FEPA Discrimination Charge and Right-to-Sue Procedure — Mississippi

FEPA Discrimination Charge and Right-to-Sue Procedure (Mississippi)

Quick-Reference Summary

Part A — Pre-Filing Eligibility Memo

To: [CLIENT / FILE]
From: [ATTORNEY NAME]
Re: Mississippi employment discrimination — federal exhaustion and McArn analysis
Date: [__/__/____]

1. Threshold Coverage (Federal)

2. Federal Protected Basis

☐ Race ☐ Color ☐ Religion ☐ Sex (incl. pregnancy, sexual orientation, gender identity)
☐ National Origin ☐ Age (40+) ☐ Disability ☐ Genetic Information
☐ Retaliation for protected activity

3. McArn Common-Law Tort Analysis

McArn applies only if employee was discharged for:
☐ Refusing to participate in an act that warrants CRIMINAL (not civil) penalties
☐ Reporting employer's act that warrants CRIMINAL penalties

McArn does NOT apply if:

• Discrimination based on race/sex/age/disability (already federally prohibited — Spiers, 2021)
• Reporting merely civil-penalty violations (Hammons, 2004)
• Internal policy violations not amounting to crimes

4. Limited Mississippi Statutory Protections

5. Forum Strategy

6. Recommendation

☐ File EEOC charge (Title VII / ADA / ADEA) ☐ § 1981 federal/state direct action
☐ McArn tort in MS Circuit Court ☐ Combined federal/McArn complaint
☐ Decline representation
Notes: [____________________________________________________________]

Part B — EEOC Charge of Discrimination (Federal Filing — No State FEPA)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Jackson Area Office
100 West Capitol Street, Suite 338
Jackson, MS 39269
Phone: 1-800-669-4000 | TTY: 1-800-669-6820
Online: https://publicportal.eeoc.gov/Portal/Login.aspx

Date of Filing: [__/__/____]
EEOC Charge No. (assigned): [________________________________]

Charging Party

Respondent (Employer)

Bases (federal)

☐ Race ☐ Color ☐ Religion ☐ Sex (incl. pregnancy, sexual orientation, gender identity)
☐ National Origin ☐ Age (40+) ☐ Disability ☐ Genetic Information
☐ Retaliation for protected activity

Discriminatory Actions

☐ Failure to hire ☐ Termination ☐ Demotion ☐ Failure to promote
☐ Unequal pay ☐ Harassment / hostile work environment
☐ Failure to accommodate ☐ Constructive discharge ☐ Retaliation
☐ Other: [____]

Dates

Particulars

I, [CHARGING PARTY NAME], believe I have been discriminated against by [RESPONDENT NAME] in violation of [Title VII / the ADA / the ADEA / § 1981], as follows:

1. Protected status: I am [____].
2. Qualifications: I worked as [POSITION] from [__/__/____] to [__/__/____] and met or exceeded performance expectations.
3. Adverse action: On or about [__/__/____], Respondent [TERMINATED / DEMOTED / etc.] me.

4. Discriminatory motive: The adverse action was based on my [PROTECTED BASIS] because:
   a. [____________________________________________________________]
   b. [____________________________________________________________]
   c. [____________________________________________________________]

5. Comparators: Similarly situated employees outside my protected class were treated more favorably: [____].

6. Pretext: Respondent's stated reason is pretextual because [____].

Verification

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Executed on [__/__/____] at [CITY], Mississippi.

Signature: _________________________________

Part C — Right-to-Sue Demand Letter (EEOC)

[LETTERHEAD / DATE]

U.S. Equal Employment Opportunity Commission
Jackson Area Office
100 West Capitol Street, Suite 338
Jackson, MS 39269

Re: Request for Notice of Right to Sue under 29 C.F.R. § 1601.28
EEOC Charge No.: [________________________________]
Charging Party: [________________________________]
Respondent: [________________________________]
Date Charge Filed: [__/__/____]

Dear Sir/Madam:

Pursuant to 29 C.F.R. § 1601.28, the undersigned Charging Party respectfully requests that the EEOC issue a Notice of Right to Sue.

[OPTION 1] More than one hundred eighty (180) days have elapsed since the filing of the charge, and the EEOC has not issued a determination. Charging Party elects to terminate administrative processing and proceed in federal court.

[OPTION 2] Charging Party seeks early issuance and asks the EEOC to certify under § 1601.28(a)(2) that it is probable the agency will be unable to complete administrative processing within 180 days.

