In a recent decision, the Fifth Circuit has suggested an odd practice. In Bunker v. Dow Chemical, No. 24-20046 (%th Cir. 8/7/2024), Ms. Bunker filed her EEOC charge, but she did not check the block at the top for “FEPA.” It is important to check that block to indicate you, as the Charging Party wish the charge to be sent to the state agency for investigation. There are two agencies that investigate discrimination in Texas: The Equal Employment Opportunity Commission and TWC’s Civil Rights Division. When you check that word “FEPA,” you ensure the charge will be filed with the Civil Rights Division, as well as with the EEOC. If you file the Charge also with the CRD, you can then file suit under state court, if you wish.

But, Ms. Bunker did not check the FEPA box. Yet, she filed her lawsuit in state court. So, since she did not file her Charge with the State agency, she could not then file suit in state court. Her lawsuit was dismissed.

Lower-Left Box

We might think she would still be ok, however. Because in the lower left-hand side of the Charge, there is also this statement: “I want this Charge filed with both the EEOC and the State or local Agency, if any.” The Employee (known as the “Charging Party”) then signs below that statement, apparently indicating she does in fact wish the Charge to be filed with both the Federal and the State agencies. But, no, Judge Clement in Bunker says the Charging Party must also mark that statement somehow.

As can be seen below, signing below a statement that the Charging Party wants the Charge to be filed with both the State and Federal agencies would seem to suffice. There is no box to check. You simply sign below the statement. But, Judge Clement said a person needs to mark this sentence somehow.

Say what? …. Judge Clement did not indicate in what way a Charging Party ought to mark this sentence. Her decision does not make a lot of sense. See the decision here.