“Same Claim” Under 29 C.F.R. § 1614.107 Requires More Than the Same Employment Practice; Premature Federal-Employee Title VII Suits Are Cured by Later Right-to-Sue Notices

Introduction

In Mary F. Bell v. Louis DeJoy, the Seventh Circuit (nonprecedential order) vacated a dismissal of a federal employee’s Title VII suit for failure to exhaust administrative remedies. The court addressed two recurring issues in federal-sector employment litigation:

How the “same claim” bar in 29 C.F.R. § 1614.107(a)(1) operates when a federal employee files successive EEO complaints about the same type of workplace practice (here, overtime pay) but across different time periods and following a new settlement; and
Whether a prematurely filed Title VII suit (filed before receipt of a right-to-sue notice) is cured when the right-to-sue notice issues before dismissal.

The Seventh Circuit held that the district court erred in deferring to the agency’s characterization that two EEO complaints were “identical” when the pleadings alleged different time periods and a separate, later settlement agreement, and that the court further erred in dismissing a claim as untimely where a right-to-sue notice issued after filing but before dismissal—an event that “cures” prematurity under circuit precedent. The panel also affirmed the dismissal of non-Title VII claims (e.g., § 1981 and an alleged private right under 29 C.F.R. § 1614.504).

Case Background

Mary Bell, a USPS employee who functionally performed supervisory work without the title, alleged that during the COVID-19 period the USPS denied her overtime compensation and later reneged on a settlement to pay for additional overtime and to downgrade her into a non-supervisory role she preferred. After an initial resolution in 2021 (Complaint “0122”), Bell alleged the same practice continued. In March 2022, USPS agreed to a second settlement to pay for 1,240 overtime hours and to downgrade her position, but allegedly reneged a month later. Bell then filed a new EEO complaint in July 2022 (Complaint “0327”) to enforce the second settlement and address the continued nonpayment and downgrade.

The USPS EEO Office partially dismissed the overtime-pay portion of the 0327 complaint as “identical” to the earlier 0122 matter (and issued a right-to-sue notice for that dismissed portion) while investigating the downgrade issue. Bell filed her federal complaint in November 2022, and in February 2023 received the agency’s final decision and a right-to-sue notice on the downgrade claim. The district court twice dismissed for failure to exhaust, reasoning that (1) Bell had no right-to-sue notice on the downgrade claim at the time of her federal filing and (2) the “identical” nature of the overtime claims foreclosed exhaustion via 0327. Bell appealed.

Summary of the Opinion

The Seventh Circuit vacated the dismissal and remanded for further proceedings on Bell’s Title VII claims.
The panel held the district court erred by:
- Treating EEO Complaints 0122 and 0327 as “identical” based solely on the EEO Office’s characterization without the benefit of the administrative complaints themselves and despite Bell’s allegations that the complaints involved different time periods and a second, later settlement; and
- Concluding Bell was required to refile her lawsuit within 90 days of receiving a right-to-sue notice where she had filed early but obtained the notice before dismissal; under Seventh Circuit precedent, the later notice “cures” the prematurity.
The panel admonished USPS and its counsel for misinforming the district court about the existence of the right-to-sue notice and for overlooking binding precedent.
The court affirmed dismissal of Bell’s remaining non-Title VII theories:
- 42 U.S.C. § 1981 does not apply to federal actors;
- Title VII is the exclusive remedy for federal employees’ discrimination claims; and
- 29 C.F.R. § 1614.504 does not create a private right of action.

