Simms v OK Respondents Brief in Opposition

    No. 98-1884

In The

Supreme Court of the United States
---------------- ♦-----------------

CEDRIC D. SIMMS,
Petitioner,

v.

THE STATE OF OKLAHOMA, ex rel,
THE DEPARTMENT OF MENTAL HEALTH 

AND SUBSTANCE ABUSE SERVICES,
A STATE AGENCY,

Respondent.
------------- — ♦ ----------------

On Petition For Writ Of Certiorari 
To The United States Court Of Appeals 

For The Tenth Circuit
--------------4--------------

RESPONDENT'S BRIEF IN OPPOSITION
---------------- ♦-----------------

W. C raig  S utter  
General Counsel 

P enny  B roughton  M cC racken  
Deputy General Counsel 

Department of Mental Health and 
Substance Abuse Services 

(Counsel of Record)
1200 N.E. 13th 
P.O. Box 53277

Oklahoma City, OK 73152-3277 
(405) 522-3871

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

TABLE OF CONTENTS
Page

OPINIONS AND JUDGMENT BELOW.......................  1

STATUTORY AND REGULATORY PROVISIONS 
INVOLVED.....................................................................  1

STATEMENT OF THE CASE.................   2

SUMMARY OF THE ARGUMENT.......................  6

ARGUMENT.......................................................................  8

I. AMENDMENTS MAY RELATE BACK TO THE 
ORIGINAL DATE OF FILING IF THEY RELATE 
TO OR GROW OUT OF THE SUBJECT MATTER 
OF THE ORIGINAL CHARGE.............................  8

II. THIS CASE CONCERNS A VERY NARROW 
ISSUE THAT DOES NOT WARRANT SCRU­
TINY OF THE UNITED STATES SUPREME 
COURT...............    11

III. PETITIONER HAS POINTED TO NO PERTI­
NENT CASE LAW SUGGESTING A SPLIT IN 
THE CIRCUITS INVOLVING THE ISSUE OF 
W HETHER AM ENDM ENTS ALLEGING 
RETALIATION BASED ON EVENTS THAT 
TOOK PLACE PRIOR TO THE FILING OF THE
ORIGINAL CHARGE RELATE BACK TO THE 
DATE OF THE ORIGINAL FILING.....................  17

IV. THE TENTH CIRCUIT DID NOT ADOPT A 
"HYPER-TECHNICAL" RULE INTERPRETING 
29 CFR § 1601.12(b)............................................ .. 25

CONCLUSION  ............... .................................  29



TABLE OF AUTHORITIES
Page

C ases

Adames v. Mitsubishi Bank, Ltd., 751 F.Supp. 1565 
(E.D.N.Y. 1990).................................................... 21, 22,

Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 
L,Ed.2d 147, 94 S.Ct. 1011 (1974).................................

Anderson v. Block, 807 F.2d 145 (8th Cir. 1986)............

Ang v. The Proctor and Gamble Co., 932 F.2d 540 (6th 
Cir. 1991)  ......... ............... . 15, 24,

Babrocky v. jewel Pood Co., 773 F.2d 857 (7th Cir. 
1985).....................................................................................

Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th 
Cir. 1988)...........................................................................

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), cert, 
denied, 502 U.S. 1005, 116 L.Ed.2d 658, 112 S.Ct.
640 (1991)..................................................................... 12,

Brown v. Hartshorne Public Sch. Dist. No. 1, 864 F.2d 
680 (10th Cir. 1988)..........................................................

Carter v. South Cent. Bell, 912 F.2d 832 (5th Cir. 
1990), cert, denied, 501 U.S. 1260, 115 L.Ed.2d 
1079, 111 S.Ct. 2916 (1991)............................................

Cheek v. Western and Southern Life Insurance Co., 31
F.3d 497 (7th Cir. 1994).............................................. 9,

Chisholm v. United States Postal Serv., 665 F.2d 482 
(4th Cir. 1981)............................................................. 10,

Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th 
Cir. 1968)................. .................................................

23

. 8

19

28

. 9

13

24

14

13

27

24

. 9



Ill

Conroy v. Boston Edison Co., 758 F.Supp. 54 (D.
Mass. 1991)................................................................. 21, 22

Dent v. St. Louis-San Francisco Railway Co., 406
F.2ed 399 (5th Cir. 1969)..................................................... 9

EEOC v. Bailey Co., Inc., 563 F.2d 439 (6th Cir.
1977) , cert, denied, 435 U.S. 915, 98 S.Ct. 1468, 55
L.Ed.2d 506 (1978)............................................................... 8

EEOC v. General Electric Co., 532 F.2d 359 (4th Cir.
1976)........................................................................................ 9

Evans v. Technologies Applications & Serv. Co., 80
F.3d 954 (4th Cir. 1996)........................... ............ . .17, 18

Fellows v. Universal Restaurants, Inc., 701 F.2d 447 
(5th Cir. 1983), cert, denied, 429 U.S. 986, 107 
S.Ct. 102, 78 L.Ed.2d 106 (1983)............................   10

Hicks v. ABT Associates, 572 F.2d 960 (3rd Cir.
1978) ......................................... ................................... 19, 28

Hill v. Western Electric Co., 672 F.2d 381 (4th Cir.
1982), cert, denied, 459 U.S. 981 (1982)..........................8

Hornsby v. Conoco, Inc., I l l  F.2d 243 (5th Cir. 1985) . . . .  19

Jenkins v. Blue Cross Mut. Hasp. Ins., Inc., 538 F.2d 
164 (7th Cir. 1976) (en banc), cert, denied, 429 U.S.
986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976)....................9

Jones v. Runyon, 91 F.3d 1398 (10th Cir. 1996).............  27

Kirkland v. Buffalo Bd. of Educ., 622 F.2d 1066 (2nd
Cir. 1980)......... .......................................................... 10, 13

Love v. Pullman Co., 404 U.S. 522, 30 L.Ed.2d 679,
92 S.Ct. 616 (1972)............................................................... 8

Malarkey v. Texaco, Inc., 983 F.2d 1204 (2nd Cir.
1993)......................................................................   15

TABLE OF AUTHORITIES -  Continued
Page



IV

McKenzie v. Illinois Dept, of Trans., 93 F.3d 473 (7th
Cir. 1996)..................................................................... 12, 13

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992)................. 8

O'Rourke v. Continental Casualty Co., 983 F.2d 94
(7th Cir. 1993)................................    16

Oatis v. Crown Zellerback Corp., 398 F.2d 496 (5th
Cir. 1968)................... ....................................................... 9

