MICHAEL SIMKO v. UNITED STATES STEEL CORP
No. 20-1091
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 29, 2021
PRECEDENTIAL
Argued September 24, 2020
On Appeal from the United States District Court for the Western District of Pennsylvania (District Court No.: 2:19-cv-00765)
District Judge: Honorable Joy Flowers Conti
Before: McKEE, JORDAN and RENDELL, Circuit Judges.
John E. Egers, Jr. (Argued)
Julian Law Firm
71 North Main Street
Washington, PA 15301
Counsel for Appellant
Gail S. Coleman (Argued)
Equal Employment Opportunity Commission
131 M. St., N.E.
Washington, D.C. 20507
Counsel for Amicus Appellant
Equal Employment Opportunity Commission
Rodney M. Torbic (Argued)
United States Steel Corp
600 Grant Street, Suite 1515
Pittsburgh, PA 15219
Counsel for Appellee
RENDELL, Circuit Judge.
In this employment discrimination case, Michael Simko asserts one claim of retaliation against his former employer, United States Steel Corp., under the Americans with Disabilities Act (“ADA”),
I. BACKGROUND1
Simko, who suffers from hearing loss, began working for U.S. Steel in August 2005. In August 2012, while he was employed as a Larryman in the Blast Furnace Department of the U.S. Steel plant in Braddock, Pennsylvania, he successfully bid on an open position as Spellman in the Transportation Department. During training for the position, Simko requested a new two-way radio from a Transportation Department supervisor to accommodate his hearing impairment, but U.S. Steel did
A. Simko‘s Original Charge and Initial Discharge
On May 24, 2013, Simko signed an EEOC charge alleging violations of the ADA against U.S. Steel. The only box checked on the original charge was for “[d]iscrimination based on . . . disability.” App. 33. Specifically, Simko asserted that U.S. Steel discriminated against him by denying him the Spellman position and denying his request for an accommodation. Simko also alleged in the charge that he was later “subjected to negative comments from other employees regarding my impairment,” including one instance in which the “Walking Boss” told him that “[i]f I couldn‘t hear, I must be disabled and should not work anywhere in the plant.” App. 34. The EEOC received the charge on May 28, 2013. By letter dated August 7, 2013 to the EEOC, a U.S. Steel Labor Relations official denied Simko‘s allegations of discrimination. The EEOC did not take any action to investigate the charge or U.S Steel‘s August 7, 2013 letter.
On December 30, 2013—while Simko‘s charge was still pending—U.S. Steel discharged Simko after an incident in which a car he was operating lost power. Approximately five months later, on May 27, 2014, Simko entered into a “last chance agreement” with U.S. Steel and his union providing for his reinstatement. Simko returned to work under the last chance agreement on June 1, 2014, but he was discharged again on August 19, 20142—this time, based on a safety violation. Although Simko grieved the discharge through his union, the union later withdrew the grievance.
B. The November 2014 Correspondence
On November 14, 2014,3 approximately three months after Simko‘s final discharge from U.S. Steel, the EEOC received an undated handwritten letter and set of documents from Simko (“November 2014 correspondence”). The November 2014 correspondence comprised 14 pages, including what appears to be Simko‘s handwritten notes regarding a union hearing on the violation of his last chance agreement, a copy of his last chance agreement, copies of safety incident reports, and, in the final three pages, a handwritten note that urged that he was discharged in retaliation for his filing of the original discrimination charge with the EEOC. In relevant part, the letter provided:
Since I have filled [sic] the charges with the
EEOC I have been terminated twice and placed on [a] last chance agreement with no just cause by the company. The union only calls me at [the] last minute with information, they are not in contact with me otherwise . . . . I believe anyone who familiarizes themself [sic] with the
details of the case will clearly see it as retaliation for filing charges with the EEOC.
App. 80-81 (emphasis added).
The EEOC did not take any action in response to Simko‘s November 2014 correspondence until approximately one year later. By letter dated November 23, 2015, an EEOC investigator notified Simko that he had been assigned to Simko‘s case. The investigator further wrote that, based upon the November 2014 correspondence, “it appears as though you have been terminated by [U.S. Steel] on two separate occasions during 2014 and that you believe that the terminations were retaliatory against you.” App. 84. Simko‘s EEOC file also contains a handwritten note by the investigator, dated November 23, 2015, indicating that the EEOC contacted the U.S. Steel Labor Relations Department and confirmed that Simko had been discharged.4 In addition, the note stated, “Amended charge is to follow including retaliatory discharge.” App. 83.
C. The EEOC Investigation, Amended Charge, and Simko‘s Federal Lawsuit
After the EEOC contacted Simko, he retained counsel to represent him in his EEOC proceedings. By letter dated December 18, 2015, the EEOC investigator communicated to Simko‘s counsel that the EEOC had notified U.S. Steel “that an amended charge was going to follow.” App. 87. On January 22, 2016, Simko‘s counsel filed an amended EEOC charge. The amended charge addressed Simko‘s failure to secure the Spellman position and his subsequent discharges from U.S. Steel. The boxes for disability discrimination and retaliation were both checked.
After investigating the allegations set forth in the amended charge, the EEOC on February 19, 2019 issued a determination of reasonable cause that U.S. Steel retaliated against Simko. Specifically, the EEOC investigator found that U.S. Steel disciplined Simko more harshly for his violation of work rules and regulations than a non-disabled comparator. The EEOC attempted conciliation of the dispute, but after those efforts failed, it issued a right-to-sue letter on April 1, 2019. On June 28, 2019, Simko filed this lawsuit, asserting only a single count of retaliation in connection with his final discharge from U.S. Steel. It did not allege either disability discrimination or failure to accommodate.
The District Court determined that Simko failed to file a timely EEOC charge asserting his retaliation claim because his amended charge claiming retaliation was filed 521 days after the termination of his employment. The District Court also held that Simko was not entitled to equitable tolling of the ADA‘s filing deadline because he was not misled by the EEOC or prevented from filing the amended charge, and he offered no reason why he could not file a timely claim. Thus, the District Court concluded that since Simko never filed a timely charge of retaliation with the EEOC, he failed to exhaust his administrative remedies as required by the ADA, and it dismissed his complaint. Simko timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under
III. DISCUSSION
Plaintiffs must exhaust their administrative remedies before filing an ADA claim in federal court. See Churchill v. Star Enters., 183 F.3d 184, 190 (3d Cir. 1999) (noting that claims asserted under the ADA must be filed in adherence with the administrative procedures set forth in Title VII);
It is undisputed that Simko filed his amended EEOC charge of retaliation 521 days after the latest adverse employment action at issue in the civil complaint—his final discharge. Before the District Court and on appeal, U.S. Steel urges that Simko‘s civil complaint should therefore be dismissed because he failed to file the retaliation charge within the ADA‘s 300-day filing period.
Despite his failure to meet the 300-day deadline, Simko argues that he nonetheless satisfied the ADA‘s pre-suit requirements. The EEOC filed an amicus brief in which it also urges that, contrary to the District Court‘s conclusion, Simko satisfied the ADA‘s pre-suit filing requirements.6 Three arguments are advanced in the alternative. First, both Simko and the EEOC contend that his handwritten November 2014
correspondence to the EEOC itself constituted a timely administrative charge. Second, the EEOC alone argues that Simko was entitled to equitable tolling of the statutory filing period because the agency failed to promptly act on the November 2014 correspondence. Third, both Simko and the EEOC urge that he did not have to file an additional EEOC charge because his original, still-pending disability discrimination charge encompassed his subsequent claim of retaliation.
