Bullington v United Airlines Inc Brief of Amici Curiae

    UNITED STATES COURT OF .APPEALS 
FOR THE TENTH CIRCUIT

Case No. 00-1527

MARION S. BULLINGTON, Plaintiff-Appellant,

v.

UNITED AIR LINES, INC., Defendant-Appellee.

BRIEF OF AMICI CURIAE
THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.,
THE NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, and 

THE MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
IN SUPPORT OF PLAINTIFF-APPELLANT MARION S. BULLINGTON

KRISTEN L. MIX
The Law Offices o f Stuart A. Kritzer
One Sherman Place
140 East Nineteenth Avenue
Third Floor
Denver, Colorado 80203 
(303)393-1111 
on behalf o f
The National Employment 

Lawyers Association 
600 Harrison Street, Suite 535 
San Francisco, California 94107 
(415) 227-4655

ELAINE R. JONES
THEODORE M. SHAW
NORMAN J. CHACHKIN
JAMES L. COTT
MELISSA S. WOODS
NAACP Legal Defense & Educational
Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200

ALBERT H. KAUFFMAN 
NINA PERALES 
LETICIA SAUCEDO 
JOE BERRA
Mexican American Legal Defense and 

Educational Fund, Inc.
The Book Building 
140 E. Houston Street, Suite 300 
San Antonio, TX 78205 
(210) 224-5476



DISCLOSURE STATEMENT REQUIRED BY RULE 26.1, F.R.A.P.

The NAACP Legal Defense and Educational Fund, Inc., (“LDF”) is a not-for-profit 
corporation organized under the laws of the State o f New York as a legal services corporation. LDF 
is a tax-exempt, charitable institution whose purpose is to provide legal assistance to African- 
Americans and others in cases involving civil and constitutional rights. It has no members, 
shareholders, or owners, and has no parent or subsidiary corporations.

Counsel for Amicus Curiae 
NAACP Legal Defense and 
Educational Fund, Inc.

(i)



The National Employment Lawyers Association (“NELA”) is a voluntary membership 
organization of over three thousand attorneys who regularly represent employees in labor, 
employment, and civil rights disputes. It has no shareholders, owners, or parent or subsidiary 
corporations.

DISCLOSURE STATEMENT REQUIRED BY RULE 26.1, F.R.A.P.

Counsel for Amicus Curiae
The National Employment Lawyers Association



DISCLOSURE STATEMENT REQUIRED BY RULE 26.1, F.R.A.P.

The Mexican American Legal Defense and Educational Fund (“MALDEF”) is a 32-year 
old non-profit legal organization that promotes and protects the civil rights o f Latinos in the areas 
of employment, education, voting rights, immigration and public resource equity. MALDEF 
does not issue stock, nor does the organization have members, subsidiaries or a parent 
corporation.

Counsel for Amicus Curiae 
Mexican American Legal Defense and 
Educational Fund, Inc.

(tit)



TABLE OF CONTENTS

TABLE OF A U TH O R ITIES............................................................................................................... (v)

INTEREST OF AMICI CURIAE .............................................................................................................. 1

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

SUMMARY OF A R G U M EN T................................................................................................................ 2

A RGU M EN T......................................................................   3

A. SOUND PUBLIC POLICY MANDATES LIBERAL CONSTRUCTION OF
CHARGES OF DISCRIMINATION FILED WITH THE EEOC TO EFFECTUATE 
THE REMEDIAL PURPOSES OF TITLE V H ........................................................... 3

B. FAILURE TO IDENTIFY A THEORY OF DISCRIMINATION IN AN EEOC
CHARGE DOES NOT BAR A SUBSEQUENT SUIT IN FEDERAL COURT AS 
A MATTER OF L A W ..................................................................................................... 5

C. PLAINTIFF’S GENDER DISCRIMINATION CLAIM BASED ON A DISP ARATE
IMPACT THEORY FALLS WITHIN THE EXCEPTIONS TO TITLE V E’s
REQUIREMENT THAT A CLAIMANT EXHAUST HER ADMINISTRATIVE
R E M E D IE S .......................................................................................................................9

