may please the court we're here today because the district court held that title seven's charge of harming his jurisdictional in other words that it implicates federal subject matter jurisdiction that was incorrect therefore the judgment below should be reversed in this case remanded for trial let me start with that basic legal question is the title seven charge of harming a jurisdictional requirement well let me step back you can see that you did not exhaust right i do not you better start off with that before you get to the constitutional i mean the statutory point absolutely i have three reasons why i didn't exhaust the first miss davis sent in an part of an ego see charge and the regulations that underlie title seven say that you may amend an ego see charge informally it doesn't have to be verified it doesn't have to have all the indices that an ego see charge to begin the case as they have so when mr davis sent in that piece of paper that said religious discrimination the only checked out the yes or no and that is not only changed but let me explain why i didn't already have the facts about the religious discrimination because it said that it's rises out of her wanting to take that day off to like the third the e e o c questionnaire doesn't say that all it says is religion but let me explain why it arose anyway out of that question there are two documents in the record that indicate that both the t w c e o c and ford band knew exactly what was going on in this case at the time of the administrative process not when the lawsuit was filed  trust there's a letter from the t w c to the e e o c that talks all about miss davis being fired because she wanted to go to church and she wasn't allowed to go to church and that's why she was like oh and then that you know miss davis we're not going to jump into the case and here are the facts and the facts were the status wanted to go to church i think it's july third there was this big project going on that in letter she was fired so if the purpose of the title seven charge of parliament is to make sure everyone at the administrative level knows what's going on is able to mediate the case is able to could come to some kind of conclusion all those present policy purposes were accomplished here i don't quite understand them because i thought her original charge was against sexual harassment yes or and when did precisely wendy's say she checked the box that said religious well let me step back and give you a bit of the background of how march charge alleged religious discrimination he filed the declaration in opposition to the motion demanding to dismiss stating that she quote amended her intake form to include the word religion as well as marking the employment harms or actions of discharging reasonable accommodation yes that's what happened your honor ok i don't always agree with that that's still during the t w the yes during the i yes or what religious discrimination had she experienced in february or march of two thousand and not so why did she put religion in the intake no your honor i must be unclear she did not put religion initially she didn't put religion after she was fired in the new document invest so she's been fired the investigation is still ongoing and she checks the box exactly she has not yet received the right to sue letter she checks the box and when you see the documents that emerge from the e e o c investigation they talked about her being fired there's no way they would have known about any of that and the investigators inquire of the employer about it that's right there's a letter from the to the lawyer answers during the investigatory process about exactly what was this the case that we have to decide this but the analysis of our vote is exactly the analysis that you would apply here you look at the jurisdictional section of title seven that's forty two u s c two thousand and five three doesn't say anything about the charge apartment you look at the charge does that have a jurisdictional trigger and it does not it's forty two u s c two thousand e five b this is the congress did not rank the charger permit as a jurisdictional requirement of title seven it's simply  prerequisite and that's exactly what fort bend did here by not raising it in their answer by not raising in their motion for summary judgment by not raising it in this court as an alternative ground for us and then when they hired the extremely we don't have to step outside you know we don't in lest they directly over rule our precedent we we don't but you believe this title seven that it that our bodies yes i don't think there's a rule of orderly in this problem here for that a couple reasons i can get was standard something and so you would say in one nine hundred seventy cases the controlling case rather yes order or one of the that's what i would say if you're going to do a strict rule of orderliness analysis i would say you go back in one thousand seven hundred cases that it's as actually answer the question about whether this is been exhausted also because didn't judge goldberg in that case discuss that the take chatted up they had an issue about whether an issue was raised and said oh well that was all along being considered it was they added a race claim i think you know your honor i haven't thought about it that way i suppose it does but i would also say the other case i sent you this week were judge prad is the earliest decision in this whole area and it's very much in support of you think or it is c one nine hundred eighty two golden oldie i'm sorry r i didn't cite being i don't think i'm right on your case ok the good news well that's really bad when you get up and some judge ask you something and then you have never heard of it and they say well it kills you say ok it i was hoping that wasn't what you're