Schuler v. PRICEWATERHOUSECOOPERS, LLP

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2007 Decided February 12, 2008

No. 06-7207

HAROLD D. SCHULER, ON BEHALF OF HIMSELF AND OTHER

SIMILARLY SITUATED OLDER EMPLOYEES,

APPELLANT

v.

PRICEWATERHOUSECOOPERS, LLP,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 05cv02355)

David L. Rose argued the cause for appellant. With him

on the briefs was Dotie Joseph.

Eric M. Nelson argued the cause for appellee. With him

on the brief were Stephen L. Sheinfeld and Minoti Patel. Julie

A. Klusas Gasper entered an appearance.

Before: ROGERS, TATEL, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: A sixty-three-year-old

professional who works in his employer’s Washington, D.C.

branch office filed a charge with the Equal Employment

Opportunity Commission’s New York district office alleging

that his employer, headquartered in Manhattan, is violating

the Age Discrimination in Employment Act (ADEA) by

maintaining a discriminatory partnership policy under which

the company refuses to promote older qualified employees.

After the EEOC dismissed the charge and informed the

employee of his right to sue, the employee filed a class-action

complaint in federal district court in Washington, D.C.,

alleging violations of the ADEA and the District of Columbia

Human Rights Act and seeking relief for the company’s

failures to promote him in July 2004 and July 2005. The

district court dismissed the complaint, holding that plaintiff

failed to satisfy the ADEA’s procedural requirements because

he failed to file (1) his EEOC charge with the D.C. Office of

Human Rights and (2) a new EEOC charge following the

company’s allegedly unlawful July 2005 promotion denial.

We reverse. Plaintiff satisfied the ADEA’s state filing

requirement by virtue of a worksharing agreement between

the EEOC and the D.C. Office of Human Rights, as well as

through the Commission’s referral of his charge to the New

York State Division of Human Rights. And because plaintiff

seeks damages flowing from the July 2004 ADEA violation

alleged in his original EEOC charge through the present, his

failure to file a new charge after the July 2005 nonpromotion

decision is of no consequence.

I.

The Age Discrimination in Employment Act makes it

“unlawful for an employer to . . . discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1). Patterned after

Title VII, the ADEA allows “[a]ny person aggrieved [to]

3

bring a civil action in any court of competent jurisdiction for

. . . legal or equitable relief.” Id. § 626(c)(1). Before doing

so, however, plaintiffs must jump through two administrative

hoops. First, under section 626(d) plaintiffs must file a

discrimination charge with the EEOC. See id. § 626(d) (“No

civil action may be commenced by an individual under this

section until 60 days after a charge alleging unlawful

discrimination has been filed with the Equal Employment

Opportunity Commission.”). Second, section 633(b) requires

that plaintiffs also file a charge with an appropriate state

agency:

[If] an alleged unlawful practice occur[s] in a

State which has a law prohibiting discrimination

in employment because of age and establishing or

authorizing a State authority to grant or seek

relief from such discriminatory practice, no suit

may be brought under section 626 of this title

before the expiration of sixty days after

proceedings have been commenced under the

State law, unless such proceedings have been

earlier terminated.

Id. § 633(b). Under section 633(b), “resort to administrative

remedies in deferral States by individual claimants is

mandatory, not optional.” Oscar Mayer & Co. v. Evans, 441

U.S. 750, 758 (1979). This requirement “is intended to screen

from the federal courts those discrimination complaints that

might be settled to the satisfaction of the grievant in state

proceedings.” Id. at 756.

In this case, appellee PricewaterhouseCoopers (PwC), a

large accounting and professional services firm headquartered

in New York City, maintains a “Partners and Principals

Agreement” providing that each partner’s “association with

4

the Firm shall cease at the end of the fiscal year in which he

or she attains age 60,” and, as a result, rarely promotes

employees over the age of forty-five to partner. See Compl.

¶¶ 17-19; see also Murphy v. PricewaterhouseCoopers, LLP,

357 F. Supp. 2d 230, 245 (D.D.C. 2004) (noting, in a related

case, that “PwC does not dispute that its Partnership

Agreement requires mandatory retirement for partners or that

fewer employees are admitted in higher age brackets . . . .”).

Partners enjoy higher salaries, more generous retirement

benefits, and greater responsibilities than other professional

employees. Compl. ¶ 12.

Appellant Harold Schuler, a managing director in PwC’s

Washington, D.C. office, alleges that the company refuses to

promote him “and other qualified older professional

employees” to partner on the basis of age in violation of the

ADEA. Id. ¶ 2. Schuler alleges he is the longest serving

managing director in the firm, having been promoted to that

position in 1994, and that his education, training, and

experience qualify him for partnership.

The case before us is Schuler’s second lawsuit against

PwC. In May 2002, Schuler, along with a co-worker, C.

Westbrook Murphy, sued the firm over the same allegedly

discriminatory partnership policy. See Murphy, 357 F. Supp.

2d 230. Before initiating that suit, Schuler filed an

administrative charge with the District of Columbia Office of

Human Rights (DCOHR) alleging that PwC denied him

promotion on the basis of age from 1999 to 2001. Id. at 236.

Schuler “cross-filed” his charge with the EEOC, meaning that

both the DCOHR and the Commission received a copy.

