Michael Simko v. United States Steel Corp

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-1091

_____________

MICHAEL SIMKO,

Appellant

v.

UNITED STATES STEEL CORP

_____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court No.: 2:19-cv-00765)

District Judge: Honorable Joy Flowers Conti

_____________________________________

Argued September 24, 2020

(Filed March 29, 2021)

Before: McKEE, JORDAN and RENDELL, Circuit Judges.

John E. Egers, Jr. (Argued)

Julian Law Firm

71 North Main Street

Washington, PA 15301

Counsel for Appellant

Gail S. Coleman (Argued)

Equal Employment Opportunity Commission

131 M. St., N.E.

Washington, D.C. 20507

Counsel for Amicus Appellant

Equal Employment Opportunity Commission

Rodney M. Torbic (Argued)

United States Steel Corp

600 Grant Street, Suite 1515

Pittsburgh, PA 15219

Counsel for Appellee

_________

OPINION

_________

RENDELL, Circuit Judge.

In this employment discrimination case, Michael Simko

asserts one claim of retaliation against his former employer,

United States Steel Corp., under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Simko

alleges that in August 2014 he was discharged in retaliation for

filing an administrative charge of disability discrimination with

the Equal Employment Opportunity Commission (“EEOC”)

approximately fifteen months earlier. Simko’s original

charge—which alleged that U.S. Steel disqualified him for

another position on the basis of his hearing disability—was

timely filed. But he never filed a timely charge of retaliation

that formed the basis for his complaint before the District

Court. The District Court held that the later claim of retaliation

was not encompassed within the earlier charge, and, therefore,

that his failure to file a timely retaliation charge was fatal.

Accordingly, the District Court dismissed his complaint for

failure to exhaust administrative remedies. We will affirm.

2

I. BACKGROUND1

Simko, who suffers from hearing loss, began working

for U.S. Steel in August 2005. In August 2012, while he was

employed as a Larryman in the Blast Furnace Department of

the U.S. Steel plant in Braddock, Pennsylvania, he successfully

bid on an open position as Spellman in the Transportation

Department. During training for the position, Simko requested

a new two-way radio from a Transportation Department

supervisor to accommodate his hearing impairment, but U.S.

Steel did not provide the new radio or any other

accommodation. Although Simko completed the Spellman

training, he alleges that his trainer refused to approve his

completion of the training and “sign off” that he was able to

perform the Spellman duties because of his disability. App 33.

Having failed to secure the Spellman position, Simko resumed

working as a Larryman in the Blast Furnace Department.

A. Simko’s Original Charge and Initial

Discharge

On May 24, 2013, Simko signed an EEOC charge

alleging violations of the ADA against U.S. Steel. The only

box checked on the original charge was for “[d]iscrimination

based on . . . disability.” App. 33. Specifically, Simko asserted

that U.S. Steel discriminated against him by denying him the

Spellman position and denying his request for an

accommodation. Simko also alleged in the charge that he was

later “subjected to negative comments from other employees

regarding my impairment,” including one instance in which the

“Walking Boss” told him that “[i]f I couldn’t hear, I must be

1

The facts are drawn from Simko’s complaint and

exhibits to the parties’ briefs in support of, and opposition to,

U.S. Steel’s motion to dismiss. In reviewing a dismissal under

Federal Rule of Civil Procedure 12(b)(6), we “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.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.

2010); see also Levins v. Healthcare Revenue Recovery Grp.

LLC, 902 F.3d 274, 279 (3d Cir. 2018). The parties have not

disputed the authenticity of any documents in the record.

3

disabled and should not work anywhere in the plant.” App. 34.

The EEOC received the charge on May 28, 2013. By letter

dated August 7, 2013 to the EEOC, a U.S. Steel Labor

Relations official denied Simko’s allegations of

discrimination. The EEOC did not take any action to

investigate the charge or U.S Steel’s August 7, 2013 letter.

On December 30, 2013—while Simko’s charge was

still pending—U.S. Steel discharged Simko after an incident in

which a car he was operating lost power. Approximately five

months later, on May 27, 2014, Simko entered into a “last

chance agreement” with U.S. Steel and his union providing for

his reinstatement. Simko returned to work under the last

chance agreement on June 1, 2014, but he was discharged again

on August 19, 20142—this time, based on a safety violation.

Although Simko grieved the discharge through his union, the

union later withdrew the grievance.

B. The November 2014 Correspondence

On November 14, 2014,3 approximately three months

after Simko’s final discharge from U.S. Steel, the EEOC

received an undated handwritten letter and set of documents

from Simko (“November 2014 correspondence”). The

November 2014 correspondence comprised 14 pages,

including what appears to be Simko’s handwritten notes

regarding a union hearing on the violation of his last chance

agreement, a copy of his last chance agreement, copies of

safety incident reports, and, in the final three pages, a

handwritten note that urged that he was discharged in

retaliation for his filing of the original discrimination charge

with the EEOC. In relevant part, the letter provided:

Since I have filled [sic] the charges with the

2

Simko initially received a five-day suspension, which

was ultimately converted to a discharge.

3

Simko and the EEOC allege that the EEOC received the

November 2014 correspondence on November 14, 2014.

Because U.S. Steel does not contest this allegation, we will, as

the District Court did, assume its truth. The November 2014

correspondence was attached to Simko’s response to U.S.

Steel’s motion to dismiss, but it was not referenced in his civil

complaint.

4

EEOC I have been terminated twice and placed

on [a] last chance agreement with no just cause

by the company. The union only calls me at [the]

last minute with information, they are not in

contact with me otherwise . . . . I believe anyone

who familiarizes themself [sic] with the details of

the case will clearly see it as retaliation for filing

charges with the EEOC.

App. 80–81 (emphasis added).

The EEOC did not take any action in response to

Simko’s November 2014 correspondence until approximately

one year later. By letter dated November 23, 2015, an EEOC

investigator notified Simko that he had been assigned to

Simko’s case. The investigator further wrote that, based upon

the November 2014 correspondence, “it appears as though you

have been terminated by [U.S. Steel] on two separate occasions

during 2014 and that you believe that the terminations were

retaliatory against you.” App. 84. Simko’s EEOC file also

contains a handwritten note by the investigator, dated

November 23, 2015, indicating that the EEOC contacted the

U.S. Steel Labor Relations Department and confirmed that

Simko had been discharged.4 In addition, the note stated,

“Amended charge is to follow including retaliatory discharge.”

App. 83.

C. The EEOC Investigation, Amended Charge,

and Simko’s Federal Lawsuit

After the EEOC contacted Simko, he retained counsel

to represent him in his EEOC proceedings. By letter dated

December 18, 2015, the EEOC investigator communicated to

Simko’s counsel that the EEOC had notified U.S. Steel “that

an amended charge was going to follow.” App. 87. On

January 22, 2016, Simko’s counsel filed an amended EEOC

charge. The amended charge addressed Simko’s failure to

secure the Spellman position and his subsequent discharges

from U.S. Steel. The boxes for disability discrimination and

4

The EEOC investigator’s November 23, 2015 letter and

handwritten note were not attached to the complaint but were

attached to Simko’s response to U.S. Steel’s motion to dismiss.

5

retaliation were both checked.