We reject these arguments. The first argument was never asserted in the District Court and has not been properly preserved for our review. The second argument was raised only by the EEOC on appeal and, for reasons we explain below, will not be considered. With respect to the final argument, we conclude that Simko‘s retaliation claim is distinct from his underlying EEOC charge and therefore needed to be raised first in a timely filed charge.
A. We Will Not Reach the Unpreserved Issue of Whether the November 2014 Correspondence Constituted a Charge
Simko and the EEOC both contend that the District Court should have concluded that the November 2014 correspondence—which was sent within 300 days of Simko‘s final discharge—itself constituted a timely EEOC charge that may serve as the basis for his federal lawsuit. They urge that, despite its informal appearance, Simko‘s handwritten correspondence included all of the required contents of an administrative charge. But as U.S. Steel points out, Simko never raised this issue before the District Court. In its opinion, the District Court sua sponte commented on the handwritten letter, stating that it “d[id] not constitute a ‘charge’ and Simko d[id] not contend otherwise.” Simko v. United States Steel Corp., No. CV 19-765, 2019 WL 6828421, at *3 (W.D. Pa. Dec. 13, 2019). Simko and the EEOC now, for the first time, contend otherwise.
It is well-established that arguments raised for the first time on appeal are not properly preserved for appellate review. See Del. Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006); see also Freeman v. Pittsburgh Glass Works, LLC, 709 F.3d 240, 249 (3d Cir. 2013) (“We generally refuse to consider issues that the parties have not raised below.”). The general rule requiring preservation “serves several important judicial interests,” such as protecting the parties from unfair surprise, “preventing district courts from being reversed on grounds that were never urged or argued before [them],” and promoting finality and the conservation of judicial resources. Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (alteration in original) (quoting Webb v. City of Phila., 562 F.3d 256, 263 (3d Cir. 2009)).
As a preliminary matter, the District Court‘s cursory statement that Simko‘s handwritten correspondence did not constitute a charge is, alone, insufficient to preserve that issue for our review. U.S. Steel contends that, by failing to raise that issue before the District Court, Simko waived any argument to the contrary. Although we agree with U.S. Steel that Simko did not preserve his argument on appeal, we think that, under our most recent precedent, Simko‘s failure is better characterized as “forfeiture,” not “waiver.” See Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 146–47 (3d Cir. 2017). In Barna, we distinguished the two terms, noting that “[t]he effect of failing to preserve an argument will depend upon whether the argument has been forfeited or waived.” Id. at 146. Waiver is the intentional abandonment of an argument. Id. at 147. In contrast, forfeiture “‘is the failure to make the timely assertion of a right,’ an example of which is an inadvertent failure to raise an argument.” Id. at 147 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). Because Simko‘s failure to argue before the District Court that the November 2014 correspondence qualified as a charge appears inadvertent, we treat that argument as forfeited. See PDX N., Inc. v. Comm‘r N.J. Dep‘t of Labor & Workforce Dev., 978 F.3d 871, 886 (3d Cir. 2020).
While a court may not entertain waived arguments on appeal, it may review forfeited arguments, but under only “truly ‘exceptional circumstances.‘” Barna, 877 F.3d at 147 (quoting Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3d Cir. 2001)). These circumstances are “very ‘limited,‘” id. (quoting Webb, 562 F.3d at 263), and
B. Nor Will We Address the District Court‘s Ruling on Equitable Tolling
In its amicus brief, the EEOC alone urges that the District Court erred by concluding that Simko was not entitled to equitable tolling of the 300-day statutory filing period. Specifically, the EEOC contends that, if the November 2014 correspondence did not qualify as an administrative charge, the EEOC‘s failure to promptly convert it to a charge should warrant equitable tolling of the statutory deadline for Simko. Although Simko litigated the equitable tolling issue before the District Court, he did not present it to us as an issue on appeal. We have held that the role of an amicus brief is to “elaborate[] issues properly presented by the parties,” not “inject[] new issues into an appeal.” N.J. Retail Merchs. Ass‘n v. Sidamon-Eristoff, 669 F.3d 374, 382 n.2 (3d Cir. 2012) (quoting Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d Cir. 2001)). Thus, “[a]n amicus normally ‘cannot expand the scope of an appeal with issues not presented by the parties on appeal,’ at least not ‘in cases where the parties are competently represented by counsel.‘” Hartig Drug Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 267 (3d Cir. 2016) (citation omitted) (quoting Nuveen Mun. Tr. ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 300 n.10 (3d Cir. 2012)). By raising the equitable tolling issue, the EEOC attempts to resurrect an issue that Simko abandoned on appeal. Accordingly, we will not reconsider the District Court‘s conclusion that equitable tolling was not warranted.
C. Simko‘s Original EEOC Charge Did Not Encompass His Subsequent Retaliatory Discharge Claim
Simko‘s main argument on appeal is that he was not required to file a timely retaliation charge because his retaliation claim was encompassed within his still-pending original charge of disability discrimination. U.S. Steel responds, as it did before the District Court, that Simko‘s retaliation claim cannot be bootstrapped to the original charge because the two sets of allegations are sufficiently distinct, and under the analysis required by our precedent, Simko should have filed a separate charge for the retaliation claim. We agree with U.S. Steel on this issue.
As noted above, the ADA requires that a plaintiff administratively exhaust all claims before seeking relief in federal court. Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 469 (3d Cir. 2001);
The “relevant test” for determining whether a later claim needs to be exhausted despite the filing of a previous charge is a two-pronged inquiry into whether “the acts alleged in the subsequent . . . suit are fairly within the scope of [1] the prior EEOC complaint, or [2] the investigation arising
therefrom.”7 Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984); see also Robinson v. Dalton, 107 F.3d 1018, 1025 (3d Cir. 1997) (identifying the “two circumstances in which events subsequent to a filed [EEOC] complaint may be considered as
fairly encompassed within that complaint”).
The exhaustion inquiry is highly fact specific. Under our precedent, the Court must “examine carefully the prior pending EEOC complaint and the unexhausted claim on a case-by-case basis before determining that a second complaint need not have been filed.” Robinson, 107 F.3d at 1024. Simko and the EEOC urge that we should adopt the broad per se rule followed by some courts of appeals that treat post-charge claims of retaliation as exhausted when they arise during the pendency of a prior charge. See, e.g., Duplan v. City of New York, 888 F.3d 612, 622 (2d Cir. 2018); Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992); Gupta v. E. Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981). We have said, however, that such a per se rule, “whether express or applied in practice, would eviscerate the remedial purposes of the exhaustion requirement.” Robinson, 107 F.3d at 1024. We have already rejected this per se argument and will adhere to our precedent that requires a careful examination of the nature of the relevant claims. See Waiters, 729 F.2d at 237 n.10 (declining to adopt what the Court characterized as the Fifth Circuit‘s rule that “all claims of ‘retaliation’ against a discrimination victim based on the filing of an EEOC complaint are ‘ancillary’ to the original complaint”); Robinson, 107 F.3d at 1024 (also rejecting a per se rule that post-charge retaliation claims “necessarily fall[] within the scope of . . . [previously filed, still-pending EEOC] complaints”).8
Even interpreting Simko‘s charge liberally under our fact-specific approach, the retaliation claim based on his August 2014 termination does not fall fairly within the scope of either (1) his original charge of disability discrimination based on his being denied the Spellman position in August 2012, or (2) the EEOC investigation arising therefrom. See
Waiters, 729 F.2d at 235; see also Mandel v. M & Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013); Robinson, 107 F.3d at 1025; Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). We address both prongs of the analysis in turn.