Schuler and Murphy alleged violations of the ADEA, as well

as the New York Human Rights Law (NYHRL) and the

District of Columbia Human Rights Act (DCHRA), both of

which also prohibit age discrimination. See D.C. Code § 2-

5

1401.01 et seq.; N.Y. Exec. Law § 290 et seq. The district

court dismissed most of the ADEA claims for failure to file

timely administrative charges with the EEOC. See Murphy,

357 F. Supp. 2d at 239-40. And of significance to the case

now before us, the district court dismissed the NYHRL claims

because, in its view, New York law requires plaintiffs to

“allege that the actual impact of the discriminatory act was

felt in New York.” Id. at 244. The court allowed the

plaintiffs’ DCHRA claim and ADEA “disparate treatment”

claim to go forward, however, and that case remains pending

in the district court. See id. at 245, 249.

On February 23, 2005, Schuler, laying the groundwork

for the case now before us, filed another EEOC charge

alleging that PwC’s promotion policy violates the ADEA. In

particular, the class-action charge, which Schuler’s counsel

mailed overnight from his office in Washington, D.C. to the

EEOC’s New York district office, alleged that “PwC has

followed and continues to follow age discriminatory practices

for promotion to partnership that favor employees younger

than 40 years old and harm me and other older employees.”

EEOC Charge of Discrimination, No. 160-2005-01264

(February 2005). Schuler’s charge also alleged that “PwC has

promoted more than 1,500 of its professional employees to

partnership on and after July 1, 1998 through at least July 1,

2004, and not one (0) of those promoted was over the age of

60 when promoted.” Id. In a five-page declaration attached

to the charge, Schuler asserted that he and other employees

had failed to make partner because of “policies and

procedures adopted and maintained by [PwC]’s Senior

Partner and Chief Executive Officer Dennis Nally and the 14

other members of its Board of Partners and Principals,” and

alleged that the “Board decides each year which employees

shall be promoted to partnership.” Decl. of Harold Schuler 1,

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4. Schuler stated that he resides in Virginia and alleged that

PwC maintains its headquarters in New York City.

Schuler addressed his charge to the “New York City

(NY) Commission Human Rights [sic], and New York State

Div. of Human Rights, and EEOC.” He included the

following instruction: “I want this Class Action Charge filed

with both the EEOC and the State and local Agency, if any.”

EEOC Charge of Discrimination. At the end of his

supporting declaration, Schuler typed, mostly in capital

letters, “This complaint should be CROSS FILED WITH

THE HUMAN RIGHTS AGENCIES OF NEW YORK

CITY, THE STATE OF NEW YORK, AND

WASHINGTON, D.C.” Decl. of Harold Schuler 5.

Three weeks later, the EEOC informed Schuler by letter

that it had received his ADEA charge and would file it with

the New York State Division of Human Rights (NYSDHR),

assuring him, “You need do nothing further at this time.”

Letter from Patricia M. Araujo, Investigator, EEOC, to

Harold Schuler (Mar. 14, 2005). The letter made no mention

of the District of Columbia Office of Human Rights,

however, and nothing in the record indicates whether either

the EEOC or Schuler ever referred the charge to that local

agency.

On April 28, 2005, the EEOC, acting again through its

New York district office, dismissed Schuler’s charge with the

cryptic explanation, “Case in Court/District of Columbia,”

EEOC Dismissal and Notice of Rights (Apr. 28, 2005)—an

apparent reference to the still pending Murphy litigation. See

Schuler v. PricewaterhouseCoopers, LLP, 457 F. Supp. 2d 1,

3 n.2 (D.D.C. 2006). The notice informed Schuler that he

could file suit in federal district court within ninety days, a

time limit the parties tolled as they attempted to settle the

7

case. When negotiations failed, Schuler, seeking relief for

PwC’s failure to promote him to partner in July 2004 and

again in July 2005, filed the present action in the U.S. District

Court for the District of Columbia.

Schuler’s complaint includes two claims: one federal,

one state. First, pointing to PwC’s mandatory partner

retirement policy, Schuler alleged that “PwC has engaged in a

pattern and practice of age discrimination in making decisions

regarding assignments and promotions in violation of Section

4 of the ADEA.” Compl. ¶ 50. Second, asking the court to

invoke its supplemental jurisdiction, Schuler brought a claim

under the DCHRA. D.C. Code § 2-1401.01 et seq. PwC filed

an answer and, arguing that Schuler had failed properly to

exhaust his administrative remedies before filing suit, moved

to dismiss the case on the pleadings. See FED. R. CIV. P.

12(c).

The district court granted PwC’s motion and dismissed

the complaint. Explaining that under National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101 (2002), “each

incident of discrimination and each retaliatory adverse

employment decision constitutes a separate actionable

unlawful employment practice for which an administrative

charge must be filed,” the court considered PwC’s two

allegedly improper failures to promote Schuler as discrete

incidents and analyzed each independently. Schuler, 457 F.

Supp. 2d at 4 (citations and internal quotation marks omitted).

Beginning with PwC’s July 2004 decision not to promote

Schuler to partner, the district court found that Schuler had

failed to file his charge with the DCOHR. According to the

court, because the District of Columbia is a “deferral state”

under the ADEA, i.e., it provides an administrative remedy

for employment discrimination, the statute required Schuler to

file with the state agency there—the site of his alleged

8

injury—before seeking redress in federal court. Id. The court

found it irrelevant that Schuler’s charge had been cross-filed

with the New York State Division of Human Rights. See id.

at 5. Turning next to the July 2005 nonpromotion decision,

the court found that Schuler had failed to file an EEOC

charge arising out of the July 2005 promotion denial within

the ADEA’s 300-day statute of limitations period. Id.

Schuler had filed his only charge in February 2005—four

months before PwC’s second allegedly discriminatory failure

to promote him. Having thus disposed of Schuler’s federal

claims, the district court declined to exercise supplemental

jurisdiction over Schuler’s state-law DCHRA claim. Id.

