). Because the charge of discrimination is primarily intended to trigger the EEOC's investigatory and conciliatory procedure, it need not use "the exact wording which might be required in a judicial pleading." Davis, 157 F.3d at 463. Accordingly, all courts have recognized that a plaintiff may include in her judicial complaint allegations of discrimination that were not included in her EEOC charge so long as the claims in the judicial complaint "come within the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Powers, 915 F.2d at 39, quoting Sanchez, 431 F.2d at 466; Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) ("the scope of a judicial complaint is defined by the scope of the EEOC investigation that 'can reasonably be expected to grow out of the charge of discrimination'"); Kirkland v. Buffalo Board. of Ed., 622 F.2d 1066, 1068 (2d Cir. 1980) (a court may consider "claims of discrimination reasonably related to the allegations in the complaint filed with the EEOC"). As the district court recognized, every appellate court to consider the issue, save this court, has concluded that, under the scope-of-the-investigation standard, an allegation that the defendant retaliated against the plaintiff for filing an EEOC charge may be included in a Title VII lawsuit even if the plaintiff did not file a second charge with the EEOC complaining of the retaliation. Anjelino v. New York Times Co., 200 F.3d 73, 96 (3rd Cir. 1999); Anderson v. Reno, 190 F.3d 930, 938 (9th Cir. 1999); Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992); Carter v. South Central Bell, 912 F.2d 832, 841 (5th Cir. 1990); Ang v. Proctor & Gamble Co., 932 F.2d 540, 546-47 (6th Cir. 1991);<4> Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989); Wentz v. Maryland Casualty Co., 869 F.2d 1153, 1154 (8th Cir. 1989); Brown v. Hartshorne Public School District # 1, 864 F.2d 680 (10th Cir. 1988); Baker, 856 F.2d at 169; Kirkland, 622 F.2d at 1068.<5> These courts reason that there is no need for the plaintiff to file a second charge alleging retaliation with the EEOC because it is the original charge that is the impetus for the alleged retaliation and, therefore, the retaliation would be uncovered in a reasonable EEOC investigation of the original charge. As the Fourth Circuit observed, allowing a plaintiff to raise a retaliation claim for the first time in district court "is the inevitable corollary" of the generally accepted principle that a judicial complaint may include any matter that could reasonably be expected to grow out of an EEOC investigation. Nealon, 958 F.2d at 590. See also Anjelino, 200 F.3d at 96 (no need to file second EEOC charge alleging retaliation for filing first charge because the "new retaliation claim may fairly be considered [an] explanation [] of the original charge" that would be expected to grow out of the original charge of discrimination); Anderson, 190 F.3d at 938 (the 1997 retaliation is "a direct continuation of conduct that had been properly exhausted and specifically concerns it"); Owens v. New York City Housing Authority, 934 F.2d 405, 411 (2nd Cir. 1991) ("the allegations of retaliation are seen as stemming from the earlier discriminatory incident, including plaintiff's attempt to vindicate her federal rights against discrimination"); Wentz, 869 F.2d at 1154 (no need for second charge because plaintiff's retaliation claim "grew out of the discrimination charge he filed with the EEOC and, thus, is properly before this court"); Baker, 856 F.2d at 169 (no need for second charge "[b]ecause a claim of retaliation could reasonably be expected to grow out of the original charge of discrimination"); Kirkland, 662 F.2d at 1068 (the claim in the original charge and the allegation of retaliation were "directly related" because the decision to deny plaintiff employment in 1977 "was in retaliation for [plaintiff's] initiation of litigation regarding the July 1973 refusal to hire him"). The rule permitting a plaintiff to raise for the first time in her judicial complaint a claim that the defendant retaliated against her for having filed an earlier charge is "consistent with the purposes of the requirement of filing a charge with the [EEOC]." Seymore, 111 F.3d at 799. Because the defendant has notice of the original charge of discrimination and the retaliation claim is based "on essentially the same alleged discriminatory actions and resulted directly from [plaintiff's] attempts to assert her rights," the defendant has sufficient notice that the allegations of retaliation are at issue. Malarkey v. Texaco, Inc., 983 F.2d 1204, 1209 (2nd Cir. 1993); Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994) ("this is a sound rule, because the main functions of the requirement of an EEOC charge" - to give notice of the alleged violation and to effectuate voluntary compliance - "have already been fulfilled"). The retaliation that the jury found in this case would likely have been uncovered in a reasonable EEOC investigation of Clockedile's charge. Because employer retaliation poses a threat to the "integrity of the EEOC's law enforcement process," the Commission warns its investigators to "be alert" during "ongoing investigations of cases" for evidence of retaliation. See EEOC Compliance Manual (CCH), Vol. I, Section 13.1. Thus, it is reasonable to assume that, had the Commission begun an investigation of Clockedile's charge, the investigator would have sought information regarding whether, as a result of filing her charge, DOC had treated her adversely in any way. Moreover, it is reasonable to assume that Clockedile, who suffered at least eleven acts of retaliation in the