Oubichion v. North American Rockwell Corp., 482
F.2d 569 (9th Cir. 1973).......................................................9

Pejic v. Hughes Helicopters, Inc., 840 F.2d 667 (9th
Cir. 1988) ............................... .............................  17, 18, 21

Rush v. McDonald's Corporation, 966 F.2d 1104 (7th
Cir. 1992)...............................................................................8

Satz v. ITT Fin. Corp., 619 F.2d 738 (8th Cir. 1980) . . . .  10

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th 
Cir. 1970)............................................................. 20, 21, 28

Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124
(7th Cir. 1989)......................................................... .8, 9

Seymore v. Shawver & Sons, Inc., I l l  F.3d 794,
(10th Cir. 1997), cert, denied, 11 S.Ct. 342 
(1997)............................................................  14, 16, 24, 26

Steffen v. Meridian Life Ins. Co., 859 F.2d 534 (7th 
Cir. 1988), cert, denied, 491 U.S. 907, 109 S.Ct.
3191, 105 L.Ed.2d 699 (1989)........................................  15

Trevino-Barton v. Pittsburgh Nat. Bank, 919 F.2d 874
(3rd Cir. 1990)................................................................... 8

Waiters v. Parsons, 729 F.2d 233 (3rd Cir. 1984).......... 13

TABLE OF AUTHORITIES -  Continued
Page



V

Washington v. Kroger Co., 671 F.2d 1072 (8th Cir.

TABLE OF AUTHORITIES -  Continued
Page

1982)....................................................................................  20

Zanders v. O'Gara-Hess, 952 F.2d 404 (6th Cir. 1992) . . . .  19

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71
L.Ed.2d 234, 102 S.Ct. 1127 (1982)...............................9

S tatutes

42 U.S.C. § 2000e-5(e) and (f)(1) (1994)...........................8

R egulations

29 CFR § 1601.12(b) ......................................10, 11, 25, 28



1

OPINIONS AND JUDGMENT BELOW

Simms v. State of Oklahoma, ex rel., Department of Mental 
Health and Substance Abuse Services, 165 F.3d 1321 (10th 
Cir. 1999).

Simms v. State of Oklahoma, ex rel., Department of Mental 
Health and Substance Abuse Services, Case No. CIV-96-2158- 
A, United States, District Court, Western District of Okla­
homa, Judgment entered on September 3, 1997.

— —--------- ♦ ---------------

STATUTORY AND REGULATORY 
PROVISIONS INVOLVED

Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. §§ 2000e et seq. 29 CFR § 1601.12(b):

Notwithstanding the provisions of paragraph 
(a) of this section, a charge is deemed filed when 
the Commission receives from the person 
aggrieved a written statement sufficiently pre­
cise to identify the parties and to describe gen­
erally the action or practices complained of. A 
charge may be amended to cure technical 
defects or omissions, including failure to swear 
to the charge, or to clarify and amplify allega­
tions made therein, and such amendments relate 
back to the original filing date. However, an 
amendment alleging additional acts constituting 
unlawful employment practices not directly 
related to or growing out of the subject matter of 
the original charge will be permitted only where 
at the date of the amendment the allegation

RESPONDENT'S BRIEF IN OPPOSITION



2

could have been timely filed as a separate 
charge.

---------------- ♦-----------------

STATEMENT OF THE CASE

Petitioner, Cedric Simms, began working for Respon­
dent, the Department of Mental Health and Substance 
Abuse Services, a state agency, on April 29, 1991. Peti­
tioner's Petition p. 2a. On October 12, 1992, after being 
denied a promotion, Petitioner filed a Charge of Discrimi­
nation, Charge No. 311930053 ("Charge I") alleging he 
had been discriminated against because of his race. Id. On 
December 21, 1993 he filed a Title VII lawsuit ("Simms I") 
in the United States District Court, Western District of 
Oklahoma. On April 13, 1994, a settlement was reached, 
wherein Petitioner was promoted to the position of Fire & 
Safety Officer II with Griffin Memorial Hospital, Norman, 
Oklahoma. He began his supervisory duties June 20, 
1994. Id.

Ten days later, on June 30, 1994, Respondent posted a 
job announcement for the position of Fire and Safety 
Officer Supervisor. Id. The posting stated "PREFERENCE 
WILL BE GIVEN TO APPLICANTS WITH SUPERVISORY 
EXPERIENCE." Id. Petitioner applied for the position. Id. 
He and another candidate, a white male, were selected as 
the top two candidates after a first round of interviews. 
Id. Petitioner had a score of 1,866 out of 2,000, and the 
white male had a score of 1,835 out of 2,000, a 1.55% 
difference. Id. at 12a, n.4. A second interview was held to 
make the final selection and on August 15, 1994 the white 
male candidate, who had greater supervisory experience,



3

was chosen. Id. at 2a. Because he was not selected, on 
October 31, 1994, Petitioner filed a second Charge of 
Discrimination, Charge No. 311950136 ("Charge II") 
alleging he was discriminated against because of his race. 
In the section of the charge reading "The Particulars 
Are," Petitioner stated:

I. Effective August 15, 1994, I was denied 
promotion to the position of Fire and 
Safety Officer Supervisor.

II. Carol Kellison (Director Management Sup­
port Services) informed me by written 
notice that a better experienced candidate 
had been selected.

III. I believe I have been discriminated against 
because of my race, Black, in violation of 
Title VII of the Civil Rights Act of 1964, as 
amended.

Id. at 29a.

In the section of Charge II reading "Date Discrimina­
tion Took Place," Petitioner listed August 15, 1994 as the 
"earliest" and "latest" date. Id. In the section reading 
"Cause of Discrimination Based On," Petitioner checked 
the box identified as "Race." Id. Petitioner did not check 
the box identified as "Retaliation" or allege any facts that 
would give rise to an inference that retaliation had taken 
place. Id. No mention of the previous EEOC charge or any 
other allegedly wrongful acts were made. Id.

On June 5, 1995, Petitioner filed a third charge of 
discrimination, Charge No. 311950898, ("Charge III"), 
contending various work-related disciplines imposed 
upon him were retaliation for having filed Charge II. Id.



4

at 3a. A right-to-sue letter on Charge III was issued by the 
Equal Employment Opportunity Commission ("EEOC") 
on November 29, 1995. Id. He brought a Title VII action in 
the federal district court of the Western District of Okla­
homa on January 12, 1996, alleging race-based employ­
ment discrimination and retaliation, including allegations 
of retaliatory acts occurring prior to 1995 that were not 
covered by Charge III {"Simms II"). Id. At the time the suit 
was brought, he had not yet received a right to sue letter 
on Charge II. Id. On July 13, 1996, Respondent filed a 
motion for partial summary judgment in Simms II on the 
grounds Petitioner had failed to exhaust his administra­
tive remedies as to the race discrimination and pre-1995 
retaliation claims. Id.