about say so it's good to hear but i do think that if you look at the whole sweep of these title seven or jurisdictional cases the answer here is very clear why only the latest supreme court case i mean the statute they're on is a statute of limitations case well it's a statute of limitations case but the statute said all these claims are forever barred is the strongest possible link you could have to jurisdiction and the supreme court even there says that's not good enough our case our bias is eight to nothing along us five to four so you know even the much stronger case from the other side perspective goes well for us so i think that in terms of an orderly in this that said we have not definitively resolved this issue you have not so basically we're saying that four of our opinions you know the judges just didn't know what they were doing whoever they were i don't know of course not a four i'm not positive but it's three or four cases since then and failed to notice well they haven't failed to notice they noted the issue and they've decided not to decide it and also their own published a lot of them now they're not published well or some others but in any event the court just decided those cases on other grounds be asleep this comes up a lot it does come up a lot but usually there's no winning waver defense is that like today's the day i want us to decide the issue because it comes up a lot we've been hunting on it for some time i mean i'm sure there are other lawyers who are watching this case and would like that issue decide but you don't need to decide that question if you agree with me on exhaustion if you agree the purposes of title seven we're satisfied that's going to keep saying it's an issue and we're not going to decide because we're cases are not all in the court and we trace that the chiko in other cases you have though the weight of circuit authority is getting specifically says that because it wasn't before the judge to give it says yes now they're specifically not addressing it they're saying that the business about verification can be waived they are not taking a position that changes their argument get ahead of things but i do think you know porter we have judge john minor wisdom no slouch on this grim anation cases making an emphatic clear that the exhaustion requirement is found in seven hundred seventy seven seventeen c and it's an absolute prerequisite to suit under that section it is a prerequisite to say we don't if you don't that's right the question is is it jurisdictional right it's a prerequisite had the time he raised it like the opponents raise that in this case from last night in the busy gallia case it would be a good defense and we'd have to we'd have an opportunity to go amanda e e o c complaint we would get a dismissal without prejudice and we'd be back the problem here is that for ben we did five years to raise the claim there's no way for us to mend it and if you allow them to do that you you'll create piecemeal litigation and let other litigants like for band lay behind the log on these defenses they should come forward with it if there's a problem let us know and we'll be able to deal with it if the court has no furthe we feel like the failure to exhaust is the first issue needs to be dealt with because if we don't deal with that the whole case can be avoided but unfortunately lois davis did fail to exhaust her administrative remedies for any claim of religious discrimination this case began as a sexual harassment case she actually got relief before there was ever a e e o c problem but she said when i came back to work i was being retaliated against so there was a complaint with the t to a b c and with the e e o c simultaneously that this was originally a sexual harassment problem a lady who was all is that we're told that there was an intake questionnaire that was amended and we didn't get the record will not show anything that i'm aware of that we got that intake questionnaire and tell two years after the intake questionnaire had originally been dated i believe it was you answer questions did your client answer questions from the t about religious discrimination in no gi provide any kind of defense to that claim during the time of the investigation no as a matter of fact the the response that went to him now the record business davis says i sent enemy and take questionnaire sometime in late summer or fall now by my calculation even though there's no proof that she even did that but by my calculation that would be sometime around maybe late august early september so when is it your week when is it your position that you first cease trying to answer it ok we filed a response august first which would have been about a month earlier that was a response to an unemployment claim at two to b c unemployment does not get involved as far as i know in discrimination claims those claims go to the civil rights division so we did talk about the terminations that's what unemployment does that you talk about good cause right and according that point you were discussing the religious it's you know again everyone is going to die just is terminated after july right you were talking about the fact that on july third she did not come to work when everyone was required to come to work and there's also things in there about being insubordinate and not communicating with her supervisors but our view of all this is she just she didn't come to work right and so she is the one that has to come up with an allegation that this is about religious discrimination ok and we don't hire august did she say i didn't come to work because of my killing to charts and so you knew before the workforce commission and you were defending against that in that proceeding yes so you did know about it but not not that it was some religious