Schuler now appeals. We review a district court’s

decision to grant a motion for dismissal on the pleadings de

novo. See Peters v. Nat’l R.R. Passenger Corp., 966 F.2d

1483, 1485 (D.C. Cir. 1992). “We will affirm the district

court if the moving party demonstrates that no material fact is

in dispute and that it is entitled to judgment as a matter of

law.” Id. (citation and internal quotation marks omitted).

Moreover, “the factual allegations of the complaint must be

taken as true, and any ambiguities or doubts concerning the

sufficiency of the claim must be resolved in favor of the

pleader.” Doe v. DOJ, 753 F.2d 1092, 1102 (D.C. Cir. 1985).

II.

Before determining whether Schuler has satisfied the

ADEA’s administrative prerequisites, we must resolve a

dispute between the parties over the precise nature of

Schuler’s claims. Schuler argues that contrary to the way the

district court characterized his complaint, he has alleged a

“pattern and practice” of age discrimination in violation of the

ADEA, which is rooted in PwC’s mandatory retirement and

partnership promotion policies. See Int’l Bhd. of Teamsters v.

United States, 431 U.S. 324, 336 (1977) (explaining that in a

9

Title VII “pattern or practice” case, “discrimination [is] the

company’s standard operating procedure—the regular rather

than the unusual practice”). According to Schuler, these

policies led PwC’s board to deny him and other older

employees admission to the firm’s partnership in July 2004

and July 2005. PwC, echoing the district court’s opinion,

refers to the 2004 and 2005 nonpromotion decisions as

separate claims to be analyzed and disposed of independently.

We need not dwell long on this dispute, for the complaint

answers the question in Schuler’s favor. Schuler did raise

two claims, but not the ones the district court thought. As

noted above, Schuler’s first claim, raised under the subject

heading “Claim One,” alleges the following ADEA violation:

PwC has discriminated against Schuler and against

other professional employees of PwC over the age of

45 by denying them promotions to partnership on the

basis of their age. . . . PwC’s discriminatory

promotional practices are guided by an underlying

discriminatory policy that requires all partners to

leave their employment with PwC when they attain

age 60.

Compl. ¶ 48. Put simply, Schuler’s first claim is this: “PwC

has engaged in a pattern and practice of age discrimination in

making decisions regarding assignments and promotions in

violation of section 4 of the ADEA, 29 U.S.C. § 623(a).” Id.

¶ 50. The dates July 1, 2004 and July 1, 2005 appear nowhere

in claim one. Schuler’s second claim, styled “Claim Two,”

alleges similar violations of the DCHRA. Like Schuler’s

federal claim, this state law claim makes no reference to

individual nonpromotion decisions, but rather incorporates

the rest of the complaint by reference. Only in the

complaint’s jurisdiction and fact sections does Schuler

10

mention the “two discrete incidents of discrimination” around

which the district court framed its opinion. Schuler, 457 F.

Supp. 2d at 4. The jurisdiction section explains that the

“action seeks . . . relief for PwC’s refusal to promote Schuler

and other qualified older professional employees on July 1,

2004 and July 1, 2005,” Compl. ¶ 2, and the fact section

relates a string of statistics demonstrating how PwC’s

allegedly discriminatory promotion policies have injured

older employees over the years, including him. Id. ¶¶ 22-23,

39. Indeed, Schuler claims that PwC’s policy has consistently

and unlawfully operated to his disadvantage since the year

2000. Id. ¶ 39. In short, Schuler alleges that PwC’s

discriminatory retirement policy, which begets a

discriminatory promotion policy, violates the ADEA to his

detriment and to the detriment of the class of older workers he

seeks to represent. That Schuler now seeks relief for the

policy’s continued application in 2004 and 2005 is neither

here nor there. We therefore read Schuler’s complaint as he

wrote it—alleging one ADEA claim based on PwC’s “pattern

and practice” of discriminatory promotion decisions and one

state law claim under the DCHRA challenging the same

policy.

Having thus identified Schuler’s claims, we turn to the

first question before us: has Schuler satisfied the ADEA’s

administrative preconditions for filing suit in federal court?

By filing his February 2005 charge with the EEOC’s New

York district office, Schuler plainly satisfied section 626(d)’s

requirement that he file a complaint with the EEOC. The

district court, however, dismissed the case, concluding that

Schuler had failed to satisfy section 633(b)’s requirement that

he also file his charge with a state agency authorized to “grant

or seek relief from [the alleged] discriminatory practice.” 29

U.S.C. § 633(b). Challenging this decision, Schuler argues

that he fulfilled this administrative prerequisite in two ways:

11

(1) through the operation of a “worksharing agreement”

between the EEOC and the DCOHR under which his charge

was “deemed filed” with the District of Columbia agency;

and (2) by virtue of the EEOC’s cross-filing his charge with

the NYSDHR in New York. We address each argument in

turn.

The D.C. Worksharing Agreement

EEOC regulations, specifically 29 C.F.R. § 1626.10,

allow the Commission to “enter into agreements with State or

local fair employment practices agencies to cooperate in

enforcement, technical assistance, research, or public

informational activities, and [to] engage the services of such

agencies in processing charges assuring the safeguard of the

federal rights of aggrieved persons.” Id. § 1626.10(a). The

regulations further provide that these agreements may

“authorize such agencies to receive charges and complaints

pursuant to § 1626.5 and in accordance with the specifications

contained in §§ 1626.7 and 1626.8.” Id. § 1626.10(b). The

first of these provisions allows aggrieved employees to

submit EEOC charges “to any office of the Commission or to

any designated representative of the Commission,” id. §

1626.5, the second establishes timeliness requirements, id. §

1626.7, and the third prescribes the necessary substantive

contents of charges, id. § 1626.8. Critically for this case, the

regulation’s final subsection provides:

When a worksharing agreement with a State

agency is in effect, the State agency will act on

certain charges and the Commission will promptly

process charges which the State agency does not

pursue. Charges received by one agency under

the agreement shall be deemed received by the

other agency for purposes of § 1626.7.