Two days later, on July 15, 1996, Petitioner filed an 
amendment to Charge II, alleging pre-1995 acts of retalia­
tion. In the section of the charge reading, "The Particulars 
Are," Petitioner stated:

I. Beginning in May of 1994 and continuing 
until the present, I have had my super­
visory duties with held from my fire and 
safety Officer II position in direct violation 
of a court order entered in a previous 
EEOC charge. Effective August 15, 1994, I 
was denied promotion to the position of 
Fire and Safety Officer Supervisor.

II. The reasons given for withholding of 
supervisory duties and other disciplinary 
acts, I believe were pretextural. No other 
reason has been given for the withholding 
of supervisory duties. Carol Kellison 
(Director Management Support Services)



5

informed me by written notice that a bet­
ter experienced candidate had been 
selected.

III. I believe I have been discriminated against 
because of my race, Black, and retaliated 
against for filing previous charges, and for 
objecting to unlawful employment prac­
tices, in violation of Title VII of the Civil 
Rights Act of 1964, as amended.

This charge has been amended to include retaliation, and 
the continuing violation. Id. at 31a.

In the section reading "Date Discrimination Took 
Place," Petitioner listed May 5, 1994 as the "earliest" and 
September 22, 1995 as the "latest" date. Id. Petitioner 
checked the boxes identified as "Retaliation" and "Race." 
Id.

On September 3, 1996, the district court in Simms II 
granted Respondent's motion for partial summary judg­
ment leaving only the post-1995 retaliation claims for 
trial. Id. at 3a-4a. On September 25, 1996, the EEOC issued 
a right to sue on Charge II, and Petitioner filed this suit 
("Simms III"). Id. at 4a. On January 6, 1997, Petitioner 
filed a motion to consolidate Simms II and Simms III. Id. 
The motion to consolidate was denied because at the time 
it was filed, Simms II was scheduled to begin jury trial in 
a week. Id.

On June 16, 1997, Respondent filed a motion for 
summary judgment in Simms III claiming Petitioner's 
pre-1995 retaliation claims were time-barred and did not 
relate back to Charge II, the underlying EEOC charge. Id. 
On September 3, 1997, the district court found Peti­
tioner's amendment was neither timely or related to the



6

activities contained in Charge II. Id. The Order was 
appealed to the Tenth Circuit which, in a published opin­
ion, held Petitioner had failed to exhaust his administra­
tive remedies regarding the retaliation claims. Id. at 16a. 
Thereafter, it denied Petitioner's request for rehearing, 
leading to this Petition for Certiorari.

---------------- ♦-----------------

SUMMARY OF THE ARGUMENT

The issues raised in this appeal touch on a very 
narrow issue that does not warrant the perusal of the 
United States Supreme Court. In Petitioner's Petition for 
Certiorari, Petitioners couch the Question Presented in 
terms far too broad for the facts of the case presented, as 
follows:

Does an amendment to an EEOC charge of dis­
crimination relate back to the date of the origi­
nal charge of the purpose of complying with the 
statute of limitations for Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., where the amendment alleges an 
additional "legal theory" that grows out of the 
same set of operative facts that were in the 
original charge?

This case, with its odd fact pattern, turned on far more 
narrow grounds that do not give rise to the weighty 
considerations espoused by Petitioner. The only pertinent 
issue arising from this case for this court to consider is:

Does an amendment to an EEOC charge of dis­
crimination adding a new legal theory of retalia­
tion based on facts that occurred prior to filing 
the original charge relate back to the date of the



7

original charge of the purpose of complying 
with the statute of limitation for Title VII of the 
Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 2000e et seq., when the original charge makes 
no reference to any facts  that would demon­
strate  pre-filin g  reta lia tion , and xvhen the 
EEOC com p la in t from  w hich r e ta lia t io n  
allegedly flow ed  is not before the Court?

Due to the unique facts in this case, Petitioner has relied 
upon cases that are not on point and cannot be used to 
demonstrate a split in the Circuits.

Further, a careful reading of the Tenth Circuit Opin­
ion does not support Petitioner's claim it has adopted a 
hyper-technical rule that erects improper procedural 
roadblocks which will compromise the purposes of Title 
VII. Because the Tenth Circuit examined what was alleged 
in Petitioner's original charge to determine whether the 
amendment reasonably related back to the date of the 
filing, it cannot be said its holding espouses a hyper- 
technical rule that will impermissibly undermine the 
laudable goals of Title VII. Further, Petitioner has pro­
vided this Court no caselaw interpreting the unique fact 
pattern of this case that contradicts the analysis of the 
Tenth Circuit or evidences a split in the Circuits.

♦



8

ARGUMENT

I, AMENDMENTS MAY RELATE BACK TO THE 
ORIGINAL DATE OF FILING IF THEY RELATE TO 
OR GROW OUT OF THE SUBJECT MATTER OF 
THE ORIGINAL CHARGE.

Petitioner's claim he was disciplined in retaliation for 
having filed an EEOC charge in 1992 was dismissed 
because he failed to exhaust his administrative remedies. 
It is wTell settled that in order for federal courts to have 
subject matter jurisdiction of Title VII claims, the claimant 
must first unsuccessfully pursue administrative relief. See 
42 U.S.C. § 2000e-5(e) and (f)(1) (1994); See Love v. Pullman 
Co., 404 U.S. 522, 30 L.Ed.2d 679, 92 S.Ct. 616 (1972); Rush 
v. McDonald's Corporation, 966 F.2d 1104, 1110, n.20 (7th 
Cir. 1992); Trevino-Barton v. Pittsburgh Nat. Bank, 919 F.2d 
874, 878 (3rd Cir. 1990).