discrimination but we see in this case are that the intake questionnaire itself there is nowhere in the record that we saw that intake questionnaire until two years after the original dating of the intake questionnaire the questionnaire itself is altered back dated i don't know how you say that because it was in february february fifteenth ok two thousand and eleven that the intake questionnaire was originally drawn up and it clearly involved this allegation and i didn't mean to digress about the facts of the case but the point is that that this started out as a sexual harassment ms davis came back to work she said i'm being retaliated against now that i've come back to work so we had gender discrimination according to her and retaliation that was what the intake questionnaire was a balance on feb fifteenth the pew thousand and eleven there was date to go to church and tell five months later unfortunately that was a date when we had to have everybody at work she failed to report to work and and we talked to her about it she we were provided this until two years after the original dating of the intake questionnaire and that questionnaire had been altered it was investigating our response was to the unemployment division and our response was august first which even according to miss davis that was before she had done this and take questionnaire now another thing that's important is the authority that has was brought to your attention yesterday about an intake questionnaire the case says that you can do that and it will be part of the charge if it is filed together with the charge and this original intake questionnaire was done in february of two thousand and eleven the charge was done in march of two thousand and eleven but the the amended was not filed with that and it basically changed the entire subject of what we're talking about and that's the problem for ben so if she didn't heed send it in are you denying that she sent it into them and say it was just are you denying th are you saying you just didn't get a copy at that time i'm saying we never got a copy of it until of feb eighteenth a few thousand and thirteen right over two years after iowa riginal injure not saying it wasn't never responded to those allegations we weren't aware of those allegations it could be that if the e e o c was aware they might have had an opportunity or an obligation to investigate now i will say this according to the i believe it sat versus potter you can't do it that way anyway because if you have retaliation you can you can go forward just with a retaliate that comes out of the original charge but if you have not only retaliation but a new type of discrimination you have to go back and start all over again with a new charge and that that's the problem here of another thing from the counting standpoint is that the theory of the case changed even after we got into litigation in the response to our original motion for summary judgment plaintiff's counsel different different counsel at that time but their trial counsel said defendant had every intention to terminate plaintive because she filed a sexual harassment and retaliation charge against defendant plaintiffs terminations from employment on religious discrimination was defendant's final act of retaliation and further down it says plaintiff's lawsuit was filed because the defendant retaliated against plaintiff for filing a sexual harassment and retaliation complaint against defendant plaintiffs terminations from employment was just one of many acts of retaliation by defendant this is from the response motion for s and it even quotes the pleadings see plaintiff's original complaint so the original theory of all this was that this is a retaliation case and there there was a new because they realized then exhausted the other well i don't know i don't know i mean if if that's what they realized the list i mean if you have something material to say about this we understand your point here and and then so if if he did not exhaust a religious discrimination claim before the e e o c them we have to get to this other issue which is whether in light of evolving supreme court authority or whatever exhaustion is whether it's jurisdictional well i don't think that's the only way to affirm but i think that's the more the better way to do it well how else can you well fort bend did not waive the exhaustion requirement even if it's not jurisdictional but but i prefer to talk that through you i find that sort of hard to believe in light of the way the case evolved i mean like you could a race in the first appeal it seems i respectfully disagree in that if this is a retaliation case i don't think there's any for any defense to not exhaustion retaliation up until what point up until we get the word from the fifth circuit that there is no retaliation in this case ok and then is there an amended pleading filed yes when we come back and did answer filed well we actually on the first go round had to plead to whether or not conditions preceded to jurisdiction or conditions for jurisdiction had been met and our answer at that time was we had insufficient information cannot admit or do not cannot could not admit or deny and the reason being that if this is a retaliation case then i guess we're stuck with it but once we find out it's not a retaliation case and we receive the law of the case that not only one retaliation is out and two retaliation of religious discrimination is now irrelevant to retaliat and now i think we clearly get into a situation were what was a ruled upon and sat b potter now we have a new type of discrimination and you have to go back to exhaust a new charge based on new facts that have not been investigated how do we know they were investigated or not well because if they have it for all the time that's the case