In Moore v. Board of Public Utilities Employees’ Club, Inc., 2025 WL 1000733 (D.Kan. April 3, 2025), the court, inter alia, dismissed plaintiff’s age discrimination claim under the Age Discrimination in Employment Act (ADEA), because plaintiff did not “administratively exhaust” that claim at the EEOC.
From the decision:
Defendant moves to dismiss Plaintiff’s ADEA claims because the charge of discrimination only checks the box for age discrimination but fails to contain any age-related complaints. Doc. 6 at 4-5. Defendant argues Plaintiff therefore failed to exhaust any age-related claims. Id. In response, Plaintiff points out that the charge of discrimination states she received her position because she was the “most senior” staff member but then faced discrimination. Doc. 10 at 2-3.
A plaintiff’s lawsuit “is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” Smith v. Cheyenne Ret. Invs. L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (internal quotation and citation omitted). This is so both the charged party and the EEOC can attempt to conciliate the claim without litigation. Id. The charge of discrimination must include the facts underlying the alleged discriminatory or retaliatory actions. Id. The ultimate question is whether the conduct at issue in the lawsuit “would reasonably grow out of the charges actually made [in the EEOC charge].” Id. at 1164-65 (internal quotation and citation omitted; brackets in original).
The Court agrees with Defendant that Plaintiff failed to exhaust an age-discrimination claim.4 Plaintiff did check a box indicating that age (along with race, sex, and retaliation) were the causes of discrimination. Doc. 3-1 at 1. But this alone is not sufficient to exhaust administrative remedies where there are no facts about alleged age discrimination included. See Smith, 904 F.3d at 1165 (“While the 2014 EEOC Charge does allege retaliation, it is clear from the text of that charge that it does not encompass retaliation for having filed the 2012 EEOC Charge, which is the Title VII violation Ms. Smith now alleges in federal court.”); Bartlette v. Hyatt Regency, 208 F. Supp. 3d 311, 327 (D.D.C. 2016) (finding a plaintiff failed to exhaust administrative remedies where he checked the box for retaliation but did not allege that any poor treatment began after he complained about discrimination); Cooper v. Xerox Corp., 994 F. Supp. 429, 436 (W.D.N.Y. 1998) (“Moreover, even if it were considered part of the charge, it is well-settled that merely checking a box, or failing to check a box does not necessarily control the scope of the charge.”); Thomas v. Ameren U.E., 2018 WL 5078361, at *1 (E.D. Mo. 2018) (“Therefore, because plaintiff merely checked a box and did not substantively explain her alleged claim of disability discrimination, plaintiff did not exhaust her administrative remedies as to her ADA claim.”); Ayoola v. OG&E Energy Corp., 2014 WL 111144, at *2 (W.D. Okla. 2014) (“Merely checking a box for retaliation in the Charge of Discrimination is insufficient where a plaintiff does not allege any facts in the charge related to retaliation.”). But see Melton v. SEPTA, 2024 WL 1163537, at *5 (E.D. Pa. 2024) (“This Court is persuaded, at this time, that while checking a box is not a necessary condition to exhausting an EEOC charge, it is a sufficient one.”).
Turning to the narrative portion of her charge of discrimination, the only possible reference to her age is Plaintiff’s contention that she was given her position because she was the “most senior” employee. Doc. 3-1 at 2. This does not necessarily equate to Plaintiff attaining any specific age, nor does it say anything about Plaintiff’s age as compared to her coworkers. More importantly, there are no allegations in the charge of discrimination that any allegedly adverse actions were taken against her because of her seniority status, let alone her age. Indeed, the only reference to Plaintiff’s seniority is that Randy hired her due to seniority. Id. Given this singular allegation, it would be unreasonable to expect anyone investigating the charge of discrimination to assume that Plaintiff was also alleging that Randy fired her for the same reason.
Accordingly, the court found that plaintiff failed to exhaust her claim for age discrimination under the ADEA, and therefore dismissed that claim without prejudice.