Simko concedes that his retaliation claim fails the first prong of the exhaustion analysis. Simply put, no allegations of retaliation appeared on the face of his original EEOC charge. Simko failed to check the box indicating a claim of retaliation and his narrative contained no reference to conduct that could be construed as retaliatory. As U.S. Steel argues, “the legal theories in the original charge and amended charge are not the same, the incidents are not the same, the individuals involved are not the same, the work locations are not the same, and the time-periods are not the same.” Appellee‘s Br. 20–21. Accordingly, Simko‘s retaliatory discharge claim does not fall fairly within the scope of his EEOC charge.
The central dispute in this case, however, concerns the second prong of the analysis—whether Simko‘s claim of retaliation falls “fairly within . . . the investigation arising” from the initial EEOC charge. Waiters, 729 F.2d at 237. At this step of the analysis, we consider “the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.” Ostapowicz, 541 F.2d at 398–99. Simko and the EEOC primarily argue that this prong may be satisfied simply based on the fact that the EEOC actually did investigate Simko‘s retaliatory discharge claim, albeit more than two years after he filed his initial charge.9 To the contrary, our precedent emphasizes
with the EEOC, “irrespective of the actual content of the Commission‘s investigation.” Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966 (3d Cir. 1978); see also Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984) (holding that “[w]hether the actual EEOC investigation uncovered any evidence of retaliation is of no consequence” in determining whether a new claim of retaliation is encompassed in the original EEOC charge). As such, we agree with the District Court‘s characterization of our exhaustion analysis as “objective” rather than “subjective.” Simko, 2019 WL 6828421, at *7.
Given the fact-specific nature of the exhaustion inquiry, our precedent in this area—Hicks, Waiters, Antol, and Robinson—provides useful guidance. As these cases demonstrate, when determining whether a claim fairly or reasonably falls within the investigation arising from a charge, courts consider (1) whether the claim arises from the same set of facts that support the original charge and (2) whether the claim advances the same theory of discrimination as the original charge.
In Hicks, the plaintiff filed an EEOC charge alleging only race discrimination, but later sued asserting, inter alia, claims of both race discrimination and sex discrimination. 572 F.2d at 962-63. The EEOC investigated the race discrimination claim but failed to investigate sex discrimination. Id. Nevertheless, we held that the actual EEOC investigation did not necessarily set the “outer limit” of the scope of the civil complaint. Id. at 966. Such a limitation would unfairly penalize a plaintiff for an “unreasonably narrow or improperly conducted” investigation by the EEOC. Id. Thus, the issue was whether a reasonable investigation would include a sex discrimination claim.
We noted that certain instances of sex discrimination alleged in Hicks‘s civil complaint arose from the same conduct that supported his race discrimination claims and that there was evidence that the EEOC improperly failed to contact Hicks to discuss his charge after it was filed. Id. On those grounds, we remanded to the district court to determine “whether the . . . investigation reasonably would have included examination of the sex discrimination claims,” such that those claims did not need to have been exhausted by filing a separate charge. Id. at 966, 970.
Waiters involved an investigation of retaliatory conduct that went beyond the four corners of the EEOC charge. Waiters filed a charge with the EEOC asserting a claim of sex discrimination under Title VII against her employer, and over a year later she filed a second charge alleging that the employer retaliated against her for having submitted the earlier complaint. Waiters, 729 F.2d at 235. After she filed the second charge, Waiters was discharged. Id. at 236. Waiters did not file a new charge based on her termination. Id. She then brought suit in federal court alleging that she was discharged in retaliation for exercising her rights under Title VII. Id.
The district court concluded that Waiters should have filed another charge with the EEOC after she was discharged and dismissed Waiters‘s complaint for failure to exhaust administrative remedies. Id. We reversed. While Waiters‘s second EEOC charge was limited to a specific instance of retaliation, the EEOC investigation extended beyond that individual allegation and uncovered a subsequent pattern of retaliatory harassment by different officials. Id. at 235 n.2, 238. Although the post-charge retaliatory conduct involved
We reached a different conclusion, on different facts, in Antol v. Perry. In that case, Antol filed a federal lawsuit alleging both disability discrimination under the Rehabilitation Act,
We concluded that “[t]he specifics of [Antol‘s] disability discrimination charge d[id] not fairly encompass a claim for gender discrimination merely because investigation would reveal that Antol is a man and the two employees who received the positions [were] women.” Id. at 1296. In addition, we determined that the EEOC investigation properly focused on “the gravamen of Antol‘s complaint—disability discrimination” and that neither the EEOC nor the employer had been put on notice of the new gender discrimination claim. Id. Accordingly, Antol‘s failure to exhaust administrative remedies for his gender discrimination claim barred that claim. Id.
Robinson is our most recent precedential opinion addressing the exhaustion of claims arising from post-charge events. There, we applied our fact-specific exhaustion inquiry to a post-charge claim of retaliatory discharge. Robinson, 107 F.3d at 1024. Robinson filed three EEOC charges alleging racial discrimination and retaliation against his employer, the Navy, for denying him sick leave, placing him on unauthorized leave status, and issuing him an “indebtedness letter” for taking unapproved sick leave and creating an asbestos hazard. Id. at 1019, 1025. After Robinson filed these charges, the Navy terminated his employment, pointing to his excessive unauthorized absences and the asbestos hazard—the subject matter of his prior charges—as the basis for his discharge. Id. at 1019-20. Robinson then brought suit in federal court claiming that he was discharged in retaliation for filing his three charges. Id. at 1020. He did not file an additional charge alleging retaliatory discharge and the EEOC did not investigate his termination. Id. at 1025. The district court dismissed Robinson‘s complaint for failure to exhaust administrative remedies. Id. at 1020. On appeal, we noted that the district court had failed to examine the scope of the EEOC‘s investigation, and—as in Hicks—we remanded to determine whether a reasonable investigation of Robinson‘s charges would have included his retaliatory discharge allegation. Id. at 1026.
We draw several principles from these precedents. Most importantly, the original charge is the touchstone of our exhaustion analysis. See, e.g., Antol, 82 F.3d at 1296 (focusing on the “specifics of . . . [the] charge” in determining whether a new claim is encompassed by the charge). First, we closely examine the original charge‘s contents to determine the reasonable scope of the EEOC investigation that would likely occur. See Robinson, 107 F.3d at 1024. Second, we parse the later claim and determine whether its allegations would be covered in that reasonable investigation. See Hicks, 572 F.2d at 966. At bottom, we must compare the two sets of
With these principles in mind, we turn to the fact pattern presented here. Unlike in Waiters, the additional allegations that the EEOC investigated after it received the November 2014 correspondence were only tenuously related to the substance of the original charge. Simko‘s original EEOC charge was based on the Transportation Department‘s failure to accommodate his hearing disability and its alleged discrimination against him by its refusal to approve him for the Spellman position in August 2012.10 By contrast, the
retaliation claim that Simko later filed in the District Court alleges that his discharge from the Blast Furnace Department in August 2014 was in retaliation for his filing of the original discrimination charge.
