Anthony Hildebrand v. Allegheny County

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-1321

_____________

ANTHONY HILDEBRAND,

Appellant

v.

ALLEGHENY COUNTY, a political entity; ALLEGHENY

COUNTY DISTRICT ATTORNEY'S OFFICE

___________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 2-12-cv-01122)

District Judge: Honorable Arthur J. Schwab

___________

Argued November 7, 2013

Before: GREENAWAY, JR., VANASKIE and ROTH,

Circuit Judges

(Opinion Filed: June 27, 2014)

Marjorie E. Crist (Argued)

Crist Law Center, LLC

2500 Lawyers Building

428 Forbes Avenue

Pittsburgh, PA 15219

Counsel for Appellant

Anne N. Occhialino (Argued)

Equal Employment Opportunity Commission

131 M Street NE, 5th Floor

Washington, D.C. 20507

Counsel for Amicus Curiae Equal Employment

Opportunity Commission

Andrew F. Szefi

Virginia S. Scott (Argued)

Allegheny County Law Department

300 Fort Pitt Commons Building

445 Fort Pitt Boulevard

Pittsburgh, PA 15219

Counsel for Appellee Allegheny County

Bernard M. Schneider (Argued)

Brucker Schneider & Porter

300 Weyman Road, Suite 320

Pittsburgh, PA 15236

Counsel for Appellee Allegheny County District

Attorney’s Office

___________

OPINION OF THE COURT

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2

VANASKIE, Circuit Judge.

This appeal presents three issues on which we have not

previously ruled in a precedential opinion. First, whether an

employee terminated from a local government position may

maintain an action for age discrimination under 42 U.S.C. §

1983. Second, whether the pleading of exhaustion of

administrative remedies, a prerequisite to bringing a lawsuit

under the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. §§ 621-634, must satisfy the standards established

in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 556 U.S. 662 (2009). And third, whether a

complainant’s submission of the Equal Employment

Opportunity Commission’s revised Intake Questionnaire

constitutes the filing of a charge of discrimination.

As to the first question, we hold that a state or local

government employee may not maintain an age

discrimination claim under 42 U.S.C. § 1983, but must

instead proceed under the ADEA. As to the second question,

we hold that a plaintiff is not obligated to plead exhaustion of

administrative remedies with particularity, but may instead

allege in general terms that the required administrative

process has been completed. And finally, we hold that the

EEOC Intake Questionnaire, revised in the wake of Federal

Express Corp. v. Holowecki, 552 U.S. 389 (2008), when

properly completed, constitutes a charge of discrimination.

As a result of our holdings, we will affirm the District

Court’s dismissal of Appellant Anthony Hildebrand’s § 1983

claims but we will vacate the District Court’s dismissal of

Hildebrand’s ADEA claim against the Allegheny County

District Attorney’s Office as Hildebrand submitted a properly

3

completed Intake Questionnaire to the EEOC within the

deadline for filing a charge of discrimination, and Hildebrand

adequately pled the exhaustion of administrative remedies.

Finally, we will affirm the dismissal of the ADEA claims

against Appellee Allegheny County because it was not named

on the Intake Questionnaire, and was not identified as a

respondent to an age discrimination charge until after the

deadline for filing a charge of discrimination against it had

passed.

I. Background

Anthony Hildebrand was employed as a detective for

the Allegheny County District Attorney’s Office (“DA’s

Office”) for five years before he was terminated on February

18, 2011. Prior to his work at the DA’s Office, Hildebrand

spent fifteen years as an undercover narcotics detective with

the Pittsburgh Police Department.

On February 18, 2011, Hildebrand received a letter

suspending him without pay for five days pending discharge,

and announcing his termination effective that day. He filed

an internal grievance, but the termination was ultimately

upheld.

Hildebrand maintains that his termination was part of

“a well-known and established practice to push out older

workers through termination or forced resignation.”

(Appellant’s Br. 5.) He contends that he became a victim of

age-based discrimination beginning in 2009 when he was

assigned a new supervisor who, he asserts, demoted him

because of his age despite his satisfactory work performance.

As part of his demotion, Hildebrand states that he was

4

insulted on the basis of his age and relocated to an inferior

workplace. He further alleges that the discrimination he

faced was part of a hostile work environment that transcended

the conduct of any one employee.

On December 1, 2011, Hildebrand completed an

Intake Questionnaire (“the Intake Questionnaire”) with the

EEOC, indicating that he was the victim of discrimination on

the basis of his age. He also checked a box on the Intake

Questionnaire authorizing the EEOC to investigate his claim

and indicating that he “want[ed] to file a charge of

discrimination.” (EEOC Br. 3.) Subsequently, on January

11, 2012, Hildebrand completed a “Charge of

Discrimination” with the EEOC, naming the Allegheny

County District Attorney as the respondent. The EEOC

issued a right-to-sue letter on May 7, 2012, and Hildebrand

filed suit on August 7, 2012.

