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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                  United States Court of Appeals

                                      No. 16-20640
                                                                           Fifth Circuit

                                                                         FILED
                                                                     June 20, 2018

LOIS M. DAVIS,                                                      Lyle W. Cayce
                                                                         Clerk
                Plaintiff – Appellant,

v.

FORT BEND COUNTY,

                Defendant – Appellee.




                    Appeal from the United States District Court
                         for the Southern District of Texas


Before KING, JONES, ∗ and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Once again Lois Davis appeals the district court’s dismissal of her
lawsuit against her former employer, Fort Bend County.                 We previously
reversed and remanded, and we do so again today.
                                             I.
      Lois Davis was an information technology supervisor for Fort Bend
County.       Davis filed a complaint with Fort Bend’s Human Resources
Department alleging that the information technology director had sexually
harassed and assaulted her. Fort Bend’s own investigation led to the director’s


      ∗
          Concurring in the judgment only.
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                                       No. 16-20640
eventual resignation. According to Davis, her supervisor began retaliating
against her because Davis had made a formal complaint against the director,
who was a personal friend of her supervisor.                When Davis informed her
supervisor that she could not work one specific Sunday because she had a
“previous religious commitment” to attend a special church service, her
supervisor did not approve the absence. After Davis attended the church
service and did not report to work, Fort Bend terminated her employment.
       Alleging sexual harassment and retaliation by Fort Bend, she submitted
an intake questionnaire and filed a charge with the Texas Workforce
Commission. While her case was still pending before the Texas Workforce
Commission, she amended her intake questionnaire to include religious
discrimination but did not amend her charge. Specifically, she added the word
“religion” in the box labeled “Employment Harms or Actions.”
       After the Texas Workforce Commission issued a right-to-sue letter,
Davis filed her lawsuit in district court. She alleged both retaliation and
religious discrimination under Title VII and intentional infliction of emotional
distress. The district court granted summary judgment on all claims, and
Davis timely appealed.
       In her first appeal, Davis argued that the district court erred when it
granted summary judgment for Fort Bend, and we affirmed summary
judgment on her retaliation claim but reversed on her religious discrimination
claim. 1 See Davis v. Fort Bend County, 765 F.3d 480, 491 (5th Cir. 2014), cert
denied, 135 S. Ct. 2804 (2015). On the religious discrimination claim, we held
that genuine disputes of material fact existed as to whether: (1) Davis held a
bona fide religious belief that she needed to attend the Sunday service; and (2)


       1 Davis did not challenge the grant of summary judgment on her intentional infliction
of emotional distress claim. See Davis v. Fort Bend County, 765 F.3d 480, 484 (5th Cir. 2014),
cert denied, 135 S. Ct. 2804 (2015).
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Fort Bend would have suffered an undue hardship in accommodating Davis’s
religious observance. Id. at 487, 489. Fort Bend filed a petition for writ of
certiorari challenging this determination, and the Court denied it.
      On remand, Fort Bend argued to the district court—for the first time—
that Davis had failed to exhaust her administrative remedies on her religious
discrimination claim. Agreeing with Fort Bend, the district court held that
administrative exhaustion is a jurisdictional prerequisite in Title VII cases.
Thus, the district court reasoned, Davis’s contention that Fort Bend had
waived this argument was “irrelevant.” It determined that Davis had failed to
exhaust her administrative remedies. Accordingly, the district court dismissed
with prejudice Davis’s religious discrimination claim.
      On appeal, Davis argues that failure to exhaust administrative remedies
under Title VII is not a jurisdictional bar to suit. Rather, administrative
exhaustion is only a prudential prerequisite for suit, and Fort Bend has waived
any exhaustion argument. In the alternative, Davis raises two other
arguments: (1) that she did exhaust her administrative remedies; and (2) that
requiring her to exhaust further would have been futile.
                                      II.
                                      A.
      We review questions of subject matter jurisdiction de novo. See Nat’l
Football League Players Ass’n v. Nat’l Football League, 874 F.3d 222, 225 (5th
Cir. 2017). We also review de novo a district court’s determination that a
plaintiff did not exhaust her administrative remedies. Ruiz v. Brennan, 851
F.3d 464, 468 (5th Cir. 2017).
                                      III.
      Title VII of the Civil Rights Act provides for private causes of action
arising out of employment discrimination and gives federal courts subject
matter jurisdiction to resolve such disputes. See 42 U.S.C. § 2000e-5(f). Before
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                                      No. 16-20640
seeking judicial relief, however, Title VII plaintiffs are required to exhaust
their administrative remedies by filing a charge of discrimination with the
Equal Employment Opportunity Commission within 180 days of the alleged
discrimination. 42 U.S.C. § 2000e-5(e)(1). 2
      “[A] primary purpose of Title VII is to trigger the investigatory and
conciliatory procedures of the EEOC, in attempt to achieve non-judicial
resolution of employment discrimination claims.” Pacheco v. Mineta, 448 F.3d
783, 788–89 (5th Cir. 2006). By exhausting their administrative remedies by
filing formal charges with the EEOC, Title VII plaintiffs initiate this process.
In our circuit, there is disagreement on whether Title VII’s administrative
exhaustion requirement is a jurisdictional requirement that implicates subject
matter jurisdiction or merely a prerequisite to suit (and thus subject to waiver
or estoppel). See id. at 788 n.7.
      “Jurisdiction . . . is a word of many, too many, meanings.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 90 (1998) (quoting United States v.
Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)).                Cautioning against the
“profligate” use of the term, the Supreme Court has admitted that it and other
courts have been “less than meticulous” when using this word in the past.