Once a charge is made and a right to sue letter is 
issued, a plaintiff may bring suit in federal court. The 
scope of the complaint is limited to charges set forth in 
the EEOC charge. See Alexander v. Gardner-Denver Co., 415 
U.S. 36, 47, 39 L.Ed.2d 147, 94 S.Ct. 1011 (1974). Rush, 966 
F.2d at 1110 n.20; Nealon v. Stone, 958 F.2d 584, 590 (4th 
Cir. 1992); Hill v. Western Electric Co., 672 F.2d 381, 390 
n.6 (4th Cir. 1982) (quoting Sanchez v. Standard Brands, 
Inc., 431 F.2d 455, 466 (5th Cir. 1970)), cert, denied, 459 U.S. 
981 (1982); EEOC v. Bailey Co., Inc., 563 F.2d 439, 446 (6th 
Cir. 1977), cert, denied, 435 U.S. 915, 98 S.Ct. 1468, 55 
L.Ed.2d 506 (1978) (The judicial complaint must be lim­
ited to the scope of the EEOC investigation reasonably 
expected to grow out of the charge of discrimination; See 
also Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127



(7th Cir. 1989); EEOC v. General Electric Co., 532 F.2d 359, 
373 (4th Cir. 1976).

Although the rule is not jurisdictional, Zipes v. Trans 
World Airlines, Inc., 455 U.S. 385, 392, 71 L.Ed.2d 234, 102 
S.Ct. 1127 (1982), it is a condition precedent with which 
Title VII plaintiffs must comply. Babrocky v. Jewel Food Co., 
773 F.2d 857, 863-64 (7th Cir. 1985). Allowing a complaint 
to encompass allegations outside the ambit of the predi­
cate EEOC charge would frustrate the EEOC's investiga­
tory and conciliatory role, as well as deprive the charged 
party of notice of the charge. Cheek v. Western and South­
ern Life Insurance Co., 31 F.3d 497, 500 (7th Cir. 1994).

When an employee seeks judicial relief for incidents 
not listed in his original charge to the EEOC, the judicial 
complaint nevertheless may encompass any discrimina­
tion like or reasonably related to the allegations of the 
EEOC charge, including new acts occurring during the 
pendency of the charge before the EEOC. See Oubichion v. 
North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 
1973) (citing to Danner v. Phillips Petroleum Co., 447 F.2d 
159, 162 (5th Cir. 1971); Tipler v. E.I. duPont deNemours & 
Co., 443 F.2d 125, 131 (6th Cir. 1971); Sanchez, 431 F.2d at 
465-67; cf. Macklin v. Spector Freight Systems, Inc., 156 
U.S.App. D.C. 69, 478 F.2d 979 (D.C. Cir. 1973)) (emphasis 
added); See also Schnellbaecher v. Baskin Clothing Co., 887 
F.2d 124 (7th Cir. 1989); Jenkins v. Blue Cross Mut. Hosp. 
Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc), cert, 
denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976); 
Dent v. St. Louis-San Francisco Railway Co., 406 F.2d 399, 
403 (5th Cir. 1969); Choate v. Caterpillar Tractor Co., 402 
F.2d 357, 359 (7th Cir. 1968); Oatis v. Crown Zellerbach



10

Corp., 398 F.2d 496, 497-498 (5th Cir. 1968). See, e.g., Fel­
lows v. Universal Restaurants, Inc., 701 F.2d 447, 464 (5th 
Cir. 1983), cert, denied, 429 U.S. 986, 107 S.Ct. 102, 78 
l.Ed.2d 106 (1983); Chisholm v. United States Postal Serv., 
665 F.2d 482, 491 (4th Cir. 1981); Kirkland v. Buffalo Bd. Of 
Educ., 622 F.2d 1066, 1068 (2nd Cir. 1980); Satz v. ITT Fin. 
Corp., 619 F.2d 738, 741 (8th Cir. 1980).

In Charge II, the underlying charge, Petitioner 
alleged only that he had been discriminated against on 
the basis of race. Petitioner's amendment included a new 
theory of retaliation and pre-filing acts he alleged were 
done in retaliation for filing Charge I. Proper amend­
ments must meet the standards set forth in 29 CFR 
§ 1601.12(b), which states as follows:

Notwithstanding the provisions of paragraph 
(a) of this section, a charge is deemed filed when 
the Commission receives from the person 
aggrieved a written statement sufficiently pre­
cise to identify the parties and to describe gen­
erally the action or practices complained of. A 
charge may be amended to cure technical 
defects or omissions, including failure to swear 
to the charge, or to clarify and amplify allega­
tions made therein, and such amendments relate 
back to the original filing date. However, an 
amendment alleging additional acts constituting 
unlawful employment practices not directly 
related to or growing out of the subject matter of 
the original charge will be permitted only where 
at the date of the amendment the allegation 
could have been timely filed as a separate 
charge.

The Tenth Circuit found the amendment did not rea­
sonably relate to the original charge. Petitioner attempts 
to persuade this Court he was denied the right to bring



11

his retaliation claims because the Tenth Circuit took an 
overly narrow view of the EEOC regulation. This argu­
ment is without merit. An objective look at the facts of 
the case reveals he simply failed to set forth information 
in his original charge upon which to base a retaliation 
claim. The Tenth Circuit opinion turned on this issue 
rather than on a "hyper-technical" interpretation of 29 
CFR § 1601.12(b).

II. THIS CASE CONCERNS A VERY NARROW ISSUE 
THAT DOES NOT WARRANT SCRUTINY OF THE 
UNITED STATES SUPREME COURT

Petitioners couch the Question Presented in terms far 
too broad for the facts of the case presented, as follows:

Does an amendment to an EEOC charge of dis­
crimination relate back to the date of the origi­
nal charge of the purpose of complying with the 
statute of limitations for Title VII of the Civil 
Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., where the amendment alleges an 
additional "legal theory" that grows out of the 
same set of operative facts that were in the 
original charge?

This case turned on a far more narrow issue that does not 
give rise to the weighty considerations espoused by Peti­
tioner. The only pertinent issue arising from this case 
was:

Does an amendment to an EEOC charge of dis­
crimination adding a new legal theory of retalia­
tion based on facts that occurred prior to filing 
the original charge, relate back to the date of the 
original charge of the purpose of complying



12

with the statute of limitation for Title VII of the 
Civil Rights Act of 1964, as amended, 42 U.S.C.
§§ 20QQe et seq., when the original charge makes 
no reference to any facts  that would demon­
strate  p re-filin g  reta lia tion , and when the 
EEOC charge from  which retaliation allegedly  
flow ed, is not before the Court?

The bulk of Petitioner's Petition is based on his claim 
the Circuits are split on the issue of what standard to 
apply in determining whether amendments relate back to 
the date of the original charge. However, retaliation 
charges are comprised of fundamentally different ele­
ments than are discrimination claims, and only a compar­
ison of similar cases is helpful in making such 
observation.