Hildebrand’s complaint named Allegheny County

(“the County”), as well as the DA’s Office, as defendants.

His complaint asserted violations of the ADEA, Title VII

(retaliation), 42 U.S.C. § 1983 (asserting violation of the

Equal Protection Clause due to age-based discrimination, as

well as violation of his First Amendment free speech rights),

the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. §§

1421-1428, and the Pennsylvania Human Relations Act, 43

Pa. Cons. Stat §§ 951-963. His complaint also alleged:

All conditions precedent to

jurisdiction under section 706 of

Title VII, have occurred or been

complied with. Plaintiff filed a

claim of employment

5

discrimination with the [EEOC].

The EEOC issued a Notice of

Right to Sue. This Complaint is

filed within 90 days of such

Notice of Right to Sue.

(A. 2.)

The County and the DA’s Office (collectively,

“Appellees”) separately filed motions to dismiss. On

December 7, 2012, the District Court granted the motions to

dismiss the Title VII retaliation claim. The District Court

also applied the pleading standards set forth in Twombly, 550

U.S. 544, and Iqbal, 556 U.S. 662, to Hildebrand’s assertion

that he satisfied all conditions precedent to filing suit under

the ADEA. Analyzing Hildebrand’s complaint in light of the

Iqbal/Twombly standard, the District Court stated:

Because [the complaint] fails to

provide any facts, i.e. specific

dates, as to when Plaintiff raised

his claim with the EEOC and

when the EEOC issued its right to

sue letter to Plaintiff, and because

Plaintiff failed to attach his Right

to Sue to the Complaint, . . . the

Complaint falls short of providing

the facts to establish whether he

has adequately exhausted his

administrative remedies.

6

(A. 112.) Accordingly, the Court dismissed the ADEA claim

without prejudice. The District Court also dismissed

Hildebrand’s section 1983 claims without prejudice.

Hildebrand filed an amended complaint, alleging with

greater particularity that he satisfied all conditions precedent

to filing suit under the ADEA. Specifically, he averred that

he had filed a timely charge of discrimination, the EEOC had

issued a right-to-sue letter, and he had filed the complaint

within 90 days of notice of the right-to-sue. He attached his

charge of discrimination and the EEOC right-to-sue letter to

the amended complaint.

Appellees each filed motions to dismiss the Amended

Complaint under Federal Rule of Civil Procedure 12(b)(6),

arguing, inter alia, that Hildebrand’s charge was untimely

because it was filed more than 300 days after the last date of

discrimination. Allegheny County also urged the District

Court to dismiss Hildebrand’s ADEA claim against the

County on the additional ground that the charge of

discrimination named only the DA’s Office as a defendant.

Hildebrand attached to his responses to the motions

his completed EEOC Intake Questionnaire. He contended

that the completed Intake Questionnaire constitutes a charge

and was filed within 300 days of the last date of

discrimination.

On January 4, 2013, the District Court dismissed

Hildebrand’s amended complaint. The District Court first

dismissed the ADEA claim, concluding that Hildebrand did

not file a “charge of discrimination” with the EEOC within

the requisite 300 days of the last date of discrimination.

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Specifically, the District Court found that the last date of

alleged discrimination was Hildebrand’s February 18, 2011

termination, and that the charge of discrimination filed on

January 11, 2012 was therefore untimely. Thus, the District

Court concluded that Hildebrand failed to sufficiently plead

that he timely filed his claim with the EEOC “in light of the

Iqbal/Twombly standard.” (A. 307.) Finding that further

amendment would be futile, the District Court dismissed the

ADEA claim with prejudice.

As to his § 1983 claims, the District Court held that

Hildebrand failed to state a plausible claim against Allegheny

County under a theory of municipal liability, because he did

not plead sufficient facts to support a plausible inference that

the County had adopted a custom or practice of age

discrimination. The District Court also dismissed the § 1983

claims against the DA’s Office based on Hildebrand’s

concession that it was not a separate entity from the County

for purposes of § 1983. Finally, having dismissed with

prejudice all claims arising under federal law, the District

Court declined to exercise supplemental jurisdiction over the

remaining claims asserted under the Pennsylvania

Whistleblower Law and the Pennsylvania Human Relations

Act.

II. Discussion

The District Court had jurisdiction pursuant to 28

U.S.C. §§ 1331, 1343(a)(3), and 1367. We have jurisdiction

under 28 U.S.C. § 1291. We exercise plenary review over a

decision granting a motion to dismiss. Santiago v.

Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010).

Accordingly, “[w]e may affirm the district court on any

8

ground supported by the record.” Tourscher v. McCullough,

184 F.3d 236, 240 (3d Cir. 1999).

A. Hildebrand’s § 1983 Age Discrimination Claim

We turn first to Hildebrand’s claim brought under §

1983 that Appellees discriminated against him on the basis of

his age, in violation of the Equal Protection Clause of the

Fourteenth Amendment. Allegheny County argues that the

District Court properly dismissed this § 1983 cause of action,

contending that “[t]he ADEA ‘is the exclusive remedy for

claims of age discrimination in employment.’” (Allegheny

Cnty. Br. 19 (quoting Ahlmeyer v. Nev. Sys. of Higher Educ.,

555 F.3d 1051, 1060-61 (9th Cir. 2009)). For the reasons that

follow, we agree.

