Briefs of Appellants in Cirocco v. McMahon, No. 18-1096 (U.S. Court of Appeals for the Tenth Circuit)

121 Pages Posted: 10 Jan 2019

See all articles by Brian Wolfman

Brian Wolfman

Georgetown University Law Center

Date Written: December 9, 2018


Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and other federal statutes that prohibit employment discrimination, generally require that a discrimination claimant exhaust
administrative remedies before suing in court. These exhaustion requirements are vexing, particularly in so-called “federal-sector” cases, in which the employer is a federal agency. The filing deadlines are uncommonly short and various other procedural hurdles (such as describing and verifying the claim) can be mystifying, particularly for claimants navigating the system without lawyers. (Most administrative claimants do not have lawyers.). The exhaustion requirements are contained in a tangle of statutory and regulatory provisions that even lawyers find challenging. And the courts’ interpretations of these requirements add another layer of complexity.

These exhaustion issues have been briefed extensively in Cirocco v. McMahon, No. 18-1096, pending in the U.S. Court of Appeals for the Tenth Circuit. The appellants’ briefs contain a lengthy description of Title VII’s federal-sector administrative scheme. The briefs focus heavily on an aspect of judge-made exhaustion law that has gotten relatively little treatment in treatises and other scholarship: the degree to which a Title VII claimant, even after meeting all relevant administrative deadlines, must “cooperate” in the administrative process. The briefs also discuss whether and in what circumstances a claimant’s failure to exhaust is a “jurisdictional” prerequisite to suit. The briefs address several other exhaustion issues as well.

Notably, the first-line drafters of these briefs were second- and third-year student-lawyers at Georgetown Law’s Appellate Courts Immersion Clinic: Karma Orfaly Farra, Genevieve Mesch, and Steve Schultze (on the opening brief), and Ashley Gherlone, Jacob Leon, and Alexandra Rose (on the reply brief).

Keywords: Title VII, employment discrimination, exhaustion of remedies, retaliation

JEL Classification: K23, K31, K41

Suggested Citation

Wolfman, Brian, Briefs of Appellants in Cirocco v. McMahon, No. 18-1096 (U.S. Court of Appeals for the Tenth Circuit) (December 9, 2018). Available at SSRN: or

Brian Wolfman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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