Actionable retaliation, by its very nature, is an act 
taken in reaction to the protected conduct of a plaintiff. 
McKenzie v. Illinois Dept, of Trans., 93 F.3d 473 (7th Cir. 
1996). Unless a plaintiff indicates in the original charge 
that he engaged in some protected conduct that led to the 
defendant's alleged retaliatory acts, there arises no rea­
sonable inference that retaliation has taken place. Further, 
even a layperson would have no difficulty explaining this 
in plain language, i.e., "I was fired because I filed an 
EEOC charge."

Petitioner makes no claim there is a dispute among 
the Circuits as to whether post-filing claims of retaliation 
relate back to the original date of filing, and indeed, the 
Circuits appear to be in agreement a plaintiff need not file 
additional charges for retaliatory acts that occur after the 
original charge is filed. See Bouman v. Block, 940 F.2d 1211



13

(9th Cir. 1991) (holding that retaliation claim was "rea­
sonably related" to prior sex discrimination claim), cert, 
denied, 502 U.S. 1005, 116 L.Ed.2d 658, 112 S.Ct. 640 
(1991); Carter v. South Cent. Bell, 912 F.2d 832 (5th Cir. 
1990) (reasoning that because other Title VII claims were 
properly before court, jurisdiction existed over retaliatory 
termination claim as well), cert, denied, 501 U.S. 1260, 115 
L.Ed.2d 1079, 111 S.Ct. 2916 (1991); Baker v. Buckeye Cellu­
lose Corp., 856 F.2d 167 (11th Cir. 1988); Kirkland v. Buffalo 
Bd. Of Educ., 622 F.2d 1066 (2nd Cir. 1980) (holding that 
act of retaliation was "directly related" to plaintiff's ini­
tiation of litigation); But see Waiters v. Parsons, 729 F.2d 
233, 237 n.10 (3rd Cir. 1984) (declining to adopt a "per se 
rule").

This position makes sense. As stated by the Court in 
McKenzie v. Illinois Dept, of Trans., 92 F.3d 473 (7th Cir. 
1996):

It is the nature of retaliation claims that they 
arise after the filing of the EEOC charge. Requir­
ing prior resort to the EEOC would mean that 
two charges would have to be filed in a retalia­
tion case -  a double filing that would serve no 
purpose except to create additional procedural 
technicalities when a single filing would com­
pete with the intent of Title VII. We are reluctant 
to erect a needless procedural barrier to the 
private claimant under Title VII, especially since 
the EEOC relies largely upon the private lawsuit 
to obtain the goals of Title VII. Intertwined with 
the practical reason for our holding is a strong 
policy justification. Eliminating this needless 
procedural barrier will deter employers from



14

attempting to discourage employees from exer­
cising their rights under Title VII. (Citations 
omitted). Id. at 482.

The Circuits have had no difficulty finding retalia­
tory acts that occur after the original charge is filed relate 
back to the date of the original filing, including the Tenth 
Circuit. See Seymore v. Shawver & Sons, Inc., I l l  F.3d 794, 
799 (10th Cir. 1997), cert, denied, 11 S.Ct. 342 (1997); Brown 
v. Hartshorne Public Sch. Dist. No. 1, 864 F.2d 680 (10th Cir. 
1988) (holding that retaliation arising out of first EEOC 
filing was "reasonably related" to that filing, obviating 
the need for a second EEOC charge). These cases address­
ing retaliation charges directly contradict Petitioner's 
claim the Tenth Circuit has a rigid approach to allowing 
the relation back of amendments to the date of the origi­
nal charge.

However, in all the cases listed that held the amend­
ment related back, the alleged retaliatory acts occurred as 
a result of filing the underlying EEOC charge. In other 
words, the alleged retaliatory acts took place after the 
filing of the underlying charge and during its pendency. 
The sticking point in this case is that the alleged retalia­
tory acts did not occur as a result of the filing of the 
underlying charge or during its pendency. Instead, in his 
amendment, Petitioner tried to add a claim of retaliation 
based on facts that allegedly occurred before he filed the 
underlying charge, notwithstanding that he did not so 
much as hint at them in Charge II. The Circuits that have 
faced this issue have not been willing to find such acts to 
be reasonably related to the original charge, and Peti­
tioner has pointed to no cases in support of such proposi­
tion, much less a split in the Circuits.



15

For example, in Malarkey v. Texaco, Inc., 983 F.2d 1204 
(2nd Cir. 1993), the plaintiff asked the Second Circuit to 
rule all retaliation claims are per se reasonably related. 
The court declined the plaintiff's request. The court noted 
"the reasonable related rule has been broadly construed 
to allow judicial redress for most retaliatory acts arising 
subsequent to an [Equal Employment Opportunity Com­
mission] filing." Id. at 1209 (emphasis added). In order to 
be reasonably related to the Equal Employment Oppor­
tunity Commission complaint, the court stated "the rule 
is that a claim must arise only after the . . . complaint has 
been filed." Id. (emphasis added).

Likewise, in Ang v. The Proctor and Gamble Co., 932 
F.2d 540 (6th Cir. 1991), the plaintiff alleged Proctor and 
Gamble fired him in retaliation for his demand that they 
study the differential treatment of minority Ph.D.'s at the 
company. The conduct occurred prior to the filing of the 
EEOC charges and thus could have been alleged in the 
original charge. The Sixth Circuit held that retaliatory 
conduct occurring prior to the filing of the EEOC com­
plaint is distinguishable from conduct occurring after­
wards and that it did not meet the criteria to relate back. 
Id. at 546. The amendment was not allowed.

In Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 545 n.2 
(7th Cir. 1988), cert, denied, 491 U.S. 907, 109 S.Ct. 3191, 
105 L.Ed.2d 699 (1989), the plaintiff brought claims based 
on age discrimination and retaliation. The Seventh Circuit 
acknowledged a number of cases have allowed retaliatory 
discharge claims to proceed even though the underlying 
charge did not mention retaliation. However, it recog­
nized retaliation that allegedly occurred prior to the filing 
of the original charge was an entirely different situation.



16

In discussing post-filing retaliation claims, the Seventh 
Circuit held:

These cases are distinguishable from the present 
case where the alleged retaliatory acts occurred 
before Steffen's December 1, 1983 charge of dis­
crimination was filed and Meridian was not 
given clear notice that retaliation was at issue.
Id. at 545 n.2 (emphasis added).

See also O'Rourke v. Continental Casualty Co., 983 F.2d 94 
(7th Cir. 1993) (pre-filing retaliatory acts not alleged in 
the original charge disallowed).

