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Petitioner, V No. 18-____ IN THE Supreme Court of the United States _________ FORT BEND COUNTY, Petitioner, v. LOIS M. DAVIS, Respondent. _________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit _________ PETITION FOR A WRIT OF CERTIORARI _________ RANDALL W. MORSE NEAL KUMAR KATYAL KEVIN T. HEDGES Counsel of Record COUNTY ATTORNEY’S OFFICE COLLEEN E. ROH SINZDAK FORT BEND COUNTY MITCHELL P. REICH 301 Jackson Street HOGAN LOVELLS US LLP Richmond, TX 77469 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5600 [email protected] Counsel for Petitioner QUESTION PRESENTED Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., requires plaintiffs to exhaust claims of employment discrimination with the EEOC before filing suit in federal court. Id. § 2000e-5(b), (f)(1). The question presented is: Whether Title VII’s administrative exhaustion requirement is a jurisdictional prerequisite to suit, as three Circuits have held, or a waivable claim- processing rule, as eight Circuits have held. (i) ii PARTIES TO THE PROCEEDING Fort Bend County, petitioner on review, was the defendant-appellee below. Lois M. Davis, respondent on review, was the plaintiff-appellant below. iii TABLE OF CONTENTS Page QUESTION PRESENTED...........................................i PARTIES TO THE PROCEEDING............................ii TABLE OF AUTHORITIES.......................................iv OPINIONS BELOW....................................................1 JURISDICTION ..........................................................2 STATUTORY PROVISIONS INVOLVED .................2 INTRODUCTION........................................................2 STATEMENT ..............................................................4 REASONS FOR GRANTING THE PETITION .........9 I. THERE IS A CLEAR CIRCUIT SPLIT ON THE QUESTION PRESENTED ...............9 II. THE FIFTH CIRCUIT’S DECISION IS WRONG......................................................20 III. THE QUESTION PRESENTED IS IMPORTANT ..................................................22 CONCLUSION ..........................................................24 APPENDIX APPENDIX A—Fifth Circuit’s Opinion (June 20, 2018) ...............................................1a APPENDIX B—District Court’s Opinion (Aug. 24, 2016)..............................................16a APPENDIX C—Order Denying Panel Re- hearing and Rehearing En Banc (July 20, 2018)........................................................39a APPENDIX D—Statutory Provisions In- volved ............................................................41a iv TABLE OF AUTHORITIES Page(s) CASES: Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)................................................21 Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)...................................... passim Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011)............................14 Boos v. Runyon, 201 F.3d 178 (2d Cir. 2000) .................................14 Booth v. Churner, 532 U.S. 731 (2001)..............................................22 Brown v. Snow, 440 F.3d 1259 (11th Cir. 2006)......................13, 14 Crawford v. Babbitt, 186 F.3d 1322 (11th Cir. 1999)............................13 Davis v. North Carolina Department of Correction, 48 F.3d 134 (4th Cir. 1995)..................................10 De Medina v. Reinhardt, 686 F.2d 997 (D.C. Cir. 1982)..............................14 Edwards v. Dep’t of Army, 708 F.2d 1344 (8th Cir. 1983)........................15, 16 EEOC v. Farmer Bros. Co., 31 F.3d 891 (9th Cir. 1994)..................................11 Ferren v. Norton, No. 03-35811 (9th Cir. Dec. 29, 2003), 2003 WL 25656148.........................................18, 19 Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015) ...........................14, 17 v TABLE OF AUTHORITIES—Continued Page(s) Frederique-Alexandre v. Dep’t of Nat. & Envtl. Res. of Puerto Rico, 478 F.3d 433 (1st Cir. 2007) ................................14 Gibson v. West, 201 F.3d 990 (7th Cir. 2000)..........................15, 17 Gonzalez v. Thaler, 565 U.S. 134 (2012)..............................................23 Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011)..........................................3, 23 Hentosh v. Old Dominion Univ., 767 F.3d 413 (4th Cir. 2014)................................10 Hill v. Nicholson, 383 F. App’x 503 (6th Cir. 2010)....................15, 17 Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992 (11th Cir. 1982)..............................13 John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008)........................................20, 21 Jones v. Calvert Group, Ltd., 551 F.3d 297 (4th Cir. 2009)................................10 