The original EEOC charge and Simko‘s civil complaint thus address discrete adverse employment actions that occurred approximately two years apart and involved different supervisors in different departments. Under these facts, the scope of a reasonable investigation arising out of Simko‘s initial charge would certainly include an inquiry into whether Simko was qualified for the Spellman position, U.S. Steel‘s reasons for passing him over, and identification of the person who secured the position and why he or she was chosen. While such an investigation could also inquire into whether any other adverse actions were taken against him relating to his disability or his having filed a charge, a reasonable investigation in this case would not have included an inquiry into Simko‘s post-charge firing. Simko‘s allegations of retaliation are too remote in time and substantively distinct from the allegations of disability discrimination for a reasonable EEOC investigation based on the original charge to encompass the later events.11
different types of discrimination—in one, disability discrimination and failure to accommodate and in the other, retaliation. Absent “a close nexus” of supporting facts, Hicks, 572 F.2d at 967, or a common “core grievance,” Waiters, 729 F.2d at 238, we conclude that a reasonable investigation of Simko‘s original charge of disability discrimination would not unearth facts about his allegations of retaliation nearly two years later.
Our dissenting colleague cites the appropriate test repeatedly: If discriminatory acts occur after a plaintiff files his EEOC charge, he need not file an additional charge if the new allegations are “fairly [or reasonably] within the scope of . . . the investigation arising” out of the initial charge. Waiters, 729 F.2d at 237. As the dissent recognizes, in conducting this inquiry, we ask whether the new claim should “reasonably [have] be[en] expected to grow out of the [initial] charge.” Ostapowicz, 541 F.2d at 399. However, the dissent fails to consider the facts in light of the test. As we have done in the other cases applying our exhaustion analysis, we must look at the facts as they are alleged in the charge and the civil complaint. And the facts here are unique.
What was the initial charge? Here, Simko claimed that U.S. Steel denied him a reasonable accommodation for his hearing disability and passed him over for a job because of that same disability. The initial charge included no additional instances of unlawful discriminatory treatment, other than an allegation that some other employees made “negative comments” about Simko‘s hearing impairment. App. 34. Unlike the plaintiff in Hicks, Simko did not later allege a different theory of discrimination based on some of the same underlying acts that supported his initial theory of discrimination. And unlike in Waiters, Simko‘s initial charge of discrimination was not followed by subsequent instances of the same type of unlawful treatment. As previously discussed, our exhaustion analysis is tied to the substance of Simko‘s only timely-filed claim in this case: that he did not receive a reasonable accommodation and was denied the Spellman job due to his disability.
The only other operative fact, namely Simko‘s discharge, came to light over seventeen months after he
submitted the initial charge, when he alerted the EEOC that he was fired in retaliation for filing the charge. But, would the allegedly retaliatory firing have been included in an investigation that could “reasonably be . . . expected to grow” out of the facts surrounding his original charge of disability discrimination, approximately two years prior? Ostapowicz, 541 F.2d at 399. There is no basis in fact or law for an answer in the affirmative. As we noted above, the scope of a reasonable investigation into Simko‘s being passed over for a job based on his disability would have involved a limited inquiry. If we were to say that his later claim of retaliation was encompassed by his—however distantly related—initial charge of disability discrimination, we would be establishing a de facto per se rule, contrary to our holdings in Waiters, 729 F.2d at 237 n.10, and Robinson, 107 F.3d at 1024.
The dissent urges that we should conclude Simko‘s post-charge retaliation claim
Even if our exhaustion inquiry turned on the actual—rather than reasonable—scope of investigation arising from a charge, Simko‘s retaliation claim should still be dismissed. That is because the investigation in this case did not actually “aris[e]” from, Waiters, 729 F.2d at 237, or “grow out of,” Hicks, 572 F.2d at 967, the underlying discrimination charge. Critically, the EEOC failed to investigate Simko‘s original charge, and during the approximately thirty-month delay between the filing of his original charge and the EEOC investigator‘s response to his November 2014 correspondence, he experienced a change in circumstances that formed the basis of a new, distinct claim. It was due only to that extended delay and Simko‘s handwritten November 2014 correspondence that the EEOC learned of, and was able to investigate, Simko‘s new allegations while his original charge was still pending.
Thus, the EEOC investigation did not actually grow out of the original charge. Instead, the investigation arose from Simko‘s handwritten correspondence. After apparently taking no investigative action for over two years following its receipt of the original 2013 charge, the EEOC commenced its investigation only after an investigator read Simko‘s correspondence and sent Simko a letter inquiring about his case. Significantly, that letter—dated November 23, 2015, over a year after Simko‘s November 2014 correspondence—referenced only Simko‘s retaliation allegations, further demonstrating that the EEOC acted on the basis of the November 2014 correspondence, not his original charge. As we noted above, the EEOC file included a comment that an amended charge was to follow, “including retaliatory discharge.” App. 83. That amended charge, however, was not timely filed.
Simko and the EEOC nevertheless urge that because the EEOC ultimately did investigate the retaliatory discharge claim, such an investigation must have been “reasonable,” rendering it unnecessary to file an additional timely charge. We disagree.
As the District Court observed, this case does not involve an EEOC investigation that was unduly narrow, but rather, one that extended beyond the face of the operative EEOC charge. Contrary to Simko and the EEOC‘s arguments, however, we analyze claims excluded from an EEOC investigation in the same way that we analyze claims included in the investigation. Our focus remains on the investigation that can “reasonably be expected to grow out of the charge.” Ostapowicz, 541 F.2d at 399. This principle applies equally in cases where the EEOC failed to investigate a claim, see, e.g., Robinson, 107 F.3d at 1025; Hicks, 572 F.2d at 966, and cases where the EEOC broadened its investigation to cover claims not included in the charge, see Waiters, 729 F.2d at 238. Holding otherwise—that is, treating all investigated claims as exhausted—would create a one-way ratchet. The EEOC‘s choice to investigate certain employer conduct would set
Simko and the EEOC‘s other arguments that his retaliatory discharge claim fell within the scope of a reasonable EEOC investigation are unpersuasive. They both contend that EEOC investigations are entitled to a presumption of regularity and that, in essence, we should “assume that the EEOC would not expend time or resources investigating matters unrelated to a pending charge.” EEOC‘s Br. 24; see also Hicks, 572 F.2d at 966. In support of this position, they point to EEOC internal policies, reflected in the EEOC‘s Compliance Manual, which govern the scope of investigations and the circumstances in which the EEOC may broaden an investigation. For example, these policies direct investigators to remain alert to evidence of retaliation during their investigations, inform their supervisors in case such evidence surfaces, and notify the employer that “the scope may be expanded or limited based on information received during the investigation.” EEOC Compl. Man. § 22.3, Scope of Investigation, 2006 WL 4673367; see also EEOC Compl. Man. § 2.8, Charges Warranting Priority Handling, 2006 WL 4672924; EEOC Compl. Man. § 13.1, Litigation for Temporary or Preliminary Relief: Introduction, 2006 WL 4673012.
