Maryland Federal Court Allows Plaintiff's Retaliation Claim to Proceed Despite not "checking the box" on the EEOC Charge

In Loconte v. Montgomery County, No. PWG-17-2052, 2018 BL 273880 (D. Md. Aug. 01, 2018), Defendant Montgomery County, Maryland (the "County") hired Plaintiff Anthony Loconte as a Hazmat Permitting Program Manager in July 2005 and terminated his employment on January 2, 2015.  Believing that his termination, as well as his supervisors' treatment of him leading up to his termination, was discriminatory, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 - 12213 , Loconte filed an EEOC Charge and then this lawsuit.  The County moved to dismiss, arguing that Loconte's EEOC Charge was not timely and he failed to exhaust his administrative remedies as to his retaliation claim.  

Loconte filed his EEOC Charge without checking the box for retaliation. But, this Court routinely considers the facts alleged in the narrative provided with an EEOC charge to determine which claims a plaintiff exhausted. E.g., Whitaker v. Maryland Transit Admin., No. ELH-17-10-00584, 2018 U.S. Dist. LEXIS 25546 , [2018 BL 51467], 2018 WL 902169 , at *19-21 (D. Md. Feb. 14, 2018) (considering both which box was checked on the EEOC charge (retaliation) and the narrative on the EEOC charge (which described only retaliation) to conclude that the plaintiff "failed to exhaust his administrative remedies for the Title VII claim of race discrimination"); Plummer v. Wright, No. TDC-16-2957, [2017 BL 353886], 2017 U.S. Dist. LEXIS 164283 , [2017 BL 353886], 2017 WL 4417829 , at *8 (D. Md. Oct. 3, 2017) (dismissing retaliation claim for failure to exhaust administrative remedies where "Plummer failed to check the 'retaliation' box in her 2014 EEO Complaint or otherwise allege retaliation elsewhere in that filing").

As for what that narrative must allege, the elements of retaliation in violation of the ADA are "(1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity and the employment action." Hamilton v. Prince George's Cty. Police Dep't, No. DKC 17-2300, [2018 BL 90659], 2018 U.S. Dist. LEXIS 43774 , [2018 BL 90659], 2018 WL 1365847 , at *6 (D. Md. Mar. 16, 2018).

With regard to the first element, "protected activity is conduct 'opposing any practice made an unlawful employment practice[.]'" IdThis "expansive" definition "'encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one's opinions in order to bring attention to an employer's discriminatory activities.'" Id . A request for an accommodation is a protected activity under the ADA. See Haulbrook v. Michelin N. Am., 252 F.3d 696 , 706 (4th Cir. 2001). Also, a complaint to an employer qualifies as protected activity "when 'the employee "communicates to [his or] her employer a belief that the employer has engaged in . . . a form of employment discrimination"'" in violation of his or her federal rights. Hamilton, [2018 BL 90659], 2018 U.S. Dist. LEXIS 43774 , [2018 BL 90659], 2018 WL 1365847 , at *6. An informal complaint "do[es] not need to use legally actionable words or cite specific statutes" as long as it "states generally that a person is a victim of discrimination." Id. 

Here, Loconte alleged in the narrative attached to his EEOC Charge that he engaged in the protected activity of seeking accommodations for his disability; his complaints that the County was taking disciplinary action based on his disability were also protected activities. And, he alleged in his narrative that the defendant terminated his employment and his termination was causally connected to his protected activity. 

Given Loconte's pro se status at the time he filed the Filing of Charges, and considering that "the exhaustion requirement should not become a tripwire for hapless plaintiffs," Sydnor v. Fairfax Cty., Va., 681 F.3d 591 , 594 (4th Cir. 2012), the Court construed his allegations to be a claim for retaliation. See Hamilton, [2018 BL 90659], 2018 U.S. Dist. LEXIS 43774 , [2018 BL 90659], 2018 WL 1365847 , at *6. Thus, Loconte's narrative attachment to his EEOC Charge, which the Court considered in determining what claims he brought before the EEOC, includes a retaliation claim. See Sillah, 244 F. Supp. 3d at 509 . Therefore, the County's Motion to Dismiss the retaliation claim for failure to exhaust administrative remedies was denied.

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