12

Id. § 1626.10(c) (emphasis added). Pursuant to these

regulations, the EEOC has entered into worksharing

agreements with both the NYSDHR and the DCOHR. Thus,

Schuler argues, when he filed his charge with the EEOC’s

New York district office, it should have been “deemed

received” by the DCOHR, id., thereby satisfying ADEA

section 633(b) and clearing the way for his federal suit.

PwC counters that these worksharing agreements bind

only individual EEOC field offices to individual state

agencies, meaning that the New York agreement allows the

NYSDHR and the Commission’s New York office to refer

charges to one another while the D.C. agreement does the

same for the DCOHR and the EEOC’s District of Columbia

field office. But because the EEOC’s New York office—

where Schuler filed his charge—has no contractual

relationship with the DCOHR, PwC argues that the charge

cannot be “deemed received” by that agency, id., which,

according to PwC, is the only state agency “authoriz[ed] . . .

to grant or seek relief from [the alleged] discriminatory

practice.” 29 U.S.C. § 633(b). And because nothing in the

record indicates the DCOHR ever actually received a copy of

Schuler’s charge, either from the Commission or from

Schuler himself, PwC insists that the district court correctly

dismissed the action for failure to satisfy ADEA section

633(b).

Resolving this dispute requires an analysis of the

worksharing agreement, which the EEOC, acting in

accordance with 29 C.F.R. § 1626.10, has signed with the

DCOHR. Because that “worksharing agreement . . . is in

effect, . . . [c]harges received by one agency under the

agreement shall be deemed received by the other agency.” Id.

§ 1626.10(c) (emphasis added). The D.C. worksharing

13

agreement’s first operative provision expressly implements

this regulation, stating, “[i]n order to facilitate the assertion of

employment rights, the EEOC and the [DCOHR] each

designate the other as its agent for the purpose of receiving

and drafting charges.” D.C. Worksharing Agreement ¶ II.A.

Read together, the regulation and agreement thus make clear

that for all intents and purposes, the DCOHR receives charges

filed with the EEOC.

Even if this arrangement alone fails to refute PwC’s

argument, it bears mentioning that the DCOHR has waived its

right to process age discrimination claims initially filed with

the EEOC. The worksharing agreement provides that “[t]he

EEOC and the [DCOHR] will process all Title VII, ADA, and

ADEA charges that they originally receive.” Id. ¶ III.A.

Deferral state filing requirements are designed to “give state

agencies a prior opportunity to consider discrimination

complaints,” Love v. Pullman Co., 404 U.S. 522, 526 (1972),

and states may voluntarily waive that right if they wish, see

EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 117

(1988) (holding that states may “waive the [Title VII] 60-day

deferral period but retain jurisdiction over discrimination

charges by entering into worksharing agreements with the

EEOC”). Here, the District of Columbia has preemptively

declined its opportunity, effectively telling the EEOC that it

wants nothing to do with ADEA claims the Commission

receives first. Had the D.C. agency physically received

Schuler’s charge, it would have taken no action on it.

Accordingly, absent any indication to the contrary, we

hold that the D.C. worksharing agreement alone sufficed to

“commence[]” proceedings under state law as ADEA section

633(b) requires. In Griffin v. City of Dallas, 26 F.3d 610 (5th

Cir. 1994), the Fifth Circuit reached an identical conclusion

while interpreting a similar worksharing agreement in the

14

Title VII context. There, the court held that “upon the

EEOC’s receipt of the complaint, the [state agency], for all

legal and practical purposes, received the complaint,”

meaning that “once the [state agency] received [the]

complaint, even if only nominally, proceedings were

instituted within the meaning of [the statute].” Id. at 612-13.

The Seventh Circuit similarly allowed an ADEA claim to

proceed in light of a worksharing agreement. See Kaimowitz

v. Bd. of Trustees of the Univ. of Ill., 951 F.2d 765, 767 (7th

Cir. 1992) (“Because the workshar[ing] agreement provides

for direct filing with the EEOC and both initiation and

termination of the state’s interests pursuant to a prearranged

waiver, [the plaintiff] was not required to physically file his

complaint with the [state agency].”). Nothing in the record

before us provides any reason to reach a more restrictive

result here. We therefore conclude that Schuler, having

waited more than “sixty days after proceedings ha[d] been

commenced under . . . State law” to file his complaint in

federal court, has satisfied ADEA section 633(b)’s procedural

requirements. 29 U.S.C. § 633(b).

PwC nonetheless insists that Schuler’s EEOC filing

was insufficient, but its arguments are unpersuasive. In

support of its contention that EEOC worksharing agreements

bind individual EEOC field offices rather than the

Commission in general, PwC points out that both the D.C.

and New York agreements were signed by the EEOC’s

regional directors on behalf of each local office. But so what?

