                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                 May 12, 2017
                                     PUBLISH                 Elisabeth A. Shumaker
                                                                 Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT


 BRYAN “SHANE” JONES,

        Plaintiff - Appellant,

 v.                                                    No. 16-6156

 JULIE NEEDHAM; NEEDHAM
 TRUCKING, L.L.C.,

        Defendants - Appellees.

 --------------------------

 EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION,

        Amicus Curiae.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF OKLAHOMA
                     (D.C. No. 5:15-CV-00978-HE)


Bill V. Wilkinson, Tulsa, Oklahoma, for Plaintiff - Appellant.

Joshua W. Solberg (Elizabeth Bowersox, with him on the brief), of McAfee &
Taft A Professional Corporation, Oklahoma City, Oklahoma, for Defendants -
Appellees.

Philip M. Kovnat (P. David Lopez, General Counsel, Jennifer S. Goldstein,
Associate General Counsel and Lorraine C. Davis, Assistant General Counsel,
with him on the brief), of Equal Employment Opportunity Commission, Office of
General Counsel, Washington, D.C., for Amicus Curiae.
Before KELLY, EBEL, and BACHARACH, Circuit Judges.


KELLY, Circuit Judge.


      Plaintiff-Appellant Bryan “Shane” Jones appeals from the district court’s

dismissal of his Title VII sex discrimination claim against Defendant-Appellee

Needham Trucking, LLC and his state law tort claim for wrongful interference

with a contractual relationship against Defendant-Appellee Julie Needham. See

Jones v. Needham, No. CIV-15-0978-HE, 2016 WL 2659618 (W.D. Okla. May 6,

2016). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse

in part, and remand for further proceedings.



                                   Background

      Mr. Jones worked as a mechanic for Needham Trucking from May to

November of 2014. 1 Aplt. App. 46. According to Mr. Jones, he was fired

because he would not have sex with Ms. Needham, his direct supervisor and a

shareholder of the business.

      Mr. Jones completed an intake questionnaire with the EEOC. He checked

the boxes for “Sex” and “Retaliation” as the reasons for his claims of employment

discrimination, and also wrote out “sex har[as]sment.” Id. at 43. He provided a

comparator, another mechanic who “was treated better because he had sex with


                                       -2-
Ms. Needham.” Id. And he listed two witnesses, both of whom would testify that

they knew of the sexual harassment. Id. at 45. In response to questions seeking

more detailed explanations, Mr. Jones wrote “[s]ee attached.” Id. at 43. That

referenced a six-paragraph statement by Mr. Jones, which concluded with “I was

terminated because I refused to agree to Ms. Needham’s sexual advances and I

rejected all such efforts by her.” Id. at 46.

      Apparently the attachment never made it to the EEOC, nor did the EEOC

alert Mr. Jones that it was missing. See 2 Aplt. App. 69–71. Nevertheless, the

EEOC prepared the following charge form on behalf of Mr. Jones:

      I. I have been employed with Needham Trucking LLC since on or
      about May, 2014. During my employment I was subjected to sexual
      remarks by owner, Julie Needham. I complained to General Manager,
      Jonathan Needham and Stephanie Needham about the sexual
      harassment. Nothing was done. On or about November 3, 2014, Julie
      Needham terminated my employment.

      II. No reason was given for the sexual harassment. No reason was
      given for not stopping the sexual harassment. No reason was given for
      my retaliatory termination.

      III. I believe I have been discriminated against and retaliated against
      for participating in a protected activity in violation of Title VII of the
      Civil Rights Act of 1964, as amended.

1 Aplt. App. 41.

      After the EEOC issued a right-to-sue letter, Mr. Jones filed suit against

Needham Trucking and Ms. Needham with claims of sexual harassment,

negligence, negligent or intentional infliction of emotional distress, wrongful


                                          -3-
interference with a contractual or business relationship, and violation of the

Oklahoma Employment Security Act of 1980 (“OESA”). Id. at 9–15. Mr. Jones

made clear that his sexual harassment claim took the form of both hostile work

environment discrimination and quid pro quo discrimination that culminated in a

tangible employment action “result[ing] from his refusal to submit to a

supervisor’s sexual demands.” Id. at 10.

      Needham Trucking and Ms. Needham moved to dismiss all but Mr. Jones’s

hostile work environment claim, id. at 22–23, and Mr. Jones voluntarily dismissed

his claims for negligence and infliction of emotional distress. Aplee. Supp. App.