1.

42 U.S.C. § 1983 provides, in pertinent part:

Every person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State or

Territory or the District of

Columbia, subjects, or causes to

be subjected, any citizen of the

United States or other person

within the jurisdiction thereof to

the deprivation of any rights,

privileges, or immunities secured

by the Constitution and laws, shall

be liable to the party injured in an

action at law, suit in equity, or

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other proper proceeding for

redress . . . .

Rather than conferring any substantive rights, section

1983 “provides a method for vindicating federal rights

elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271

(1994) (internal quotation marks and citations omitted).

“Nevertheless, § 1983 is a statutory remedy and Congress

retains the authority to repeal it or replace it with an

alternative remedy.” Smith v. Robinson, 468 U.S. 992, 1012

(1984), superseded by statute, Education of the Handicapped

Act, § 615(e)(4) as amended, 20 U.S.C. § 1415(e)(4). Thus,

“[s]ection 1983 claims are not available . . . where Congress

has evinced an intent to preclude such claims through other

legislation.” Ahlmeyer, 555 F.3d at 1055.

In determining whether a statutory enactment

precludes suit under § 1983, “[t]he crucial consideration is

what Congress intended.” Smith, 468 U.S. at 1012.

Congressional intent to preclude § 1983 claims may be

inferred “[w]hen the remedial devices provided in a particular

Act are sufficiently comprehensive.” Middlesex Cnty.

Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20-

21 (1981). In Sea Clammers, the Supreme Court held that a

plaintiff was precluded from bringing a § 1983 suit for

damages under the Federal Water Pollution Control Act

Amendments of 1972, 33 U.S.C. § 1251 et seq. (1976), and

the Marine Protection, Research, and Sanctuaries Act of

1972, 33 U.S.C. § 1401 et seq. (1976). 453 U.S. at 20-21.

Emphasizing the “unusually elaborate enforcement

provisions” of the statutory framework, id. at 13, the Court

concluded that “[a]llowing parallel § 1983 claims to proceed

. . . would have thwarted Congress’ intent in formulating and

10

detailing these provisions.” Fitzgerald v. Barnstable Sch.

Comm., 555 U.S. 246, 253 (2009).

The Supreme Court has also held that § 1983 suits

were precluded by statute in a case where a plaintiff sought

vindication of a constitutional – rather than a statutory – right.

See Smith, 468 U.S. 992. In Smith, plaintiffs alleged

violations of the Due Process and Equal Protection Clauses of

the Fourteenth Amendment, asserting a deprivation of the

right to “a free appropriate public education” for their

handicapped child. Id. at 1009. Focusing once again on the

“comprehensive nature of the procedures and guarantees” set

forth in the statute’s remedial scheme, the Court concluded

that Congress did not intend to “leave undisturbed the ability

of a handicapped child to go directly to court with an equal

protection claim to a free appropriate public education.” Id.

at 1011. Permitting such suits, the Court observed, would

“[a]llow[] a plaintiff to circumvent” congressional intent. Id.

at 1012.

Subsequently, in Rancho Palos Verdes v. Abrams, 544

U.S. 113 (2005), the Court again found that a comprehensive

remedial statutory framework precluded suit under § 1983.

The plaintiff in Rancho Palos Verdes filed suit under the

Telecommunications Act of 1996 and for damages under §

1983. Id. at 115. Applying its prior decisions in Sea

Clammers and Smith, the Court ruled that the

Telecommunications Act’s remedial scheme would be

“distort[ed]” by direct enforcement through § 1983. Id. at

127.

Most recently, the Court considered whether Title IX

of the Education Amendments of 1972, 20 U.S.C. § 1681(a),

11

precludes § 1983 claims of sex discrimination in violation of

the Equal Protection Clause. See Fitzgerald, 555 U.S. at 249.

In Fitzgerald, the plaintiffs alleged that their daughter, then

an elementary school student, suffered several incidents of

sexual harassment by another student while on the school bus,

and that the school’s response to their allegations had been

inadequate. Id. at 250. The plaintiffs brought suit, asserting

that their daughter had suffered sex discrimination in

violation of Title IX and the Equal Protection Clause of the

Fourteenth Amendment. Id. The Court of Appeals for the

First Circuit dismissed plaintiffs’ constitutional claims,

holding that Title IX provided the sole remedy for sex

discrimination in the education context. Id. at 251. The

Supreme Court reversed. Id. Reiterating that “the crucial

consideration is what Congress intended,” id. (citation

omitted), the Court signaled that its analysis of congressional

intent might differ depending upon whether the right asserted

under § 1983 arises from a statute or the Constitution:

In those cases in which the § 1983

claim is based on a statutory right,

evidence of such congressional

intent may be found directly in the

statute creating the right, or

inferred from the statute’s

creation of a comprehensive

enforcement scheme that is

incompatible with individual

enforcement under § 1983. In

cases in which the § 1983 claim

alleges a constitutional violation,

lack of congressional intent may

be inferred from a comparison of

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the rights and protections of the

statute and those existing under

the Constitution. Where the

contours of such rights and

protections diverge in significant

ways, it is not likely that Congress

intended to displace § 1983 suits

enforcing constitutional rights.