That the Commission conducts its affairs through local offices

and officers goes without saying. Indeed, the EEOC’s annual

report, which lays out the agency’s organizational structure,

explains that “through the [Headquarters-based] Office of

Field Program’s State and Local Programs, the EEOC

maintains worksharing agreements . . . with 96 state and local

Fair Employment Practices Agencies (FEPAs) for the purpose

15

of coordinating the investigation of charges dual-filed under

State and local law and Federal law, as appropriate.” EEOC,

FISCAL YEAR 2007 PERFORMANCE AND ACCOUNTABILITY

REPORT appx. A (2007), available at http://www.eeoc.gov/

abouteeoc/plan/par/2007/appendixes.html#a. Accordingly,

the agreements refer to the “EEOC” as the relevant party

throughout their substantive provisions, not to its constituent

field offices. In that sense, the worksharing agreements echo

their authorizing regulation, which states that “the

Commission may enter into agreements with state or local fair

employment practices agencies.” 29 C.F.R. § 1626.10(a)

(emphasis added). Furthermore, it would make little sense to

allow aggrieved employees to satisfy ADEA section 626(d)

by submitting their EEOC charges in “any office of the

Commission or to any designated representative of the

Commission” across the country, id. § 1626.5, while

simultaneously saddling them with the burden of divining

which other EEOC offices must also receive their charges to

satisfy section 633(b). These worksharing agreements are

meant to ease charges through the remedial system, not to

erect hurdles claimants must decipher and overcome. As the

Sixth Circuit put it while discussing Title VII’s analogous

deferral state provision, “[a]lthough . . . state worksharing

agreements are designed to allow states a ‘first bite’ at

resolving [discrimination] cases, mechanisms created to give

states such [an] opportunity must not stand in the way of the

necessarily simple claims-making procedure.” Nichols v.

Muskingum College, 318 F.3d 674, 678-79 (6th Cir. 2003).

Next, PwC argues that section 1626.10(c) comes into

play only after the EEOC actually sends a charge to the

relevant state agency—something PwC says never happened

here. For support, it points to Petrelle v. Weirton Steel Corp.,

953 F.2d 148 (4th Cir. 1991), in which the Fourth Circuit,

interpreting a West Virginia EEOC worksharing agreement,

16

found similar “deemed received” language insufficient to

satisfy section 633(b) because the charge had never actually

been referred to the state agency. Id. at 152-53. In Petrelle,

however, the Fourth Circuit heard the case on appeal from a

decision granting a motion for a judgment notwithstanding

the verdict, id. at 149, not from a motion to dismiss on the

pleadings, as we do. Therefore, the Petrelle court could go

beyond the pleadings and consider the trial record, which

included testimony by the West Virginia Human Rights

Commission’s assistant director explaining that “despite the

agreement’s language of agency, the [state agency] requires

physical receipt by it of the EEOC’s referral in order to deem

charges filed with . . . it.” Id. at 152. Here, by contrast, we

have no evidence outside the pleadings, and nothing in those

documents implies that the DCOHR maintains a similar

requirement. Nor do we see any reason to read one into the

agreement; indeed, given that “any ambiguities or doubts

concerning the sufficiency of the claim must be resolved in

favor of the pleader,” Doe, 753 F.2d at 1102, we must assume

its absence. Moreover, the agreement at issue in Petrelle

“contain[ed] no automatic waiver language which [could] be

interpreted as an unconditional waiver by the state of its

deferral rights under § 633(b).” 953 F.2d at 153. As

discussed above, the D.C. worksharing agreement contains

precisely such language.

Even if the DCOHR had to receive an actual copy of the

complaint to commence proceedings, it bears repeating that

Schuler explicitly told the EEOC that his “complaint should

be CROSS FILED WITH THE HUMAN RIGHTS

AGENCIES OF NEW YORK CITY, THE STATE OF NEW

YORK, AND WASHINGTON, D.C.” Decl. of Harold Schuler

5 (emphasis added). PwC reads this statement as an abstract

acknowledgment that the charge ought to be filed in

Washington, D.C. rather than as a specific request that the

17

EEOC refer the charge to the DCOHR, but this is absurd. As

Schuler’s counsel explained at oral argument, he filed his

charge in New York to ensure that PwC managers

“understood what was being argued in the case” and “thought

that was all right [be]cause the reg[ulation]s say you can file

your charge with [the] EEOC anywhere.” Oral Arg. Tr. 13.

Counsel nonetheless sought to protect his client by asking the

EEOC to cross-file his charge with all relevant state agencies,

including the DCOHR—a request that made sense given

Commission regulations empowering it to “refer all charges

to any appropriate State agency . . . in order to assure that the

prerequisites for private law suits, as set out in section

[633(b)], are met.” 29 C.F.R. § 1626.9. “It is well settled

law that if the EEOC fails to refer a charge to the state

charging agency, the EEOC’s misfeasance is not held against

the plaintiff.” Nichols, 318 F.3d at 678; see also Mitchell v.

Mid-Continent Spring Co. of Ky., 466 F.2d 24, 27 (6th Cir.

1972) (“It is clear that [plaintiff] should not lose her cause of

action because of the failure of EEOC to refer her complaint

to a State agency.”). Thus, even if the DCOHR required

physical receipt of Schuler’s charge—and we have no reason

to believe that it does—in order to initiate proceedings over a

complaint the agency has already disclaimed any intention of

acting upon, Schuler cannot be held responsible for the

EEOC’s failure to forward the charge as he explicitly

requested. This assumes, of course, that the EEOC’s decision

not to forward Schuler’s charge to the DCOHR amounted to a

bureaucratic failure in the first place. For reasons we explain

below, however, we find perfectly reasonable the EEOC’s

decision to refer Schuler’s charge only to the New York State

Division of Human Rights.

PwC raises a final question about the D.C. worksharing

agreement. Immediately following paragraph II.A’s language

designating the EEOC as the DCOHR’s agent for purposes of

18

receiving charges (and vice versa), the agreement says:

“EEOC’s receipt of charges on the [DCOHR]’s behalf will

automatically initiate the proceedings of both the EEOC and

the [DCOHR] for the purposes of . . . Title VII.” D.C.