we don't know whether that's a good i think that was the job of judge harm to look into that and she did what i would call in fact intensive analysis and she found to my count seven reasons why she did not see that the investigation had been done or provide any evidence that defendant received notice to and this is somewhat the same as one there's no evidence that defendant was aware of her man the answer or response that was shown to the court august one before the intake questionnaire alteration even went out according to mr davis functions as a response to allegations of retaliation the new intake questionnaire was factually unrelated to original allegations of gender discrimination and retaliation the plaintiff did not include any additional information or explain her claim whatsoever there is no evidence that the e e o c investigated in fact when the t w c did its pre determination letter it said it cannot be established that the employer has discriminated against you based on sex retaliation now there is some boilerplate language that says or any other reason prohibited by laws we enforce and i would respectfully submit that's boilerplate language they specifically gave a pre determination on sex and retaliate which is what this case was about when the complaint was filed and up until the time the fifth circuit issued its last opinion ok can you clarify whether it's based upon this one incident about going to church on july third or it's more stances about religious discrimination it's the one so it's the one that they were on us and church one thing there was an allegation that seeing something to that first so that so the it's not that you don't know of what the basis of them because it came up in the insubordination in that she said i want to go to church and they argued and she said no and so in that's the whole basis of the villages claim so it's not that the facts are not now the factual basis for that the factual basis is known at the time of the terminations let me see if i can explain but i will have to kind of go back to  the other phase of the case and that is that she said i want to go to church and they said i'm sorry there's a lot of people who want to go to church and and of the that i can see it is part of the our response or a part of the iau season best geishas ok we probably should move on to the to the rule orderl law and we have a bunch of opinions it very recently in this circuit that say that we've never resolve that issue definitively and there's supposedly in one nine hundred seventy case the crack not personally reviewed  or whether it's way formal it's jurisdictional and i think that if you go to mcdonnell douglas way back in one thousand nine hundred seventy three it has the language responded satisfied the jurisdictional prerequisites to a federal  and this is on page seven ninety eight of the mcdonnell douglas case which to me is the the case that interests of almost every discrimination case i've ever seen it also talks about the if that i mentioned it it says pinkard it says that the question it's addressing is quote whether the receipt of a that's what it was deciding well interestingly enough the right to sue letter there was a right to sue letter in this case but the question is what is the scope of that right to sue then first of all i had mentioned simmons miers courts have no jurisdiction to consider title seven claims as to which the aggrieved party has not exhaust administrative remedies what my suggestion has been to the core is that even on the exhaustion question we have a balancing of competing interests and the best way to approach the jurisdictional question is that there is a defect in exhaustion that is a technicality or a time limitation then usually under liberal rules of construction about of exhaustion of administrative remedies even in a jurisdictional inquiry you can say ok we had exhaustion and i would even submit that that's why these cases have never come to the ultimate issue of whether or not this is jurisdictional in the first place but we also know that there is another policy and that is that courts should not condone a lawsuit that bypasses and circumvents the e e o c because to do so would would peremptorily substitute litigation for conciliation and that is another competing policy that basically says you cannot exceed this the scope of exhaustion and that a jurisdictional problem because if we give that up then well let me answer you know in the context of the prison litigation reform act where the supreme court specifically held that prison serve whatever jailers at the non federal level have a if they have an administrative remedy procedure the first procedure is have to be utilized by a prisoner before he can file suit and the supreme court held not jurisdictional and therefore it's subject to a waiver by the authorities so why wouldn't that kind of reasoning now fly to well i think you have a policy issue that if you go that far you're going to put the e e o c out of business and the entire statutory scheme that we're relying on is going to be changed i think there is a thing that is jurisdictional i mean it's a defendant well i'm sorry to keep taking your time here but as a practical matter i would date it if if exhaustion is  wave of poll how would a defendant be prepared it's a it's you know this situation arose according to you because of the surprising result by the fifth circuit  so but suppose it it come up earlier in the process and it's a fight you file for summary judgment and they say no you can't grant some reach us from because we were discriminated against for religious reasons well let me first clarify that this is not simply because we got a surprising result it's because we feel like the entire theory of the chair of the case changed that right and