several months after she filed her charge, would have told an EEOC investigator about these incidents during any investigation of the charge. The district court correctly observed that requiring Clockedile to file a second charge against DOC, which greeted her first charge with a campaign of reprisals, seems particularly unlikely to advance Title VII's purpose of encouraging voluntary resolution of complaints of discrimination. Add. at 40. ("Whether or not the retaliation actually occurred, the employee's assertion of a retaliation claim signals a deterioration in the relationship between the parties that makes early conciliation unlikely."). Requiring an employee "to return to the EEOC to complain about each retaliatory act that occurred after her original charge" would only create a "procedural barrier" contrary to the Title VII's remedial purpose. Malarkey, 983 F.2d at 1209; accord Anderson, 190 F.3d at 938; McKenzie v. Illinois Dep't of Transp., 92 F.3d 473, 482 (7th Cir. 1996); cf. Seymore, 111 F.3d at 799 (permitting a plaintiff to raise retaliation claims for the first time in court "obviates the need for filing repetitive complaints with the [EEOC] where the defendant engages in retaliatory actions after a complaint has been filed with the [Commission]"); Ang, 932 F.2d at 547 (such a rule "promotes efficiency by requiring only one filing"). A plaintiff who has suffered retaliation for filing a charge will understandably be "gun shy about inviting further retaliation by filing a second charge complaining of the first retaliation." Malhotra, 885 F.2d at 1312; Nealon, 958 F.2d at 590 (same). Thus, "eliminating this needless procedural barrier" of filing a second charge of retaliation "will deter employers from attempting to discourage employees from exercising their rights under" federal antidiscrimination statutes. McKenzie, 92 F.3d at 482. As the district court noted, Add. at 32-33, this is the only Court of Appeals to hold that a claim of retaliation for having filed a prior EEOC charge is not within the scope of the expected EEOC investigation and, therefore, must be made the subject of separate EEOC charge. In Johnson, the court held that the plaintiff's allegation in his judicial complaint that his employer retaliated against him for having filed an administrative charge of discrimination "could not have been expected to be part of the scope of the EEOC's investigation" because the plaintiff "has not alleged that he even informed the EEOC of the alleged retaliation." Johnson, 840 F.2d at 139. Because the holding and the reasoning of Johnson are at odds with the purpose of the charge-filing requirement, as well as the consistent holding of other courts of appeals, we urge this court to reconsider that decision. Johnson fails to consider, or even cite, the decisions of other appellate courts that had held at the time Johnson was decided that a plaintiff is not required to file a second administrative complaint in order to include in his judicial complaint an allegation of retaliation for filing a charge of discrimination. See, e.g., Kirkland, 622 F.2d at 1068; Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3rd Cir. 1984); Sanchez, 431 F.2d at 466. Instead, Johnson relied on Miller v. I.T. & T. Corp., 755 F.2d 20 (2d Cir. 1985), a case holding only that a claim alleging a discriminatory failure to rehire is not "reasonably related" to a charge challenging an earlier dismissal as discriminatory, 755 F.2d at 25-26. The Second Circuit, itself, has made clear that Miller is inapposite in cases that involve alleged retaliation that occurred as a result of the plaintiff's having filed a first charge of discrimination. In Owens, 934 F.2d at 410-11, the court stated, "Miller in no way alters the rule set forth in . . . Kirkland that a claim alleging retaliation for an employee's filing of charges with the EEOC is reasonably related to that complaint." In Johnson, the court based its conclusion that the plaintiff could not bring his retaliation claim in court on the fact that he did not "inform[] the EEOC of the alleged retaliation." Johnson, 840 F.2d at 139. There is no indication in Johnson as to whether the EEOC investigated the plaintiff's charge. Thus, it is unclear whether the court's reference to the plaintiff's failure to inform the EEOC meant that he did not mention retaliation in his charge or that he did not tell the Commission about the retaliation during its investigation. In either case, Johnson's reasoning is inconsistent with the general principle, which this court has embraced, that a plaintiff may bring Title VII claims in court that were not included in a charge if they would have been addressed in a reasonable investigation of the charge. See Powers, 915 F.2d at 39; Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996). If the court in Johnson meant that the plaintiff could not sue on the retaliation claim because he did not include the claim in his charge, Johnson cannot be reconciled with this court's decision in Powers, which holds that a plaintiff may include in a lawsuit claims that were not mentioned in her EEOC charge, so long as they satisfy the "'scope-of-the-charge' rule." Powers, 915 F.2d at 38-39. In Powers, the court concluded that, even though plaintiff's administrative charge "'said not a word'" about the defendant's reassignment policy, plaintiff could challenge that policy in court because it "reasonably could be expected to have come under administrative investigation" of the allegation in plaintiff's charge that defendant discriminatorily refused to "employ him elsewhere within the company." Id. This principle necessarily