Worksharing Agreement ¶ II.A (emphasis added). According

to PwC, this language unambiguously demonstrates that the

agreement commences proceedings only for Title VII claims,

not ADEA claims. Disagreeing, Schuler points to the

agreement’s waiver provision, which draws no such

distinction and expressly mentions the ADEA. Id. ¶ III.A.

The record contains no evidence at all of the contracting

parties’ intent because PwC chose to move for judgment on

the pleadings rather than summary judgment. Absent any

evidence to the contrary, it seems to us that the agreement

may have singled out Title VII claims because that statute

requires grievants to file with state agencies before filing with

the EEOC while the ADEA allows for “concurrent rather than

sequential state and federal administrative jurisdiction.”

Oscar Mayer, 441 U.S. at 757. Accordingly, the EEOC and

the DCOHR may have wished to make it clear that the D.C.

agency intended to waive its statutory right to proceed first.

That the worksharing agreement addresses this statutory

peculiarity neither limits nor otherwise affects the rest of the

agreement’s clear application to ADEA claims.

We reject PwC’s construction of the worksharing

agreement for another reason: it would effectively rewrite the

ADEA’s administrative prerequisites, making them traps for

the unwary, poised to spring into action and deny those who

may have suffered employment discrimination their right to

seek redress in federal court. Indeed, the Supreme Court has

announced “a guiding principle for construing the provisions

of Title VII,” Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 397 (1982), which applies with equal force to the

19

ADEA: a technical reading of the statute’s filing requirements

is “particularly inappropriate in a statutory scheme in which

laymen, unassisted by trained lawyers, initiate the process.”

Love, 404 U.S. at 527 (holding that a Title VII claimant need

not re-file a charge after termination of state proceedings); see

also Oscar Mayer, 441 U.S. at 755 (interpreting the ADEA’s

state filing requirement in light of Title VII’s because the two

provisions are “virtually in haec verba”). To be sure, Schuler

had a lawyer, but we interpret the statute not just for his

benefit, but for all aggrieved employees. We must therefore

avoid construing the statute in a way that imposes extra-

textual burdens “serv[ing] no purpose other than the creation

of an additional procedural technicality.” Love, 404 U.S. at

526.

The EEOC filing requirement “is intended to promote the

speedy, informal, non-judicial resolution of discrimination

claims, . . . to preserve evidence and records relating to the

alleged discriminatory action,” McClinton v. Ala. By-Prods.

Corp., 743 F.2d 1483, 1485 (11th Cir. 1984), and “to give

prompt notice to the employer,” Zipes, 455 U.S. at 398. Like

its Title VII analog, the ADEA’s deferral state filing

requirement “is intended to give state agencies a limited

opportunity to resolve problems of employment

discrimination and thereby to make unnecessary, resort to

federal relief by victims of the discrimination.” Oscar Mayer,

441 U.S. at 755. Because Schuler’s actual filing with the

EEOC and his nominal filing with the DCOHR served each of

these purposes, the ADEA requires nothing more.

In sum, Schuler properly and timely filed an EEOC

charge and asked the Commission to cross-file it with the

DCOHR, which has entered into a contractual arrangement

with the EEOC designed to “facilitate the assertion of

employment rights.” D.C. Worksharing Agreement ¶ II.A.

20

Nothing in either the agreement’s text or the record before us

reveals that the EEOC or the DCOHR intended to exclude a

claim like Schuler’s from coverage. Under these

circumstances, we conclude that Schuler satisfied ADEA

section 633(b)’s deferral state filing requirement.

The New York State Division of Human Rights

Schuler argues that even if we were to find the D.C.

worksharing agreement ambiguous or otherwise inadequate,

his suit may proceed on an alternate ground. Specifically,

Schuler argues that he satisfied ADEA section 633(b)’s

deferral state filing requirement when the EEOC cross-filed

his charge with the NYSDHR, assuring him that he “need do

nothing further at this time.” Letter from Araujo to Schuler.

PwC disagrees, pointing out that in Murphy—Schuler’s

previous and still pending case—the district court held that

New York’s Human Rights Law requires plaintiffs to “allege

that the actual impact of the discriminatory act was felt in

New York.” Murphy, 357 F. Supp. 2d at 244. Because

Schuler’s alleged injury occurred in Washington, D.C., PwC

argues, the NYSDHR lacks authority to “grant or seek relief

from [the alleged] discriminatory practice,” rendering it an

inappropriate deferral state. 29 U.S.C. § 633(b). We

disagree. Relying on a plain reading of both the state law and

Schuler’s EEOC charge, we hold that New York’s Human

Rights Law covers this case, thereby granting the NYSDHR

jurisdiction over Schuler’s charge.

Like his complaint in the district court, see supra at 9-10,

Schuler’s February 2005 EEOC charge clearly alleges a

pattern and practice of discrimination resulting from PwC’s

mandatory retirement and promotion policies. On the

charge’s cover page, Schuler wrote, “The Employer, PwC,

has followed and continues to follow age discriminatory

21

practices for promotion to partnership that favor employees

younger than 40 years old and harm me and other older

employees.” EEOC Charge of Discrimination. In the

declaration attached to the charge, Schuler stated that he lives

in Virginia, that PwC is headquartered in New York City, and

that he and other employees have failed to make partner

because of “policies and procedures adopted and maintained

by [PwC]’s Senior Partner and Chief Executive Officer

Dennis Nally and the 14 other members of its Board of

Partners and Principals.” Decl. of Schuler 1. Schuler further

asserted that PwC has promoted over 200 older employees to

“Managing Director” while younger employees have become

partners. Id. at 3.