      2 42 U.S.C. §2000e-5(e)(1) reads:
      (1) A charge under this section shall be filed within one hundred and eighty
      days after the alleged unlawful employment practice occurred and notice of the
      charge (including the date, place and circumstances of the alleged unlawful
      employment practice) shall be served upon the person against whom such
      charge is made within ten days thereafter, except that in a case of an unlawful
      employment practice with respect to which the person aggrieved has initially
      instituted proceedings with a State or local agency with authority to grant or
      seek relief from such practice or to institute criminal proceedings with respect
      thereto upon receiving notice thereof, such charge shall be filed by or on behalf
      of the person aggrieved within three hundred days after the alleged unlawful
      employment practice occurred, or within thirty days after receiving notice that
      the State or local agency has terminated the proceedings under the State or
      local law, whichever is earlier, and a copy of such charge shall be filed by the
      Commission with the State or local agency.
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                                  No. 16-20640
Arbaugh v. Y&H Corp., 546 U.S. 500, 510–11 (2006). We must be careful to
distinguish between jurisdictional requirements that bear on a court’s power
to adjudicate a case and nonjurisdictional requirements.
      We have a line of cases that characterize Title VII’s administrative
exhaustion requirement as jurisdictional. See, e.g., Randel v. U.S. Dep’t of
Navy, 157 F.3d 392, 395 (5th Cir. 1998) (“If the claimant fails to comply with
either of these [Title VII] requirements then the court is deprived of
jurisdiction over the case.”); Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of
San Antonio, 40 F.3d 698, 711 (5th Cir. 1994) (“It is well-settled that courts
have no jurisdiction to consider Title VII claims as to which the aggrieved party
has not exhausted administrative remedies.”); Tolbert v. United States, 916
F.2d 245, 247 (5th Cir. 1990) (“Failure to comply with [Title VII’s
administrative exhaustion requirement] wholly deprives the district court of
jurisdiction over the case.”).
      On the other hand, we have also treated Title VII’s exhaustion
requirement as merely a prerequisite to suit. See, e.g., Young v. City of Hous.,
906 F.2d 177, 180 (5th Cir. 1990) (“A failure of the EEOC prerequisite does not
rob a court of jurisdiction.”); Womble v. Bhangu, 864 F.2d 1212, 1213 (5th Cir.
1989) (“In holding that the failure of [the plaintiff] to exhaust administrative
remedies deprived it of subject matter jurisdiction, the court erred.”); Fellows
v. Universal Rests., Inc., 701 F.2d 447, 449 (5th Cir. 1983) (acknowledging that
Title VII’s requirements are “not necessarily ‘jurisdictional’”); Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970) (noting that “the filing
of a charge of discrimination with the EEOC is a condition precedent to the
bringing of a civil action under Title VII”).
      In fact, there is a third line of cases.        These more recent cases
acknowledge an intra-circuit split but do “not take sides in this dispute.”
Pacheco, 448 F.3d at 788 n.7; see, e.g., Ruiz, 851 F.3d at 472 (“Because neither
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                                    No. 16-20640
party is arguing waiver or estoppel, and because the outcome would remain
the same whether we consider exhaustion to be a condition precedent or a
jurisdictional prerequisite, ‘we need not take sides in this dispute.’” (quoting
Pacheco, 448 F.3d at 788 n.7)); Sapp v. Porter, 413 F. App’x 750, 752 (5th Cir.
2011) (“We decline to address this disagreement because the facts of this case
do not implicate any of the equitable doctrines of relief.”); Devaughn v. U.S.
Postal Serv., 293 F. App’x 276, 281 (5th Cir. 2008) (deciding not to settle
“whether a failure to exhaust Title VII administrative remedies is a
jurisdictional requirement or a prerequisite to suit”).
      This has caused confusion for district courts.           See, e.g., Muoneke v.
Prairie View A&M Univ., No. H-15-2212, 2016 WL 3017157, at *6 n.2 (S.D.
Tex. May 26, 2016) (noting that “[w]hat appears to be the most recent Fifth
Circuit case addressing this issue makes clear that the failure to
administratively exhaust is viewed as a jurisdictional bar to suit” (citing
Simmons-Myers v. Caesars Entm’t Corp., 515 F. App’x 269, 272 (5th Cir.
2013))); Ruiz v. Brennan, No. 3:11-cv-02072-BH, slip op. at 10 (N.D. Tex. June
8, 2016) (magistrate judge order) (noting that “[d]ifferent Fifth Circuit panels
have reached differing conclusions” on the issue of whether Title VII
exhaustion is jurisdictional and conducting a rule-of-orderliness analysis).
      Recently, we held that Womble and Young control under our rule of
orderliness, so “the exhaustion requirement under Title VII is not
jurisdictional.” Davenport v. Edward D. Jones & Co., L.P., 891 F.3d 162, 169
(5th Cir. 2018). We explained that Arbaugh “strongly suggests” that Womble
“reached the correct result” because of the bright-line rule that Arbaugh
announces. Id. at 169 n.19. 3