we were presented with something that we have never been presented with before and so first of all we has been a defendant would not waive that situation but let's assume for sake of argument that we did let's just assume we said let's don't go to c let's just meet you over to court house courts should not condone lawsuits that exceed the scope of ego see exhaustion because doing so would work the administrative process and per substitute litigation for conciliation now i'm not here to represent congress or ego see but i think that at some point this is jurisdictional and we raised it because we were surprised by what had happened address this question about how they were surprised or they were unaware that we had a religious this is not a question whether they were aware the real question is whether the sea was aware i let me answer that directly about i do also want to answer the claim he's making that somehow it was a surprise in the fifth circuit but let me answer your question directly here is the e e o c these pre determination letter it says it is affirmed you were instructed to assist in the county offices being moved on sunday seven three eleven and you became insubordinate to managers stating you were church commitments and where you refused to answer calls when you were called that is the exact basis of this case that's what this whole case but if you argued it the plaintiff it's a master of her complaint and if you were telling the e e o c that that was a pretext for retaliation because she got any other fellow fired just six months or less you know understand the idea but that's not what we said but it could be well he said you said this was part of the campaign and retaliate yes but that's wrong well you didn't say that no we said that one of the motives for why we were singled out was that it's he said he said as to what what was before the e e o c we have an affidavit that says we sent it in i know you sent in an intake question you had one word religion now i understand and then we have this document from the exactly the facts that are of issue in this case if you go back to a complaint there is a cause of action for religious discrimination they knew exactly what the problem was if you look at the briefing which wasn't me it was my predecessor council it's all about this judge harm wrote an opinion about religious discrimination and then when it came to this court the big issue was religious discrimination and just smith wrote a twenty page dissent about our arguments that there is no way that they were surprised and that religio case they may not a focused on that's you know maybe true but that simply isn't right that they couldn't have raised this issue from two thousand and eleven when this case was filed in early two thousand and twelve so there's just no doubt about that and so that goes to the question of waiver it doesn't go to the question of exhaustion whether they knew or not that's right that's i'm just saying that in terms of waiver the records very clear that the letter from me six fifty nine goes to exhaustion that's  letter six fifty nine goes to exhaustion because it shows that this question that we're litigating arose in the context of the yes he does all you have is a this you know this position from the e e o c we have considered section retaliate and it says and other things and then it discusses our facts where is that in the record yes that's in the record that's the are always six fifty nine it says she wanted to go to church she didn't want to let her go to church and she was fired but that does you know that doesn't necessarily mean religious discrimination i understand that the words religious discrimination are not in that you don't you see a letter but when you could put together or  factual basis for a claim there's a big difference between retaliation and religious discrimination i understand what you're saying and of course it could have been done more artfully where we sent in another u c charge with a fork description should have been done more our way i wasn't counsel ya but what is true is that all the facts that are in issue in this case came up in the e e o c investigation they had a chance to discuss them we had a chance to discuss them the policy requirements of title seven were satisfied there sorry i don't think so i mean i really don't and justin from that well waiver is one thing but as far as exhaustion goes i find it very difficult to see that well i've i've got but i've given you my best year now it's what i've got i understand and i'm going to look closely at what's in the record because you can't you used to we don't have a clear picture from the two of you so i have  othing councils that donald douglas is the case that says that it's subject matter jury no it doesn't say that any kind of response to that i do i need to go read mcdonnell douglas again but i'm pretty sure it doesn't say that and if it did that means all the other courts that have said that it's not jurisdictional have been ignoring supreme court law which is not the hardball and article itself which of course is title seven and says it's non but it's all the same analysis judge harmon does have a footnote where she says there is no evidence that the e e o c considered her claim of religious discrimination which it presumably would have done upon receipt of  it didn't happen she just says i have doubts about it because there's no evidence well the evidence is her affidavit that says i sent it she says there is no no evidence that c considered her claim of religious discrimination well i disagree with that conclusion to the extent it's a conclusion of law because of the letter that i keep citing but i don't have anything else i just want to be clear about that it's that are always six fifty nine that shows that e