PwC argues that Schuler never explicitly alleged that

PwC’s board and CEO meet in New York, or that the

allegedly discriminatory policy was adopted there, but we

think that a reasonable inference given Schuler’s assertion

that the company is headquartered in New York City. See

Shehadeh v. Chesapeake & Potomac Tel. Co. of Md., 595

F.2d 711, 727 (D.C. Cir. 1978) (noting that EEOC complaints

“are to be construed liberally”). Thus, the precise question

we face is this: does the NYHRL apply to a New York-based

company’s decision to adopt, maintain, and implement an

allegedly discriminatory promotion policy that injures an out-

of-state resident?

We begin, as we must, with the statute’s text. See

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999)

(“[I]n any case of statutory construction, our analysis begins

with ‘the language of the statute.’ And where the statutory

language provides a clear answer, it ends there as well.”

(quoting Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

469, 475 (1992))). NYHRL section 296 lays out the law’s

substantive provisions, making it “an unlawful discriminatory

22

practice” for employers, licensing agencies, employment

agencies, or labor organizations to discriminate against “any

individual” on the basis of “age, race, creed, color, national

origin, sexual orientation, military status, sex, disability,

predisposing genetic characteristics, or marital status.” N.Y.

Exec. Law § 296. As PwC’s counsel conceded at oral

argument, this provision contains no requirement that the

unlawful discriminatory impact occur in New York. See Oral

Arg. Tr. 26 (agreeing with the Court that “there’s no

exception in the statute for discriminatory acts committed

inside the state that affect non-residents”). Rather, the law

forbids all employers in the state from engaging in

discriminatory acts. Thus, absent some exception or

limitation, section 296, on its face, applies to PwC’s adoption,

maintenance, and implementation of an allegedly

discriminatory promotion policy.

Significantly, the NYHRL does include a section

extending the law “to certain acts committed outside the state

of New York,” N.Y. Exec. Law § 298-a, but, as PwC’s

counsel again conceded at oral argument, neither of that

provision’s two subsections has any bearing on this case. The

first, subsection 298-a(1), applies the law with equal force “to

an act committed outside [New York] against a resident of

[New York]” or against a New York corporation. Id. § 298-

a(1). That isn’t this case. The other, subsection 298-a(2)

applies the law to New York residents who violate the law

outside the state. Id. § 298-a(2). That isn’t this case either.

Here, Schuler alleges that a New York company has

committed a discriminatory act in New York, namely

adopting, maintaining, and implementing a retirement and

promotion policy that disadvantages a class of employees on

the basis of age. Thus, nothing in the statute’s plain text

removes Schuler’s charge from the NYHRL’s reach or the

NYSDHR’s jurisdiction.

23

PwC nonetheless urges us to set the plain terms of the

statute aside and follow a string of New York federal district

court cases construing the NYHRL to include an in-state

impact requirement. See, e.g., Pearce v. Manhattan Ensemble

Theater, Inc., No. 06 Civ. 1535 (KMW), 2007 WL 707068, at

*7 (S.D.N.Y. Mar. 6, 2007) (recognizing a split of authority

regarding whether the NYHRL, like the New York City

Human Rights Law, includes an in-state “impact

requirement” and holding that it does); Lucas v. Pathfinder’s

Personnel, Inc., No. 01 Civ. 2252 (BSJ), 2002 WL 986641,

at *2 (S.D.N.Y. May 13, 2002) (“[T]he fact that the decision

to terminate Plaintiff was made in New York State is not

sufficient to establish a violation of the NYSHRL.”); Duffy v.

Drake Beam Morin, No. 96 Civ. 5606 (MBM), 1998 WL

252063, at *12 (S.D.N.Y. May 19, 1998) (“[T]he State

Human Rights Law affords no remedy to a non-New York

resident who suffers discrimination outside New York

State.”). For his part, Schuler responds with his own list of

Southern District of New York cases holding “there is no

New York authority to suggest that the impact of a

discriminatory act must be felt within New York for the

NYHRL to apply.” Hart v. Dresdner Kleinwort Wasserstein

Sec., LLC, No. 06 Civ. 0134 (DAB), 2006 WL 2356157, at *8

(S.D.N.Y. Aug. 9, 2006); see also, e.g., Tebbenhoff v. Elec.

Data Sys. Corp., No. 02 Civ. 2932 (TPG), 2005 WL 3182952,

at *5 (S.D.N.Y. Nov. 29, 2005) (“The fact that a decision to

discriminatorily terminate a non-resident was made in New

York can alone suffice to state a claim under NY[]HRL.”);

Torrico v. IBM Corp., 319 F. Supp. 2d 390, 399 n.5

(S.D.N.Y. 2004) (disagreeing with Lucas, 2002 WL 986641,

and rejecting an in-state impact requirement).

Although none of these federal district court decisions

binds us, we think it worth noting that the decisions PwC cites

24

are unpersuasive. Take for example Duffy v. Drake Beam

Morin, the case cited by most of the other decisions on PwC’s

side of the ledger. There, the court held that “the State

Human Rights Law affords no remedy to a non-New York

resident who suffers discrimination outside New York State.”

1998 WL 252063, at *12 (emphasis added). In reaching this

conclusion, the court cites two cases, neither of which

supports its holding.

The first case, Iwankow v. Mobil Corp., 541 N.Y.S.2d

428 (App. Div. 1989), is the only New York state court

decision addressing the NYHRL’s extraterritorial scope.