Id. at 252-53 (internal citations and quotation marks omitted).

Notwithstanding the distinction between statutorily-

created rights and constitutionally-conferred rights, the Court

emphasized that, “[i]n determining whether a subsequent

statute precludes enforcement of a federal right under § 1983

. . . primary emphasis [is placed] on the nature and extent of

that statute’s remedial scheme.” Id. This was true even

where plaintiffs, such as those in Smith, “relied on § 1983 to

assert independent constitutional rights,” rather than statutory

rights. Id. Indeed, the Court observed that in each of the

cases where it found a statute to be the exclusive remedy for

an asserted right, “the statutes at issue required plaintiffs to

comply with particular procedures and/or to exhaust

particular administrative remedies prior to filing suit,” and

“‘[a]llowing a plaintiff to circumvent’ the statutes’ provisions

[by suing directly under § 1983] would have been

‘inconsistent with Congress’ carefully tailored scheme.’” Id.

at 254-55 (quoting Smith, 468 U.S. at 1012).

Turning to the question of whether Title IX precludes

suit under § 1983 for sex discrimination, the Court first found

that Title IX does not provide a comprehensive enforcement

scheme, emphasizing that Title IX’s “remedies – withdrawal

13

of federal funds and an implied cause of action – stand in

stark contrast to the ‘unusually elaborate,’ ‘carefully tailored,’

and ‘restrictive’ enforcement schemes of the statutes at issue

in Sea Clammers, Smith, and Rancho Palos Verdes.” Id. at

255. The Court observed that Title IX does not contain an

administrative exhaustion requirement or a notice provision.

Id. Affording particular weight to Title IX’s lack of an

express private right of action, the Court noted that it “has

never held that an implied right of action had the effect of

precluding suit under § 1983.” Id. Given the absence in Title

IX of a detailed remedial scheme, the Court concluded that

“parallel and concurrent § 1983 claims will neither

circumvent required procedures, nor allow access to new

remedies.” Id. at 255-56. The Court found further support

for its conclusion that gender discrimination covered by Title

IX could be pursued by way of a § 1983 suit by analyzing

“the substantive rights and protections guaranteed under Title

IX and under the Equal Protection Clause.” Id. at 256. The

Court found that “Title IX’s protections are narrower in some

respects and broader in others.” Id. For instance, Title IX

exempts several activities that can be challenged under the

Equal Protection Clause, such as discrimination in admissions

decisions of elementary and secondary schools, and all

activities of military service schools, as well as traditionally

single-sex public colleges. Id. at 257. Additionally, the

Court cited incongruous standards for establishing liability

under Title IX and the Equal Protection Clause, explaining

that, while “a Title IX plaintiff can establish school district

liability by showing that a single school administrator with

authority to take corrective action responded . . . with

deliberate indifference,” the same plaintiff would be required

to show a municipal policy, custom, or practice under § 1983.

Id. at 257-58. Because of this disparity in coverage, as well

14

as Title IX’s lack of a comprehensive enforcement

framework, the Fitzgerald Court concluded that, in passing

Title IX, Congress did not intend to preclude sex

discrimination claims in the context of education under §

1983. Id. at 258.

2.

Prior to Fitzgerald, a number of our sister Courts of

Appeals had held that the ADEA precludes § 1983 claims of

age discrimination. See Ahlmeyer, 555 F.3d at 1057; Tapia-

Tapia v. Potter, 322 F.3d 742 (1st Cir. 2003); Migneault v.

Peck, 158 F.3d 1131 (10th Cir. 1998), vacated on other

grounds by Bd. of Regents of Univ. of N.M. v. Migneault, 528

U.S. 1110 (2000); Lafleur v. Tex. Dep’t of Health, 126 F.3d

758 (5th Cir. 1997); Chennareddy v. Bowsher, 935 F.2d 315

(D.C. Cir. 1991); Zombro v. Baltimore City Police Dept., 868

F.2d 1364 (4th Cir. 1989). The Seventh Circuit – the only

Court of Appeals to consider this question after Fitzgerald – ,

however, reached the opposite conclusion. See Levin v.

Madigan, 692 F.3d 607, 622 (2012).

The leading case concluding that the ADEA precludes

§ 1983 claims of age discrimination is Zombro v. Baltimore

City Police Department, 868 F.2d 1364. See Ahlmeyer, 555

F.3d at 1056. In Zombro, the Fourth Circuit held that

Congress intended the ADEA to be the exclusive remedy for

claims of age discrimination, reasoning that private causes of

action brought directly under § 1983 “would severely

undermine, if not debilitate, the enforcement mechanism

created by Congress under the ADEA.” 868 F.2d at 1369.