16. The district court then granted the partial motion to dismiss. It held that Mr.

Jones failed to exhaust his administrative remedies for his quid pro quo sexual

harassment claim, that his state law tort claim was precluded by the Oklahoma

Anti-Discrimination Act (“OADA”), and that his OESA claim failed for want of a

private right of action. Jones, 2016 WL 2659618, at *1–3. Mr. Jones moved to

dismiss with prejudice his remaining claim for hostile work environment sexual

harassment, which the district court granted. Order Granting Motion to Dismiss,

Jones v. Needham, No. 5:15-cv-00978-HE (W.D. Okla. June 7, 2016), ECF No.

35. This appeal followed. 1

      1
         Although Mr. Jones filed his notice of appeal before his motion to
dismiss his remaining claim and before the district court had ruled on that motion
or entered a final judgment, Fed. R. App. P. 4(a)(2) provides that a notice of
appeal filed after the court announces a decision but before the entry of judgment
“is treated as filed on the date of and after the entry.” See also Coll v. First Am.

                                        -4-
                                      Discussion

      Although the district court described the exhaustion of administrative

remedies as a jurisdictional requirement under Title VII, Jones, 2016 WL

2659618, at *1, our recent cases suggest that exhaustion in this context might be

better characterized as a claims-processing obligation. See Gad v. Kan. State

Univ., 787 F.3d 1032, 1038 (10th Cir. 2015); see also Arabalo v. City of Denver,

625 F. App’x 851, 860 (10th Cir. 2015) (unpublished); Pham v. James, 630 F.

App’x 735, 737–38 (10th Cir. 2015) (unpublished). 2 Regardless, our review of

the district court’s dismissal for failure to state a claim or for lack of subject

matter jurisdiction is de novo. SEC v. Shields, 744 F.3d 633, 640 (10th Cir.

2014) (Rule 12(b)(6)); McKenzie v. U.S. Citizenship & Immigration Servs., 761

F.3d 1149, 1154 (10th Cir. 2014) (Rule 12(b)(1)).

A.    Quid Pro Quo Sexual Harassment and Exhaustion of Administrative
      Remedies

      Title VII makes it unlawful for an employer “to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual . . .

because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Sexual



Title Ins. Co., 642 F.3d 876, 884–85 (10th Cir. 2011).
      2
        Although not precedential, we find the reasoning of these and the other
unpublished opinions cited in this opinion to be instructive. See 10th Cir. R.
32.1.

                                          -5-
harassment has long been included in this proscription of sex discrimination. See

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65–66 (1986); 29 C.F.R. §

1604.11(a). Such sexual harassment traditionally takes one of two forms. The

first is “quid pro quo” harassment, in which a plaintiff “proves that a tangible

employment action resulted from a refusal to submit to a supervisor’s sexual

demands.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998). The

second is “hostile work environment” harassment, in which conduct that does not

result in a tangible employment action is nevertheless so “severe or pervasive”

that it creates an abusive working environment. Id. at 754; see also Morris v.

City of Colo. Springs, 666 F.3d 654, 663 (10th Cir. 2012).

      Importantly, the terms “quid pro quo” and “hostile work environment” do

not appear in the statutory or regulatory text. Ellerth, 524 U.S. at 752. Instead,

the labels originated in the academy, were incorporated by the courts, and have

since “acquired their own significance.” Id. The Supreme Court has warned that

they “are helpful, perhaps, in making a rough demarcation between cases in which

threats are carried out and those where they are not or are absent altogether, but

beyond this are of limited utility.” Id. at 751.

      Before filing suit, a Title VII plaintiff must first exhaust administrative

remedies by, among other things, filing a sufficient charge of discrimination with

the EEOC. See § 2000e-5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 104–05 (2002). Aside from requiring that a charge be in writing and made

                                         -6-
under oath, Congress provided scant detail on what the charge should look like

and instead gave the EEOC the responsibility of fleshing out those requirements.

See § 2000e-5(b). The EEOC, in turn, has set up a system by which a person will

submit information to the agency, typically in the form of an intake questionnaire,

and then the EEOC will render assistance in the filing of the charge. 29 C.F.R. §

1601.6(a). The resulting charge document should contain a “clear and concise

statement of the facts, including pertinent dates, constituting the alleged unlawful

employment practices.” Id. § 1601.12(a)(3).