After investigating the allegations set forth in the

amended charge, the EEOC on February 19, 2019 issued a

determination of reasonable cause that U.S. Steel retaliated

against Simko. Specifically, the EEOC investigator found that

U.S. Steel disciplined Simko more harshly for his violation of

work rules and regulations than a non-disabled comparator.

The EEOC attempted conciliation of the dispute, but after

those efforts failed, it issued a right-to-sue letter on April 1,

2019. On June 28, 2019, Simko filed this lawsuit, asserting

only a single count of retaliation in connection with his final

discharge from U.S. Steel. It did not allege either disability

discrimination or failure to accommodate.

The District Court determined that Simko failed to file

a timely EEOC charge asserting his retaliation claim because

his amended charge claiming retaliation was filed 521 days

after the termination of his employment. The District Court

also held that Simko was not entitled to equitable tolling of the

ADA’s filing deadline because he was not misled by the EEOC

or prevented from filing the amended charge, and he offered

no reason why he could not file a timely claim. Thus, the

District Court concluded that since Simko never filed a timely

charge of retaliation with the EEOC, he failed to exhaust his

administrative remedies as required by the ADA, and it

dismissed his complaint. Simko timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. §

1331. We exercise appellate jurisdiction pursuant to 28 U.S.C

§ 1291. We review de novo a district court’s decision granting

a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6). Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014).

In reviewing a dismissal under Rule 12(b)(6), we accept all

well-pled factual allegations in the complaint as true and draw

all reasonable inferences in the plaintiff’s favor. Connelly v.

Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016).

III. DISCUSSION

Plaintiffs must exhaust their administrative remedies

before filing an ADA claim in federal court. See Churchill v.

6

Star Enters., 183 F.3d 184, 190 (3d Cir. 1999) (noting that

claims asserted under the ADA must be filed in adherence with

the administrative procedures set forth in Title VII); 42 U.S.C.

§§ 12117(a), 2000e-5.5 In Pennsylvania, an aggrieved party

must initiate this pre-suit procedure by filing a charge with the

EEOC within 300 days of the challenged employment action.

Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir.

2000); 42 U.S.C. § 2000e-5(e)(1).

It is undisputed that Simko filed his amended EEOC

charge of retaliation 521 days after the latest adverse

employment action at issue in the civil complaint—his final

discharge. Before the District Court and on appeal, U.S. Steel

urges that Simko’s civil complaint should therefore be

dismissed because he failed to file the retaliation charge within

the ADA’s 300-day filing period.

Despite his failure to meet the 300-day deadline, Simko

argues that he nonetheless satisfied the ADA’s pre-suit

requirements. The EEOC filed an amicus brief in which it also

urges that, contrary to the District Court’s conclusion, Simko

satisfied the ADA’s pre-suit filing requirements.6 Three

arguments are advanced in the alternative. First, both Simko

and the EEOC contend that his handwritten November 2014

5

While failure to file a timely charge may be a ground

for dismissal, that pre-suit requirement does not implicate a

district court’s subject matter jurisdiction. Rather, “like a

statute of limitations, [the filing deadline is] subject to waiver,

estoppel, and equitable tolling.” Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982); see also Fort Bend Cty., Texas

v. Davis, 139 S. Ct. 1843, 1851 (2019) (holding that the

“charge-filing requirement is a processing rule, albeit a

mandatory one, not a jurisdictional prescription delineating the

adjudicatory authority of courts”).

6

We noted at oral argument that it was unusual for the

EEOC to file an amicus brief in support of an appellant in

Simko’s position. Counsel for the EEOC stated that the agency

“made a mistake” by failing to help Simko convert his

November 2014 correspondence into a charge in a timely

manner. We appreciate the EEOC’s candor, but its acceptance

of some degree of fault does not alter our analysis.

7

correspondence to the EEOC itself constituted a timely

administrative charge. Second, the EEOC alone argues that

Simko was entitled to equitable tolling of the statutory filing

period because the agency failed to promptly act on the

November 2014 correspondence. Third, both Simko and the

EEOC urge that he did not have to file an additional EEOC

charge because his original, still-pending disability

discrimination charge encompassed his subsequent claim of

retaliation.

We reject these arguments. The first argument was

never asserted in the District Court and has not been properly

preserved for our review. The second argument was raised

only by the EEOC on appeal and, for reasons we explain

below, will not be considered. With respect to the final

argument, we conclude that Simko’s retaliation claim is

distinct from his underlying EEOC charge and therefore

needed to be raised first in a timely filed charge. His failure to

file a timely retaliation claim with the EEOC therefore dooms

his case.

A. We Will Not Reach the Unpreserved Issue of

Whether the November 2014 Correspondence

Constituted a Charge

Simko and the EEOC both contend that the District

Court should have concluded that the November 2014

correspondence—which was sent within 300 days of Simko’s

final discharge—itself constituted a timely EEOC charge that

may serve as the basis for his federal lawsuit. They urge that,

despite its informal appearance, Simko’s handwritten

correspondence included all of the required contents of an

administrative charge. But as U.S. Steel points out, Simko

never raised this issue before the District Court. In its opinion,

the District Court sua sponte commented on the handwritten

letter, stating that it “d[id] not constitute a ‘charge’ and Simko

d[id] not contend otherwise.” Simko v. United States Steel

Corp., No. CV 19-765, 2019 WL 6828421, at *3 (W.D. Pa.

Dec. 13, 2019). Simko and the EEOC now, for the first time,

contend otherwise.

It is well-established that arguments raised for the first

time on appeal are not properly preserved for appellate review.

See Del. Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir.

8

2006); see also Freeman v. Pittsburgh Glass Works, LLC, 709

F.3d 240, 249 (3d Cir. 2013) (“We generally refuse to consider

issues that the parties have not raised below.”). The general

rule requiring preservation “serves several important judicial

interests,” such as protecting the parties from unfair surprise,

“preventing district courts from being reversed on grounds that

were never urged or argued before [them],” and promoting

finality and the conservation of judicial resources. Tri-M Grp.,

LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (alteration in

original) (quoting Webb v. City of Phila., 562 F.3d 256, 263

(3d Cir. 2009)).

As a preliminary matter, the District Court’s cursory

statement that Simko’s handwritten correspondence did not

constitute a charge is, alone, insufficient to preserve that issue

for our review. U.S. Steel contends that, by failing to raise that

issue before the District Court, Simko waived any argument to

the contrary. Although we agree with U.S. Steel that Simko

did not preserve his argument on appeal, we think that, under

our most recent precedent, Simko’s failure is better

characterized as “forfeiture,” not “waiver.” See Barna v. Bd.

of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136,

146–47 (3d Cir. 2017). In Barna, we distinguished the two

terms, noting that “[t]he effect of failing to preserve an

argument will depend upon whether the argument has been

forfeited or waived.” Id. at 146. Waiver is the intentional

abandonment of an argument. Id. at 147. In contrast, forfeiture

“‘is the failure to make the timely assertion of a right,’ an

example of which is an inadvertent failure to raise an

argument.” Id. at 147 (quoting United States v. Olano, 507

U.S. 725, 733 (1993)). Because Simko’s failure to argue

before the District Court that the November 2014

correspondence qualified as a charge appears inadvertent, we

treat that argument as forfeited. See PDX N., Inc. v. Comm’r

N.J. Dep’t of Labor & Workforce Dev., 978 F.3d 871, 886 (3d

Cir. 2020).