Zombro focused on the ADEA’s comprehensive statutory

scheme, which “was structured to facilitate and encourage

15

compliance through an informal process of conciliation and

mediation.” Id. at 1366. Providing a plaintiff with “direct

and immediate access to the federal courts” via § 1983 could

result in “the comprehensive administrative process . . . .

be[ing] bypassed, and the goal of compliance through

mediation . . . . be[ing] discarded.” Id. Given these concerns,

the Zombro court reached what it deemed “[t]he inescapable

conclusion” that the ADEA precludes suits under § 1983 for

age discrimination. Id. at 1366-67.

After Zombro, the Courts of Appeals for the First,

Fifth, Ninth, Tenth, and District of Columbia Circuits agreed.

See Tapia-Tapia, 322 F.3d at 745; Lafleur, 126 F.3d at 760;

Ahlmeyer, 555 F.3d at 1057; Migneault, 158 F.3d at 1140;

Chennareddy, 935 F.2d at 318. In light of the Supreme

Court’s decision in Fitzgerald, however, the Seventh Circuit

diverged from this consensus view, concluding instead that

the ADEA does not preclude constitutional claims of age

discrimination asserted under § 1983. Levin, 692 F.3d at 617.

While recognizing that “the ADEA sets forth a rather

comprehensive remedial scheme,” id. at 618, Levin

interpreted Fitzgerald as setting a higher bar for inferring

preclusive intent in cases where a plaintiff alleges a

constitutional violation. Id. To imply congressional intent to

preclude constitutional claims, the Levin court held that

“some additional indication of congressional intent” is

required. Id. at 619. Emphasizing that the ADEA lacks

express language evincing congressional intent to preclude §

1983 suits, Levin considered the statute’s purpose. The court

reasoned that “the ADEA does not purport to provide a

remedy for violation of constitutional rights,” but rather, “it

provides a mechanism to enforce only the substantive rights

16

created by the ADEA itself.” Id. at 619 (citing Zombro, 868

F.2d at 1373 (Murnaghan, J., concurring in part and

dissenting in part)) (internal quotation marks omitted). Levin

then distinguished the Supreme Court’s decision in Smith,

which found that the Individuals with Disabilities Education

Act (“IDEA”), Pub. L. 94-142, precluded suit under § 1983

for a Constitutional violation, explaining that the IDEA was

passed to address the constitutional requirement to provide a

public education for handicapped children. Id. at 619.

Without express language addressing preclusion, and “absent

any additional indication from Congress,” the Levin Court

declined to infer an intent to preclude constitutional claims of

discrimination. Id. at 620. The court in Levin then compared

the rights and protections offered by the ADEA and the Equal

Protection Clause, and found several significant differences:

first, an ADEA plaintiff may sue only an employer,

employment agency, or labor organization, whereas a § 1983

plaintiff is free to sue any individual who “caused or

participated in the alleged deprivation of the plaintiff’s

constitutional rights”; second, the ADEA limits claims by

certain individuals, such as elected officials, who are not

exempted from bringing suit under § 1983; and third, unlike

under § 1983, state employees are effectively barred from

bringing suit under the ADEA because their employers are

shielded by Eleventh Amendment immunity. Id. at 621. In

light of these differences, and in the absence of express

congressional intent to the contrary, the Levin court

concluded that the ADEA is not the exclusive remedy for age

discrimination claims. Id. at 621-22.

3.

17

We agree with the Levin court that the issue of whether

the ADEA precludes a § 1983 cause of action for age

discrimination in employment presents a “close call.” Id. at

617. Contrary to Levin, however, we conclude that, on

balance, the relevant considerations weigh in favor of finding

that the ADEA does indeed bar such § 1983 claims.

The Supreme Court has consistently indicated that the

comprehensiveness of a statute’s remedial scheme is the

primary factor in determining congressional intent. See

Fitzgerald, 555 U.S. at 253 (“[W]e have placed primary

emphasis on the nature and extent of [a] statute’s remedial

scheme.”) (emphasis added). Fitzgerald reaffirms the

Court’s jurisprudence on this issue as articulated in Sea

Clammers, Smith, and Rancho Palos Verdes. Id. at 254

(observing that, in each of prior cases, “[o]ffering plaintiffs a

direct route to court via § 1983 would have circumvented [the

relevant statute’s comprehensive] procedures.”). Indeed,

Fitzgerald cited with approval the Court’s statement in Sea

Clammers that, “[w]hen the remedial devices provided in a

particular Act are sufficiently comprehensive, they may

suffice to demonstrate congressional intent to preclude the

remedy of suits under § 1983.” Id. at 253 (quoting Sea

Clammers, 453 U.S. at 20) (emphasis added). To be sure,

Fitzgerald’s analysis of the different substantive protections

afforded by Title IX and the Equal Protection Clause provides

an additional framework for determining whether a section

1983 cause of action is foreclosed. Nevertheless, we do not

believe it disturbed the basic principle that, absent indications

to the contrary, we may infer that Congress intended to

preclude § 1983 claims when it provides a sufficiently

comprehensive remedial scheme for the vindication of a

federal constitutional right.

