United States Court of Appeals

for the Fifth Circuit

____________

No. 23-30190

____________

Marilyn Hamilton, 

Plaintiff—Appellant,

versus

Promise Healthcare, 

Defendant—Appellee.

______________________________

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:18-CV-102

______________________________

Before Graves, Higginson, and Ho, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

*

Marilyn Hamilton, then proceeding pro se, filed suit against Promise 

Healthcare1 alleging gender-based discrimination and retaliatory discharge

under Title VII. Promise Healthcare moved to dismiss under Rule 12(b)(1), 

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* This opinion is not designated for publication. See 5th Cir. R. 47.5.

1 As both the district court and the appellee noted, the correct legal name of the 

entity that employed Hamilton was Promise Hospital of Ascension, Inc. d/b/a Promise 

Hospital Baton Rouge. As the district court and both parties continued to identify the 

appellee as Promise Healthcare, we do the same here.

United States Court of Appeals

Fifth Circuit

FILED

October 12, 2023

Lyle W. Cayce

Clerk

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No. 23-30190

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arguing that Hamilton failed to exhaust her administrative remedies prior to 

filing suit. The district court dismissed Hamilton’s claims with prejudice,

finding that Hamilton did not exhaust her administrative remedies and that 

the court therefore lacked subject matter jurisdiction over the cause of action. 

Because the district court erred by treating Title VII’s exhaustion 

requirement as jurisdictional, we VACATE and REMAND for further 

proceedings consistent with this opinion. 

I.

Hamilton worked as a Human Resource professional for Promise 

Healthcare. According to her pro se complaint, in January 2017, Hamilton 

notified Promise Healthcare’s Regional Director of Human Resources that 

she was filing a complaint with the Equal Employment Opportunity 

Commission (EEOC) against Promise Healthcare’s CEO, who Hamilton 

alleges “fired or forced/encouraged 5-7 women to resign in a 6 month 

period.” Hamilton was terminated several weeks later, despite having 

received a raise not long before. 

On February 1, 2018, Hamilton filed suit against Promise Healthcare

in the United States District Court for the Middle District of Louisiana. 

Hamilton appeared to allege both gender-based discrimination and 

retaliatory discharge under Title VII of the Civil Rights Act of 1964.2In her 

complaint, Hamilton represented that she filed a charge with the EEOC and 

that she received a determination from the EEOC, as well as a right-to-sue 

letter.

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2 On appeal, Hamilton contends she also alleged race discrimination as well as 

subsequent termination; however, neither claim appears to have been asserted in 

Hamilton’s pro se complaint. 

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In June 2019, Promise Healthcare moved to dismiss Hamilton’s 

claims, arguing that Hamilton failed to exhaust her administrative remedies 

prior to filing suit—namely, that Hamilton did not file a charge of 

discrimination with the EEOC, but rather only filed an unverified intake 

questionnaire. Contending that the exhaustion requirement was 

jurisdictional, Promise Healthcare argued that dismissal under Rule 12(b)(1) 

was required. Promise Healthcare also moved to dismiss under Rule 12(b)(6), 

arguing that Hamilton’s complaint was too vague and failed to allege a 

sufficient claim of discrimination. 

Hamilton, then represented by counsel, opposed the motion, arguing 

that she did exhaust her administrative remedies because, inter alia, her 

intake questionnaire constituted a charge of discrimination under Price v. 

Southwestern Bell Tel Co., 687 F.2d 74 (5th Cir. 1982).

3

In March 2023, the district court issued its memorandum and order, 

granting Promise Healthcare’s motion to dismiss under Rule 12(b)(1). Citing 

our court’s decision in Pacheco v. Mineta, 448 F.3d 783, 788 n.7 (5th Cir. 

2006), the district court observed that our case law was split as to whether 

administrative exhaustion implicated subject matter jurisdiction. Because 

Hamilton did not raise waiver or estoppel arguments, the district court opted 

to analyze exhaustion in jurisdictional terms.4 Because the district court 

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3 The district court stayed its proceedings after Promise Healthcare entered 

bankruptcy in July 2019. In September 2022, the bankruptcy court approved a stipulation 

between the bankruptcy trustee and Hamilton to partially lift the automatic stay to allow 

Hamilton to prosecute her claims against Promise Healthcare. In January 2023, the district 

court lifted its stay and the case recommenced.

4

In so doing, the district court generally cited Evenson v. Sprint/United Mgmt. Co., 

2008 WL 4107524 (N.D. Tex. Aug. 21, 2008) for the proposition that exhaustion could be 

analyzed in jurisdictional terms for the purposes of a Rule 12(b)(1) motion “when the result 

of the decision would be the same” as if exhaustion were assumed to be a prerequisite.