While a court may not entertain waived arguments on

appeal, it may review forfeited arguments, but under only

“truly ‘exceptional circumstances.’” Barna, 877 F.3d at 147

(quoting Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3d

Cir. 2001)). These circumstances are “very ‘limited,’” id.

(quoting Webb, 562 F.3d at 263), and may include cases where

9

“the public interest requires that the issue[s] be heard or when

a manifest injustice would result from the failure to consider

the new issue[s],” United States v. Anthony Dell’Aquilla,

Enters. & Subsidiaries, 150 F.3d 329, 335 (3d Cir. 1998)

(alterations in original) (quoting Altman v. Altman, 653 F.2d

755, 758 (3d Cir. 1981)). Here, Simko offers no reasons for

his failure to urge before the District Court that his handwritten

correspondence and accompanying documents qualified as a

charge. Moreover, there is no public interest implicated or

manifest injustice, particularly because Simko knew how to

file a formal EEOC charge, as he had done in May 2013. In

short, there are no exceptional circumstances justifying

departure from our rule requiring preservation. Accordingly,

we will not address this issue.

B. Nor Will We Address the District Court’s

Ruling on Equitable Tolling

In its amicus brief, the EEOC alone urges that the

District Court erred by concluding that Simko was not entitled

to equitable tolling of the 300-day statutory filing period.

Specifically, the EEOC contends that, if the November 2014

correspondence did not qualify as an administrative charge, the

EEOC’s failure to promptly convert it to a charge should

warrant equitable tolling of the statutory deadline for Simko.

Although Simko litigated the equitable tolling issue before the

District Court, he did not present it to us as an issue on appeal.

We have held that the role of an amicus brief is to “elaborate[]

issues properly presented by the parties,” not “inject[] new

issues into an appeal.” N.J. Retail Merchs. Ass’n v. Sidamon-

Eristoff, 669 F.3d 374, 382 n.2 (3d Cir. 2012) (quoting

Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d

Cir. 2001)). Thus, “[a]n amicus normally ‘cannot expand the

scope of an appeal with issues not presented by the parties on

appeal,’ at least not ‘in cases where the parties are competently

represented by counsel.’” Hartig Drug Co. Inc. v. Senju

Pharm. Co., 836 F.3d 261, 267 (3d Cir. 2016) (citation

omitted) (quoting Nuveen Mun. Tr. ex rel. Nuveen High Yield

Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283,

300 n.10 (3d Cir. 2012)). By raising the equitable tolling issue,

the EEOC attempts to resurrect an issue that Simko abandoned

on appeal. Accordingly, we will not reconsider the District

Court’s conclusion that equitable tolling was not warranted.

10

C. Simko’s Original EEOC Charge Did Not

Encompass His Subsequent Retaliatory

Discharge Claim

Simko’s main argument on appeal is that he was not

required to file a timely retaliation charge because his

retaliation claim was encompassed within his still-pending

original charge of disability discrimination. U.S. Steel

responds, as it did before the District Court, that Simko’s

retaliation claim cannot be bootstrapped to the original charge

because the two sets of allegations are sufficiently distinct, and

under the analysis required by our precedent, Simko should

have filed a separate charge for the retaliation claim. We agree

with U.S. Steel on this issue.

As noted above, the ADA requires that a plaintiff

administratively exhaust all claims before seeking relief in

federal court. Burgh v. Borough Council of Borough of

Montrose, 251 F.3d 465, 469 (3d Cir. 2001); 42 U.S.C. §§

12117(a), 2000e-5(b). These pre-suit requirements, which

include the step of filing a charge and receiving a right-to-sue

letter from the EEOC, are “essential parts of the statutory plan,

designed to correct discrimination through administrative

conciliation and persuasion if possible, rather than by formal

court action.” Ostapowicz v. Johnson Bronze Co., 541 F.2d

394, 398 (3d Cir. 1976); see also Anjelino v. New York Times

Co., 200 F.3d 73, 94 (3d Cir. 1999) (“[T]he purpose of the

filing requirement is to enable the EEOC to investigate and, if

cause is found, to attempt to use informal means to reach a

settlement of the dispute.”). The Supreme Court has also

emphasized that a fundamental aim of the pre-suit

requirements is to “give prompt notice to the employer” and

“encourage the prompt processing of all charges of

employment discrimination.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 109, 121 (2002) (internal quotation

marks omitted). The exhaustion requirement thus advances the

remedial purposes of the ADA.

The “relevant test” for determining whether a later

claim needs to be exhausted despite the filing of a previous

charge is a two-pronged inquiry into whether “the acts alleged

in the subsequent . . . suit are fairly within the scope of [1] the

prior EEOC complaint, or [2] the investigation arising

11

therefrom.”7 Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.

1984); see also Robinson v. Dalton, 107 F.3d 1018, 1025 (3d

Cir. 1997) (identifying the “two circumstances in which events

subsequent to a filed [EEOC] complaint may be considered as

7

The Waiters inquiry is a disjunctive test—that is, a

plaintiff need not file an additional EEOC charge if the

allegations of the civil complaint are fairly within the scope of

(1) the pending EEOC charge or (2) the investigation arising

from the charge.

As Simko notes, however, on at least two occasions, we

have treated the inquiry as being conjunctive. For example, in

Hicks v. ABT Associates, Inc., we determined that a

finding that the EEOC would have discovered a

claim for sex discrimination in the course of a

reasonable investigation does not itself meet the

standard of Ostapowicz [and satisfy the

exhaustion requirement]. This evidence merely

rebuts the presumption that the scope of the

actual investigation is “what can reasonably be

expected to grow out of the charge of

discrimination.” 541 F.2d at 398–99. The

district court must further find that the sex

discrimination claims which would have been

uncovered were reasonably within the scope of

the charge filed with the EEOC.

572 F.2d 960, 967 (3d Cir. 1978) (emphasis added). In Howze

v. Jones & Laughlin Steel Corp., which was decided less than

a year after Waiters, we summarized Hicks as holding that a

“district court may assume jurisdiction over additional charges

if they are reasonably within the scope of the complainant’s

original charges and if a reasonable investigation by the EEOC

would have encompassed the new claims.” 750 F.2d 1208,

1212 (3d Cir. 1984) (emphasis added). The Howze court

notably failed to mention Waiters.

Notwithstanding this minor conflict of authority, since

Howze we have consistently applied the disjunctive

formulation of the exhaustion test set forth in Waiters. See

Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996); Robinson v.

Dalton, 107 F.3d 1018, 1025 (3d Cir. 1997); Mandel v. M & Q

Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013).

Accordingly, the disjunctive test governs our analysis in this

case.

12

fairly encompassed within that complaint”).