Kontrick v. Ryan, 540 U.S. 443 (2004)..............................................23 Kraus v. Presidio Trust Facilities Division/Residential Management Branch, 572 F.3d 1039 (9th Cir. 2009)..............................12 Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018)......................15, 19 Manning v. Carlin, 786 F.2d 1108 (11th Cir. 1986)............................13 vi TABLE OF AUTHORITIES—Continued Page(s) McCarthy v. Madigan, 503 U.S. 140 (1992)..............................................22 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)..............................................20 McKinnon v. Kwong Wah Rest., 83 F.3d 498 (1st Cir. 1996) ..................................14 Mohr v. Dustrol, Inc., 306 F.3d 636 (8th Cir. 2002)................................15 Patchak v. Zinke, 138 S. Ct. 897 (2018)............................................20 Peppers v. Cobb Cty., 835 F.3d 1289 (11th Cir. 2016)............................13 Reed Elsevier v. Muchnick, 559 U.S. 154 (2010)..............................................21 Rester v. Stephens Media, LLC, 739 F.3d 1127 (8th Cir. 2014)..............................16 Robinson v. Geithner, 359 F. App’x 726 (9th Cir. 2009)..........................12 Ruffin v. Lockheed Martin Corp., 659 F. App’x 744 (4th Cir. 2016)..........................11 Salas v. Indep. Elec. Contractors Inc., 603 F. App’x 607 (9th Cir. 2015)....................12, 17 Scarborough v. Principi, 541 U.S. 401 (2004)..............................................23 Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145 (2013)........................................22, 23 Sommatino v. United States, 255 F.3d 704 (9th Cir. 2001)..........................11, 12 vii TABLE OF AUTHORITIES—Continued Page(s) Stache v. Int’l Union of Bricklayers & Allied Craftsmen, 852 F.2d 1231 (9th Cir. 1988)..............................11 Stadther v. Dep’t of Homeland Sec., 2012 WL 4372570 (D. Minn. Aug. 7, 2012))........16 Thomas v. Nicholson, 263 F. App’x 814 (11th Cir. 2008)..................13, 17 Tonkin v. Shadow Mgmt., Inc., 605 F. App’x 194 (4th Cir. 2015)....................11, 16 Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67 (2009)................................................23 United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015)....................................21, 23 Whitaker v. Nash Cty., 504 F. App’x 237 (4th Cir. 2013)..........................11 Wilkie v. Dep’t of Health & Human Servs., 2010 WL 1257927 (D.N.D. Mar. 26, 2010).........................................16 Wilson v. MVM, Inc., 475 F.3d 166 (3d Cir. 2007) .............................9, 15 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)..............................................22 Ziya v. Glob. Linguistic Sol., 645 F. App’x 573 (9th Cir. 2016)..........................12 STATUTES: 28 U.S.C. § 1254(1) ..................................................2 42 U.S.C. § 2000e-5(b) .......................................2, 10 viii TABLE OF AUTHORITIES—Continued Page(s) 42 U.S.C. § 2000e-5(f) ..............................................2 42 U.S.C. § 2000e-5(f)(1)..................................18, 20 42 U.S.C. § 2000e-6................................................18 Civil Rights Act of 1991, Pub. L. No. 102-166, §§ 107, 112-113, 105 Stat. 1071, 1075, 1078-79 .............................21 Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5..............................21 OTHER AUTHORITY: EEOC, Title VII of the Civil Rights Act of 1964 Charges, https://www.eeoc.gov/eeoc/statistics/enfo rcement/titlevii.cfm (last visited Oct. 18, 2018) .....................................................................23 IN THE Supreme Court of the United States _________ No. 18- _________ FORT BEND COUNTY, Petitioner, v. LOIS M. DAVIS, Respondent. _________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit _________ PETITION FOR A WRIT OF CERTIORARI _________ Fort Bend County respectfully petitions for a writ of certiorari to review the judgment of the Fifth Circuit in this case. OPINIONS BELOW The Fifth Circuit’s opinion (Pet. App. 1a-15a) is reported at 893 F.3d 300. The District Court’s opin- ion (Pet. App. 16a-38a) is not reported, and is availa- ble at 2016 WL 4479527. The Fifth’s Circuit’s order denying panel rehearing and rehearing en banc (Pet. App. 39a-40a) is not reported. (1) 2 JURISDICTION The Fifth Circuit entered judgment on June 20, 2018. Petitioner filed a timely petition for rehearing en banc, which was denied on July 20, 2018. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED Pertinent statutory provisions are reproduced at Pet. App. 41a-52a. INTRODUCTION Title VII of the
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