      The purpose of administrative exhaustion is two-fold: “1) to give notice of

the alleged violation to the charged party; and 2) to give the EEOC an opportunity

to conciliate the claim.” Jones v. UPS, Inc., 502 F.3d 1176, 1185 (10th Cir.

2007) (citation omitted). Given these goals, the charge document must contain

the general facts concerning the discriminatory actions later alleged in the legal

claim. See id. at 1186. Thus, a plaintiff’s claim in federal court “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.” Id.

      This overview raises two questions about the district court’s determination

that Mr. Jones did not properly exhaust his administrative remedies. First, which

was the proper document to look at? And second, was it sufficient?

      The district court seemed to assume that the charge form prepared by the

EEOC would necessarily be deficient because of the missing attachment to the

                                        -7-
intake questionnaire. See Jones, 2016 WL 2659618, at *1–2. Indeed, at times

Mr. Jones himself seemed to assume this. 3 See Aplee. Supp. App. 7 (blaming the

EEOC for failing to “clearly articulate[] quid pro quo sexual harassment claims”

in the charge papers). Accordingly, the district court looked at the intake

questionnaire itself to see if it could be construed as a charge document sufficient

for exhaustion.

      While we acknowledge that there are times in which a different filing, such

as an intake questionnaire, can constitute a charge for certain purposes, see, e.g.,

Fed. Express Corp. v. Holowecki, 552 U.S. 389, 401, 405 (2008), the general rule

remains that we typically look to the charge form if one exists. This is because

the charge form, not a previous filing, is given to the employer to notify it of the

potential claims against it and ordinarily determines the scope of the EEOC’s

investigation. See 42 U.S.C. § 2000e-5(b); Occidental Life Ins. Co. of Cal. v.

EEOC, 432 U.S. 355, 359–60 (1977); see also Green v. JP Morgan Chase Bank

Nat’l Ass’n, 501 F. App’x 727, 731–32 (10th Cir. 2012) (unpublished).

      3
         Mr. Jones did, however, preserve an argument that regardless of what
filing constituted the final charge — i.e., whether it was the intake questionnaire
or the charge form — strict compliance with the EEOC’s regulations in 29 C.F.R.
§ 1601.12(a) is not required “so long as the charge the Commission receives is a
written statement sufficiently precise to identify the parties, and to describe
generally the action or practices complained of.” Aplee. Supp. App. 12 (quoting
Semsroth v. City of Wichita, 304 F. App’x 707, 712 (10th Cir. 2008)
(unpublished) (emphasis, internal quotation marks, and citation omitted)). Since
the charge form was before the district court, we think this preserved an
alternative argument that it, and not the questionnaire, constituted the actual
charge.

                                        -8-
      Turning to the charge form itself, then, the question is whether the facts

alleged are “sufficiently related to the claim [made in the complaint] such that

those facts would prompt an investigation of the claim.” Jones, 502 F.3d at 1186

(citation omitted). We liberally construe the charge document in determining

whether this requirement has been met. Id.

      Needham Trucking argues that the facts alleged were insufficient to put it

on notice of the quid pro quo harassment claim made in Mr. Jones’s amended

complaint. Aplee. Br. at 11. It takes issue with the EEOC’s argument that the

facts alleged were sufficient to exhaust both a quid pro quo and a hostile work

environment claim. We are not persuaded. Needham’s argument relies on a

complete bifurcation between the two forms of sexual harassment, see id. at 8–9,

but the Supreme Court has cautioned that they are not wholly distinct claims. See

Ellerth, 524 U.S. at 754. Rather, they are shorthand descriptors to delineate

different ways in which sexual harassment can occur. In the first, the tangible

employment action that results from a refusal to submit to a supervisor’s demands

“itself constitutes a change in the terms and conditions of employment that is

actionable under Title VII.” Id. In the second, it is the “severe or pervasive”

conduct that effectively alters the conditions of employment so as to violate Title

VII. See id.; Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1058 (10th Cir.

2009). Both factual scenarios lead to the same place: sexual harassment that

violates Title VII’s proscription against sex discrimination in the workplace. See

                                        -9-
Gregory v. Daly, 243 F.3d 687, 698–99 (2d Cir. 2001). Though the descriptors

matter a great deal insofar as they reveal what elements are needed to prove the

specific claim of sexual harassment, see Ellerth, 524 U.S. at 752–54, they are not

so unrelated that the facts of the two scenarios could not overlap, or that an

investigation resulting from facts specific to one category could not also fall

within the scope of an investigation of the other.