The exhaustion inquiry is highly fact specific. Under

our precedent, the Court must “examine carefully the prior

pending EEOC complaint and the unexhausted claim on a case-

by-case basis before determining that a second complaint need

not have been filed.” Robinson, 107 F.3d at 1024. Simko and

the EEOC urge that we should adopt the broad per se rule

followed by some courts of appeals that treat post-charge

claims of retaliation as exhausted when they arise during the

pendency of a prior charge. See, e.g., Duplan v. City of New

York, 888 F.3d 612, 622 (2d Cir. 2018); Nealon v. Stone, 958

F.2d 584, 590 (4th Cir. 1992); Gupta v. E. Texas State Univ.,

654 F.2d 411, 414 (5th Cir. 1981). We have said, however,

that such a per se rule, “whether express or applied in practice,

would eviscerate the remedial purposes of the exhaustion

requirement.” Robinson, 107 F.3d at 1024. We have already

rejected this per se argument and will adhere to our precedent

that requires a careful examination of the nature of the relevant

claims. See Waiters, 729 F.2d at 237 n.10 (declining to adopt

what the Court characterized as the Fifth Circuit’s rule that “all

claims of ‘retaliation’ against a discrimination victim based on

the filing of an EEOC complaint are ‘ancillary’ to the original

complaint”); Robinson, 107 F.3d at 1024 (also rejecting a per

se rule that post-charge retaliation claims “necessarily fall[]

within the scope of . . . [previously filed, still-pending EEOC]

complaints”).8

Even interpreting Simko’s charge liberally under our

fact-specific approach, the retaliation claim based on his

August 2014 termination does not fall fairly within the scope

of either (1) his original charge of disability discrimination

based on his being denied the Spellman position in August

2012, or (2) the EEOC investigation arising therefrom. See

8

Similarly, Simko urges that his retaliation claim is

sufficiently related to his original charge of disability

discrimination under our case-by-case approach because, by

definition, retaliation requires a “predicate action protected by

the ADA,” and his original charge “was a prerequisite to the

existence of the retaliation claim.” Appellant’s Br. 62.

Because such an argument merely restyles the same per se rule

that we have previously rejected, we also reject it here.

13

Waiters, 729 F.2d at 235; see also Mandel v. M & Q Packaging

Corp., 706 F.3d 157, 163 (3d Cir. 2013); Robinson, 107 F.3d

at 1025; Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). We

address both prongs of the analysis in turn.

Simko concedes that his retaliation claim fails the first

prong of the exhaustion analysis. Simply put, no allegations of

retaliation appeared on the face of his original EEOC charge.

Simko failed to check the box indicating a claim of retaliation

and his narrative contained no reference to conduct that could

be construed as retaliatory. As U.S. Steel argues, “the legal

theories in the original charge and amended charge are not the

same, the incidents are not the same, the individuals involved

are not the same, the work locations are not the same, and the

time-periods are not the same.” Appellee’s Br. 20–21.

Accordingly, Simko’s retaliatory discharge claim does not fall

fairly within the scope of his EEOC charge.

The central dispute in this case, however, concerns the

second prong of the analysis—whether Simko’s claim of

retaliation falls “fairly within . . . the investigation arising”

from the initial EEOC charge. Waiters, 729 F.2d at 237. At

this step of the analysis, we consider “the scope of the EEOC

investigation which can reasonably be expected to grow out of

the charge of discrimination.” Ostapowicz, 541 F.2d at 398–

99. Simko and the EEOC primarily argue that this prong may

be satisfied simply based on the fact that the EEOC actually

did investigate Simko’s retaliatory discharge claim, albeit

more than two years after he filed his initial charge.9 To the

contrary, our precedent emphasizes that the Court must look

only at the scope of the EEOC investigation that would

reasonably grow out of, or arise from, the initial charge filed

9

Simko pushes this argument one step further: He urges

that our case-by-case analysis and precedent are not even

applicable in this case because the EEOC ultimately

investigated his retaliation claim and issued a right-to-sue letter

based on that claim. He contends that our fact-specific

exhaustion inquiry instead applies only in cases where either

(1) the claim at issue was not presented to the EEOC or (2) the

EEOC failed to investigate the claim. We disagree. No

authority from our Court supports such a strict limitation on the

exhaustion analysis.

14

with the EEOC, “irrespective of the actual content of the

Commission’s investigation.” Hicks v. ABT Assocs., Inc., 572

F.2d 960, 966 (3d Cir. 1978); see also Howze v. Jones &

Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984)

(holding that “[w]hether the actual EEOC investigation

uncovered any evidence of retaliation is of no consequence” in

determining whether a new claim of retaliation is encompassed

in the original EEOC charge). As such, we agree with the

District Court’s characterization of our exhaustion analysis as

“objective” rather than “subjective.” Simko, 2019 WL

6828421, at *7.

Given the fact-specific nature of the exhaustion inquiry,

our precedent in this area—Hicks, Waiters, Antol, and

Robinson—provides useful guidance. As these cases

demonstrate, when determining whether a claim fairly or

reasonably falls within the investigation arising from a charge,

courts consider (1) whether the claim arises from the same set

of facts that support the original charge and (2) whether the

claim advances the same theory of discrimination as the

original charge.

In Hicks, the plaintiff filed an EEOC charge alleging

only race discrimination, but later sued asserting, inter alia,

claims of both race discrimination and sex discrimination. 572

F.2d at 962–63. The EEOC investigated the race

discrimination claim but failed to investigate sex

discrimination. Id. Nevertheless, we held that the actual

EEOC investigation did not necessarily set the “outer limit” of

the scope of the civil complaint. Id. at 966. Such a limitation

would unfairly penalize a plaintiff for an “unreasonably narrow

or improperly conducted” investigation by the EEOC. Id.

Thus, the issue was whether a reasonable investigation would

include a sex discrimination claim.

We noted that certain instances of sex discrimination

alleged in Hicks’s civil complaint arose from the same conduct

that supported his race discrimination claims and that there was

evidence that the EEOC improperly failed to contact Hicks to

discuss his charge after it was filed. Id. On those grounds, we

remanded to the district court to determine “whether the . . .

investigation reasonably would have included examination of

the sex discrimination claims,” such that those claims did not

15

need to have been exhausted by filing a separate charge. Id. at

966, 970.

Waiters involved an investigation of retaliatory conduct

that went beyond the four corners of the EEOC charge.

Waiters filed a charge with the EEOC asserting a claim of sex

discrimination under Title VII against her employer, and over

a year later she filed a second charge alleging that the employer

retaliated against her for having submitted the earlier

complaint. Waiters, 729 F.2d at 235. After she filed the second

charge, Waiters was discharged. Id. at 236. Waiters did not

file a new charge based on her termination. Id. She then

brought suit in federal court alleging that she was discharged

in retaliation for exercising her rights under Title VII. Id.

The district court concluded that Waiters should have

filed another charge with the EEOC after she was discharged

and dismissed Waiters’s complaint for failure to exhaust

administrative remedies. Id. We reversed. While Waiters’s

second EEOC charge was limited to a specific instance of

retaliation, the EEOC investigation extended beyond that

individual allegation and uncovered a subsequent pattern of

retaliatory harassment by different officials. Id. at 235 n.2,

238. Although the post-charge retaliatory conduct involved

different officials and episodes of misconduct that occurred

over thirty months later, we held that “the core grievance—

retaliation—is the same and, at all events, it is clear that the

allegations of the appellant’s complaint fall within the scope of

the [EEOC’s] investigation of the charges contained in the . . .

[second EEOC] complaint.” Id. at 238. Thus, Waiters did not

need to file a separate charge regarding her new retaliatory

discharge claim. Id.