Charging Party understands that a federal civil action must be filed within ninety (90) days of receipt of the Notice. Please forward the Notice by mail and email to the addresses below.

Sincerely,

_________________________________
[CHARGING PARTY] / [ATTORNEY NAME]
[ADDRESS]
[PHONE] | [EMAIL]

Part D — Pre-Suit Civil Complaint (Combined Federal + McArn)

IN THE UNITED STATES DISTRICT COURT
FOR THE [NORTHERN / SOUTHERN] DISTRICT OF MISSISSIPPI
[____] DIVISION

COMPLAINT FOR EMPLOYMENT DISCRIMINATION AND WRONGFUL DISCHARGE
(Title VII / ADA / ADEA / § 1981; McArn Public-Policy Tort; Jury Trial Demanded)

Plaintiff [NAME], by and through undersigned counsel, alleges:

Parties, Jurisdiction, and Venue

1. Plaintiff is a resident of [COUNTY] County, Mississippi.
2. Defendant is [a Mississippi corporation / foreign corporation authorized to do business in Mississippi] and at all relevant times employed [____] persons.
3. This Court has federal-question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367 over the state-law McArn claim.
4. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events occurred in this district.

Administrative Exhaustion (Federal Claims)

5. On [__/__/____], Plaintiff timely filed an EEOC charge (Charge No. [____]) within 180 days of the last discriminatory act.
6. On [__/__/____], the EEOC issued a Notice of Right to Sue, attached as Exhibit A.
7. This action is timely commenced within 90 days of receipt of the Notice.

No Exhaustion Required (McArn Claim)

8. The McArn public-policy exception is a state common-law tort cognizable directly in court without administrative exhaustion (McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603 (Miss. 1993)).

Factual Allegations

9. Plaintiff was hired by Defendant on [__/__/____] as [POSITION].
10. Plaintiff is a member of a protected class under [Title VII / ADA / ADEA], specifically [____].
11. Plaintiff was qualified for the position and performed satisfactorily.
12. [Set forth specific discriminatory acts, dates, decision-makers, comparators, pretext evidence.]
13. [If McArn applies] Plaintiff [refused to participate in / reported] the following conduct by Defendant that warrants criminal penalties: [____].
14. On or about [__/__/____], Defendant [TERMINATED / DEMOTED / etc.] Plaintiff.

Count I — Title VII Discrimination (42 U.S.C. § 2000e-2)

15. Plaintiff incorporates the preceding paragraphs.
16. Defendant intentionally discriminated against Plaintiff because of Plaintiff's [protected basis] in violation of Title VII.

Count II — ADA / ADEA / § 1981 (as applicable)

17. Plaintiff incorporates the preceding paragraphs.
18. Defendant's conduct violates [42 U.S.C. § 12112 (ADA) / 29 U.S.C. § 623 (ADEA) / 42 U.S.C. § 1981].

Count III — Retaliation

19. Plaintiff incorporates the preceding paragraphs.
20. Plaintiff engaged in protected activity by [____].
21. Defendant retaliated in violation of [Title VII § 704(a) / ADA § 503 / ADEA § 4(d)].

Count IV — McArn Wrongful Discharge in Violation of Public Policy

22. Plaintiff incorporates the preceding paragraphs.
23. Plaintiff was discharged for [refusing to participate in / reporting] conduct by Defendant that warrants criminal penalties under Mississippi or federal law, specifically [____].
24. Under McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603 (Miss. 1993), and its progeny, this discharge is actionable as a tort.
25. Plaintiff has suffered compensatory and consequential damages and is entitled to punitive damages under DeCarlo v. Bonus Stores, Inc., 989 So. 2d 351 (Miss. 2008).

Prayer for Relief

WHEREFORE, Plaintiff respectfully requests:

a. Reinstatement, or in lieu thereof, front pay;
b. Back pay, lost benefits, and pre-judgment interest;
c. Compensatory damages, including emotional distress;
d. Punitive damages under Title VII / ADA caps (42 U.S.C. § 1981a) and under McArn / Mississippi tort law;
e. Reasonable attorney fees and costs (42 U.S.C. § 2000e-5(k); 42 U.S.C. § 1988);
f. Such other relief as the Court deems just and equitable.

JURY TRIAL DEMANDED.