18

Thus, we cannot agree with Levin that Congress must

provide some “additional indication” of its intent. Levin, 692

F.3d at 619. Fitzgerald does not suggest the need for a

statement of “clear or manifest congressional intent in either

the language of the statute or the legislative history,” as Levin

requires. See Levin, 692 F.3d at 621. Rather, Fitzgerald

reaffirmed the principle that, where a statute imposes

procedural requirements or provides for administrative

remedies, permitting a plaintiff to proceed directly to court

via § 1983 would be “inconsistent with Congress’ carefully

tailored scheme.” Fitzgerald, 555 U.S. at 255 (quoting Smith,

468 U.S. at 1012).

Here, there can be no debate that the ADEA provides a

comprehensive remedial scheme. Under the ADEA, it is

unlawful for an employer to, among other things, “fail or

refuse to hire or to discharge any individual or otherwise

discriminate against any individual . . . because of such

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

expressly provides a private right of action to employees. Id.

§ 626(c). Before an employee may file suit under the ADEA,

however, a plaintiff is required to exhaust administrative

remedies by filing a charge of discrimination with the EEOC.

Id. § 626(d)(1). The EEOC is then directed to notify all

respondents named in the employee’s charge of

discrimination and to “promptly seek to eliminate any alleged

unlawful practice by informal methods of conciliation,

conference, and persuasion.” Id. § 626(d)(2). Unless the

EEOC elects to file suit to enforce the employee’s claim, an

employee may commence suit sixty days after filing a charge.

Id. §§ 626(c)(1), (d)(1). In light of these requirements, we

agree with the majority of our sister Courts of Appeals that

19

this scheme would be undermined if plaintiffs could sue

directly under § 1983. See, e.g., Zombro, 868 F.2d at 1366

(“[Under § 1983, the] plaintiff would have direct and

immediate access to the federal courts, the comprehensive

administrative process would be bypassed, and the goal of

compliance through mediation would be discarded.”).

Moreover, we do not believe that the rights and

protections of the ADEA and the Equal Protection Clause

differ in such significant ways as to demonstrate

congressional intent to allow parallel § 1983 claims alleging

age discrimination. The ADEA is intended to “promote

employment of older persons based on their ability rather than

age; to prohibit arbitrary age discrimination in employment;

[and] to help employers and workers find ways of meeting

problems arising from the impact of age on employment.” 29

U.S.C. § 621(b). Under the Equal Protection Clause, age

classifications receive only rational basis review. Kimel v.

Florida Bd. of Regents, 528 U.S. 62, 83 (2000) (“States may

discriminate on the basis of age without offending the

Fourteenth Amendment if the age classification in question is

rationally related to a legitimate state interest.”). By

prohibiting “arbitrary age discrimination,” the ADEA

encompasses the protections afforded by the Fourteenth

Amendment, while significantly expanding prohibitions on

age discrimination elsewhere.

Although, as the Levin court emphasizes, the potential

defendants are different under the ADEA and § 1983, 1 we do

1

Under the ADEA, a plaintiff may sue his employer,

an employment agency, or a labor organization. 29 U.S.C. §

623. In contrast, a § 1983 plaintiff can sue an individual

20

not believe this distinction significant enough to demonstrate

congressional intent to permit both claims. Additionally, we

think the fact that certain government employees are either

exempted from the ADEA, or limited to certain remedies, see

29 U.S.C. §§ 623(j), 630(f), demonstrates congressional

intent to specifically define the rights of those employees

rather than to permit such employees to circumvent these

limitations by filing directly under § 1983. See Sea

Clammers, 453 U.S. at 15 (“In the absence of strong indicia

of a contrary congressional intent, we are compelled to

conclude that Congress provided precisely the remedies it

considered appropriate.”).

“We do not lightly conclude that Congress intended to

preclude reliance on § 1983 as a remedy for a substantial

equal protection claim.” Smith, 468 U.S. at 1012. Because

we believe, however, that § 1983 suits are “inconsistent with

Congress’ carefully tailored scheme,” id., we join the

majority of Courts of Appeals in concluding that Congress

intended the ADEA to be the exclusive remedy for claims of

age discrimination in employment. Accordingly, we will

affirm the District Court’s dismissal of Hildebrand’s § 1983

claim of age discrimination.

B. Hildebrand’s § 1983 Retaliation Claims

Hildebrand seeks vindication for two additional

alleged violations under § 1983, contending that he was

retaliated against for his use of the internal grievance process

whose actions caused a deprivation of his constitutional

rights. Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir.

2011).