We reached a different conclusion, on different facts, in

Antol v. Perry. In that case, Antol filed a federal lawsuit

alleging both disability discrimination under the Rehabilitation

Act, 29 U.S.C. § 791 et seq., and gender discrimination under

Title VII for failure to hire. Antol, 82 F.3d at 1293. Although

Antol exhausted his remedies with respect to his claim of

disability discrimination, he never raised allegations of gender

discrimination at any point in the administrative proceedings

and the EEOC did not investigate gender discrimination. Id. at

1295. We concluded that “[t]he specifics of [Antol’s]

16

disability discrimination charge d[id] not fairly encompass a

claim for gender discrimination merely because investigation

would reveal that Antol is a man and the two employees who

received the positions [were] women.” Id. at 1296. In

addition, we determined that the EEOC investigation properly

focused on “the gravamen of Antol’s complaint—disability

discrimination” and that neither the EEOC nor the employer

had been put on notice of the new gender discrimination claim.

Id. Accordingly, Antol’s failure to exhaust administrative

remedies for his gender discrimination claim barred that claim.

Id.

Robinson is our most recent precedential opinion

addressing the exhaustion of claims arising from post-charge

events. There, we applied our fact-specific exhaustion inquiry

to a post-charge claim of retaliatory discharge. Robinson, 107

F.3d at 1024. Robinson filed three EEOC charges alleging

racial discrimination and retaliation against his employer, the

Navy, for denying him sick leave, placing him on unauthorized

leave status, and issuing him an “indebtedness letter” for taking

unapproved sick leave and creating an asbestos hazard. Id. at

1019, 1025. After Robinson filed these charges, the Navy

terminated his employment, pointing to his excessive

unauthorized absences and the asbestos hazard—the subject

matter of his prior charges—as the basis for his discharge. Id.

at 1019–20. Robinson then brought suit in federal court

claiming that he was discharged in retaliation for filing his

three charges. Id. at 1020. He did not file an additional charge

alleging retaliatory discharge and the EEOC did not investigate

his termination. Id. at 1025. The district court dismissed

Robinson’s complaint for failure to exhaust administrative

remedies. Id. at 1020. On appeal, we noted that the district

court had failed to examine the scope of the EEOC’s

investigation, and—as in Hicks—we remanded to determine

whether a reasonable investigation of Robinson’s charges

would have included his retaliatory discharge allegation. Id. at

1026.

We draw several principles from these precedents.

Most importantly, the original charge is the touchstone of our

exhaustion analysis. See, e.g., Antol, 82 F.3d at 1296 (focusing

on the “specifics of . . . [the] charge” in determining whether a

new claim is encompassed by the charge). First, we closely

17

examine the original charge’s contents to determine the

reasonable scope of the EEOC investigation that would likely

occur. See Robinson, 107 F.3d at 1024. Second, we parse the

later claim and determine whether its allegations would be

covered in that reasonable investigation. See Hicks, 572 F.2d

at 966. At bottom, we must compare the two sets of allegations

and evaluate whether they are sufficiently related such that a

reasonable investigation of the original charge would address

the subsequent, unexhausted claims. In comparing the two sets

of allegations, we look for factual similarities or connections

between the events described in the claims, the actors involved,

and the nature of the employer conduct at issue. See id. at 965

(noting that some instances of sex discrimination alleged in the

civil complaint “arise from the same acts which support claims

for race discrimination” described in the underlying charge).

Such factual overlap alone, however, does not guarantee that

the new allegations are encompassed by the original charge if

they do not fall within the “gravamen” of the initial charge. See

Antol, 82 F.3d at 1296 (rejecting the male plaintiff’s attempt to

recharacterize his disability discrimination claim for failure-to-

promote as a gender discrimination claim merely on the ground

that two women secured positions over him). But even if we

find no factual nexus, we may also consider whether the two

sets of allegations advance the same theory of discrimination,

as in Waiters. See 729 F.2d at 238.

With these principles in mind, we turn to the fact pattern

presented here. Unlike in Waiters, the additional allegations

that the EEOC investigated after it received the November

2014 correspondence were only tenuously related to the

substance of the original charge. Simko’s original EEOC

charge was based on the Transportation Department’s failure

to accommodate his hearing disability and its alleged

discrimination against him by its refusal to approve him for the

Spellman position in August 2012.10 By contrast, the

10

As the District Court noted, the fact that Simko’s

original charge of disability discrimination also alleged that his

“Walking Boss” made a discriminatory comment in November

2012 about his hearing impairment does not sufficiently

expand the effective scope of the original charge to include his

later retaliation claim. That specific allegation of disability

18

retaliation claim that Simko later filed in the District Court

alleges that his discharge from the Blast Furnace Department

in August 2014 was in retaliation for his filing of the original

discrimination charge.

The original EEOC charge and Simko’s civil complaint

thus address discrete adverse employment actions that

occurred approximately two years apart and involved different

supervisors in different departments. Under these facts, the

scope of a reasonable investigation arising out of Simko’s

initial charge would certainly include an inquiry into whether

Simko was qualified for the Spellman position, U.S. Steel’s

reasons for passing him over, and identification of the person

who secured the position and why he or she was chosen. While

such an investigation could also inquire into whether any other

adverse actions were taken against him relating to his disability

or his having filed a charge, a reasonable investigation in this

case would not have included an inquiry into Simko’s post-

charge firing. Simko’s allegations of retaliation are too remote

in time and substantively distinct from the allegations of

disability discrimination for a reasonable EEOC investigation

based on the original charge to encompass the later events.11

And, importantly, the original charge and complaint allege

discrimination is still too tenuously related in time and

substance to Simko’s retaliatory discharge claim.

11

Our dissenting colleague says that retaliation charges

are intrinsically related to previous charges of

discrimination. We do not disagree with this as a general

proposition, but the allegation that an adverse employment

action occurred in retaliation for the filing of an initial EEOC

charge does not necessarily mean that “a close nexus” of

supporting facts, Hicks, 572 F.2d at 967, or a common “core

grievance,” Waiters, 729 F.2d at 238, exist. We have only held

that unexhausted claims of retaliatory discharge fall within the

scope of the investigation reasonably arising out of the original

claim when the original claim included “the same retaliatory

intent inherent in the [subsequent] retaliatory discharge

claim.” Robinson, 107 F.3d at 1026; see also Waiters, 729

F.2d at 238 (“[T]he core grievance—retaliation—is the

same.”). We will not expand that exception to the exhaustion

requirement to cover such tenuously related conduct as in this

case.

19

different types of discrimination—in one, disability

discrimination and failure to accommodate and in the other,

retaliation. Absent “a close nexus” of supporting facts, Hicks,

572 F.2d at 967, or a common “core grievance,” Waiters, 729

F.2d at 238, we conclude that a reasonable investigation of

Simko’s original charge of disability discrimination would not

unearth facts about his allegations of retaliation nearly two

years later.

Our dissenting colleague cites the appropriate test

repeatedly: If discriminatory acts occur after a plaintiff files his

EEOC charge, he need not file an additional charge if the new

allegations are “fairly [or reasonably] within the scope of . . .

the investigation arising” out of the initial charge. Waiters, 729

F.2d at 237. As the dissent recognizes, in conducting this

inquiry, we ask whether the new claim should “reasonably

[have] be[en] expected to grow out of the [initial] charge.”

Ostapowicz, 541 F.2d at 399. However, the dissent fails to

consider the facts in light of the test. As we have done in the

other cases applying our exhaustion analysis, we must look at

the facts as they are alleged in the charge and the civil

complaint. And the facts here are unique.