In light of these practices and the presumption of investigative regularity, Simko and the EEOC urge that it was reasonable for the EEOC to broaden the investigation beyond the four corners of the original charge and that Simko‘s retaliation claim therefore satisfies the second prong of the exhaustion inquiry. We reject this argument on two grounds. First, a rebuttable presumption of regularity does not foreclose judicial review of the scope of EEOC investigations, as Simko argues. See, e.g., Robinson, 107 F.3d at 1026 (remanding to the district court to “evaluate the reasonableness of the decision not to investigate“); Antol, 82 F.3d at 1296 (holding that the investigation “quite properly” focused on Antol‘s disability discrimination claim). Here, the EEOC‘s inaction for over two years on Simko‘s original charge is sufficient to rebut the presumption that its subsequent investigation of Simko‘s charge was regular or reasonable.12
Relatedly, we do not give more weight to these arguments about exhaustion merely because the EEOC itself has taken the position that a reasonable investigation would have encompassed Simko‘s retaliation claim. Courts refuse to defer to the EEOC‘s litigation position when, as here, it is “not embodied in any formal issuance from the agency, such as a regulation, guideline, policy statement or administrative adjudication.” Gregory v. Ashcroft, 501 U.S. 452, 485 n.3 (1991) (White, J., concurring); see also Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to what appears to be nothing more than an agency‘s litigating position would be entirely inappropriate.“). Specifically, when a district court considers whether a plaintiff has exhausted his administrative remedies, “[n]o deference may be accorded the EEOC or the complaint investigator‘s finding with respect to the plaintiff‘s compliance.” McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1105-06 (10th Cir. 2002). Accordingly, we do not defer to the EEOC on the question of administrative exhaustion.
Simko and the EEOC further assert that filing an additional EEOC charge was not necessary in this case because the purpose of the ADA statutory scheme was ultimately fulfilled: namely, the facilitation of an informal dispute resolution process between Simko and U.S. Steel. This argument, however, ignores two other fundamental aims of the exhaustion requirement: prompt notice to the employer and swift dispute resolution. See, e.g., Morgan, 536 U.S. at 109 (“[B]y choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination.” (internal quotation marks omitted));
While the EEOC did ultimately investigate and attempt pre-complaint conciliation between Simko and U.S. Steel, this process was significantly delayed. Critically, U.S. Steel did not receive any notice of Simko‘s retaliation claim until well after the end of the 300-day filing period. The parties agree that U.S. Steel was informally notified of Simko‘s retaliation allegations no earlier than November 23, 2015—the day of the EEOC investigator‘s note to Simko‘s file—and no later than December 18, 2015—the day of the investigator‘s letter to Simko‘s counsel stating that he had informed U.S. Steel about the amended charge to be filed. This means that U.S. Steel did not receive even informal notice of the retaliatory discharge claim until some point between 161 days and 186 days after the filing period expired. Moreover, U.S. Steel was not formally put on notice of the retaliatory discharge claim until after Simko‘s counsel filed his amended EEOC charge on January 22, 2016, 221 days after the end of the filing period. Given this timeline, excusing the exhaustion requirement for Simko‘s retaliation claim would undercut the Supreme Court‘s emphasis on “strict adherence” to the pre-suit requirements and the statutory scheme‘s aims of notice and prompt dispute adjudication. See Morgan, 536 U.S. at 108-09.
We thus conclude that Simko‘s subsequent retaliation claim would not have fallen within the reasonable scope of an EEOC investigation into his original discrimination charge. Accordingly, his retaliation claim fails the second prong of the exhaustion inquiry.
While it is unfortunate that Simko did not timely amend his initial charge on his own and that the EEOC did not promptly react to his November 2014 correspondence, we cannot hold that the later claim is encompassed within the initial charge because Simko‘s retaliatory discharge claim does not fairly, or reasonably, fall within the scope of his original charge or an EEOC investigation that would arise therefrom. Thus, he needed to file an amended charge advancing that claim within the ADA‘s 300-day filing period. Because he failed to do so, the District Court correctly dismissed his complaint for failure to exhaust administrative remedies.
IV. CONCLUSION
For the foregoing reasons, we will affirm the District Court‘s dismissal of Simko‘s complaint.
McKEE, Circuit Judge, concurring in part and dissenting in part.
A petitioner need not file a new formal charge with the Equal Employment Opportunity Commission if that charge is “within the scope of a prior EEOC complaint or the investigation which arose out of it.”1 I must respectfully dissent from the Majority opinion because the EEOC investigation of Simko‘s retaliation claim was reasonably within the scope of the investigation arising out of Simko‘s initial disability discrimination claim. Thus, Simko‘s retaliation claim related back to his earlier timely disability discrimination claim and the District Court erred in dismissing Simko‘s retaliation claim for failure to exhaust his administrative remedies.2
In Pennsylvania, “a complainant has 300 days from the date of the adverse employment decision to file a claim with the [EEOC].”3 “The purpose of [the filing requirement] . . . is to afford the EEOC the opportunity to settle disputes through conference, conciliation, and persuasion, avoiding unnecessary action in court.”4
If, after a petitioner files a claim, subsequent discriminatory acts occur, the petitioner does not need to file a new formal charge with the EEOC so long as the new allegations “fall[ ] within the scope of a prior EEOC complaint or the investigation which arose out of it.”5 This “includ[es] new acts which occurred during the pendency of proceedings before the Commission.”6 This is quite reasonable because “additional charges filed during the pendency of the administrative proceedings may fairly be considered explanations of the original charge and growing out of it.”7
Moreover, we liberally construe the scope of an EEOC complaint when considering whether a subsequent claim falls within the ambit of an earlier claim: “In determining the content of the original complaint for purposes of applying [relation back], we keep in mind that charges are most often drafted by one who is not well versed in the art of legal description. Accordingly, the scope of the original charge should be liberally construed.”8 Indeed, that is precisely the situation here. The letter that led to the EEOC‘s eventual investigation was handwritten by Simko, a lay plaintiff with no legal training or experience. We have also previously concluded that where the petitioner “attempted to amend his [EEOC] charge,”9 but failed to do so, he could still bring a civil action based on the charge that he attempted to include. Even
a failed attempt to amend a charge “create[d] an excuse for the failure to file a[n amended] charge.”10
We have established two factors to determine if a claim of discrimination relates back to a prior claim. We look to see whether the subsequent claim “(1) falls within the scope of a prior EEOC complaint, or (2) falls within the scope of the
Here, Simko timely filed a disability discrimination claim against U.S. Steel.13 While that claim was pending before the EEOC, he was fired.14 He subsequently wrote to the EEOC detailing his belief that he was fired in retaliation for filing his initial discrimination claim. He wrote, “I believe anyone who familiarizes themself [sic] with the details of the case will clearly see it as retaliation for filing charges with the EEOC.”15 The EEOC then expanded the disability discrimination investigation to include retaliation.16 The EEOC notified U.S.
Steel, investigated the claim, found evidence of retaliation, and attempted to conciliate the claim.17
Simko concedes that his initial complaint alleged only disability discrimination and did not include a charge of retaliation.18 Accordingly, we must determine whether the retaliation claim could “reasonably [have] be[en] expected to grow out of the [initial disability discrimination] charge.”19 As I explain below, a number of factors govern that reasonableness inquiry. These include the normal course of EEOC investigations, whether the petitioner attempted to amend the claim to include the additional charge, and whether the claim was actually investigated.