In Seymore v. Shawver & Sons, Inc., I l l  F.3d 794 (10th 
Cir. 1997), the Tenth Circuit articulated a well reasoned 
position concerning whether alleged retaliatory acts that 
took place prior to the original charge, but were not 
mentioned, may relate back to the original date via an 
amendment. In Seymore, the plaintiff filed a complaint 
alleging race and sex discrimination with the Oklahoma 
Human Rights Commission prior to her termination. She 
then filed a separate charge with the EEOC five days after 
she was terminated. The Court held Ms. Seymore was 
aware of her retaliation claim at that time, and had the 
opportunity to assert that claim on her EEOC charge, thus 
giving defendants notice of the claim and providing the 
EEOC the opportunity to attempt to conciliate the claim. 
Because the complaint was filed after her termination, the 
Court held the defendants, as well as the EEOC, were 
entitled to presume Ms. Seymore was only asserting 
claims for race and sex discrimination. The Court 
addressed the policy issues involved in such a factual 
situation. It held:



17

If we were to allow Ms. Seymore to rely on her 
earlier Human Rights' Commission complaint to 
assert a claim or retaliation, we would be acting 
in blatant disregard of the dual purposes of the 
Equal Employment Opportunity Commission 
charge requirement. Id. at 800.

Due to the unique facts in this case, Petitioner has relied 
upon cases that are not on point and cannot be used to 
demonstrate a split in the Circuits.

III. PETITIONER HAS POINTED TO NO PERTINENT 
CASE LAW SUGGESTING A SPLIT IN THE CIR­
CUITS INVOLVING THE ISSUE OF WHETHER 
AMENDMENTS ALLEGING RETALIATION 
BASED ON EVENTS THAT TOOK PLACE PRIOR 
TO THE FILING OF THE ORIGINAL CHARGE 
RELATE BACK TO THE DATE OF THE ORIGI­
NAL FILING

Petitioner claims the Circuits are split on the issue of 
what standard to apply in determining if amendments 
relate back to the original filing. He claims his Petition for 
writ of certiorari should be granted because the decision 
below "directly and irreconcilably conflicts with the rul­
ings of several other Circuits as well as the applicable 
decisions of this Court." Petitioner's Petition p. 8. He 
claims the Tenth, Fourth and Ninth Circuits have con­
cluded an amendment will not relate back if it advances a 
new theory of recovery regardless of what facts were 
included in the original charge, citing to this case; Evans 
v. Technologies Applications & Serv. Co., 80 F.3d 954, 963 
(4th Cir. 1996); and Pejic v. Hughes Helicopters, Inc., 840 
F.2d 667, 675 (9th Cir. 1988). In contrast, Petitioner claims 
the Third, Fifth, Sixth and Eighth Circuits have taken a



18

more flexible approach to the regulation and have held 
the language of the regulation allows amendments based 
on different legal theories that derive from the same set 
of operative facts included in the original charge. The 
cases relied upon by Petitioner are factually different 
from this case, rendering them inapplicable.

In both the Evans and Pejic cases, the courts refused 
to allow amendments alleging new legal theories to relate 
back to the time of the original filings. In Evans, the 
plaintiff attempted to add a sex discrimination claim to 
the original charge of age discrimination. In Pejic, the 
plaintiff attempted to add an age discrimination claim to 
the original charge of discrimination based on national 
origin. In essence, both courts held that because the dif­
ferent legal theories arose from different statutory 
schemes they did not relate back to the original charge. 
"Title VII and ADEA claims arise from entirely different 
statutory schemes." Pejic, 840 F.2d at 675. See also Evans, 
80 F.3d at 963.

These cases need not stand for the proposition that 
the courts need only look to the original legal theory 
alleged in the underlying charge. Clearly, the courts 
looked to the substance and facts provided in the original 
charge in determining whether the amendment related 
back to the date of the original filing, the result, notwith­
standing. There is nothing to suggest in either of these 
cases that the courts would have hesitated to allow the 
amendments had there been a factual hint in the original 
filings that other legal theories were a possibility. As 
stated previously, defendants are entitled to notice.



19

The other cases cited by Petitioner are also not on 
point. In Hicks v. ABT Associates, 572 F.2d 960 (3rd Cir. 
1978), the Court reversed a summary judgment because 
there was a question of material fact as to whether the 
EEOC had improperly refused to allow the plaintiff to 
amend his complaint to add sex discrimination during 
the statutory period allowed by statute. Zanders v. 
O'Gara-Hess, 952 F.2d 404 (6th Cir. 1992), 1992 U.S. App. 
Lexis 535 should not be relied upon because it is not a 
published opinion. In Anderson v. Block, 807 F.2d 145 (8th 
Cir. 1986) the Court addressed an amendment related to 
post filing conduct. The Court held, "In addition, while 
the length of time during which a plaintiff may bring suit 
based on post filing conduct will be limited only by the 
promptness with which administrative proceedings on 
the initial charges are concluded, we see no unfairness in 
thus preserving the right to a judicial determination 
throughout the period during which the post charge inci­
dent could be subject to administrative investigation and 
resolution." Id. at 148. (emphasis added). Because this 
case does not concern post filing conduct, Anderson is not 
on point.

In Hornsby v. Conoco, Inc., 177 F.2d 243 (5th Cir. 1985), 
the plaintiff clearly wrote in the factual circumstances 
related to sex discrimination so that amending the charge 
later was not troublesome. In that case, the plaintiff 
checked the box marked "other" and wrote in "age and 
retaliation." In the body of her statement she wrote she 
had told a supervisor that unless she was promoted, she 
would go to the EEOC because she felt she was being 
discriminated against because of her sex. Id. at 244. In 
contrast, in this case Petitioner set forth no factual basis



20

to support the retaliation claim based on pre-filing con­
duct.

In Washington v. Kroger Co., 671 F.2d 1072 (8th Cir. 
1982), the Court allowed a second charge to serve as an 
amendment of the first, but the substance of the second 
charge was based on acts that occurred after the filing of 
the first charge and were also alleged in the first charge. 
The Court stated:

But plaintiff's claim of denial of opportunity to 
perform "checker" duties appears in her origi­
nal charge filed with the EEOC . . . reappears in 
the complaint filed three and a half months later 
with the Missouri Department of Human Rela­
tions, . . . and is also contained in the second 
charge of discrimination filed with the EEOC on 
July 6, 1973. . . . This claim alleges facts that 
suggest a violation of Title VII continuing at 
least until the date plaintiff filed her complaint 
with the Department of Human Relations." Id. 
at 1075-76.