What was the initial charge? Here, Simko claimed that

U.S. Steel denied him a reasonable accommodation for his

hearing disability and passed him over for a job because of that

same disability. The initial charge included no additional

instances of unlawful discriminatory treatment, other than an

allegation that some other employees made “negative

comments” about Simko’s hearing impairment. App. 34.

Unlike the plaintiff in Hicks, Simko did not later allege a

different theory of discrimination based on some of the same

underlying acts that supported his initial theory of

discrimination. And unlike in Waiters, Simko’s initial charge

of discrimination was not followed by subsequent instances of

the same type of unlawful treatment. As previously discussed,

our exhaustion analysis is tied to the substance of Simko’s only

timely-filed claim in this case: that he did not receive a

reasonable accommodation and was denied the Spellman job

due to his disability.

The only other operative fact, namely Simko’s

discharge, came to light over seventeen months after he

20

submitted the initial charge, when he alerted the EEOC that he

was fired in retaliation for filing the charge. But, would the

allegedly retaliatory firing have been included in an

investigation that could “reasonably be . . . expected to grow”

out of the facts surrounding his original charge of disability

discrimination, approximately two years prior? Ostapowicz,

541 F.2d at 399. There is no basis in fact or law for an answer

in the affirmative. As we noted above, the scope of a

reasonable investigation into Simko’s being passed over for a

job based on his disability would have involved a limited

inquiry. If we were to say that his later claim of retaliation was

encompassed by his—however distantly related—initial

charge of disability discrimination, we would be establishing a

de facto per se rule, contrary to our holdings in Waiters, 729

F.2d at 237 n.10, and Robinson, 107 F.3d at 1024.

The dissent urges that we should conclude Simko’s

post-charge retaliation claim was encompassed in his original

charge because his retaliation claim is strongly “tethered” to

his initial charge of disability discrimination and failure to

accommodate. Dissent Op. 15. We reject this conclusory

assertion. As relevant here, a “tether” actually exists only

when the allegations in the later charge would fall within the

reasonable scope of the investigation into the allegations of the

original charge. Simko’s situation fails that test. The dissent

glosses over the differences between the two very different

types of allegations in the initial charge and the civil complaint

and instead focuses on the fact that the EEOC actually

investigated and attempted to conciliate Simko’s retaliation

claim. Those ex-post facts do not determine the reasonable

scope of an EEOC investigation.

Even if our exhaustion inquiry turned on the actual—

rather than reasonable—scope of investigation arising from a

charge, Simko’s retaliation claim should still be dismissed.

That is because the investigation in this case did not actually

“aris[e]” from, Waiters, 729 F.2d at 237, or “grow out of,”

Hicks, 572 F.2d at 967, the underlying discrimination charge.

Critically, the EEOC failed to investigate Simko’s original

charge, and during the approximately thirty-month delay

between the filing of his original charge and the EEOC

investigator’s response to his November 2014 correspondence,

he experienced a change in circumstances that formed the basis

21

of a new, distinct claim. It was due only to that extended delay

and Simko’s handwritten November 2014 correspondence that

the EEOC learned of, and was able to investigate, Simko’s new

allegations while his original charge was still pending.

Thus, the EEOC investigation did not actually grow out

of the original charge. Instead, the investigation arose from

Simko’s handwritten correspondence. After apparently taking

no investigative action for over two years following its receipt

of the original 2013 charge, the EEOC commenced its

investigation only after an investigator read Simko’s

correspondence and sent Simko a letter inquiring about his

case. Significantly, that letter—dated November 23, 2015,

over a year after Simko’s November 2014 correspondence—

referenced only Simko’s retaliation allegations, further

demonstrating that the EEOC acted on the basis of the

November 2014 correspondence, not his original charge. As

we noted above, the EEOC file included a comment that an

amended charge was to follow, “including retaliatory

discharge.” App. 83. That amended charge, however, was not

timely filed.

Simko and the EEOC nevertheless urge that because the

EEOC ultimately did investigate the retaliatory discharge

claim, such an investigation must have been “reasonable,”

rendering it unnecessary to file an additional timely charge.

We disagree.

As the District Court observed, this case does not

involve an EEOC investigation that was unduly narrow, but

rather, one that extended beyond the face of the operative

EEOC charge. Contrary to Simko and the EEOC’s arguments,

however, we analyze claims excluded from an EEOC

investigation in the same way that we analyze claims included

in the investigation. Our focus remains on the investigation

that can “reasonably be expected to grow out of the charge.”

Ostapowicz, 541 F.2d at 399. This principle applies equally in

cases where the EEOC failed to investigate a claim, see, e.g.,

Robinson, 107 F.3d at 1025; Hicks, 572 F.2d at 966, and cases

where the EEOC broadened its investigation to cover claims

not included in the charge, see Waiters, 729 F.2d at 238.

Holding otherwise—that is, treating all investigated claims as

exhausted—would create a one-way ratchet. The EEOC’s

22

choice to investigate certain employer conduct would set the

bare minimum scope of a civil complaint while its failure to

investigate other conduct would not restrict the “outer limit” of

the complaint, Hicks, 572 F.2d at 966. Such a rule would

undermine the remedial aims of the pre-suit filing requirements

by permitting a charging party to “greatly expand an

investigation simply by alleging new and different facts when

he was contacted by the [EEOC] following his charge.” Id. at

967. Simko’s November 2014 correspondence did just that—

it introduced new allegations of retaliation based on facts

distinct from those alleged in his original charge.

Simko and the EEOC’s other arguments that his

retaliatory discharge claim fell within the scope of a reasonable

EEOC investigation are unpersuasive. They both contend that

EEOC investigations are entitled to a presumption of regularity

and that, in essence, we should “assume that the EEOC would

not expend time or resources investigating matters unrelated to

a pending charge.” EEOC’s Br. 24; see also Hicks, 572 F.2d

at 966. In support of this position, they point to EEOC internal

policies, reflected in the EEOC’s Compliance Manual, which

govern the scope of investigations and the circumstances in

which the EEOC may broaden an investigation. For example,

these policies direct investigators to remain alert to evidence of

retaliation during their investigations, inform their supervisors

in case such evidence surfaces, and notify the employer that

“the scope may be expanded or limited based on information

received during the investigation.” EEOC Compl. Man. §

22.3, Scope of Investigation, 2006 WL 4673367; see also

EEOC Compl. Man. § 2.8, Charges Warranting Priority

Handling, 2006 WL 4672924; EEOC Compl. Man. § 13.1,

Litigation for Temporary or Preliminary Relief: Introduction,

2006 WL 4673012.

In light of these practices and the presumption of

investigative regularity, Simko and the EEOC urge that it was

reasonable for the EEOC to broaden the investigation beyond

the four corners of the original charge and that Simko’s

retaliation claim therefore satisfies the second prong of the

exhaustion inquiry. We reject this argument on two grounds.