implies that plaintiffs who meet this standard can bring claims in court, even if they never informed the EEOC of the particular claim. See Howze, 750 F.2d at 1212 (judicial complaint properly included a claim of retaliation "which was never presented to or investigated by the EEOC," because it would have been encompassed in "a reasonable investigation by the EEOC"). If the court in Johnson meant that the plaintiff could not sue on his retaliation claim because he did not mention it to the EEOC during an investigation of his discrimination claim, that too is wrong. The scope of the "complaint that may be filed" in court is determined by the scope of the "EEOC investigation [that] could reasonably be expected to grow from the original complaint" and "not the scope of the actual investigation pursued." Powers, 915 F.2d at 39 n. 4, (quoting Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127-28 (7th Cir. 1989)). See also Howze, 750 F.2d at 1212 ("[w]hether the actual EEOC investigation uncovered any evidence of retaliation is of no consequence."); Babrocky, 773 F.2d at 864 n.2 (even where the investigation is "overly narrow, the proper inquiry would be into what EEOC investigation could reasonably be expected to grow from the original complaint," because "[c]onditioning a plaintiff's right to recover on the omissions of other parties would unduly undermine the remedial purposes of Title VII"). As in Johnson, the record here does not reflect whether there was an investigation of Clockedile's charge. However, as discussed above at page 11, the retaliation which the jury found would have come to light during a reasonable investigation of Clockedile's charge. Accordingly, Clockedile should have been permitted to recover for the harm she suffered as a result of the defendant's unlawful conduct. Even if this court declines to reconsider Johnson, it should not apply that case here because Clockedile, unlike the plaintiff in Johnson, included allegations of retaliation in her EEOC charge. In her EEOC charge, Clockedile stated that Martin, her supervisor, "retaliated against [her]" because she complained of his harassment. In court, Clockedile alleged that, after she filed her EEOC charge, "many supervisory and other employees of DOC began a campaign of retaliation" against her for having filed her charge and for complaining about sexual harassment of other employees. The district court held that the allegation of retaliation in the charge did not distinguish this case from Johnson because the retaliation Clockedile proved in court involved different individuals, a different time period and different protected activities. Add. at 38. The court noted that, in her EEOC charge, Clockedile complained that Martin retaliated against her in the summer of 1995 for her complaints to him about his harassment, while at trial Clockedile testified that other DOC supervisors retaliated against her later in 1995 and 1996 because she filed her complaint and complained about sexual harassment of other employees. Id. at 37-38. This ruling reflects an overly narrow view of the scope of a Title VII lawsuit that may grow out of an EEOC charge. The district court failed to recognize that the general rule that a reasonable investigation of a charge of discrimination should be expected to uncover retaliation for filing the charge has even more force in a case where the charge that would be under investigation itself contains allegations of retaliation. Applying the universally-accepted principle that a judicial complaint may encompass claims that would have come to light in a reasonable EEOC investigation, courts have routinely permitted plaintiffs whose EEOC charges contained allegations of retaliation to bring claims of retaliation in their judicial complaints, even though the allegations in the complaint involved different conduct, actors and time periods than the allegations of retaliation in the EEOC charge. In Waiters v. Parsons, 729 F.2d 233, 235 (3rd Cir. 1984), the plaintiff filed an EEOC charge in 1979 alleging that she had been retaliated against for complaining about sex discrimination. In 1982, without filing another EEOC charge, the plaintiff brought suit alleging that the defendant discharged her in retaliation for filing the 1979 charge. Id. at 236. The court of appeals held that her suit was not barred by her failure to file a charge even though the allegations in her complaint involved different officials, different retaliatory acts, and occurred more than thirty months apart from the acts alleged in her charge. Id. at 238. The court reasoned that because her charge and the lawsuit alleged the same grievance -- retaliation -- the allegations in the plaintiff's complaint were within the scope of a reasonable investigation of the earlier charge, even though "the allegedly discriminatory officials and acts are different."