Analysis

Precedents and Authorities Cited and Their Role

Nelson v. City of Chicago, 992 F.3d 599 (7th Cir. 2021): On a motion to dismiss, courts accept the complaint’s well-pleaded facts as true. The panel applied this to accept Bell’s allegation that the two EEO complaints covered different periods and a later settlement.
Mosely v. Board of Education, 434 F.3d 527 (7th Cir. 2006): Failure to exhaust is an affirmative defense suitable for dismissal only if it is clear from the face of the complaint (and properly considered documents). The panel found that clarity was lacking here.
SMITH v. POTTER, 445 F.3d 1000 (7th Cir. 2006): Title VII cases require de novo review in district court; a federal court cannot simply adopt an agency’s administrative conclusions. The district court erroneously relied on the EEO Office’s “identical claims” determination without independent review.
Kisor v. Wilkie, 588 U.S. 558 (2019): Auer/Kisor deference to an agency’s interpretation of its own regulation is available only if the regulation is genuinely ambiguous after traditional tools of construction, and then only if the agency’s reading is reasonable and authoritative. The USPS offered no developed argument to justify its expansive interpretation of “same claim” in 29 C.F.R. § 1614.107(a)(1).
PERKINS v. SILVERSTEIN, 939 F.2d 463 (7th Cir. 1991), and WORTH v. TYER, 276 F.3d 249 (7th Cir. 2001): A Title VII suit filed before receipt of a right-to-sue letter is not jurisdictionally barred; if the plaintiff receives the letter before dismissal, the defect is “effectively cured.” The district court’s contrary ruling was error.
Davis v. U.S. Dep’t of Justice, 204 F.3d 723 (7th Cir. 2000): § 1981 applies to state actors, not federal agencies; hence it is unavailable against the USPS.
MLYNCZAK v. BODMAN, 442 F.3d 1050 (7th Cir. 2006): Title VII is the exclusive remedy for federal employees’ discrimination/retaliation claims.
ALEXANDER v. SANDOVAL, 532 U.S. 275 (2001): Federal regulations cannot create a private right of action absent statutory authorization; thus, 29 C.F.R. § 1614.504 cannot stand as an independent cause of action in court.
Braun v. Village of Palatine, 56 F.4th 542 (7th Cir. 2022): Arguments not presented to the district court are waived on appeal; applied to Bell’s late Equal Pay Act theory.
Rongere v. City of Rockford, 99 F.4th 1095 (7th Cir. 2024): Pleading standards for Equal Pay Act claims; Bell’s amended complaint did not state a plausible EPA claim.

Legal Reasoning

1) Exhaustion is an affirmative defense, not a pleading element

Because exhaustion is an affirmative defense, dismissal at the Rule 12 stage is appropriate only if the failure to exhaust is apparent on the face of the pleadings and materials properly considered. Here, the record did not contain the administrative complaints themselves, and Bell affirmatively alleged that the complaints concerned different overtime periods and a later settlement. Against that backdrop, the court could not credit the EEO Office’s “identical” characterization over Bell’s allegations without de novo review of the underlying administrative record. SMITH v. POTTER requires de novo judicial assessment, not blind deference to administrative labels.

2) “Same claim” under 29 C.F.R. § 1614.107(a)(1)

Section 1614.107(a)(1) directs an agency to dismiss a complaint that “states the same claim that is pending before or has been decided by the agency or Commission.” The USPS effectively urged a sweeping interpretation: any complaint about the same employment practice (here, overtime pay) is the “same claim” even if it arises in a different period and after a separate settlement agreement. The Seventh Circuit declined to accept that interpretation for two reasons:

Kisor threshold not met: The USPS did not demonstrate that the regulation is genuinely ambiguous after traditional tools of construction, nor did it articulate a reasoned, authoritative, and reasonable interpretation warranting deference.
Material differences alleged: Bell alleged a new period of harm and a separately negotiated settlement—differences that may make 0327 a different “claim” in the ordinary sense (akin to claim preclusion analysis focusing on transactions/time periods), not simply a rehash of 0122. Without grappling with those differences, neither the agency nor the district court could deem the claims the “same.”

3) Premature filing cured by subsequent right-to-sue notice

The district court dismissed Bell’s downgrade claim as untimely on the logic that, because she filed suit before receiving a right-to-sue notice, she was required to start over and file a new lawsuit within 90 days of the later notice. Seventh Circuit precedent squarely rejects this approach. Under Perkins and Worth, receiving a right-to-sue notice after suit is filed but before dismissal “effectively cures” the prematurity; the right-to-sue requirement is a defensive, claims-processing rule, not a jurisdictional prerequisite. The USPS’s argument to the contrary—and its initial misstatement that no notice existed—was legally and factually incorrect.

4) Non-Title VII theories properly dismissed

§ 1981: Inapplicable to federal actors like the USPS (Davis).
Exclusivity of Title VII for federal employees: Bars duplicative statutory routes (Mlynczak).
No private action under § 1614.504: Regulations cannot create private causes of action (Sandoval). While § 1614.504 sets out an administrative enforcement mechanism for settlement compliance, it does not authorize an independent damages suit in federal court.
Equal Pay Act: Waived and, in any event, inadequately pleaded under Rongere.

