In the realm of employment discrimination, there are strict time bars to bringing claims of discrimination to the Equal Employment Opportunity Commission (“EEOC”) or its state equivalent. When those deadlines are missed, employees will sometimes attempt to seek reinstatement in order to reset the time in which they have to file a discrimination complaint. The Eighth Circuit Court of Appeals in Jones v. Douglas County Sheriff’s Department (No. 17-3196), recently held that while a failure to reinstate can constitute an independent employment discrimination action, it cannot independently revive the previous claim.
Ms. Jones was a sheriff’s deputy in Douglas County, Nebraska, in the Emergency Services Unit. Ms. Jones used prescription pain medication for migraines and chronic neck and back pain. Her health later deteriorated, and she failed a remedial qualification for her unit.
After failing the remedial qualification, her office attempted to remove Ms. Jones from its Emergency Services Unit, though it had retained a male with health issues. Ms. Jones was eventually placed in the Fugitive Warrants Unit. However, her supervisor there transferred her to another unit, disciplining Ms. Jones for requesting accommodations and objecting to her transfer in the process.
Then, Ms. Jones became pregnant and was assigned to desk duty. Ms. Jones struggled to stay awake at work, and, at her office’s request, was investigated by the Nebraska Attorney General’s office. That investigation concluded that Ms. Jones had acquired a controlled substance through fraud, and she was charged with a felony. Ms. Jones was placed on administrative leave and terminated one month later. A year later, Ms. Jones was acquitted on the criminal charges.
The Reinstatement Request
Four months after her acquittal, Ms. Jones learned of an open position in the Douglas County Sheriff’s Office. Her attorney sent her former office a letter requesting that Ms. Jones “be reinstated with both back pay and the benefits she was denied during her leave.” The Douglas County Sheriff’s Office denied her request on December 18, 2015.
The EEOC Charge
After the reinstatement denial, Ms. Jones dual-filed a charge of employment discrimination with both the EEOC and the Nebraska equivalent. Both offices found no reasonable cause for such a charge.
The Ensuing Court Action
Ms. Jones then filed suit in federal court, but the federal court dismissed her claim, finding that any claim regarding her termination was well past the 300-day charge limitation period and that she could not revive her claim through the refusal to reinstate.
On appeal, the Eighth Circuit Court of Appeals disagreed that the decision to reinstate could not constitute an independent discriminatory act, holding expressly that “[a] reinstatement denial is a discrete employment action.” However, the court continued, “[i]t may be independently discriminatory.” Thus, while Ms. Jones could proceed on a claim for discrimination due to a decision not to reinstate, that claim did not revive the action for potential discrimination in her termination.
Given that Ms. Jones was solely claiming disparate treatment, the Eighth Circuit reiterated, that “[t]o establish a prima facie case, she ‘must show that she is a member of a protected class who was qualified for but was denied reinstatement, while a similarly situated employee outside of her protected class . . . was reinstated.’” Hence, while Ms. Jones’s claim could proceed, she had to prove that the reinstatement decision itself was discriminatory, a burden that she could not overcome.
While decisions on reinstatement requests can give rise to new charges of employment discrimination, they are just that: new. The reinstatement request itself must be discriminatory in order to pass muster under Title VII. This means that employees could bring a claim that had never been brought before, even if terminated well before the 300-day EEOC charge limit. But, the employee must then prove that the decision not to reinstate was independently discriminatory.