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viewed exhaustion in terms of subject matter jurisdiction, it wrote that 

Hamilton bore the burden of proof in proving exhaustion. Relying upon 

EEOC documents attached by Promise Healthcare to its motion to dismiss, 

the district court found that Hamilton failed to meet her burden in proving 

that her intake questionnaire constituted a formal charge of discrimination

because it was not verified. As such, the district court determined that 

Hamilton did not exhaust her administrative remedies, which deprived the 

court of subject matter jurisdiction.5 The court then dismissed Hamilton’s 

case with prejudice. 

On appeal, the parties continue to focus their argument on whether 

Hamilton’s intake questionnaire meets the statutory and EEOC 

requirements to constitute a charge of discrimination, such that Hamilton 

would have exhausted her administrative remedies prior to suit and would 

have placed Promise Healthcare on notice as to Hamilton’s Title VII claims. 

II.

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 a district court’s determination that a plaintiff did 

not exhaust their administrative remedies de novo. Ruiz v. Brennan, 851 F.3d 

464, 468 (5th Cir. 2017).

III.

A.

Title VII of the Civil Rights Act provides for private causes of action 

arising out of employment discrimination and gives federal courts subject-

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5 Because the district court found that it lacked jurisdiction, it did not reach 

Promise Healthcare’s 12(b)(6) arguments.

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matter jurisdiction to resolve such disputes. See 42 U.S.C. § 2000e-5(f). Title 

VII plaintiffs are required to exhaust their administrative remedies by filing a 

charge of discrimination with the EEOC before filing suit in federal court. 

Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 337 (5th Cir. 2021).

The Supreme Court held in Federal Express Corp. v. Holowecki that a 

submission to the EEOC, such as an intake questionnaire paired with an 

affidavit, may constitute a charge if it meets the statutory and regulatory 

definitions of a charge and manifests an objective intent for the EEOC to take 

remedial action. 552 U.S. 389, 402, 405 (2008); see also EEOC v. Vantage 

Energy Servs., Inc., 954 F.3d 749, 754 (5th Cir. 2020) (recognizing that 

Holowecki’s holding, which involved ADEA claims, extends to Title VII 

claims). 

In Ernst v. Methodist Hosp. Sytem, our court set forth the requirements

for a written submission to satisfy the statutory and EECO requirements of a

Title VII charge:

An employee alleging discrimination under Title VII must

submit a charge to the EEOC. See 29 C.F.R. § 1601.7(a). That

charge must “be in writing and signed and . . . verified.” Id. §

1601.9. To satisfy the verification requirement, a charge must

be “sworn to or affirmed before a notary public, designated

representative of the [EEOC], or other person duly authorized

by law to administer oaths . . . or supported by an unsworn

declaration in writing under penalty of perjury.” Id. §

1601.3(a). Substantively, a charge must include the name and

contact information of the person making the charge, the same

information of the accused individuals, a factual statement of

the allegations, the size of the employer, and disclosure of

whether the allegations have already been brought to a state or

local agency. See id. § 1601.12(a).

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1 F.4th at 337–38. Our court then held that an unverified intake

questionnaire, by itself, does not constitute a charge of discrimination under

these requirements and therefore would not satisfy a plaintiff’s exhaustion

requirement. Id. at 338.

B.

In our court’s Davis v. Fort Bend County decision, we addressed our

previously split precedent as to whether Title VII’s administrative 

exhaustion requirement is jurisdictional or simply a prerequisite to suit, 

subject to waiver and estoppel. 893 F.3d 300, 303 (5th Cir. 2018). Our court 

held that the administrative exhaustion requirement was not jurisdictional, 

id. at 306, and the Supreme Court affirmed. Fort Bend Cnty., Texas v. Davis, 

139 S. Ct. 1843 (2019). 

Therefore, the district court erred when it interpreted the exhaustion 

requirement as jurisdictional and dismissed the suit under Rule 12(b)(1).6 We

now turn to whether that error was harmless. 

As our court explained in Davis, because the exhaustion requirement 

in the Title VII context is not jurisdictional, failure to exhaust is an 

affirmative defense.7 893 F.3d at 307. The party asserting exhaustion as an 

affirmative defense bears the burden in demonstrating non-exhaustion. 

Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (citing Jones v. Bock, 549 

U.S. 199, 216 (2007)). While affirmative defenses, such as non-exhaustion, 

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6 While Hamilton did not challenge the applicable legal standard upon which the 

district court reviewed whether Hamilton exhausted her administrative remedies, “[a] 

party cannot waive, concede, or abandon the applicable standard of review.” United States 

v. Vasquez, 899 F.3d 363, 380 (5th Cir. 2018), as revised (Aug. 24, 2018).

7 Promise Healthcare specifically pleaded failure to exhaust as an affirmative 

defense in its answer to Hamilton’s complaint. 

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may be asserted on a 12(b)(6) motion, dismissal on that basis is appropriate 

only if the defense is evident on the face of the complaint. See EPCO Carbon 

Dioxide Prods., Inc. v. JP Morgan Chase Bank, 467 F.3d 466, 470 (5th Cir. 