There, the Appellate Division held, “absent an allegation that

a discriminatory act was committed in New York or that a

New York State resident was discriminated against, New

York’s courts have no subject matter jurisdiction over the

alleged wrong.” Id. at 429. Thus, contrary to the Duffy

court’s interpretation, Iwankow says nothing about where

plaintiffs may “suffer[] discrimination,” Duffy, 1998 WL

252063, at *12; it merely requires them to allege an in-state

discriminatory act. In Iwankow, “[t]he only jurisdictional

nexus asserted in the complaint, apart from the fact that

defendants [we]re domestic corporations, [was] that

plaintiff’s termination was part of a world-wide reduction in

force which was decided upon at corporate headquarters in

New York.” 541 N.Y.S.2d at 429. The court dismissed that

claim because the plaintiff had failed to “allege that the

decision to implement this reduction in an age-discriminatory

manner originated at corporate headquarters.” Id. Schuler, of

course, alleges just that regarding PwC’s promotion policy.

Like Iwankow, the second case Duffy cites, Beckett v.

Prudential Insurance Co. of America, 893 F. Supp. 234

(S.D.N.Y. 1995), holds that “[t]he NYHRL does not provide a

non-resident with a private cause of action for discriminatory

conduct committed outside of New York by a New York

25

corporation.” Id. at 238. And also like Iwankow, Beckett

provides no support for Duffy’s broad holding that “a non-

New York resident who suffers discrimination outside New

York State” may find no recourse in the NYHRL. Duffy,

1998 WL 252063, at *12 (emphasis added); see also Rice v.

Wartsila NSD Power Dev., Inc., 183 Fed. App’x. 147, 148

(2d Cir. 2006) (unpublished summary order) (finding the

NYHRL inapplicable when plaintiff failed to allege a

discriminatory act occurring in New York), aff’g Rice v.

Scudder Kemper Invs., Inc., No. 01 Civ. 7078 (RLC), 2003

WL 21961010 (S.D.N.Y. Aug. 14, 2003). More to the point,

given that Schuler has alleged discriminatory conduct

committed in New York, neither Iwankow nor Beckett has any

bearing on this case.

In sum, the New York Human Rights Law, by its terms,

applies to this case, and “no New York authority . . .

suggest[s] that the impact of a discriminatory act must be felt

within New York for the NYHRL to apply.” Hart, 2006 WL

2356157, at *8. Absent a contrary interpretation by the New

York Court of Appeals or the Second Circuit, we conclude

that in addition to satisfying ADEA section 633(b)’s deferral

state filing requirement via the D.C. worksharing agreement,

Schuler adequately sought a state administrative remedy in

New York by having his charge cross-filed with the

NYSDHR.

III.

A final question remains: did Schuler have to file a new

EEOC charge after PwC’s failure to promote him in July

2005, or was his February 2005 charge sufficient? Schuler’s

complaint alleges that PwC’s board declined to elevate him to

partner on two occasions—July 2004 and July 2005—and he

seeks damages flowing from each decision. Schuler’s

February 2005 EEOC charge, however, made no mention of

26

the July 2005 nonpromotion for an obvious reason: Schuler

filed it four months before that decision occurred. Finding

the two alleged failures to promote to be “discrete incidents of

discrimination,” Schuler, 457 F. Supp. 2d at 4, the district

court dismissed the July 2005 “claim” as untimely because

Schuler failed to file a new charge based on the July 2005

decision. Id. at 5; see also 29 U.S.C. § 626(d)(2) (requiring a

plaintiff to file an EEOC charge “within 300 days after the

alleged unlawful practice occurred” if section 633(b) applies).

According to PwC, this failure provides a separate ground for

affirming the district court’s dismissal of Schuler’s July 2005

“claim.” Schuler disagrees, contending that his pattern and

practice claim “necessarily contemplates continued annual

violations of the ADEA,” Appellant’s Opening Br. 22,

making it pointless to require him to file a new EEOC charge

with each predictable application of the same discriminatory

policy.

Interesting as this question may be, we need not decide it

because, given the posture of this case, it is of no practical

significance. As described above, Schuler brought a single

federal claim—a class-action pattern or practice ADEA claim

arising out of PwC’s mandatory retirement and promotion

policy—not two discrete nonpromotion charges. See supra at

9-10. Schuler seeks damages flowing from the first

application of PwC’s allegedly discriminatory policy through

to the present. See Compl. 16 (seeking an “[a]ward of

damages in an amount to be determined by the jury, for each

year commencing on July 1, 1999, and each year thereafter”).

As Schuler’s counsel explained at oral argument, should

Schuler ultimately prevail on his federal claim, he will be

entitled to compensation dating back to the original injury.

See Oral Arg. Tr. 14-15; see also 29 U.S.C. § 626(c)(2)

(allowing ADEA plaintiffs to bring “action[s] for recovery of

amounts owing as a result of a violation of” the statute).

27

Accordingly, because Schuler filed a timely and procedurally

adequate EEOC charge before initiating his federal suit, see

supra Part II, and because his complaint seeks damages

flowing from the alleged violation onward, we see no reason

to consider whether an additional EEOC charge was required

to support the effectively irrelevant July 2005 nonpromotion

decision.

IV.

Because it is quite possible that Schuler can prove a “set

of facts in support of his claim which would entitle him to

relief,” Gilvin v. Fire, 259 F.3d 749, 756 (D.C. Cir. 2001), we

reverse the dismissal of his ADEA claim for failure to satisfy

the statute’s administrative prerequisites and remand the case

for further proceedings consistent with this opinion. We

leave it to the district court to decide whether to exercise

supplemental jurisdiction over Schuler’s DCHRA claim

pursuant to 28 U.S.C. § 1367(a).

So ordered.