In contrast, Petitioner did not set forth a factual basis for 
the retaliation claim, nor did he suggest in his Petition 
how the facts in his original charge were broad enough to 
include the retaliation claims.

In Sanchez v. Standard Brands, Inc., 431 F.2d 458 (5th 
Cir. 1970), the plaintiff originally checked "sex" to indi­
cate what form of discrimination she was alleging. She 
included a number of facts including being struck by her 
supervisor, and not being paid when she injured her 
thumb at work. Id. at 458. Later, she amended the charge 
to include facts amplifying the original description, and 
alleged both sex discrimination and discrimination based 
on national origin. Id. at 459. The Court held the factual



21

statements were sufficiently broad enough to support a 
charge of discrimination based on national origin and 
allowed the charge to be amended. Sanchez is easily dis­
tinguished from this case. In addition to not including 
retaliation as the proper legal theory, Petitioner failed to 
include any essential factual details that would give a 
reasonable EEOC investigator and the plaintiff's 
employer notice that retaliation was included in the 
charge. Retaliation is not synonymous with discrimina­
tion.

Petitioner also relies upon two district court cases, 
Conroy v. Boston Edison Co., 758 F.Supp. 54 (D. Mass. 1991) 
and Adames v. Mitsubishi Bank, Ltd., 751 F.Supp. 1565 
(E.D.N.Y. 1990), to support his position. It is interesting 
that Petitioner would rely upon Conroy because in that 
case, the Court refused to allow the plaintiff to amend her 
original charge of sex discrimination to include age dis­
crimination. The Court adopted the reasoning found in 
Pejic, 840 F.2d 667 (9th Cir. 1988) and held the plaintiff's 
amendment did not clarify or amplify the earlier charge 
of sex discrimination. Id. at 59. Further, the Court held 
that a reasonable investigation of sex discrimination 
would have focused upon whether plaintiff was dis­
charged on account of her sex rather than her age. Id.

Likewise, a reasonable investigation of Petitioner's 
original charge would have looked to see if he had been 
denied a promotion because of his race. Nothing in the 
original charge would have alerted a reasonable investi­
gator to go back in time to determine whether there had 
been previous EEOC filings that could possibly reveal a 
retaliatory motive for the failure to promote. Under Peti­
tioner's theory, an investigator could look back in time



22

over a period of decades searching the history of the 
parties to determine if the Petitioner had ever engaged in 
protected activity. If any were found, even though it was 
not mentioned in the filing, the Petitioner would be 
allowed to amend the charge to include retaliation. Peti­
tioner points to no caselaw and offers no argument to 
support such an unfair and absurd proposition.

Petitioner claims "the rule adopted by the Tenth Cir­
cuit undermines the administrative scheme adopted by 
Congress [to place the charged party on notice of alleged 
violations and to give the EEOC sufficient information to 
investigate, and to provide the parties an opportunity to 
conciliate]" Petitioner's Petition p. 16. However, Respon­
dent asserts allowing amendments to encompass acts and 
theories that took place prior to the original filings serves 
to undermine these very goals.

The Court should consider the amendment was not 
even filed until after Respondent filed a motion for par­
tial summary judgment. Petitioner's Petition p. 3a. The 
amendment in question was filed long after Petitioner 
had obtained counsel. The Court should discourage the 
use of amendments as mere trial tactics to avoid the 
statutory constraints of the statute. See e.g. Conroy, 758 
F.Supp. at 58 (Courts have looked at the timing of the 
amendment, and have said that where the filing of the 
amendment closely precedes the filing of the federal 
court action, it is likely an attempt to avoid the filing 
requirements) (cites omitted)).

The Adames case is also not on point. In Adames, the 
plaintiff originally alleged sex and national origin dis­
crimination. She later attempted to amend the charge to



23

include a class-wide discrimination claim based on race 
and color. Adames, 751 F.Supp. at 1568. The Court found 
the original filing did not put the defendants on notice 
and that the amendment covered a much more extensive 
time frame than did the original filing. Accordingly, the 
amendment was not allowed. Id.

Likewise, Petitioner's amendment is far broader than 
was the original charge, and did not reasonably serve to 
place Respondent on notice of additional issues. The orig­
inal charge was limited to race discrimination for failure 
to promote. In contrast, the proposed amendment 
attempted to add "withholding of supervisory duties" 
and retaliation for "filing previous charges, and for objec­
ting to unlawful practices." The original charge was 
based on the events of one day, August 15, 1994. The 
amendment expended this time frame from the earliest 
date May 1, 1994 to the latest date September 22, 1995. 
Petitioner's Petition p. 31a. Allowing such amendment 
would have been improper.

In claiming the Circuits are split because they have 
selected different legal standards to determine whether 
amendments relate back to the original charge, Petitioner 
attempts to prove too much. Such a conclusion can not be 
drawn without comparing the factual circumstances of 
the relevant opinions. As set forth herein, a review of the 
relevant Circuit opinions indicates they regularly find 
amendments alleging retaliatory acts that take place post­
filing  relate back to the original charge. However, they 
are not likely to hold that amendments setting forth 
alleged retaliatory acts that took place prior to filing the 
original charge relate back.



24

Petitioner has made broad sweeping claims that the 
Tenth, Fourth and Ninth Circuits have unduly restrictive 
rules on relation back of amendments. Yet all three of 
these Circuits have adopted rules allowing retaliation 
claims arising during the pendency of the underlying 
claim to be part of a subsequent lawsuit. See Bouman, 40 
F.2d 1211 (9th Cir. 1991), cert, denied, 502 U.S. 1005, 116 
L.Ed.2d 658, 112 S.Ct. 640 (holding that retaliation claim 
was "reasonably related" to prior sex discrimination 
claim); Chisholm, 665 F.2d 482, 491 (4th Cir. 1981); Seymore, 
111 F.3d 794 (10th Cir. 1997). These cases aptly demon­
strate the analysis contained in Petitioner's Petition is 
flawed because it does not address issues on point to this 
case.

In addition, Petitioner has claimed on page 14 of his 
Petition that " . . .  [h]ad the petitioner been in one of the 
Circuits allowing amendment alleging additional legal 
claims to relate back when the amendment flows from the 
same facts as in the original charge, he would have had 
the opportunity to present his retaliation claims to a 
jury." Presumably Petitioner is referring to the Third, 
Fifth, Sixth and Eighth Circuits which he alleges have a 
flexible approach to the relation back doctrine. See Peti­
tioner's Petition p. 11. Yet in Ang v. The Proctor and Gamble 
Co, 932 F.2d 540 (6th Cir. 1991), a case with a fact pattern 
similar to this case, the Sixth Circuit rendered the same 
decision as did the Tenth Circuit. Because the Third, Fifth 
and Seventh Circuits have not published conflicting opin­
ions on point, no conclusion can be drawn as to whether 
there is diversity among the Circuits. Because these types 
of cases are so fact-driven, Petitioner could not show a



25

split in the Circuits unless he limited discussion to cases 
that were factually similar. He has not done so.