2006).

Because the district court did not analyze exhaustion under the 

12(b)(6) standard but instead viewed it as jurisdictional and analyzed it under 

12(b)(1), the district court determined that Hamilton had not met her

burden—a burden that should have been borne by Promise Healthcare—in 

proving that she exhausted her administrative remedies. The district court 

specifically found that “because [Hamilton’s] Intake Questionnaire 

remained unverified, and was not supplemented by a verified Charge of 

Discrimination, it cannot on its own satisfy Title VII’s filing requirement.”

Because we are reviewing exhaustion under the 12(b)(6) standard, we 

must accept “all well-pleaded facts as true and view[] those facts in the light 

most favorable to [Hamilton].” Meador v. Apple, Inc., 911 F.3d 260, 264 (5th 

Cir. 2018) (quotation marks and citation omitted). In her pro se complaint, 

Hamilton alleges that she filed a charge of discrimination with the EEOC and 

that she received both a right-to-sue letter and an EEOC determination letter. 

Although Hamilton attached neither document to her complaint, she 

referenced the right-to-sue letter. This letter is central to her claim, so we 

may consider it as appended by Promise Healthcare to its motion to dismiss. 

See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000). 

Additionally, although the complaint does not reference the intake 

questionnaire or allege that it served as a charge of discrimination, “it is 

clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters 

of public record.” Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 

2007). We may therefore also consider it as appended to the motion to 

dismiss.

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While the EEOC documents submitted by Promise Healthcare do not 

prove that Hamilton submitted a verified intake questionnaire or affidavit, 

these records also do not disprove Hamilton’s allegation in her complaint

that she filed a charge of discrimination. 

Hamilton’s EEOC file contains two different versions of her intake 

questionnaire, each signed and dated February 10, 2017. In the first 

questionnaire in the EEOC file, Hamilton checked both Box 1 (that she 

wanted to talk to an EEOC employee prior to deciding whether to file a 

charge) and Box 2 (that she wanted to file a charge of discrimination and 

authorizing the EEOC to investigate), though there appears to be an 

annotation of “No” above Box 2. In the second questionnaire in the EEOC 

file, Hamilton only checked Box 2, evidencing an intent to file a charge of 

discrimination. Both questionnaires are marked with the same charge 

number, 461-2017-00701. Because we must view the facts in the light most 

favorable to Hamilton, we will consider the second intake questionnaire, in 

which Hamilton checked only Box 2, in our analysis, and whether that 

document may constitute a charge of discrimination.

The intake questionnaires forms submitted by Hamilton explicitly 

state that “this questionnaire may serve as a charge if it meets the elements 

of a charge.” The EEOC Activity Log contained within the EEOC file 

references affidavits uploaded in conjunction with Hamilton’s intake 

questionaries on both February 10, 2017, and on February 24, 2017, though 

these affidavits do not appear in that same file. The EEOC’s Charge Detail 

Inquiry appears to provide that while Hamilton did not want to file a formal 

charge of discrimination on February 10, 2017, she did affirmatively state she 

wanted to file one on February 24, 2017. While the parties dispute the 

meaning of these entries and the meaning of the contradictory intake 

questionnaires, these disputes appear better suited for resolution by 

summary judgment than on a Rule 12(b)(6) motion, where again, we must 

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view the facts in a light most favorable to Hamilton. The resolution of these 

disputes goes toward both whether the intake questionnaire, and perhaps 

corresponding affidavits, meet the statutory and agency requirements to 

constitute a charge of discrimination and whether these document(s) 

manifested an objective intent for the EEOC to take remedial action. See

Holowecki, 552 U.S. at 402.

Whether Hamilton filed a charge when she submitted her intake forms 

is one question for the district court; whether that charge was verified is 

another. “An intake questionnaire that ‘is not verified as required by EEOC 

regulations . . . cannot be deemed a charge.’” Ernst, 1 F.4th at 338. Neither 

Hamilton’s complaint nor the intake form reference Hamilton speaking 

under oath or affirmation to the EEOC representative. Promise Healthcare’s 

memorandum in support of its motion to dismiss argues that the intake 

questionnaire was thus unverified. On appeal, Hamilton argues for the first 

time that the charge was verified when the EEOC uploaded her intake forms 

and affidavits. As with the status of the intake forms, we find that this issue 

is better suited for resolution by the district court in the first instance. As we 

have often said, we are a court of review, not first view.

IV.

On the record and the briefing before us, it is not clear as a matter of 

law that Promise Healthcare has met its burden in proving that Hamilton did 

not exhaust her administrative remedies prior to filing suit. Therefore, we are 

unable to find that the district court’s error as to the legal standard and the 

burden of proof were harmless. We VACATE and REMAND for further 

proceedings consistent with this opinion. 

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