      3Davenport was originally issued on May 16, 2018 as an unpublished opinion. Later,
on May 22, 2018, it was reissued as published opinion.

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       Under our rule of orderliness, “one panel of our court may not overturn
another panel’s decision, absent an intervening change in the law, such as by
a statutory amendment, or the Supreme Court, or our en banc court.” Mercado
v. Lynch, 823 F.3d 276, 279 (5th Cir. 2016) (quoting Jacobs v. Nat’l Drug
Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008)); see also Arnold v. U.S.
Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000) (“[T]o the extent that a
more recent case contradicts an older case, the newer language has no effect.”).
Our earliest case, Womble, determined that Title VII’s administrative
exhaustion requirement is not jurisdictional. 864 F.2d at 1213. In Womble,
we held that the district court erred “[i]n holding that the failure of [the Title
VII plaintiff] to exhaust administrative remedies deprived it of subject matter
jurisdiction.” 864 F.2d at 1213. The Womble plaintiff failed to file a Title VII
charge with the EEOC before bringing her lawsuit in district court. Id. We
held that her claim “was barred,” but the district court had jurisdiction over it.
Id. Under the rule of orderliness, we are bound by Womble’s holding that a
Title VII plaintiff’s failure to exhaust her administrative remedies is not a
jurisdictional bar but rather a prudential prerequisite to suit. 4
       Some Fifth Circuit cases cite to Tolbert v. United States, 916 F.2d 245
(5th Cir. 1990), for the proposition that Title VII’s administrative exhaustion
requirement is a jurisdictional requirement. Tolbert declared that “it is the
well-settled law of this circuit that [Title VII’s administrative exhaustion
requirement] is a prerequisite to federal subject matter jurisdiction.” 916 F.2d
at 247. Even though our cases may rely on Tolbert for the proposition that




       4 In an even earlier case, on the issue of receipt of a right-to-sue letter, we held that
this specific Title VII requirement is “a condition precedent to a Title VII claim rather than
a jurisdictional prerequisite.” Pinkard v. Pullman-Standard, a Div. of Pullman, Inc, 678 F.2d
1211, 1215 (5th Cir. Unit B 1982).
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Title VII’s administrative exhaustion requirement is a jurisdictional
requirement, under our rule of orderliness, Womble controls.
      Moreover, the Supreme Court’s decision in Arbaugh is instructive.
Arbaugh held that Title VII’s statutory limitation of covered employers—to
those with 15 or more employees—is not a jurisdictional limitation. 546 U.S.
at 516. The Court articulated a “readily administrable bright line” for courts
and litigants to determine whether a statutory requirement is jurisdictional.
Id. The Court explained:
      If the Legislature clearly states that a threshold limitation on a
      statute’s scope shall count as jurisdictional, then courts and
      litigants will be duly instructed and will not be left to wrestle with
      the issue . . . . But when Congress does not rank a statutory
      limitation on coverage as jurisdictional, courts should treat the
      restriction as nonjurisdictional in character.