Dated: [__/__/____]

Respectfully submitted,

_________________________________
[ATTORNEY NAME], MS Bar No. [____]
[FIRM] | [ADDRESS]
[PHONE] | [EMAIL]
ATTORNEY FOR PLAINTIFF

Part E — Pre-Filing Checklist

Federal Eligibility and Timeliness

☐ Confirmed employer meets Title VII / ADA threshold (15+) or ADEA (20+)
☐ Last discriminatory act within 180 days (EEOC — non-deferral state)
☐ Identified federal protected basis
☐ Documented adverse employment action
☐ Identified comparator(s) outside protected class
☐ Considered § 1981 (race) — no EEOC required, 4-year SOL

McArn / State Tort Eligibility

☐ Confirmed conduct warrants CRIMINAL (not just civil) penalties
☐ Plaintiff refused to participate OR reported employer's criminal conduct
☐ Discharge occurred within 3 years (Miss. Code § 15-1-49)
☐ Confirmed claim NOT preempted by Title VII / ADEA (Spiers analysis)
☐ Reporting was related to employer's business (DeCarlo / Barrentine)

Documentation

☐ Personnel file / performance reviews obtained
☐ Termination / discipline notices preserved
☐ Pay records and W-2s gathered
☐ Witness list with contact information
☐ Comparator evidence preserved
☐ Direct evidence (emails, texts, voicemails, social media) preserved
☐ Mitigation records (job search documentation)
☐ Evidence of underlying criminal conduct (if McArn) preserved

EEOC Charge Preparation

☐ Online intake submitted via EEOC Public Portal
☐ EEOC-drafted formal charge reviewed and signed
☐ Bases of discrimination identified
☐ Discriminatory actions identified
☐ Dates verified against documents
☐ Charge signed/verified by complainant

Right-to-Sue Stage

☐ 180 days have elapsed since EEOC filing
☐ Demand letter sent or early issuance requested
☐ Right-to-Sue Notice received and dated
☐ 90-day federal suit clock calendared

Federal Suit Filing

☐ Forum chosen (Northern or Southern District of MS)
☐ Federal complaint drafted with admin-exhaustion allegations
☐ EEOC Notice of Right to Sue attached as exhibit
☐ McArn claim joined under § 1367 supplemental jurisdiction (if applicable)
☐ Filing fee paid ($405)
☐ Service of process planned per Fed. R. Civ. P. 4
☐ Jury demand included
☐ Damages calculations (compensatory, punitive — Title VII caps + uncapped McArn punitive)

McArn-Only Filing (State Circuit Court)

☐ Venue confirmed (county of act or defendant)
☐ Filed within 3-year SOL (§ 15-1-49)
☐ No administrative exhaustion alleged
☐ Specific criminal conduct identified and pleaded
☐ Jury demand included if desired

Sources and References

• Title VII, 42 U.S.C. §§ 2000e et seq.: https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964
• ADA, 42 U.S.C. §§ 12101 et seq.: https://www.eeoc.gov/statutes/titles-i-and-v-americans-disabilities-act-1990-ada
• ADEA, 29 U.S.C. §§ 621 et seq.: https://www.eeoc.gov/statutes/age-discrimination-employment-act-1967
• 42 U.S.C. § 1981 (race in contracts): https://www.law.cornell.edu/uscode/text/42/1981
• McArn v. Allied Bruce-Terminix Co., 626 So. 2d 603 (Miss. 1993): https://law.justia.com/cases/mississippi/supreme-court/1993/90-ca-939-1.html
• Spiers v. Oak Grove Credit, 328 So. 3d 645 (Miss. 2021): https://law.justia.com/cases/mississippi/supreme-court/2021/2020-ct-00399-sct.html
• DeCarlo v. Bonus Stores, Inc., 989 So. 2d 351 (Miss. 2008)
• Hammons v. Fleetwood Homes of Miss., Inc., 907 So. 2d 357 (Miss. Ct. App. 2004)
• Community Care Center of Aberdeen v. Barrentine, 160 So. 3d 216 (Miss. 2015)
• Capital Area Bar Association — At-Will Employment Exceptions: https://caba.ms/articles/features/our-at-will-employment-rule
• Baker Donelson — Quick and Easy Guide to Labor & Employment Law: Mississippi: https://www.bakerdonelson.com/easy-guide-mississippi
• EEOC Jackson Area Office: https://www.eeoc.gov/field-office/jackson/location
• EEOC Public Portal: https://publicportal.eeoc.gov/Portal/Login.aspx
• Mississippi Code § 15-1-49 (3-year general tort SOL): https://law.justia.com/codes/mississippi/title-15/chapter-1/general-provisions/section-15-1-49/