First, a rebuttable presumption of regularity does not foreclose

judicial review of the scope of EEOC investigations, as Simko

argues. See, e.g., Robinson, 107 F.3d at 1026 (remanding to

23

the district court to “evaluate the reasonableness of the decision

not to investigate”); Antol, 82 F.3d at 1296 (holding that the

investigation “quite properly” focused on Antol’s disability

discrimination claim). Here, the EEOC’s inaction for over two

years on Simko’s original charge is sufficient to rebut the

presumption that its subsequent investigation of Simko’s

charge was regular or reasonable.12

Second, the EEOC Compliance Manual does not

persuade us that a reasonable investigation of the original

charge in this case would have included the post-charge

retaliation allegations. We do not question the EEOC’s policy

that officials prioritize retaliation claims or inquire about

possible retaliation while investigating a discrimination

charge. Nor do we question that the EEOC often changes the

scope of investigations based on the information it gathers

during the investigative process. Nevertheless, the significant

12

We recognize that limited resources and the significant

volume of charges filed with the EEOC each year make some

amount of administrative delay inevitable. For example, in

Fiscal Year 2019 alone, the EEOC received 72,675 charges of

workplace discrimination. See Press Release, U.S. Equal

Employment Opportunity Commission, EEOC Releases Fiscal

Year 2019 Enforcement and Litigation Data (Jan. 24, 2020),

https://www.eeoc.gov/newsroom/eeoc-releases-fiscal-year-

2019-enforcement-and-litigation-data (last visited Mar. 26,

2021).

Nevertheless, two points of reference underscore that

the EEOC’s delay in this case was out of the ordinary. First,

under the ADA, a charging party must permit the EEOC a

minimum of 180 days to investigate and attempt to resolve his

dispute, only after which he may demand a right-to-sue letter

and proceed to federal court. See Occidental Life Ins. Co. of

California v. EEOC, 432 U.S. 355, 360–61 (1977); 42 U.S.C.

§ 2000e-5(f)(1). Second, according to the EEOC, the average

length of an investigation is approximately ten months. See

U.S. Equal Employment Opportunity Commission, What You

Can Expect After You File a Charge,

https://www.eeoc.gov/what-you-can-expect-after-you-file-

charge (last visited Mar. 26, 2021).

In this case, the agency’s delay in initiating its

investigation alone far exceeded both of these time periods.

24

differences between Simko’s original charge of disability

discrimination and his later claim of retaliatory discharge

foreclose the possibility that a reasonable investigation would

have reached his post-charge claim, even in light of the

EEOC’s own practices.13

Relatedly, we do not give more weight to these

arguments about exhaustion merely because the EEOC itself

has taken the position that a reasonable investigation would

have encompassed Simko’s retaliation claim. Courts refuse to

defer to the EEOC’s litigation position when, as here, it is “not

embodied in any formal issuance from the agency, such as a

regulation, guideline, policy statement or administrative

adjudication.” Gregory v. Ashcroft, 501 U.S. 452, 485 n.3

(1991) (White, J., concurring); see also Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to what

appears to be nothing more than an agency’s . . . litigating

position would be entirely inappropriate.”). Specifically, when

a district court considers whether a plaintiff has exhausted his

administrative remedies, “[n]o deference may be accorded the

EEOC or the complaint investigator’s finding with respect to

the plaintiff’s compliance.” McBride v. CITGO Petroleum

Corp., 281 F.3d 1099, 1105–06 (10th Cir. 2002). Accordingly,

we do not defer to the EEOC on the question of administrative

exhaustion.

Simko and the EEOC further assert that filing an

additional EEOC charge was not necessary in this case because

the purpose of the ADA statutory scheme was ultimately

fulfilled: namely, the facilitation of an informal dispute

resolution process between Simko and U.S. Steel. This

argument, however, ignores two other fundamental aims of the

exhaustion requirement: prompt notice to the employer and

swift dispute resolution. See, e.g., Morgan, 536 U.S. at 109

(“[B]y choosing what are obviously quite short deadlines,

13

The dissent characterizes what occurred after the EEOC

received the November 14 correspondence as the agency

“expanding” its investigation into Simko’s initial charge.

Dissent Op. 12. The EEOC did no such thing. There never

was a disability discrimination investigation in the first place.

Instead, the EEOC embarked on a discrete investigation into

retaliation based on the handwritten letter.

25

Congress clearly intended to encourage the prompt processing

of all charges of employment discrimination.” (internal

quotation marks omitted)); 42 U.S.C. § 2000e-5(b), (e)(1)

(requiring that the EEOC serve notice on the employer against

whom the charge is made within 10 days of the filing of the

charge). In addition to advancing those goals, the Supreme

Court has emphasized that “strict adherence” to the ADA’s

procedural requirements “is the best guarantee of evenhanded

administration of the law.” Morgan, 536 U.S. at 108 (quoting

Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).

While the EEOC did ultimately investigate and attempt

pre-complaint conciliation between Simko and U.S. Steel, this

process was significantly delayed. Critically, U.S. Steel did

not receive any notice of Simko’s retaliation claim until well

after the end of the 300-day filing period. The parties agree

that U.S. Steel was informally notified of Simko’s retaliation

allegations no earlier than November 23, 2015—the day of the

EEOC investigator’s note to Simko’s file—and no later than

December 18, 2015—the day of the investigator’s letter to

Simko’s counsel stating that he had informed U.S. Steel about

the amended charge to be filed. This means that U.S. Steel did

not receive even informal notice of the retaliatory discharge

claim until some point between 161 days and 186 days after

the filing period expired. Moreover, U.S. Steel was not

formally put on notice of the retaliatory discharge claim until

after Simko’s counsel filed his amended EEOC charge on

January 22, 2016, 221 days after the end of the filing period.

Given this timeline, excusing the exhaustion requirement for

Simko’s retaliation claim would undercut the Supreme Court’s

emphasis on “strict adherence” to the pre-suit requirements and

the statutory scheme’s aims of notice and prompt dispute

adjudication. See Morgan, 536 U.S. at 108–09.

We thus conclude that Simko’s subsequent retaliation

claim would not have fallen within the reasonable scope of an

EEOC investigation into his original discrimination charge.

Accordingly, his retaliation claim fails the second prong of the

exhaustion inquiry.

While it is unfortunate that Simko did not timely amend

his initial charge on his own and that the EEOC did not

promptly react to his November 2014 correspondence, we

26

cannot hold that the later claim is encompassed within the

initial charge because Simko’s retaliatory discharge claim does

not fairly, or reasonably, fall within the scope of his original

charge or an EEOC investigation that would arise therefrom.

Thus, he needed to file an amended charge advancing that

claim within the ADA’s 300-day filing period. Because he

failed to do so, the District Court correctly dismissed his

complaint for failure to exhaust administrative remedies.

IV. CONCLUSION

For the foregoing reasons, we will affirm the

District Court’s dismissal of Simko’s complaint.

27

McKEE, Circuit Judge, concurring in part and dissenting in

part.

A petitioner need not file a new formal charge with the

Equal Employment Opportunity Commission if that charge is

“within the scope of a prior EEOC complaint or the

investigation which arose out of it.”1 I must respectfully dissent

from the Majority opinion because the EEOC investigation of

Simko’s retaliation claim was reasonably within the scope of

the investigation arising out of Simko’s initial disability

discrimination claim. Thus, Simko’s retaliation claim related

back to his earlier timely disability discrimination claim and

the District Court erred in dismissing Simko’s retaliation claim

for failure to exhaust his administrative remedies.2

I.

In Pennsylvania, “a complainant has 300 days from the

date of the adverse employment decision to file a claim with

the [EEOC].”3 “The purpose of [the filing requirement] . . . is

to afford the EEOC the opportunity to settle disputes through

conference, conciliation, and persuasion, avoiding unnecessary

action in court.”4

1

Waiters v. Parsons, 729 F.2d 233, 235 (3d Cir. 1984).

