The U.S. Supreme Court has decided not to review a case brought by a Georgia fire chief who claimed that she was fired for being transgender in violation of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
In denying certiorari, the Court let stand a decision in Mosby v. City of Byron from the U.S. Court of Appeals for the 11th Circuit.
That court dismissed the case, saying that the plaintiff’s pre-suit charge with the U.S. Equal Employment Opportunity Commission (EEOC) did not contain the required verification.
The plaintiff, Rachel Mosby, was fire chief for the City of Byron for 11 years. In 2019, she was discharged.
She filed a charge with the EEOC, claiming that the reasons the city gave for her firing were pretextual. She noted that about a month before she was discharged, she was on the local news talking about her experience as a transgender firefighter.
The EEOC investigation stalled, and Mosby got a right to sue letter from the U.S. Department of Justice.
According to her petition, the EEOC charge was filed with a five-page letter drafted by an attorney, a notice signed by Mosby, and 11 pages of exhibits.
The parties agreed that the charge had not been properly verified.
Under federal law, charges under Title VII and the ADA must be “in writing under oath or affirmation.” And EEOC regulations require that these charges “be verified,” which means “sworn to or affirmed before” a person authorized to hear oaths.
During the EEOC investigation, the City of Byron did not indicate that the charge was not properly verified. But it raised that issue in a motion to dismiss filed later in federal court.
After the city moved to dismiss the case, Mosby tried to amend her original EEOC charge retroactively, but the EEOC refused to do so because the case had already been closed.
In April 2022, the 11th Circuit rejected Mosby’s argument that she should be excused for failing to file a verified charge. That court proceeded to uphold the dismissal of her discrimination claims.
Supreme Court petition
Mosby then petitioned to the Supreme Court, asking for review of the 11th Circuit ruling.
She argued that the federal court failed to properly apply the Court’s ruling in Fort Bend County v. Davis, which said that Title VII’s charge-filing requirement was not jurisdictional.
In Fort Bend County, the Court allowed a religious discrimination case to move forward even though there was a question as to whether the employee’s initial EEOC charge raised a religion-based claim because the issue was not raised until the litigation had been going on for years.
Mosby claimed that her case should be treated similarly, arguing that the lack of verification in should not bar her discrimination claims.
But the justices declined to hear her case. In doing so, they left open a question on how much time it takes for an employer who didn’t raise an issue with a charge filing to have that defense waived in a case.
As a result, employers with Title VII and ADA claims against them are advised to ensure that the EEOC charge was properly filed and to raise the issue as soon as possible to ensure that their defense isn’t waived.