My colleagues’ analysis of the reasonableness of the scope of the EEOC‘s investigation is guided by four cases: Hicks, Waiters, Antol, and Robinson.20 In each of these cases, we considered whether claims that petitioners brought for the first time before the District Court (and that had not been filed with the EEOC) could relate back to earlier discrimination claims that each petitioner had properly filed with the EEOC. Each petitioner in those cases claimed that the new charge s/he filed related back to the earlier-filed charge. Below, I discuss some the principles that we can take from these cases. While these cases are instructive, I realize that none of them addressed the issue before us now—whether an EEOC investigation was too broad and thus unreasonable such that an actually investigated claim should be prevented from proceeding in District Court. I do not believe that the facts here justify
Indeed, we have cautioned that, in conducting an inquiry into reasonableness, “[t]he individual employee should not be penalized by the improper conduct of the
Commission.”21 We have also reaffirmed the “sound and established policy that procedural technicalities should not be used to prevent Title VII claims from being decided on the merits.”22 In short, errors by the EEOC should not affect a claimant‘s ability to pursue his or her claim.
II.
The petitioner in Hicks brought a claim before the District Court alleging race and sex discrimination even though he had only filed a race discrimination charge with the EEOC. The District Court concluded that it did not have “jurisdiction over Hicks‘s claims of sex discrimination because a charge of such discrimination had not been filed with the EEOC.”23 We reversed. We held that Hicks’ failure to formally file a sex discrimination charge with the EEOC did not “preclude[] jurisdiction over the sex discrimination claims.”24 That holding was based upon two considerations. First, there was evidence that Hicks “reasonably attempted to amend his charge to include sex discrimination” but the EEOC erred in failing to amend the claim.25 This, we found, “create[d] an excuse for the failure to file a sex discrimination charge”26 regardless of whether Hicks attempted to amend the charge within the statutory filing period.27
Second, we concluded that there was a genuine issue of material fact as to whether a properly conducted EEOC investigation would have included an inquiry into sex
discrimination. Hicks alleged that he was not contacted by the investigator until the conclusion of the investigation.28 There was “sufficient evidence to raise a fair inference that Hicks would have told the EEOC investigator that he believed that sex discrimination was a cause of the disparate treatment alleged in his charge” had he been contacted earlier.29
We concluded that if, on remand, the District Court found either that (1) “the EEOC improperly failed to accept an amendment to Hicks‘s charge which would have incorporated sex discrimination” or (2) “a reasonable investigation of the charge as filed would have encompassed the sex discrimination claims” we would have jurisdiction over the sex discrimination claim.30
As part of the inquiry into whether “the sex discrimination claims [] would have been uncovered” we noted that “there [wa]s a close nexus between the facts supporting the claims of race and sex discrimination,”31
The petitioner in Waiters filed a sex discrimination claim with the EEOC alleging that she had been passed over for a position in favor of a male applicant.33 One year later, she filed a second claim with the EEOC alleging that her employer had retaliated against her for filing that claim a year earlier.34 The EEOC investigated the claim and found that there was support for Waiters’ allegations, but then the investigation was
dropped: “no further action was taken by the EEOC, [the] claim was never finally adjudicated by the agency, and no right to sue letter ever issued.”35 Waiters continued to work at the same employer, but in a different department on a different program. Approximately two years later, while working on the new program, she was fired.36 Her employer alleged misconduct unrelated to the conduct that her prior retaliation claim was based upon.37 Rather than filing another retaliation claim with the EEOC, she sued in District Court alleging that she had been fired in retaliation for filing her discrimination claims with the EEOC.38
The District Court dismissed her action based on her failure to file a second retaliation charge with the EEOC specifically related to her discharge. We again reversed. We held that she need not have filed another retaliation claim even though years had passed since her prior claim and “the allegedly discriminatory officials and acts [in her prior claim we]re different” than the officials and acts that were the subject of her retaliation claim filed in the District Court.39 We held that even though the actors, acts, and departments were different, “[w]here discriminatory actions continue[d] after the filing of an EEOC complaint . . . the purposes of the statutory scheme [we]re not furthered by requiring the victim to file additional EEOC complaints.”40 Our reasoning rested upon two considerations. The “core grievance—retaliation—[wa]s the same” between Waiters’ new and prior charges. And “it [wa]s clear that the allegations of the appellant‘s complaint f[e]ll within the scope of the [EEOC‘s] investigation of the charges.”41 In other words, we found it relevant that the EEOC had already actually investigated retaliation against Waiters.
The Majority focuses on two aspects of our decisions in Hicks and Waiters—the “close factual nexus” in Hicks, and the similarity of the substantive discrimination charges in
Waiters—and concludes that one or both of these factors must be present in order for a subsequently filed claim
Several principles, in addition to those discussed by the Majority, emerge from Hicks and Waiters. First, there are multiple ways in which a petitioner can demonstrate that an unexhausted claim is reasonably within the scope of an earlier-filed claim. As my colleagues recognize, a subsequent claim of discrimination or retaliation may reasonably relate back to an earlier-filed charge of discrimination if the filed and unfiled claims share a close factual nexus. But Hicks also establishes that “evidence of the investigatory practices of the agency” are relevant to our reasonableness determination.43 Stated another way, evidence from the agency itself, such as EEOC guidance showing that a properly conducted EEOC investigation would or should have reached the unexhausted claim, can help a petitioner establish that the unexhausted claim relates back to a properly filed claim.
In addition, as my colleagues note, we consider whether a prior and subsequent claim of discrimination share the same core grievance in determining if a subsequent claim relates back to the prior claim. But we also look to see whether the EEOC actually investigated the unexhausted claim. The fact that the EEOC‘s investigation of the charges include the substance of the unexhausted claim helps to establish that the claim reasonably fell within the scope of the prior complaint.44 Finally, if a petitioner attempts to amend a charge and the EEOC erroneously fails to recognize the amendment, a petitioner may be excused from filing a new charge with the
EEOC before bringing his or her claim before the District Court.45
Our holding today is inconsistent with our approach in Hicks and Waiters. Moreover, my colleagues overlook that we have not previously held that a claim that was actually investigated by the EEOC was not reasonably within the scope of the initial charge that gave rise to the investigation. Although I agree that we can review the reasonableness of a completed EEOC investigation, I do not think my colleagues give sufficient weight to the fact that the EEOC actually investigated and attempted to conciliate Simko‘s retaliation claim in determining the reasonableness of that investigation. Given our analysis in Hicks and Waiters, I am persuaded that the investigation here was reasonable and the investigation‘s scope should not be viewed as unreasonable merely because of the delay that occurred.46
Because “the EEOC has considerable expertise in the area of employment discrimination,”47 I am not as willing as
my colleagues to brush aside the EEOC‘s own conclusion that it was reasonable to include the subsequent acts of retaliation in its investigation.
