Title I of the ADA requires that before a plaintiff can go to court they must first exhaust administrative remedies first. That means receiving a right to sue letter from the EEOC and filing your claim with the EEOC or an equivalent state agency within the requisite time period. It also means giving the EEOC or the equivalent state agency sufficient notice in the claim as to what you are expecting the EEOC to investigate. Failure to give that notice can subject the plaintiff to a failure to exhaust administrative remedies argument even if the plaintiff has received a right to sue letter. This was precisely the issue in Agnew v. Achievement Services of Northeast Kansas, Inc., 2013 WL 3895316 (D. Kan. July 29, 2013). In this case, the plaintiff filed an EEOC charge and neglected to check the retaliation box, though she did check the disability discrimination box. After receiving the right to sue letter, the plaintiff filed a claim with the United States District Court of Kansas alleging disability discrimination and retaliation. By failing to check the retaliation box, a presumption was created that the plaintiff was not asserting a claim represented by the box not checked. That said, the court also said that if the plaintiff could show that the narrative established sufficient facts for a prima facie case for retaliation than the presumption was rebutted. In particular, her claim stated:

“I was employed by respondent as a residential supervisor from approximately 1989 to December 5, 2011, when I was terminated. I had informed respondent of my condition and in November 2011 requested a reasonable accommodation based on my medical restrictions. While I was able to follow my restrictions for a time, I was then terminated soon after. I believe I was denied a reasonable accommodation and terminated based on disability, in violation of the Americans with Disabilities Act as amended.”

The court found that this language was sufficient to put everyone on notice that a retaliation claim was involved. In particular, the narrative shows: that she suffered an adverse employment action; that she was alleging that her termination was based on disability and came soon after her request for reasonable accommodation; and that a causal connection existed between the protected activity and the adverse action due to the timing between her request for reasonable accommodation and when she was terminated (one month). Accordingly, the court found that the narrative portion of her filing with the EEOC was sufficient to set forth a prima facie case of retaliation thereby rebutting the presumption against exhaustion, which existed because she did not check the box for retaliation. Thus, the court denied the motion to dismiss.

Takeaways: What this case illustrates is that if you are a plaintiff with a disability discrimination case, the better option may be to seek legal counsel first before filling out the EEOC claim. If a plaintiff has already filed a charge with the EEOC and then retained an attorney, the attorney after reviewing the facts, may want to seek, if he or she feels it necessary and is able to do so, to amend the EEOC charge. It also means that the EEOC charge should be written broadly enough so that there is greater flexibility when it comes to the complaint to be filed later.