      Despite Needham’s implicit argument to the contrary, we do not think this

understanding is new for this circuit. Needham emphasizes our past cases in

which we have continued to use the words “quid pro quo” as evidence that we

also continue to recognize “two distinct types of sexual harassment claims.”

Aplee. Br. at 8–9. The implication is that perhaps things would be different if the

case came about in another circuit that has retired that formulation. Cf., e.g.,

Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 n.4 (11th Cir. 2004) (using

term “tangible employment action” instead of “quid pro quo” to describe

“harassment that culminates in a discharge, demotion, or undesirable

reassignment”). But as we have explained before, though the labels might differ,

the underlying meaning does not. Pinkerton, 563 F.3d at 1059 n.4 (“[W]e use the

‘quid pro quo’ terminology only insofar as it might be useful to show that the

harassment culminated in a tangible employment action.” (citing Ellerth, 524 U.S.

at 753–54)); see also Gregory, 243 F.3d at 699 (continuing to use term “quid pro

quo,” emphasizing that “[w]hat matters . . . is simply whether an employment

                                        - 10 -
action was based on plaintiff’s sex,” and refusing “to create a separate doctrinal

category for employers who make [employees’] workplace success contingent on

submission to a supervisor’s sexual demands”).

      A charge need only “describe generally” the alleged discrimination, 29

C.F.R. § 1601.12(b), in order to “give notice of an alleged violation to the

charged party,” Woodman v. Runyon, 132 F.3d 1330, 1342 (10th Cir. 1997). Mr.

Jones’s form has the boxes checked for his allegations of sex-based

discrimination and retaliation, and it recounts that he was “subjected to sexual

remarks,” that “Julie Needham terminated [his] employment,” and that no reason

was given for the termination. 1 Aplt. App. 41. We think this was sufficient to

alert Needham to the sexual harassment allegations and to trigger an investigation

that would look into what the sexual remarks were, why Mr. Jones was fired, and

whether the two events were connected. Though the complaint Mr. Jones filed

was more detailed than his charge form, this is to be expected given that a

complaint must meet Rule 8 pleading standards and contain sufficient facts to

render it plausible. See Fed. R. Civ. P. 8(a); Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007).

B.    Wrongful Interference with a Contractual or Business Relationship

      The OADA “provides for exclusive remedies within the state of the policies

for individuals alleging discrimination in employment on the basis of . . . sex.”

Okla. Stat. tit. 25, § 1101(A). The OADA is analyzed similarly to Title VII

                                        - 11 -
claims. See id. § 1305(A); see also Tilghman v. Kirby, 662 F. App’x 598, 601

(10th Cir. 2016) (unpublished). The district court concluded that since Mr.

Jones’s tortious interference claim was based on the same set of facts as his sex

discrimination claim it fell within the OADA’s limitation of common law

remedies. We agree.

      Mr. Jones contends that “[n]either in the Amended Complaint nor in other

pleading does [he] allege that the tortious interference is caused by the sexual

harassment.” Aplt. Br. at 20. But in his amended complaint, Mr. Jones 1)

adopted “[a]ll preceding paragraphs” detailing the facts for the sex discrimination

claims, 2) alleged that he had a business or contractual relationship with Needham

Trucking with which Ms. Needham wrongfully interfered, and 3) claimed that he

was damaged in excess of $10,000 because of this interference. 1 Aplt. App. 13.

Thus, the only facts in this statement are those he expressly adopted from the

prior claims — which is to say, those relating to the alleged sexual harassment

and resulting claims.

      With this said, it could be that the same facts simply provide the basis for

two different legal theories that are sufficiently distinct so as not to be precluded

by the OADA. This sometimes happens in the Title VII context when courts have

found that the separately-actionable tort is “highly personable” in nature. See

Brock v. United States, 64 F.3d 1421, 1423 (9th Cir. 1995) (rape claim not barred

by Title VII’s exclusive-remedy provision). Applying this logic, a district court

                                         - 12 -
in Oklahoma has held that a plaintiff could pursue both her OADA claim and her

common law assault claim, even though both claims were founded on the same

facts alleging that her supervisor sexually touched her without her consent. See

Cunningham v. Skilled Trade Servs., Inc., No. CIV-15-803-D, 2015 WL 6442826,

at *3–5 (W.D. Okla. Oct. 23, 2015).