Id. at 515–16 (internal citation omitted) (footnote omitted).
      Here, Congress did not suggest—much less clearly state—that Title VII’s
administrative exhaustion requirement is jurisdictional, and so we must treat
this requirement as nonjurisdictional in character. See 42 U.S.C. § 2000e-5.
The statute says nothing about a connection between the EEOC enforcement
process and the power of a court to hear a Title VII case. In other statutes, by
contrast, “Congress has exercised its prerogative to restrict the subject-matter
jurisdiction of federal district courts based on a wide variety of factors . . . .”
Arbaugh, 546 U.S. at 515 n.11. For example:
      Certain statutes confer subject-matter jurisdiction only for actions
      brought by specific plaintiffs, e.g., 28 U.S.C. § 1345 (United States
      and its agencies and officers); 49 U.S.C. § 24301(l)(2) (Amtrak), or
      for claims against particular defendants, e.g., 7 U.S.C. § 2707(e)(3)
      (persons subject to orders of the Egg Board); 28 U.S.C. § 1348
      (national banking associations), or for actions in which the amount
      in controversy exceeds, e.g., 16 U.S.C. § 814, or falls below, e.g., 22
      U.S.C. § 6713(a)(1)(B); 28 U.S.C. § 1346(a)(2), a stated amount.