<6> Id. at 238. See also Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (because plaintiff's complaint and her EEOC charge alleged retaliatory actions by defendant, allegations of retaliation made in plaintiff's complaint, but not in her administrative charge, "would be expected to follow from an administrative investigation," even though retaliatory acts were different); cf. Martin v. Nanny and the Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir. 1993) (where plaintiff only alleged harassment and termination by defendant's owner in her EEOC charge, but alleged harassment by two other employees in her judicial complaint, the court concluded that the complaint was proper because the harassment by the two employees "could reasonably have been expected to come to light in the scope of the investigation" of plaintiff's charge). Similarly, in this case, Clockedile's allegation that DOC retaliated against her for filing her charge and complaining about sexual harassment of others, even though involving different individuals and conduct from that alleged in her charge, could be expected to be discovered in a reasonable investigation of her charge. An investigator looking into Clockedile's allegations of retaliation in her EEOC charge could be expected to ask her about other acts of retaliation by DOC. Further, during an investigation of her charge, Clockedile could be expected to tell an investigator about the later pattern of retaliation that she alleged in her complaint. The district court's reliance on this court's decision in Lattimore is mistaken. In that case, the African-American plaintiff was injured at work and filed for worker's compensation, claiming that he was totally disabled. When plaintiff did not return to work as defendant ordered, defendant fired him. Lattimore, 99 F.3d at 460-61. After his discharge, plaintiff filed an EEOC charge alleging that, "unlike white workers who had been injured and applied for worker's compensation benefits, he was directed to return to work and was fired when he refused." Id. at 464. However, in his judicial complaint, the plaintiff also alleged that, prior to his March 16 injury, his supervisor had made racially derogatory remarks to plaintiff. A jury found that plaintiff was racially harassed and awarded him $400,000. This court reversed, holding that defendant was entitled to judgment as a matter of law because plaintiff's charge did not mention any "incidents of harassment" by his supervisor "or anyone else." Lattimore, 99 F.3d at 465. The court emphasized that plaintiff's charge "focused exclusively on his termination," and, since plaintiff's supervisor was not involved in that decision, the supervisor's conduct before plaintiff's termination could not be expected to come within the scope of an investigation of plaintiff's EEOC charge. Id. The facts here differ significantly from those in Lattimore. In that case, the court gave two reasons why plaintiff's harassment allegation could not be have been expected to arise in the investigation: 1) plaintiff did not allege harassment in his EEOC charge, and 2) the plaintiff's supervisor was not involved in the discrimination plaintiff did allege -- his termination -- therefore, it is not likely that the supervisor's conduct would have been investigated. Here, unlike in Lattimore, Clockedile specifically included in her charge an allegation of retaliation. As Lattimore recognizes, "the direction and scope of the investigation are guided by the allegations contained in the charge." 99 F.3d at 465. Thus, it is reasonable to believe that, in investigating the retaliation allegation in her charge, the EEOC would have learned about the retaliatory conduct that the jury found to have occurred between the time Clockedile filed her charge and the time she left her job. See Smith, 202 F.3d at 248, discussed supra at page 17. CONCLUSION For the foregoing reasons, the district court's award of judgment as a matter of law for DOC should be reversed. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7010 Washington, D.C. 20507 (202) 663-4716 I hereby certify, pursuant to Rule 32(7)(B) & (C), that this brief was prepared in 14 point Times New Roman and that the word count is 5,582. JOHN F. SUHRE Attorney CERTIFICATE OF SERVICE I hereby certify that one copy of the foregoing brief was mailed, first class, postage prepaid, on this the 3rd day of July, 2000, to each of the following counsel of record: Michael J. Sheehan, Esq. 58 Pleasant Street Concord, New Hampshire 03301 Counsel for Plaintiff-Appellant/Cross-Appellee Nancy J. Smith, Esq. Assistant Attorney General Office of the Attorney General Civil Bureau State House Annex 33 Capitol Street Concord, New Hampshire 03301-6397 Counsel for Defendant-Appellee/Cross-Appellant JOHN F. SUHRE Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street N.W., Room 7016 Washington, D.C. 20507 (202) 663-4716 1 The Commission takes no position on any other issues raised in this appeal. 2 The New Hampshire Human Rights Commission and the EEOC have entered into a worksharing agreement the deems a charge filed with the state agency also to be filed with the EEOC. Addendum ("Add.") at 26 n.4. 3 The Age Discrimination in Employment Act and the Americans with Disabilities Act have the same filing requirements and, therefore, the arguments we make in this Title VII case are also applicable to EEOC charges and judicial complaints made in those statutes. See Age Discrimination in Employment Act of 1967, 29 U.S.C § 626(d); Title I of the Americans With Disabilities Act of 1990, 42 U.S.C. § 12117(a). 4 In Ang and in Abeita v. Transamerica, 159 F.3d 246, 254 (6th Cir. 1998), the court of appeals acknowledged the general rule that retaliation claims growing out of an earlier charge are exempt from Title VII's charge-filing requirements. However, in both of those cases, the general rule was not at issue because the plaintiff was attempting to bring retaliation claims in court that had occurred before the EEOC charge was filed. 5 Only the D.C. Circuit has not addressed the question. 6 This case presents much more favorable facts than Waiters, where the alleged retaliation occurred over thirty months after the plaintiff's charge was filed and investigated. Here, the pattern of retaliation Clockedile alleges in court began shortly after she filed her charge and continued during the pendency of her charge with the EEOC.