      This exception does not apply to Mr. Jones’s claim. Oklahoma defines the

elements of a claim for tortious or malicious interference as: “1) interference with

a business or contractual right; 2) malicious and wrongful interference that is

neither justified, privileged, nor excusable; and 3) damage proximately sustained

as a result of the interference.” Tuffy’s, Inc. v. City of Okla. City, 212 P.3d

1158, 1165 (Okla. 2009). Compare this with the elements of a quid pro quo form

of sexual harassment: 1) tangible job benefits that are 2) conditioned on an

employee’s submission to conduct of a sexual nature, which leads to 3) adverse

job consequences when the employee refuses to submit to the sexual conduct.

See Pinkerton, 563 F.3d at 1060. The elements are remarkably similar when the

alleged malicious conduct is, as here, the conditioning of job benefits on the

employee’s submission to sexual conduct.

      AFFIRMED in part, REVERSED in part, and REMANDED. Mr. Jones’s

motion to certify the OADA question to the Oklahoma Supreme Court is

DENIED.




                                        - 13 -
Jones v. Needham, 16-6156,

BACHARACH, J., dissenting.

      The majority concludes that the Charge exhausts the plaintiff’s Title

VII claim. But in my view, the plaintiff waived this issue by (1) failing to

present it in district court and neglecting to urge plain error on appeal and

(2) failing to develop this issue in his opening brief in the appeal. Based

on these waivers, I would not consider the Charge. And I regard the Intake

Questionnaire as immaterial to the exhaustion requirement. Thus, I believe

that the district court properly dismissed the action.

1.    The Plaintiff’s Two Waivers Regarding the Sufficiency of the
      Charge

      The first waiver. The plaintiff’s first waiver resulted from his failure

to discuss the sufficiency of the Charge when responding to the

defendant’s motion to dismiss in district court.

      The majority refers to page 7 of the plaintiff’s response brief filed in

district court. Maj. Op. at 8 n.3. This page contains only one pertinent

sentence: “The regulation also dictates, however, that strict compliance

with these requirements is not necessary so long as the Charge the

Commission receives is ‘a written statement sufficiently precise to identify

the parties, and to describe generally the action or practices complained

of.’” Supp. App’x at 12 (quoting Semsroth v. City of Wichita, 304 F. App’x

707, 712 (10th Cir. 2008) (unpublished)). The plaintiff follows this
statement with this: “The more important question is whether the written

statement generally describes the action complained of. Here, it is clear the

written statement by Shane Jones [which is the attachment to the Intake

Questionnaire, not the Charge] meets this requirement.” Id.

      The entire thrust of the plaintiff’s argument in district court 1 was

that: (1) the EEOC, not Mr. Jones, had prepared the Charge papers and (2)

the EEOC, through neglect, had failed to adequately include the substance

of the plaintiff’s claim in the Charge. The plaintiff makes this clear in the

concluding paragraph to his response to the motion to dismiss: “In the

instant case, it is clear that Plaintiff Shane Jones alleged quid pro quo

sexual harassment. However, when the EEOC prepared the Charge papers,

the EEOC failed to specifically allege quid pro quo sexual harassment.

This was clearly an oversight by the EEOC. If the employer’s Motion to

Dismiss is granted, the Plaintiff Shane Jones will be penalized for the

EEOC’s negligence in preparing the Charge.” Id. at 15; see also id. at 12

(“The attachment [to the Intake Questionnaire] clearly evidences quid pro

quo sexual harassment and should have been included by the EEOC in the

Charge papers. The EEOC failed to include in the Charge papers the claim

described in the written attachment which was part of the responses to the

Intake Questionnaire.”).



1
      See Supp. App’x at 10-15.
                                       2
      The plaintiff’s omission of this argument in district court resulted in

a forfeiture. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d

1229, 1238 (10th Cir. 2016). Forfeited arguments are ordinarily reviewable

under the plain-error standard. Id. at 1239. But the plaintiff has not asked

us for plain-error review. As a result, the plaintiff waived his appellate

argument on the sufficiency of the Charge. See McKissick v. Yuen, 618

F.3d 1177, 1189 (10th Cir. 2010) (“[E]ven if [the appellant’s] arguments

were merely forfeited before the district court, her failure to explain in her

opening appellate brief . . . how they survive the plain error standard

waives the arguments in this court.” (emphasis in original)).