CONCLUSION ......................................................................................................................................... 11

(iv)



TABLE OF AUTHORITIES

CASES

Arambuni v. Boeing Corp.,
112 F.3d 1398 (10th Cir. 1997) ......................................................................................... 10

Babrocky v. Jewel Food, Inc.,
773 F.2d 857 (7th Cir. 1985) .............................................................................................  11

Brown v. Coach Stores,
163 F.3d 706 (2d Cir. 1998)...............................................................................................  11

Cheek v. W. & S. Life Ins. Co.,
31 F.3d 497 (7th Cir. 1994) ................................................................................................. 9

Clockedile v. New Hampshire Department o f Corrections,
No. 00-1541, 00-1578, 2001 WL 293201 (1st Cir. March 30, 2 0 0 1 ) .......................  3, 6

EEOCv. Univ. o f New Mexico,
504 F.2d 1296 (10th Cir. 1974)

EEOC v. Wal-Mart Stores, Inc.,
202 F.3d 281, 1999 WL 1244485 (10th Cir. 1999) .......................................................  11

Evans v. McDonald's Corp.,
936 F.2d 1087 (10th Cir. 1991) ...................................................................................... 5, 6

Fitzgerald v. Codex Corp.,
882 F.2d 586 (1st Cir. 1989 )................................................................................................ 5

Gomes v. Avco Corp.,
964 F.2d 1330 (2d Cir. 1992)................................................................................ 6, 7, 8, 11

Graniteville Co. v. EEOC,
438 F.2d 32 (4th Cir. 1971) ................................................................................................. 4

Green v. Los Angeles County Superintendent of Schs.,
883 F.2d 1472 (9th Cir. 1989) .............................................................................................4

Griffin v. Carlin,
755 F.2d 1516 (11th Cir. 1985) ........................................................................................  11

(v)



Gunnell v. Utah Valley State Coll.,
152 F.3d 1253 (10th Cir. 1998) ...........................................................................................8

Ingels v. Thiokol Corp.,
42 F.3d 616 (10th Cir. 1994).................................................................................................. 9

Joslin Dry Goods, Inc. v. EEOC,
483 F.2d 178 (10th Cir. 1973) ............................................................................................. 4

Martin v. Nannie & the Newborns, Inc.,
3 F.3d 1410 (10th Cir. 1993) ....................... .....................................................................  10

Ortega v. Safeway Stores, Inc.,
943 F.2d 1230 (10th Cir. 1991) ...........................................................................................7

Rabzak v. County o f Berks,
815 F.2d 17 (3d Cir. 1987)....................................................................................................4

Romero v. Union Pacific R.R.,
615 F.2d 1303 (10th Cir. 1980) ...........................................................................................4

Simms v. State o f Oklahoma,
165 F.3d 1321 (10th Cir.), cert, denied, 528 U.S. 815 (1 9 9 9 )...................................  8, 9

Sosa v. Hiraoka,
920 F.2d 1451 (9th Cir. 1990) ............................................................................................. 4

Sparton Southwest, Inc. v. EEOC,
461 F.2d 1055 (10th Cir. 1972) ...........................................................................................4

United Air Lines v. McDonald,
471 U.S. 1065 (1985).............................................................................................................. 8

United Airlines v. Evans,
431 U.S. 553 (1977)................................................................................................................ 8

Watson v. Fort Worth Bank & Trust Co.,
487 U.S. 977 (1988)................................................................................................................ 6

Wright v. National Archives & Rec. Service,
609 F.2d 702 (4th Cir. 1979) ........................................................................................... 6> 7

(vi)



Zipes v. Trans World Airlines, Inc.,
455 U.S. 385 (1982)................................................................................................................ 3

STATUTES, REGULATIONS AND RULES

29C.F.R. §1601.12(b) ........................................................................................................................... 4 ,5