This is particularly true when we consider that we liberally construe claims for the purpose of relation back.48 In addition, “[c]ourts have generally determined that the parameters of the civil action in the District Court are defined by the scope of the EEOC investigation . . . including new acts which occurred during the pendency of proceedings before the Commission.”49 It is also important to recall that we “presume the regularity of the EEOC‘s investigation.”50 We should not lightly conclude that the EEOC‘s commitment of resources and time to an investigation into discrimination was unreasonable.
Accordingly, since the EEOC actually investigated Simko‘s retaliation claim, we must begin with the presumption that the investigation was reasonable. And because “evidence of the investigatory practices of the agency” are relevant to determining “whether a reasonable inquiry would have reached [any additional] allegations,”51 we must also consider the EEOC‘s general practices. These practices offer further support for the reasonableness of the investigation here.
As the Majority recognizes, EEOC investigators are told to look for “evidence of retaliation during their investigations, inform their supervisors in case such evidence surfaces, and notify the employer that ‘the scope may be expanded or limited based on information received during the investigation.‘”52 Indeed, the EEOC Manual states that “if it is
found during the investigation that the charging party has been discriminated against because s/he filed the charge, [the] EEOC may investigate the retaliation issue based on the original charge.”53 Yet, my colleagues dismiss the importance of this statement in the Manual by focusing on the differences in the initial allegations of discrimination and the subsequent allegations of retaliation.54
I submit, however, that the EEOC‘s policy is eminently reasonable because even a minimally well-informed employer in today‘s marketplace knows better than to admit that an employee was terminated in retaliation for filing a claim of discrimination. As we explained in Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3d Cir. 1996),55 “[d]efendants of even minimal sophistication will neither admit discriminatory animus or [sic] leave a paper trail demonstrating it.”56 All we need do is substitute “retaliatory animus” for “discriminatory animus” to appreciate the reasonableness of the EEOC‘s policy and the scope of its investigation.
Neither party disputes that Simko‘s initial disability discrimination charge in May 2013 was timely. While it was still pending before the EEOC, U.S. Steel fired Simko allegedly for unrelated reasons.57 In November 2014, a few months after being fired, while the disability discrimination charge was still pending before the EEOC, Simko wrote to the EEOC stating his belief that he was fired “as retaliation for filing charges with the EEOC.”58 Simko‘s timely filed initial
disability discrimination claim, therefore, is the alleged basis of the retaliation claim. It is difficult to see how the retaliation claim cannot be said to have, at least in part, grown out of the original charge. Absent the initial charge of discrimination, there would be no basis for the retaliation.
As is regular practice at the EEOC, and as is explicitly contemplated by the EEOC guidance, an EEOC investigator wrote back to Simko and contacted U.S. Steel in November 2015 to inform U.S. Steel that it was expanding its investigation into retaliation and that a formal retaliation charge was forthcoming.59 The EEOC investigated the retaliation claim on-site at U.S. Steel in September 2018.60 And in February 2019, the EEOC determined that there was reasonable cause to believe U.S. Steel had retaliated against Simko.61
Having actually investigated and attempted to conciliate the retaliation claim, the EEOC fulfilled the purpose of the exhaustion requirement. We have previously stated that the “purpose of the filing requirement is to enable the EEOC to investigate and, if cause is found, to attempt to use informal means to reach a settlement of the dispute.”62 That happened here. U.S. Steel was a part of the EEOC‘s investigation of the retaliation claim, including when the EEOC made a site visit.63 U.S. Steel therefore was on notice of the investigation, invited to conciliate, and understood that it was facing a retaliation charge before Simko brought suit in District Court.
All of these factors demonstrate the reasonableness of the investigation here and would do so even absent the presumption of reasonableness which attaches that
itself recognizes, the agency very likely erred in failing to construe the correspondence as a formal charge.
investigation.64 Accordingly, “there [is] nothing
IV.
The Majority concludes that despite the fact that the EEOC actually investigated and attempted to conciliate the claim, it does not relate back to the initial disability charge because it referenced events that were discrete and remote from the events referenced in the initial charge.67 But we have previously rejected similar arguments and concluded that claims may relate back even where they are based on discrete events, occurring years apart.
In Waiters, 30 months elapsed between the initial charge and the adverse employment action, but we concluded that the claims related back. Just as U.S. Steel and the Majority argue here, the defendant there argued that the original charge and the retaliation claim were very different—“different officials are alleged to be responsible for the allegedly discriminatory acts, more than thirty months passed between the formal complaint and the discharge, and the alleged retaliatory acts are of a different nature.”68 The defendant therefore argued that this “preclude[d] us from holding that the claim based on the discharge is within the scope of the investigation that arose from the formal complaint.”69 We disagreed. We allowed the claim to proceed because “it [wa]s
clear that the allegations of the appellant‘s complaint fall within the scope of the district director‘s investigation of the charges.”70 This was true even where “[t]he investigation clearly went beyond the specific problem alleged in the formal complaint.”71 So too here. Through no fault of Simko, the EEOC delayed investigating his claims—and, to its substantial credit, the EEOC concedes its error in delaying the investigation of Simko‘s claim. Nevertheless, the retaliation claim was eventually part of the agency‘s investigation and U.S. Steel participated in the investigation and conciliation process.
The Majority also argues that the claims cannot relate back because disability discrimination is substantively different from retaliation. But we have previously concluded that claims that differ in kind may also relate back so long as they reasonably would have been included in the investigation of the initial charge. As described above, in Hicks we concluded that a charge of sex discrimination could relate back to a charge of race discrimination because, had the EEOC properly investigated the claim, the petitioner would have put the EEOC on notice of sex discrimination as well.72 Simko‘s claims are connected
Steel were involved in the investigation and conciliation process. As noted, “[t]he purpose of the filing requirement is to initiate the statutory scheme for remedying discrimination. . . Thus, the effect of the filing requirement is essentially to permit the EEOC to use informal, non-judicial means of reconciling the differences between the charging party and an employer.”73
Additionally, as I have argued above, we must not lose sight of the fact that claims of retaliation are intrinsically tethered to claims of discrimination; they rarely arise in a vacuum or in an environment devoid of claims of discrimination. Indeed, this is precisely why the EEOC‘s policy of allowing investigations into substantive discrimination to include allegations of retaliation is so eminently reasonable. In fact, a contrary policy that would preclude or discourage inquiries into whether an employee alleging discrimination had suffered retaliation would be unreasonable.