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Id. Title VII’s administrative exhaustion requirement is not expressed in
jurisdictional terms in the statute, see 42 U.S.C. § 2000e-5, and just as in
Arbaugh, there is nothing in the statute to suggest that Congress intended for
this requirement to be jurisdictional.
      Tolbert is out-of-step with the Supreme Court’s approach in Arbaugh.
There, we said that Title VII’s exhaustion requirement was jurisdictional and
endorsed the Third Circuit’s reasoning that “[a]bsent an indication of contrary
congressional    intent,      we   will   not   countenance    circumventing     the
administrative process” by allowing a plaintiff to file a lawsuit before
exhausting her administrative remedies. Tolbert, 916 F.2d at 249 n.1 (quoting
Purtill v. Harris, 658 F.2d 134, 138 (3d Cir. 1981)). However, Arbaugh directs
us to apply precisely the opposite presumption: “A rule is jurisdictional ‘if the
Legislature clearly states that a threshold limitation on a statute’s scope shall
count as jurisdictional.’” Gonzalez v. Thaler, 565 U.S. 134, 141–42 (2012)
(quoting Arbaugh, 546 U.S. at 515) (emphasis added); see also United States v.
Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015) (“In recent years, we have
repeatedly held that procedural rules . . . cabin a court’s power only if Congress
has ‘clearly stated’ as much.” (quoting Sebelius v. Auburn Reg’l Med. Ctr., 568
U.S. 145, 153 (2013))). Accordingly, today, we reaffirm our earlier holding in
Womble that Title VII’s administrative exhaustion requirement is not a
jurisdictional bar to suit.
      This holding that Title VII’s exhaustion requirement is not jurisdictional
is consistent with the First, Second, Sixth, Seventh, Eighth, Ninth, and D.C.
Circuits. See Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 385 (2d Cir. 2015)
(acknowledging imprecise language in its own case law and clarifying that “the
failure of a Title VII plaintiff to exhaust administrative remedies raises no
jurisdictional bar to the claim proceeding in federal court”); Adamov v. U.S.
Bank Nat’l Ass’n, 726 F.3d 851, 855–57 (6th Cir. 2013) (concluding that “the
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                                   No. 16-20640
question of administrative exhaustion is nonjurisdictional”); Williams v.
Target Stores, 479 F. App’x 26, 28 (8th Cir. 2012) (noting that failure to exhaust
administrative remedies is not a jurisdictional prerequisite under Title VII);
Vera v. McHugh, 622 F.3d 17, 29–30 (1st Cir. 2010) (“Although typically a
failure to exhaust administrative remedies will bar suit in federal court, ‘the
exhaustion requirement is not a jurisdictional prerequisite’ to filing a Title VII
claim in federal court.” (quoting Frederique-Alexandre v. Dep’t of Nat’l & Envtl.
Res., 478 F.3d 433, 440 (1st Cir. 2007))); Kraus v. Presidio Tr. Facilities
Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009)
(concluding that Title VII’s exhaustion requirement is not a jurisdictional
prerequisite for suit); Douglas v. Donovan, 559 F.3d 549, 556 n.4 (D.C. Cir.
2009)    (“[T]he   exhaustion     requirement,    though     mandatory,    is   not
jurisdictional . . . .”); Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000)
(overruling circuit precedent and holding        “that, as a general matter, the
failure to exhaust administrative remedies is a precondition to bringing a Title
VII claim in federal court, rather than a jurisdictional requirement”); but see
Logsdon v. Turbines, Inc., 399 F. App’x 376, 379 n.2 (10th Cir. 2010) (noting
that in the Tenth Circuit “EEOC exhaustion is still considered jurisdictional”
even if undermined by recent Supreme Court cases (quoting In re Smith, 10
F.3d 723, 724 (10th Cir. 1993))); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300
(4th Cir. 2009) (“[A] failure by the plaintiff to exhaust administrative remedies
concerning a Title VII claim deprives the federal courts of subject matter
jurisdiction over the claim.”).
                                        B.
        We now turn to the issue of whether Fort Bend has forfeited its
opportunity to raise Davis’s alleged failure to exhaust. Just because Title VII’s
administrative exhaustion requirement is not jurisdictional does not mean
that this requirement should be ignored. “The purpose of this exhaustion
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                                   No. 16-20640
doctrine is to facilitate the administrative agency’s investigation and
conciliatory functions and to recognize its role as primary enforcer of anti-
discrimination laws.”   Filer v. Donley, 690 F.3d 643, 647 (5th Cir. 2012).
Administrative exhaustion is important because it provides an opportunity for
voluntary compliance before a civil action is instituted. For this reason, Title
VII requires administrative exhaustion.
      Failure to exhaust is an affirmative defense that should be pleaded. See
Flagg v. Stryker Corp., 819 F.3d 132, 142 (5th Cir. 2016) (en banc) (Haynes, J.,
concurring) (“Absent a jurisdictional nature to ‘failure to exhaust,’ we treat
such failures to exhaust as affirmative defenses, not jurisdictional
prerequisites.”); Carbe v. Lappin, 492 F.3d 325, 328 (5th Cir. 2007) (noting that
in PLRA cases, “[a]ny failure to exhaust must be asserted by the defendant”).
      Fort Bend did not raise the issue of administrative exhaustion in the
district court originally.   Davis’s complaint alleged that “[a]ll conditions
precedent” to suit had been met, but Fort Bend’s answer only stated that Fort
Bend did not have “sufficient knowledge or information, after reasonable
inquiry, to admit or deny” the claim of jurisdiction. See F.D.I.C. v. Mijalis, 15
F.3d 1314, 1327 (5th Cir. 1994) (“As we have held, if a litigant desires to
preserve an argument for appeal, the litigant must press and not merely
intimate the argument during the proceedings before the district court.”). In
its original motion for summary judgment, Fort Bend did not argue that Davis
failed to exhaust her administrative remedies. Then, when Davis appealed for
the first time, Fort Bend did not argue to us, in its briefing or during oral
argument, that Davis failed to exhaust her administrative remedies. Nor did
it raise the issue in its petition for rehearing en banc or in its petition for
certiorari to the Supreme Court.
      Simply put, Fort Bend waited five years and an entire round of appeals
all the way to the Supreme Court before it argued that Davis failed to exhaust.
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On these facts, it is abundantly clear that Fort Bend has forfeited its
opportunity to assert this claim. 5          Accordingly, the district court erred in
dismissing this case based on Davis’s alleged failure to exhaust.
                                             IV.
       Title VII’s administrative exhaustion requirement is not a jurisdictional
bar to suit but rather a prudential prerequisite under our binding precedent,
and Fort Bend forfeited its exhaustion argument by not raising it in a timely
manner before the district court.            For these reasons, we REVERSE and
REMAND for further proceedings consistent with this opinion.




       5 In light of our holdings that Title VII’s administrative exhaustion requirement is not
jurisdictional and that Fort Bend forfeited its argument that Davis failed to exhaust her
administrative remedies as to her religious discrimination claim, we need not address Davis’s
alternative arguments that she did exhaust her administrative remedies or that requiring
her to do so would have been futile.
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