42 U.S.C. § 2000e et seq..............................................................................................................................2

Fed. R. App. P. 29(a) ................................................................................................................................ 1

MISCELLANEOUS

5 C. Wright & A. Miller, Federal Practice and Procedure § 1219 (1990)........................................ 6

(vh)



INTEREST OF AM ICI CURIAE1

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) is a non-profit corporation 

established under the laws o f the State o f New York and has prosecuted numerous civil rights cases 

on behalf of African Americans and others seeking vindication of their rights. Supreme Court 

rulings in cases handled by LDF established the meaning of important provisions o f Title VII of the 

Civil Rights Act o f 1964, the statute involved in this matter.

The National Employment Lawyers Association (“NELA”) is a voluntary membership 

organization exceeding three thousand attorneys and the country’s only professional membership 

organization o f lawyers who regularly represent employees in labor, employment and civil rights 

disputes. NELA has a compelling interest in ensuring that the goals o f Title VII o f the Civil Rights 

Act of 1964, as amended, are fully realized. NELA has filed numerous amicus curiae briefs before 

the U.S. Supreme Court and the federal appellate and district courts regarding the proper 

interpretation and application o f employment discrimination laws to ensure that the laws are fully 

enforced and that the rights o f workers are fully protected.

The Mexican American Legal Defense and Educational Fund, Inc. (“MALDEF”) is a national 

non-profit organization which protects and promotes the civil rights o f Latinos in the United States. 

MALDEF's interest in this case stems from its more than 30 years o f employment litigation, 

representing Latino employees who have experienced discrimination in the workplace.

The long involvement o f LDF, NELA and MALDEF in efforts to enforce civil rights laws 

gives us a special interest in one o f the main issues raised by this appeal: whether a district court 

lacks jurisdiction over a gender discrimination claim based on disparate impact brought under Title

'All parties have consented to the filing o f this brief. Fed. R. App. P. 29(a).

1



VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e etseq. (“Title VII”), because plaintiff did not 

allege that specific legal theory in the charge she filed with the Equal Employment Opportunity 

Commission (the “EEOC”). If the district court’s decision that it lacked jurisdiction over plaintiff s 

claim is affirmed on appeal, only those plaintiffs who are legally sophisticated, or who are 

represented by experienced counsel when they file their EEOC charges, will be able to prosecute 

claims based on disparate impact theories in federal court. For the reasons discussed below, LDF, 

NELA and MALDEF as Amici Curiae respectfully request that this Court hold that those who claim 

to be victims of discrimination are not required to allege specific legal theories in their administrative 

complaints.

STATEMENT OF THE CASE

Amici adopt the Statement o f the Case set forth in Plaintiff-Appellant’s Opening Brief. See 

PI. Br„ at 1-6.2

SUMMARY OF ARGUMENT

The district court's conclusion that it lacked jurisdiction over plaintiff s gender discrimination 

claim based on a disparate impact theory was erroneous, and based on a misunderstanding of the 

relationship between a plaintiffs EEOC complaint and her subsequent litigation in federal court. 

Both Title VII and the applicable EEOC regulations require those who claim to be victims o f 

discrimination to provide to the Commission only a concise statement o f the facts that describe the 

alleged unlawful employment practice(s), which plaintiff did in this case. The district court s 

decision is contrary to the wealth o f authority that liberally construes EEOC charges and Title VII

2Plaintiff-Appellant’s Opening B rief is referred to as “PI. Br.”; references to Plaintiff- 
Appellant’s Appendix are denoted as “A.” with appropriate page numbers inserted.