      The second waiver. The plaintiff’s second waiver took place in his

opening brief in this appeal. There the plaintiff argued that the Intake

Questionnaire was sufficient, but he did not develop an argument involving

the Charge. There were only two references to the Charge in the opening

brief’s discussion of exhaustion.

      In one reference, the plaintiff stated that a “pivotal question” was

whether the “Intake Questionnaire (APP 42-50) and Charge (APP 41) [met]

minimum requirements for the exhaustion of remedies.” Plaintiff’s

Opening Br. at 11. After identifying this “pivotal question,” the plaintiff

failed to discuss the Charge or say why it sufficed for exhaustion. Instead,




                                      3
the plaintiff answered the “pivotal question” by focusing solely on the

Intake Questionnaire.

      The second reference again identified “the question” as whether the

plaintiff’s information in “(APP1) 2 would prompt an investigation of the

quid pro quo claim.” Plaintiff’s Opening Br. at 15. Then, in answering this

question, the plaintiff referred solely to the information in the Intake

Questionnaire, concluding that it had sufficiently described the underlying

claim. Id. at 18. The Charge was again ignored.

      These were the only two references to the Charge in the opening

brief’s discussion on exhaustion. Though the plaintiff twice referred to the

Charge in framing the issue, he never discussed the Charge or stated why it

would suffice for exhaustion. The plaintiff’s two isolated references to the

Charge failed to develop an argument regarding the Charge, resulting in a

waiver. See Illie v. Holder, 613 F.3d 1019, 1026 n.4 (10th Cir. 2010)

(stating that the appellant’s failure to sufficiently develop an argument in

his opening brief constituted a waiver).

      After the plaintiff filed his opening brief, the EEOC filed an amicus

brief, arguing that the Charge was sufficient. But we typically do not

entertain an amicus curiae’s argument for reversal that had not been

presented in the appellant’s opening brief. E.g., Tyler v. City of Manhattan,
2
      “APP 1” is the first page of a docket sheet, not the Charge. I assume
that the plaintiff intended to cite page 41, which was the Charge.

                                      4
118 F.3d 1400, 1404 (10th Cir. 1997). I would apply our typical practice

here and decline to consider this argument.

      We may assume, for the sake of argument, that this argument was

developed in the plaintiff’s reply brief. But we do not ordinarily consider

appellate arguments for reversal made for the first time in an appellant’s

reply brief. E.g., Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir. 2016). I

would follow that practice here. 3

                                      * * *

      In my view, the plaintiff twice waived the sufficiency of the Charge.

Thus, I would not address this issue.

2.    Insufficiency of the Intake Questionnaire for Exhaustion

      Mr. Jones also contends that the Intake Questionnaire satisfies the

exhaustion requirement. I disagree.

      An intake questionnaire can sometimes constitute a charge when a

separate charge is not submitted. See Fed. Express Corp. v. Holowecki, 552

U.S. 389, 402-03 (2008). To constitute a charge, however, the intake

questionnaire must request the EEOC to take remedial action to protect the

employee’s rights or settle the dispute. Id.



3
      Oral argument provided the defendant with its first opportunity to
address the plaintiff’s argument regarding the sufficiency of the Charge.
When given this opportunity, the defendant objected and argued that the
plaintiff had waived an argument on the sufficiency of the Charge. Oral
Arg. at 15:43-16:16.
                                        5
     In the Intake Questionnaire, the plaintiff stated that he wanted to file

a separate charge; and he ultimately followed through by separately

submitting a charge. Thus, the majority focuses on the Charge rather than

the Intake Questionnaire. Maj. Op. at 8. The majority’s focus is correct

because the Intake Questionnaire never went to the employer. Id. As a

result, the Intake Questionnaire is immaterial to the exhaustion

requirement.

3.   Conclusion

     In my view, Mr. Jones

          waived a theory of exhaustion based on the Charge and

          failed to satisfy the exhaustion requirement based on the Intake
           Questionnaire.

Accordingly, I believe that the dismissal was correct. Because the majority

concludes that the Charge suffices for exhaustion, I respectfully dissent.




                                      6