The Majority argues that considering the facts of Simko‘s disability discrimination claim in light of the appropriate test demonstrates that any tether it has to the retaliation claim is “conclusory” and does not “actually exist[].”74 But in so arguing, my colleagues appear to ignore the clear connection between the two claims. Simko‘s allegation that he was fired in retaliation for filing a disability discrimination claim means that his disability discrimination claim is both a factual and legal basis for his retaliation claim. Stated differently, his claim alleges that but for his filing of a disability discrimination claim, he would not have faced the allegedly retaliatory discharge. Such a connection between the claims is hardly “conclusory.”75 As I explain below, I agree
with the Majority that, due to our prior rejection of a per se
Concluding that Simko‘s retaliation claim relates back here would not run afoul of our prior rejection of such a per se rule. It is not true that all such cases will evidence the apparent nexus between a prior discriminatory act and a subsequent discharge that appears here. Here it is not simply the fact that Simko alleged retaliation before the District Court that causes his claim to relate back. He attempted to amend his claim to include retaliation; he put the EEOC on notice that he suspected retaliation was the reason for his firing; and, of course, the EEOC actually investigated the retaliation claim, issued a right to sue letter, and attempted to conciliate the claim. All of these are factors which we have previously concluded support the reasonableness of allowing an unexhausted claim to proceed.77 The fact that Simko is alleging
the same sentence, concludes that “a reasonable investigation in this case would not have included an inquiry into Simko‘s post-charge firing.” Id. But if a reasonable inquiry could inquire into “[Simko] having filed a charge,” and Simko alleges that his having filed a charge is what caused his firing, then a reasonable inquiry would necessarily include “an inquiry into his post-charge firing.” That is what our precedent says. See, e.g., Ostapowicz, 541 F.2d at 398-99 (Reasonable investigations may “includ[e] new acts which occurred during the pendency of proceedings before the Commission.“). And that is what the EEOC concluded when it investigated the post-charge firing and found that Simko was likely retaliated against.
a retaliation claim (as opposed to another type of discrimination claim) before the District Court only provides one added benefit—because EEOC investigators are specifically instructed to be alert to retaliation claims, the fact that he alleges retaliation makes it more reasonable to conclude that the investigation the agency conducted into the retaliation was proper. But, of course, not every litigant claiming
before the District Court that was not brought before the EEOC. If, prior to filing in District Court, the petitioner (i) made no attempt to amend her claim to include retaliation; (ii) did not notify the EEOC that she suspected she was retaliated against for filing the race discrimination claim; and (iii) the EEOC did not actually investigate retaliation; the only tie to the prior race discrimination claim would be the fact that the new claim before the District Court was a retaliation claim. Although, as described above, there is some inherent connection between a retaliation claim and the substantive discrimination claim on which it is based, consonant with our rejection of a per se rule, this, on its own, would not be sufficient to show that the claim was “within the scope of a prior EEOC complaint or the investigation which arose out of it,” Waiters, 729 F.2d at 235, and therefore, petitioner‘s claim would fail.
Additionally, consider the situation in which an employee alleges that she was retaliated against for supporting her colleague‘s disability discrimination claim. This retaliation claim would not relate back to, for example, a prior sex discrimination claim that the employee herself filed. It would not relate back because the retaliation claim would not have “grown out of the subject matter” of her earlier sex discrimination claim. That retaliation claim would not depend at all on the employee having first filed her sex discrimination claim. Rather, the basis from which this retaliation claim flowed would have been her support of her colleague‘s disability discrimination claim. By contrast, here, because the retaliation is based on Simko‘s own filing of a disability discrimination claim in his case, it does arise, at least in part, out of the subject matter of the initial charge. This, coupled with Simko‘s case specific circumstances outlined above, is enough to show that the retaliation claim is properly within the scope of the investigation of Simko‘s initial charge.
retaliation will be able to point to all of these additional factors in support.78
During the course of the EEOC‘s investigation of the discrimination claim, Simko put the EEOC on notice of an additional claim of retaliation that arose after he filed, and as a
result of, his initial claim. Such communication is not only contemplated by our caselaw; it is encouraged by it and it is required by the EEOC‘s guidance. Thus, I fail to see how it was unreasonable for the EEOC to inquire into any acts of retaliation. Indeed, the EEOC would have been derelict if it had not done so. The very fact that the investigation arose from Simko‘s November 2014 letter is actually evidence of its reasonableness. I do not think we can so easily dismiss the EEOC‘s assessment of what is a reasonable investigation in such cases.
The Majority next takes issue with the length of time that the investigation took. And while the EEOC has commendably and forthrightly admitted that the prolonged delay was a mistake, that should not defeat Simko‘s claim; he did not cause the delay. I do not dispute my colleagues’ claim that the length of time that the investigation took is out of the ordinary.83 However, there is nothing in the statute or precedent that allows us to find that unreasonably delaying an investigation is sufficient to overturn our presumption that the investigation that was conducted was reasonable. In fact, if anything, our caselaw points to the opposite conclusion. We have consistently maintained that where the EEOC errs, we do not allow the errors to adversely impact a claim. For example, in Hicks we noted, “[t]he failure of the EEOC to accept [an] amendment is . . . [a] failure of the agency to follow the statute and its own regulations,” but we concluded that “[t]he individual employee
And we have concluded that much more egregious failures by the EEOC than simple delay do not preclude a petitioner‘s suit. For example, “failure of the EEOC to give notice of a charge to the employer involved or its failure to attempt reconciliation, both of which are required by section 706(b) of Title VII,
suit by the charging party.”85 This is because an “individual‘s right to bring a civil action . . . should not be defeated by the EEOC‘s failure to comply with its statutory obligations.”86 Our holding today is to the contrary.87
Finally, the Majority is concerned that failing to dismiss Simko‘s claim could encourage gamesmanship in the claim filing process by allowing a claimant to “greatly expand an investigation simply by alleging new and different facts when he was contacted by the [EEOC] following his charge.”88 But that alleged risk is not at issue here. An individual who alleges retaliation for the filing of a previous charge is not “gaming the system,” because s/he is not complaining of discriminatory conduct that arose before the initial claim of discrimination. The retaliation must necessarily come after the charge is filed. Here, in the face of new alleged acts of discrimination, Simko appropriately “include[ed] [in his charge] new acts which occurred during the pendency of proceedings before the Commission.”89
V.
In sum, I believe that our precedent requires the conclusion that it was quite reasonable for the EEOC, during the course of its investigation of Simko‘s claim of disability discrimination, after being alerted by Simko about retaliation for the filing of the initial charge, to also investigate the alleged retaliation. That conclusion is reinforced here where the EEOC guidance tells us that such retaliation investigations are routine, and where the EEOC actually investigated the discrimination, concluded that there was evidence of retaliation, and attempted
to conciliate the dispute. Accordingly, I must respectfully dissent from my colleagues’ analysis.
Notes
As Simko notes, however, on at least two occasions, we have treated the inquiry as being conjunctive. For example, in Hicks v. ABT Associates, Inc., we determined that a
finding that the EEOC would have discovered a claim for sex discrimination in the course of a reasonable investigation does not itself meet the standard of Ostapowicz [and satisfy the exhaustion requirement]. This evidence merely rebuts the presumption that the scope of the actual investigation is “what can reasonably be expected to grow out of the charge of discrimination.” 541 F.2d at 398–99. The district court must further find that the sex discrimination claims which would have been uncovered were reasonably within the scope of the charge filed with the EEOC.
572 F.2d 960, 967 (3d Cir. 1978) (emphasis added). In Howze v. Jones & Laughlin Steel Corp., which was decided less than a year after Waiters, we summarized Hicks as holding that a “district court may assume jurisdiction over additional charges if they are reasonably within the scope of the complainant‘s original charges and if a reasonable investigation by the EEOC would have encompassed the new claims.” 750 F.2d 1208, 1212 (3d Cir. 1984) (emphasis added). The Howze court notably failed to mention Waiters.
Notwithstanding this minor conflict of authority, since Howze we have consistently applied the disjunctive formulation of the exhaustion test set forth in Waiters. See Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996); Robinson v. Dalton, 107 F.3d 1018, 1025 (3d Cir. 1997); Mandel v. M & Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013). Accordingly, the disjunctive test governs our analysis in this case. Ostapowicz, 541 F.2d at 399.