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complaints, especially when filed by a lay person such as plaintiff. Moreover, in improperly 

dismissing plain tiffs gender discrimination claim based on a disparate impact theory, the district 

court failed to recognize that disparate impact is a theory o f  discrimination which may establish a 

right to relief in a given case, and not a claim that must be identified in an EEOC charge for 

jurisdictional purposes. Finally, plaintiff s gender discrimination claim based on a disparate impact 

theory falls within this Court’s exceptions to the exhaustion rule for Title VII claims, because it is 

for “discrimination like or reasonably related to the allegations o f [her] EEOC charge,” and also 

because the illegal conduct alleged fell “within the scope o f [the] EEOC investigation which would 

reasonably grow out o f the charges actually made.”3

ARGUMENT

A. SOUND PUBLIC POLICY MANDATES LIBERAL CONSTRUCTION OF 
CHARGES OF DISCRIMINATION FILED WITH THE EEOC TO EFFECTUATE 
THE REMEDIAL PURPOSES OF TITLE VII

Courts have long recognized that many charges o f discrimination are filed with the EEOC 

without the assistance o f counsel, as was the case with Ms. Bullington s. Because almost every 

person who files an EEOC charge is “not versed either in the technicalities o f pleading or the

3 While we do not address in this brief plain tiffs contention that United waived its argument 
concerning the content o f Ms. Bullington’s EEOC charge by not raising that argument for the first 
time until after this case had been remanded, we agree with plaintiff that the general rule that a Title 
VII plaintiff must include in her EEOC charge the claims she will ultimately bring in her suit in 
federal court is not jurisdictional but simply a condition precedent with which Title VII plaintiffs 
must comply. See PI. Br. at 11-12 (citing cases). Similar to “a statute o f limitations [a condition 
precedent] is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 
455 U.S. 385,392-93 (1982); Clockedile v. New Hampshire Dep’t o f Corrections, No. 00-1541, GO- 
1578, 2001 WL 293201, *4 (1st Cir. March 30, 2001) (“Despite occasional references to 
‘jurisdiction, ’ [filing an EEOC administrative charge] is basically an exhaustion requirement coupled 
with a short statute o f limitations both on complaining to the agency and on filing the subsequent 
court case.”)(citing Zipes).

3



jurisdictional requirements of [Title VII],” Romero v. Union Pac. R.R., 615 F.2d l->03, 1311 (10 

Cir. 1980), this Court and others have, as a rule, liberally construed such charges. See, e.g., EEOC 

v. Univ. o f New Mexico, 504 F.2d 1296,1303 (10th Cir. 1974); Joslin Dry Goods, Inc. v. EEOC, 483 

F.2d 178,183 (10th Cir. 1973); Sparton Southwest, Inc. v. EEOC, 461 F.2d 1055,1059-60(10* Cir. 

1972); Sosa v. Hiraoka, 920 F.2d 1451, 1457 (9th Cir. 1990); Green v. Los Angeles County 

Superintendent ofSchs., 883 F.2d 1472,1476 (9th Cir. 1989); Rabzakv. County o f Berks, 815 F.2d 

17, 20 (3d Cir. 1987); Graniteville Co. v. EEOC, 438 F.2d 32, 37 (4th Cir. 1971). As expressed by 

this Court and others, a policy o f liberal construction is most appropriate “to satisfy the broad 

substantial objectives” o f Title VII. EEOCv. Univ. o f New Mexico, 504 F.2d at 1303. See also Sosa, 

920 F.2d at 1457 (“To demand that Title VII claimants allege more than Sosa did in his charge to 

assure eventual federal court jurisdiction would falsify the Civil Rights A cts’ hopes and ambitions 

o f providing a process lay people can use effectively to resolve discrimination complaints. ); 

Sparton, 461 F.2d at 1060 (“The only rational approach [to interpretation o f a charge] is a non­

technical one which is concerned not with the niceties o f form but rather with the broad substantial 

objectives of this measure.”).