IV. THE TENTH CIRCUIT DID NOT ADOPT A 
"HYPER-TECHNICAL" RULE INTERPRETING 29 
CFR § 1601.12(b).

Petitioner claims the Tenth Circuit improperly 
affirmed the judgment of the district court by adopting a 
"hyper-technical" rule that turned on the legal theory 
alleged in the original filing. He claims:

The Tenth Circuit's decision would allow 
amendments to relate back only if those amend­
ments clarify legal theories already articulated 
in the original charge. (App 8a.) The result is a 
blanket rule prohibiting amendments alleging 
new legal claims even when those claims are 
'related or grow [ ] out of the subject matter of 
the original charge. (App 6a).' Petitioner's Peti­
tion pp 9-10.

In support, he quotes from the Tenth Circuit Opinion as 
follows:

. . . [W]e hold that Mr. Simms' retaliation charge 
does not relate back under § 1601.12(b) because 
his 1996 amendment alleges a new theory of 
recovery, retaliation, that he did not raise in the 
second EEOC charge.

Standing alone, this passage could possibly be inter­
preted as Petitioner has suggested. However, Respondent 
respectfully suggests these statements have been taken 
out of the proper context of the entire opinion. For exam­
ple, Petitioner does not apprise the Court that in the very



26

next paragraph of the Opinion, the Court continues its 
analysis as follows:

Even though Mr. Simms did not properly 
exhaust administrative remedies, our inquiry as 
to whether this court may hear the retaliation  
claims has not come to an end. This court has 
adopted a limited exception to the exhaustion 
rule for Title VII claims when the unexhausted 
claim is for "discrimination like or reasonably 
related to the allegations of the EEOC charge." 
Ingels, 42 F.3d at 625 (quoting Brown v. Hartshorne 
Pub. Sch,. Dist. No. 1, 864, F.2d 680, 682 (10th cir.
[sic] 1988)). . . .

Petitioner's Petition p. 8a. (emphasis added).

The Tenth Circuit, relying heavily on Seymore v. Shawver 
& Sons, Inc., I l l  F.3d 794 (10th Cir. 1997), then went on to 
discuss the exception concerning retaliatory acts, includ­
ing an analysis of other cases with similar facts.

In the underlying charge, Petitioner made absolutely 
no reference to the fact that he had previously filed 
Charge I, nor did he claim he had not been promoted 
because he had engaged in any protected activity. He 
listed the date of the occurrence giving rise to Charge II 
as beginning and ending on August 15, 1994, the date he 
was denied a promotion. He listed his race, black, as the 
reasons he believed he was being discriminated against. 
Absolutely nothing set forth in the original charge would 
suggest he was alleging retaliation. Accordingly, applying 
the reasoning in Seymore, the amendment was deemed to 
not relate back to the date of the original filing.

Petitioner has claimed this case turned on whether 
the proper legal theory was checked off in the boxes



27

denoting race, age, retaliation, etc. He claims "In this 
case, Mr. Simms' failure to check the "retaliation" box 
had the consequence, in the opinion of the court below, of 
completely cutting off his right to bring his retaliation 
claims before a court even though they were investigated 
and unsuccessfully conciliated by the EEOC." Petitioner's 
Petition pp. 17-18. Such statement is not accurate. It was 
not until it had addressed the actual facts of the case, 
including the factual description of the events contained 
in the original charge, that the Tenth Circuit affirmed the 
finding of the district court.

This is the typical manner employed by the Tenth 
Circuit in determining if amendments relate back to the 
date of the original filing. In Jones v. Runyon, 91 F.3d 1398 
(10th Cir. 1996) the Tenth Circuit held:

When an employee seeks judicial relief for inci­
dents not listed in his original charge to the 
EEOC, the judicial complaint nevertheless may 
encompass any discrimination like or reason­
ably related to the allegations of the EEOC 
charge. . . . Ingels v. Thiokol Corp., 42 F.3d 616,
625 (10th Cir. 1994) (quotations omitted). There­
fore, we examine both [the plaintiff's] original 
charge to the EEOC and her federal court com­
plaint to determine whether the issues she 
raised to the district court were both new and 
unrelated to her EEOC charges, thus defeating 
the court's jurisdiction over her action). Id. at 
1400.

In reviewing the cases, discussion concerning 
whether the appropriate box denoting what legal theory 
was checked appears frequently, but comprises only one 
factor addressed. See e.g. Cheek, 31 F.3d 497 (7th Cir. 1994);



28

Ang, 932 F.2d 540 (6th Cir. 1991); Hicks, 672 F.2d 960 (3rd 
Cir. 1977); Sanchez, 431 F.2d 455 (5th Cir. 1970). In cases 
such as these, it is much more likely than not the plaintiff 
neglected to check the appropriate box, else the defen­
dant-employer would not believe he had grounds to con­
test the amendment. That the Tenth Circuit addressed this 
issue before continuing to discuss whether the amend­
ment set forth information that was reasonably related to 
the facts alleged in the original charge was certainly not 
error. Had the Tenth Circuit failed to continue the anal­
ysis of determining whether the amendment was reason­
ably related to the original charge, such omission might 
have been inappropriate, but this is not an issue in this 
case.

Although Petitioner has argued the Tenth Circuit 
adopted a hyper-technical rule that circumvents the pur­
poses of Title VII, a review of the opinion indicates its 
decision to affirm the district court complies fully with 29 
CFR § 1601.12(b) and properly balances the competing 
interests of plaintiffs, defendants and the EEOC.

♦



29

CONCLUSION

For all the reasons contained herein, the Tenth Circuit 
properly affirmed the district court order. Further, there 
exists no split in the Circuits on the pertinent issues in 
this case to warrant acceptance of certiorari by this Court.

Respectfully submitted this 22 day of June, 1999.

C raig  S utter  
General Counsel 

P enny  B ro ughton  M cC ra cken  
Deputy General Counsel 

Department of Mental Health 
and Substance Abuse Services 

1200 N.E. 13th Street 
Post Office Box 53277 

Oklahoma City, OK 73152-3277 
(405) 522-3871

Counsel for Respondent