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in violation of the First and Fourteenth Amendments, and that

he was retaliated against on the basis of his political

patronage in violation of the First Amendment. The District

Court dismissed these allegations along with Hildebrand’s §

1983 age discrimination claim, finding that he had failed to

adequately plead that the County adopted a custom or practice

of such discrimination. The District Court also found, albeit

in a footnote, that Hildebrand’s amended complaint “fail[ed]

to pinpoint with any clarity which of his Constitutional rights

were negatively impacted by [Allegheny County],” that the

allegations of First and Fourteenth Amendment violations

were conclusory in nature, and that they therefore “fail[ed] to

meet the Iqbal/Twombly standard.” (A. 313 n.5.) As to the

claims of retaliation, we agree with the District Court’s

analysis.

Hildebrand brought each of these claims against

Allegheny County under a theory of municipal liability,

which requires him to demonstrate either that the County

officially adopted a “policy,” or unofficially adopted a

“custom,” of unconstitutional discrimination. See Monell v.

Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 690-

91 (1978). Hildebrand concededly proceeded on all § 1983

claims under a “custom” theory. “A plaintiff may establish a

custom . . . by showing that a given course of conduct,

although not specifically endorsed or authorized by law, is so

well-settled and permanent as virtually to constitute law.”

Watson v. Abington Twp., 478 F.3d 144, 155-56 (3d Cir.

2007) (citing Andrews v. City of Philadelphia, 895 F.2d 1469,

1480 (3d Cir. 1990) (internal quotation marks omitted)).

In his amended complaint, Hildebrand made the

following averments of retaliation: he alleged that he was

22

retaliated against by the Chief Detective and the Assistant

Chief Detective at the DA’s Office after he made a good faith

report expressing concerns about a fellow detective (A. 136

¶¶ S-T); that he was similarly retaliated against by the same

individuals after reporting a concern about the Office’s

procedure for charging drug crimes (Id. 138 ¶ X); that he was

retaliated against by the Assistant Chief Detective after he

filed an internal grievance against him alleging age-based

harassment (Id. 139-40 ¶¶ BB – DD); that he was

subsequently demoted in retaliation for his complaints about

the drug charging procedures (Id. 142 ¶ JJ); and that he was

harassed after members of the DA’s Office learned that he

had previously made political contributions to Joan Orie

Melvin in her candidacy for the Pennsylvania Supreme Court

(Id. 145-46 ¶ WW). Notwithstanding these allegations of

retaliation and harassment on the part of certain high-ranking

officials at the DA’s Office, Hildebrand does not allege that

Allegheny County established a custom of retaliating against

supporters of Ms. Melvin, or against Hildebrand or other

employees who utilized the internal grievance process.

While Hildebrand’s brief on appeal reasserts his claim

of retaliation, it does not point to any facts demonstrating that

there existed a custom in Allegheny County to retaliate

against employees on these bases. Rather, the portion of

Hildebrand’s brief dedicated to discussing his allegations in

support of municipal liability relate solely to his claims of age

discrimination. We therefore agree with the District Court

that Hildebrand failed to set forth a plausible claim for relief

against Allegheny County for retaliation, and we will affirm

their dismissal on that basis.

C. Hildebrand’s ADEA Claims

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Having determined that Hildebrand’s § 1983 claims

were properly dismissed, we now turn to the District Court’s

dismissal of Hildebrand’s ADEA claim.

1. Whether the Iqbal/Twombly Pleading Standards Apply to

Fed. R. Civ. P. 9(c)

A plaintiff seeking relief under the ADEA must

exhaust his or her administrative remedies as mandated by 29

U.S.C. § 626(d). Section 626(d) requires plaintiffs in

“deferral states” such as Pennsylvania, which have a state

agency with authority to investigate claims of employment

discrimination, to file charges with the EEOC within 300

days of the last date of alleged discrimination. 29 U.S.C. §§

626(d)(2) & 633(b); Watson v. Eastman Kodak Co., 235 F.3d

851, 854 (3d Cir. 2000). A plaintiff’s obligation to timely file

with the EEOC is a condition precedent to filing suit under

the ADEA. Seredinski v. Clifton Precision Prods. Co., Div.

of Litton Sys., Inc., 776 F.2d 56, 64 (3d Cir. 1985) (Sarokin,

J., concurring in part and dissenting in part).

The pleading of a condition precedent is governed by

Federal Rule of Civil Procedure 9(c), which provides:

Conditions Precedent. In

pleading conditions precedent, it

suffices to allege generally that all

conditions precedent have

occurred or been performed. But

when denying that a condition

precedent has occurred or been

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performed, a party must do so

with particularity.

Fed. R. Civ. P. 9(c).

Here, Hildebrand’s original complaint alleged:

All conditions precedent to

jurisdiction under section 706 of

Title VII, have occurred or been

complied with. Plaintiff filed a

claim of employment

discrimination with the [EEOC].

The EEOC issued a Notice of

Right to Sue. This complaint is

filed within 90 days of such

Notice of Right to Sue.

(A. 2.)