More important, however, is the lack o f convincing reasons why strict construction should 

be the rule. EEOC regulations regarding the content o f charges do not even hint at such a policy; 

instead, they provide that “a charge is sufficient when the [EEOC] receives from the person making 

the charge a written statement sufficiently precise to identify the parties, and to describe generally 

the action or practice complained of.” 29 C.F.R. §1601.12(b). Moreover, when viewed in 

comparison to the function o f federal court pleadings, the function o f an EEOC charge is “less 

significant.” Sparton, 461 F.2d at 1059; Graniteville Co., 438 F.2d at 38 (“The purpose of the

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charge under Section 706 is only to initiate the EEOC investigation, not to state sufficient facts to 

make out a prima facie case”). Given the relative function of a charge, adopting a rule o f 

construction which would hold it to a higher standard than a federal court pleading simply makes 

no sense. Id. See also Evans v. McDonald’s Corp., 936 F.2d 1087, 1091 (10th Cir. 1991) (“The 

purpose o f ‘fact pleading’ . . .  is to give the defendant fair notice of the claims against him without 

requiring the plaintiff to have every legal theory or fact developed in detail before the complaint is 

filed and the parties have opportunity for discovery.”); Fitzgeraldv. Codex Corp., 882F .2d586,589 

(1st Cir. 1989) (“[U]nder Fed. R. Civ. P. 8 it is not necessary that a legal theory be pleaded in the 

complaint if  plaintiff sets forth ‘sufficient factual allegations to state a claim showing that he is 

entitled to re lief under some [tenable] legal theory.”) (emphasis in original). O f course, such a 

requirement is compounded by unfairness when the complainant is without legal counsel such as Ms. 

Bullington was in this case, and has little or no access to information which may later be received 

in discovery and then used to support various theories o f discrimination, including disparate impact.

The effect o f the district court’s decision in this case is to raise the bar over which 

individuals, who almost always have little or no legal training and a relative lack o f resources, must 

pass in order to attempt to enforce rights guaranteed by Title VII. Public policy considerations 

require that the district court’s decision be reversed.

B. FAILURE TO IDENTIFY A THEORY OF DISCRIMINATION IN AN EEOC 
CHARGE DOES NOT BAR A SUBSEQUENT SUIT IN FEDERAL COURT AS A 
MATTER OF LAW

In addition to public policy considerations, the district court’s decision cannot be sustained 

as a matter of law. As noted previously, the applicable EEOC regulations merely require the 

recitation o f facts “to describe generally the action or practices complained of. 29 C.F.R. §

5



1601.12(b). Consistent with this regulation, the EEOC Charge o f Discrimination form provided to 

Ms. Bullington asked her to “check appropriate box(es)” relating to her allegations. Her choices 

were “race,” “color,” “sex,” “religion,” “national origin,” “retaliation,” “age,” “disability,” and 

“other.”4 Moreover, Title VII “does not say explicitly that the court suit must be limited to just what 

was alleged in the agency complaint.” Clockedile, 2001 WL 293201, *4. There is thus no 

requirement -  statutory, regulatory, or otherwise -  that a claimant identify the legal theories upon 

which her charge is based, nor is there an appropriate box on the complaint form for the claimant to 

do so. The district court’s decision imposing such a requirement is thus incorrect as a matter o f law. 

See Evans, 936 F.2d at 1090-91 (“As a general rule, a plaintiff should not be prevented from 

pursuing a valid claim just because she did not set forth in the complaint a theory on which she could 

recover, ‘provided always that a late shift in the thrust o f the case will not prejudice the other party 

in maintaining his defense upon the merits.’”) {quoting 5 C. Wright & A. Miller, Federal Practice 

& Procedure, § 1219 at 194 (1990)).

In addition, the district court’s decision fails to recognize that disparate impact and disparate 

treatment are “rightly treated simply as alternative theories upon which a right to relief under Title 

VII may be established in a given case.” Wright v. Nat ’l Archives & Rec. Serv., 609 F.2d 702, 711 

(4th Cir. 1979) (en banc)\ see also Gomes v. Avco Corp., 964 F.2d 1330,1335(2dCir. 1992). Indeed, 

courts have often observed that the same facts can give rise to either or both a disparate treatment 

and disparate impact claim under Title VII. See, e.g., Watson v. Fort Worth Bank & Trust Co., 487 

U.S. 977, 987 (1988) (“The distinguishing features o f  the factual issues that typically dominate in 

disparate impact cases do not imply that the ultimate legal issue is different than in cases where

4A copy of plaintiff s EEOC charge is attached to Plaintiff-Appellant’s Opening Brief.