Impact and Practical Implications

For federal employees and their counsel

Successive EEO complaints can be distinct: When a later complaint addresses a new time period, additional harm, or a separate settlement, agencies cannot reflexively dismiss under § 1614.107(a)(1) as “same claim” without rigorous analysis. Plead these distinctions clearly.
Premature filing risk is mitigated in the Seventh Circuit: If a right-to-sue notice issues before the court dismisses the case, the filing defect is cured. Best practice remains to wait for the notice or to promptly apprise the court when the notice arrives, but this order reduces the draconian consequences of a slightly early filing.
Attach key administrative documents: When exhaustion is at issue, append the EEO complaints, agency decisions, and notices. Doing so prevents agencies from characterizing the administrative record unilaterally at the pleadings stage.
Frame the claim as discrimination/retaliation—not mere contract enforcement: While 29 C.F.R. § 1614.504 provides an administrative route to enforce settlements, a court action must sound in Title VII discrimination/retaliation (or other authorized statute), not an implied private right under the regulation.

For agencies and defense counsel

Accuracy and candor are paramount: The panel noted the USPS “did the district court a substantial disservice” by misstating the right-to-sue status and overlooking binding precedent. Counsel should verify administrative chronology and control for curing events post-filing.
“Same claim” requires substantive support: If invoking § 1614.107(a)(1), be prepared to defend the interpretation under Kisor, including textual and contextual analysis, and to engage with material differences (time period, additional damages, subsequent settlements, and distinct adverse actions).
De novo judicial review: District courts cannot simply defer to agency labeling; agencies should be ready for a fresh judicial look at the record.

For district courts

Exhaustion at Rule 12: Dismissal should be rare unless failure to exhaust is indisputably clear from the complaint and properly considered exhibits.
De novo review obligation: Particularly in federal-sector Title VII cases, courts must independently assess the administrative record rather than adopting agency characterizations.
Premature filings: In the Seventh Circuit, a later right-to-sue letter can cure prematurity; courts should consider post-filing developments before dismissing.

Complex Concepts Simplified

Administrative Exhaustion (Federal Employees): Federal employees must first contact their agency EEO office within 45 days, then file a formal complaint within 15 days if informal resolution fails. The agency screens for procedural defects, investigates, issues a final action, and provides a right-to-sue notice. Only then may the employee sue. These steps are claims-processing rules, not jurisdictional bars.
“Same Claim” Bar (29 C.F.R. § 1614.107(a)(1)): An agency may dismiss a complaint that states the same claim pending or already decided. The Seventh Circuit cautions that “same claim” is not synonymous with “same type of employment practice”—differences in time period, damages, and intervening settlements may render the claim distinct.
Kisor/Auer Deference: Courts defer to an agency’s interpretation of its own rule only if the rule is genuinely ambiguous after applying ordinary interpretive tools, and if the agency’s interpretation is reasonable and authoritative. Bare agency assertions do not suffice.
Premature Filing and Right-to-Sue Letters: Filing a Title VII suit before receiving a right-to-sue notice is a defect that can be cured if the notice arrives before dismissal. The rule protects litigants from forfeiture where administrative formalities catch up during litigation.
De Novo Review: In Title VII suits, the district court evaluates the case anew; it is not bound by an agency’s administrative conclusions.
Exclusivity and Non-Title VII Theories: Federal employees must rely on Title VII for discrimination/retaliation claims; § 1981 does not reach federal actors, and regulations like § 1614.504 do not themselves create private lawsuits.

Unresolved Questions and Issues for Remand

Merits of discrimination and retaliation: Whether USPS’s failure to pay additional overtime and refusal to implement the downgrade were motivated by race, color, sex, or by retaliation for EEO activity remains to be litigated.
Scope of exhausted claims: After proper de novo review of the administrative complaints and notices, the district court must determine which allegations and time periods were exhausted and are properly before the court.
Effect of settlements: The legal implications of the second settlement’s alleged repudiation—including whether it constitutes an adverse action and how it bears on damages—will require development.

Conclusion

The Seventh Circuit’s order—though nonprecedential—provides clear guidance on two important procedural points in federal-sector Title VII litigation. First, agencies and courts must not conflate “same employment practice” with “same claim” under § 1614.107(a)(1); the presence of a new time period, additional damages, and a later, separate settlement may materially distinguish claims and preclude dismissal at the pleadings stage, particularly where the administrative materials are not before the court and the complaint alleges differences. Second, in this circuit, a prematurely filed Title VII suit is cured if the plaintiff receives the right-to-sue notice before dismissal, eliminating any purported obligation to refile within 90 days after the notice.

The court also reaffirmed foundational limits: Title VII is the exclusive vehicle for federal employees’ discrimination claims; § 1981 does not apply to federal actors; and EEOC regulations do not create private causes of action. Together, these rulings underscore the importance of accurate agency representations, careful judicial de novo review, and precise pleading and proof on exhaustion and the scope of claims. On remand, Bell’s Title VII claims will proceed, with the district court free to manage amendments and evaluate the merits in the ordinary course.