Recently, the Fourth Circuit Court of Appeals, in Hentosh v. Old Dominion University, affirmed an award of summary judgment dismissing a retaliation claim against Old Dominion University.  In so doing, the Court also declared that, in a case where a district court does not have jurisdiction over a Title VII claim due to Plaintiff’s failure to timely file a charge with the EEOC, Plaintiff’s error does not deprive the court of the ability to hear a related retaliation claim.  In 2010, Patricia Hentosh, a non-tenured professor at Old Dominion University, filed a complaint with the EEOC against her employer claiming that it had discriminated against her “for being white” and favoring Asian employees.  While her charge with the EEOC was pending, Hentosh became eligible for tenure, but her application was denied.  Hentosh believed the denial to be in retaliation for bringing the 2010 claim, but she did not file a new or amended charge with the EEOC on this claim.  In January 2012, the EEOC issued Ms. Hentosh a “right to sue” letter, and Hentosh filed suit in district court alleging both discrimination and retaliation by the University.  The University moved to dismiss the complaint.  The court granted the motion to dismiss, in part, finding that Hentosh’s discrimination claim was untimely filed with the EEOC because the acts upon which it was predicated happened too far in advance of the filing of her charge; thus, it did not have jurisdiction over the discrimination claim.  However, the district court permitted Hentosh’s retaliation claim to proceed.

The University later filed a motion for summary judgment requesting dismissal of the retaliation claim.  The district court granted this motion because Hentosh could not overcome the University’s proffered legitimate, non-discriminatory reason for the denial of tenure.  Hentosh appealed the court’s decision, arguing that, because the district court did not have jurisdiction over her discrimination claim, it did not have jurisdiction over her retaliation claim and could not dismiss it. The Fourth Circuit rejected this reasoning and affirmed summary judgment because, unlike her discrimination claim, Hentosh did not need to exhaust any administrative remedies to bring a retaliation claim.  Thus, the court had the power to dismiss the case.

Retaliation claims grow every year, and more often than not, survive motions seeking dismissal as compared to discrimination claims arising out of the same set of facts.  The lack of an exhaustion requirement for retaliation claims worked in the employer’s favor in this case, but that’s not typical.  When making employment decisions, employers should consider whether retaliation may be asserted in a later lawsuit and sufficiently document their legitimate reasons for making employment decisions to help their defense of these claims.