6



disparate treatment analysis is used.”); Gomes, 964 F.2d at 1335; Wright, 609 F.2d at 711. This 

Court itself has noted that evidence of disparate impact is probative o f the ultimate inquiry in a 

disparate treatment case. Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1237 (10* Cir. 1991). 

Given this wealth o f authority, it is simply incorrect as a matter o f law to require that a disparate 

impact “claim” must be articulated in an EEOC charge, precisely because it is not a claim, like race 

or gender discrimination or retaliation, but rather a legal theory.

The Second Circuit’s decision in Gomes is instructive on this point. In Gomes, plaintiff 

alleged, inter alia, that defendant employed a neutral practice, a rule requiring employees to 

demonstrate eight years o f practical experience or complete an apprenticeship course, that 

disproportionately excluded Portuguese employees from higher paying jobs. Gomes’ EEOC 

complaint, which he filed pro se, contained the following allegations:

(1) that Gomes is a Portuguese male;
(2) that Gomes applied for the jig  bore and boring mill positions;
(3) that the eight year experience rule governs promotions to those positions;
(4) that Gomes believed he satisfied the eight year rule;
(5) that a less qualified employee was promoted to the position instead of 

Gomes;
(6) that the union refused to pursue a grievance because it did not think Gomes 

satisfied the eight year rule; and
(7) that Gomes was the only Portuguese employee in his job classification. 

Gomes, 964 F.2d at 1334. Once Gomes retained counsel, he amended his federal court complaint 

to include a claim predicated on a disparate impact theory. The district court dismissed this claim 

on the ground that Gomes’ EEOC complaint failed to give fair notice o f the charge. Id.

On appeal, the Second Circuit reversed, concluding that Gomes “asserted two different 

theories o f relief to remedy the [same] particular incidents o f discrimination identified in [his] EEOC 

complaint.” Id. at 1335 (emphasis added). While the Gomes court noted that “the [charge] most

7



naturally supports a claim o f intentional discrimination,” id. at 1334, its decision made clear that the 

crystallization of a legal theory such as disparate impact at a later stage o f litigation, when discovery 

has presumably helped to develop the record, was not precluded. In reaching this conclusion, the 

Second Circuit observed that defendant had not cited “a single case where plaintiff s failure, in an 

EEOC complaint, to properly identify a theory o f discrimination barred a subsequent suit in federal 

court relating to the precise incident challenged in the EEOC complaint.” Id. at 1335.

Similarly, the district court here did not cite to any authority for the proposition that Ms. 

Bullington’s failure, in her EEOC charge, to properly identify a theory o f discrimination barred her 

federal action. The only authority cited by the district court is Simms v. State o f Oklahoma, 165F.3d 

1321, 1326 (10th Cir.), cert, denied, 528 U.S. 815 (1999), which is easily distinguishable. A. 137. 

In Simms, this Court reviewed whether certain retaliation claims “related to or grew out o f ’ a 

previously filed EEOC charge o f race discrimination. Id. But retaliation and race discrimination 

are claims in the legal sense, not legal theories like disparate impact, as in the case here.5

In sum, Gomes and the other cases cited by plaintiff, see PI. Br. at 13-16, recognize the 

critical difference between requiring enough facts to provide notice to the employer6 and to permit

5The district court, in citing to Simms, also cited to Gunnell v. Utah Valley State Coll., 152 
F 3d 1253,1260 n.3 (10th Cir. 1998), but Gunnell similarly involved legal claims, not theories, and 
in particular the question o f whether a later alleged sexual harassment claim can be considered along 
with a retaliation claim. As with Simms, these are legal claims entirely distinguishable from the 
disparate impact theory alleged by Bullington.