The District Court dismissed Hildebrand’s ADEA

claim, holding that he failed to sufficiently plead the

satisfaction of this condition precedent. Specifically, the

District Court applied the pleading standards set forth in

Twombly and Iqbal, which held that Federal Rule of Civil

Procedure 8(a) requires a plaintiff to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly,

550 U.S. at 570; see also Iqbal, 556 U.S. at 678.

The District Court erred by applying Iqbal and

Twombly to Hildebrand’s pleading of the conditions

precedent to filing suit under the ADEA. Iqbal and Twombly

interpreted Federal Rule of Civil Procedure 8(a), which

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governs the standard for pleading a claim for relief. The

pleading of conditions precedent is governed by Rule 9(c),

not Rule 8(a). Neither Iqbal nor Twombly purport to alter

Rule 9. We see no indication that those cases sought to

override the plain language of Rule 9(c), and we therefore

conclude that the pleading of conditions precedent falls

outside the strictures of Iqbal and Twombly.

2. The Intake Questionnaire

Our conclusion that the District Court erred in

applying Iqbal and Twombly to the pleading of conditions

precedent does not end our inquiry. Following the dismissal

of his first complaint, Hildebrand filed an amended

complaint, which alleged his satisfaction of the ADEA’s

conditions precedent in greater detail. Specifically,

Hildebrand alleged that he had filed a charge with the EEOC

within 300 days of the last date of discrimination. He

attached his charge of discrimination to his amended

complaint.

In their motions to dismiss the amended complaint,

Appellees contested Hildebrand’s asserted final date of

discrimination, contending that the last date of discrimination

was his February 18, 2011 termination. Under this reasoning,

Hildebrand’s charge of discrimination, which he filed on

January 11, 2012, would be untimely. In response to the

motions to dismiss, Hildebrand argued that the EEOC Intake

Questionnaire, which he filed on December 1, 2011,

constituted a timely-filed charge of discrimination.

The District Court dismissed Hildebrand’s ADEA

claims with prejudice, concluding that the last date of

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discrimination was February 18, 2011, and that the January

11, 2012 charge was therefore untimely. The District Court

did not consider the Intake Questionnaire. 2 We agree that

Hildebrand’s Intake Questionnaire constitutes a timely filed

charge.

An EEOC filing constitutes a charge of discrimination

if it satisfies the requirements of 29 C.F.R. § 1626.6, and can

“reasonably [be] construed as a request for [the EEOC] to

take remedial action to protect the employee’s rights.” Fed.

Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). In

Holowecki, the Supreme Court adopted a “permissive”

interpretation of the charge requirement, explaining that a

“wide range of documents,” including an intake

questionnaire, “may be classified as charges.” Id. at 402.

2

Hildebrand concedes that the Intake Questionnaire

was not attached to his amended complaint. He did, however,

submit the questionnaire as an exhibit to his response to

Allegheny County’s motion to dismiss. While a court is

limited to considering the pleadings in deciding a Rule

12(b)(6) motion, we are satisfied that the Intake

Questionnaire was properly before the District Court. There

was no dispute as to its authenticity, and it directly

corroborated Hildebrand’s claim that he had satisfied the

conditions precedent to filing suit under the ADEA. See

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (“In

deciding a Rule 12(b)(6) motion, a court must consider only

the complaint, exhibits attached to the complaint, matters of

public record, as well as undisputedly authentic documents if

the complainant’s claims are based upon these documents.”).

27

Following Holowecki, the EEOC revised its Intake

Questionnaire to require claimants to check a box to request

that the EEOC take remedial action. This box, commonly

referred to as “Box 2,” states:

I want to file a charge of

discrimination, and I authorize the

EEOC to look into the

discrimination I described above.

I understand that the EEOC must

give the employer, union, or

employment agency that I accuse

of discrimination information

about the charge, including my

name. . . .

(A. 262, 291). Under the revised form, an employee who

completes the Intake Questionnaire and checks Box 2

unquestionably files a charge of discrimination. Hildebrand

did precisely this. Additionally, Hildebrand’s questionnaire is

dated December 1, 2011, which is within 300 days of the

February 18, 2011 letter of suspension and notice of

termination. Thus, it was timely filed.

The Intake Questionnaire did not, however, preserve

Hildebrand’s claim against Allegheny County. As the County

observes, Hildebrand’s EEOC Intake Questionnaire names

“Allegheny County District Attorney’s Office” as the only

respondent. Thus, it fails to allege any discrimination on the

part of the County. We will therefore vacate the District

Court’s dismissal of Hildebrand’s ADEA claim as to the

DA’s Office because the Intake Questionnaire was a timely

filed charge of discrimination, but we will affirm dismissal of

28

the ADEA claim against Allegheny County, because the

Intake Questionnaire demonstrates that Hildebrand failed to

timely exhaust his administrative remedies as to the County.

III.

For the foregoing reasons, we will affirm in part,

vacate in part, and remand for further proceedings consistent

with this opinion.

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