6The notion that United would be “surprised” by the inclusion o f a gender discrimination 
claim based on a disparate impact theory in a lawsuit where the charge simply stated “discriminatory 
denial o f promotion” is not plausible. United is a large, sophisticated, nationwide corporation with 
an extensive legal staff that has been routinely involved in many employment discrimination cases, 
including at least two cases decided on their merits by the Supreme Court. United Air Lines v. 
McDonald, 471 U.S. 1065 (1985); United Air Lines v. Evans, 431 U.S. 553 (1977).

8



the EEOC to investigate a charge properly and requiring a pro se litigant to state a legal theory. The 

case law establishes compelling reasons why the Court should find that a claimant in Ms. 

Bullington’s position has exhausted her administrative remedies and afford her the opportunity to 

litigate her legal theories in court, instead o f sanctioning her with the ultimate punishment -  

dismissal o f her suit -  for failing to articulate them at the administrative level.

C. PLAINTIFF’S GENDER DISCRIMINATION CLAIM BASED ON A DISPARATE 
IMPACT THEORY FALLS WITHIN THE EXCEPTIONS TO TITLE VII’s 
REQUIREMENT THAT A CLAIMANT EXHAUST HER ADMINISTRATIVE 
REMEDIES

Even if this Court finds that plaintiff failed to exhaust her administrative remedies, it must 

still consider whether plaintiff s gender discrimination claim based on a disparate impact theory falls 

within an exception to the exhaustion rule for Title VII claims. This Court allows plaintiffs to assert 

a discrimination claim in federal court that was not alleged in their EEOC complaint, when the 

unexhausted claim is for “discrimination like or reasonably related to the allegations of the EEOC 

charge.” Simms, 165 F.3d at 1327 («quoting Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 

1994)). For claims to be “like or reasonably related,” they “must, at a minimum, describe the same 

conduct and implicate the same individuals.” Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 501 (7 

Cir. 1994).

Ms. Bullington’s allegation in her federal court complaint that United’s structured interview 

process had a disparate impact on women is like or reasonably related to her allegation of gender 

discrimination in United’s decision not to promote her because both are based on the same factual

9



allegations.7 Compare Aramburu v. Boeing Corp., 112 F.3d 1398, 1409-10 (10th Cir. 1997) 

(concluding that hostile work environment claim was not reasonably related to wrongful discharge 

claim contained in EEOC charge where claims were based on different allegations o f impermissible 

conduct). Both theories are based on the same conduct -  United’s failure to promote her (at the end 

of a process that incorporated a structured interview). In addition, both theories implicate United s 

policies and practices as the source o f the alleged discrimination. Ms. Bullington s claim for gender 

discrimination based on disparate impact qualifies for this exception because the underlying conduct 

for which redress is sought on that claim -  the unjustifiable adverse impact o f the structured 

interview process on the chances o f applicants in classes protected by the statute for promotion -  

involves the same type o f discrimination and refusal to promote alleged in Ms. Bullington’s timely 

filed EEOC complaint.

Finally, this Court has recognized that “consideration o f complaints not expressly included 

in an EEOC charge is appropriate where the conduct alleged would fall within the scope of an EEOC 

investigation which would reasonably grow out of the charges actually made. Martin v. Nannie & 

the Newborns, Inc., 3 F.3d 1410, 1416 n.7 (10th Cir. 1993). An EEOC investigation into whether 

United’s structured interview process had a disparate impact on female applicants could have

7 United erroneously claims that Ms. Bullington “did not even purport to assert a claim for 
gender discrimination based on disparate impact until after United moved for summary judgment. 
A. 89. Viewing the evidence in its entirety, there can be little dispute that United was put on notice 
of such a claim earlier in the litigation. Ms. Bullington’s Amended Complaint alleged that United 
continuously discriminated against her “because of her sex by not selecting plaintiff for the position 
o f line pilot,” A. 4, a factual allegation that could equally give rise to a disparate treatment or 
disparate impact theory. Moreover, her First Consolidated Set of Interrogatories and First Request 
for Production o f Documents solicited data on “the impact o f [United’s] structured interview process 
for hiring persons for the position of flight officer on persons by identifiable . . .  s ex. . A. 21.

10



“reasonably grow[n] out o f ’ Ms. Bullington’s charge o f gender discrimination in promotion.8 

Specifically, it is reasonable to assume that in investigating United’s decision not to promote Ms. 

Bullington, the EEOC would have reviewed United’s overall promotion and interview practices and 

their impact on applicants from protected group at issue. EEOC v. Wal-Mart Stores, Inc., 202 F.3d 

281 (Table), 1999 W L 1244485 (10thCir. 1999) (concluding that an investigation into the plaintiff s 

“failure to hire” claim would necessarily include an investigation o f [plaintiff s] alleged rudeness, 

the stated reason for his non-selection, which occurred, if  at all, as a result of, and after being asked, 

the “improper inquiry”). Specifically, it would be reasonable for the scope of this inquiry to include 

whether there was a statistically significant disparity between the percentage o f male and female 

interviewees who received failing scores in those interviews. Ms. Bullington’s gender discrimination 

claim based upon a disparate impact theory meets the Martin standard and should be deemed to have 

been exhausted for this reason as well.

CONCLUSION

For the foregoing reasons, Amici Curiae respectfully request that this Court reverse the 

district court’s decision and remand the case to the district court for further proceedings on the 

merits.

8 Several circuits have held that claims based upon a disparate impact theory meet this 
standard. Brown v. Coach Stores, 163 F.3d 706, 712 (2d Cir. 1998); Gomes, 964 F.2d at 1334-35; 
Babrocky v. Jewel Food, Inc., 773 F.2d 857, 865 (7th Cir. 1985); Griffin v. Carlin, 755 F.2d 1516, 
1522 (11th Cir. 1985). We encourage this Court to join them.

11



Respectfully submitted,

Dated: April 11, 2001
ELAINE R. JONES 
DIRECTOR-COUNSEL 
Theodore M. Shaw 
Norman J. Chachkin 
James L. Cott 
Melissa S. Woods
NAACP Legal Defense & Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212)965-2200

The Law Offices o f Stuart A. Kntzer 
One Sherman Place
140 East Nineteenth Avenue, Third Floor 
Denver, Colorado 80203 
(303)393-1111
On behalf o f The National Employment 
Lawyers Association 
600 Harrison Street, Suite 535 
San Francisco, California 94107 
(415) 227-4655

Albert H. Kauffman 
Nina Perales 
Leticia Saucedo 
Joe Berra
Mexican American Legal Defense and Educational 
Fund
The Book Building 
140 E. Houston Street, Suite 300 
San Antonio, TX 78205 
(210)224-5476

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CERTIFICATE OF COMPLIANCE

Pursuant to F.R.A.P. 32(a)(7)(C)(i), undersigned counsel hereby certifies that the foregoing 
brief contains 3,858 words.

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CERTIFICATE OF SERVICE

I hereby certify that copies o f the accompanying Brief ofAmicus Curaie The NAA CP Legal 
Defense And Educational Fund, Inc., The National Employment Law Center, and the Mexican 
American Legal Defense and Educational Fund in Support o f Plaintiff-Appellant Marion S. 
Bullington has been served by depositing same by first-class mail, on April 11, 2001, addressed to 
the following parties:

Barry D. Roseman, Esquire 
Roseman & Kazmierski, LLC 
899 Logan Street, Suite 203 
Denver, Colorado 80203

Paul F. Lewis, Esquire 
Jerry N. Jones, Esquire
Moye, Giles, O ’Keefe, Vermeire & Gorrell, LLP 
1225 Seventeenth Street, 29th floor 
Denver, Colorado 80202-5529

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