2

I agree with my colleagues’ decision to dismiss the first two

claims raised by Simko and the EEOC. Simko’s strongest

argument would have been that his November 2014 letter to

the EEOC should have been construed as a formal EEOC

charge of retaliation. However, that argument has been

forfeited because Simko did not raise it before the District

Court. See Maj. Op. at 8–10. I agree with my colleagues that

the District Court’s cursory, sua sponte consideration of the

issue—which simply noted that the letter did not constitute a

charge and that Simko did not argue otherwise—is

insufficient to preserve the issue. Id. at 9–10. We also cannot

reach the EEOC’s claim that the court should have equitably

tolled the charge-filing period during the time after Simko

sent his November 2014 letter to the EEOC because the claim

was not included in Simko’s notice of appeal. See id. at 10.

3

Watson v. Eastman Kodak Co., 235 F.3d 851, 852 (3d Cir.

2000).

4

Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996).

1

If, after a petitioner files a claim, subsequent

discriminatory acts occur, the petitioner does not need to file a

new formal charge with the EEOC so long as the new

allegations “fall[ ] within the scope of a prior EEOC complaint

or the investigation which arose out of it.”5 This “includ[es]

new acts which occurred during the pendency of proceedings

before the Commission.”6 This is quite reasonable because

“additional charges filed during the pendency of the

administrative proceedings may fairly be considered

explanations of the original charge and growing out of it.”7

Moreover, we liberally construe the scope of an EEOC

complaint when considering whether a subsequent claim falls

within the ambit of an earlier claim: “In determining the

content of the original complaint for purposes of applying

[relation back], we keep in mind that charges are most often

drafted by one who is not well versed in the art of legal

description. Accordingly, the scope of the original charge

should be liberally construed.”8 Indeed, that is precisely the

situation here. The letter that led to the EEOC’s eventual

investigation was handwritten by Simko, a lay plaintiff with no

legal training or experience. We have also previously

concluded that where the petitioner “attempted to amend his

[EEOC] charge,”9 but failed to do so, he could still bring a civil

action based on the charge that he attempted to include. Even

5

Waiters, 729 F.2d at 235 (emphasis added); see also id.

(“Since we conclude that appellant’s current claim falls

within the scope of the prior investigation, and that appellant

would be entitled to sue on the complaint that led to that

investigation, appellant was free to bring this suit without

further exhausting her administrative remedies.”).

6

Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398–99

(3d Cir. 1976). See also Robinson v. Dalton, 107 F.3d 1018,

1025 (3d Cir. 1997) (describing that even where an

investigation was “broadened by the EEOC” and included

“events that occurred after the filing of the informal

complaint,” we concluded “there was nothing to be served by

requiring [claimant] to file a second complaint”).

7

Ostapowicz, 541 F.2d at 399.

8

Hicks v. ABT Assocs., Inc., 572 F.2d 960, 965 (3d Cir.

1978).

9

Id. at 964.

2

a failed attempt to amend a charge “create[d] an excuse for the

failure to file a[n amended] charge.”10

We have established two factors to determine if a claim

of discrimination relates back to a prior claim. We look to see

whether the subsequent claim “(1) falls within the scope of a

prior EEOC complaint, or (2) falls within the scope of the

EEOC ‘investigation which arose out of it.’”11 The first inquiry

is determined by the face of the complaint itself. To resolve the

second inquiry, we look at the content and results of the EEOC

investigation to determine if the new claim should “reasonably

[have] be[en] expected to grow out of the [initial] charge.”12

Here, Simko timely filed a disability discrimination

claim against U.S. Steel.13 While that claim was pending before

the EEOC, he was fired.14 He subsequently wrote to the EEOC

detailing his belief that he was fired in retaliation for filing his

initial discrimination claim. He wrote, “I believe anyone who

familiarizes themself [sic] with the details of the case will

clearly see it as retaliation for filing charges with the EEOC.”15

The EEOC then expanded the disability discrimination

investigation to include retaliation.16 The EEOC notified U.S.

10

Id.

11

Robinson, 107 F.3d at 1025 (citing Waiters, 729 F.2d at

235).

12

Ostapowicz, 541 F.2d at 399. Some claims that were not

presented to the EEOC at all may still proceed in District

Court because we have held that the actual EEOC

investigation does not necessarily “set[] the outer limit to the

scope of the civil complaint.” Hicks, 572 F.2d at 966. We

have allowed some of these unexhausted claims to proceed so

as not to punish the claimant for a failure of the EEOC. We

have concluded that “[i]f the EEOC’s investigation is

unreasonably narrow or improperly conducted, the plaintiff

should not be barred from his statutory right to a civil action.”

Id.

13

App. 33.

14

App. 25.

15

App. 80–81.

16

App. 84.

3

Steel, investigated the claim, found evidence of retaliation, and

attempted to conciliate the claim.17

Simko concedes that his initial complaint alleged only

disability discrimination and did not include a charge of

retaliation.18 Accordingly, we must determine whether the

retaliation claim could “reasonably [have] be[en] expected to

grow out of the [initial disability discrimination] charge.”19 As

I explain below, a number of factors govern that

reasonableness inquiry. These include the normal course of

EEOC investigations, whether the petitioner attempted to

amend the claim to include the additional charge, and whether

the claim was actually investigated.

My colleagues’ analysis of the reasonableness of the

scope of the EEOC’s investigation is guided by four cases:

Hicks, Waiters, Antol, and Robinson.20 In each of these cases,

we considered whether claims that petitioners brought for the

first time before the District Court (and that had not been filed

with the EEOC) could relate back to earlier discrimination

claims that each petitioner had properly filed with the EEOC.

Each petitioner in those cases claimed that the new charge s/he

filed related back to the earlier-filed charge. Below, I discuss

some the principles that we can take from these cases. While

these cases are instructive, I realize that none of them

addressed the issue before us now—whether an EEOC

investigation was too broad and thus unreasonable such that an

actually investigated claim should be prevented from

proceeding in District Court. I do not believe that the facts here

justify concluding that the EEOC’s investigation was

unreasonably broad.

Indeed, we have cautioned that, in conducting an

inquiry into reasonableness, “[t]he individual employee should

not be penalized by the improper conduct of the

17

App. 106; App. 112–17.

18

This, however, of course is true with any charge alleging

retaliation for filing a substantive discrimination charge

because the discrimination charge must predate the

retaliation.

19

Ostapowicz, 541 F.2d at 399.

20

See Maj. Op. at 15–18.

4

Commission.”21 We have also reaffirmed the “sound and

established policy that procedural technicalities should not be

used to prevent Title VII claims from being decided on the

merits.”22 In short, errors by the EEOC should not affect a

claimant’s ability to pursue his or her claim.

II.

The petitioner in Hicks brought a claim before the

District Court alleging race and sex discrimination even though

he had only filed a race discrimination charge with the EEOC.

The District Court concluded that it did not have “jurisdiction

over Hicks’s claims of sex discrimination because a charge of

such discrimination had not been filed with the EEOC.”23 We

reversed. We held that Hicks’ failure to formally file a sex

discrimination charge with the EEOC did not “preclude[]

jurisdiction over the sex discrimination claims.”24 That holding

was based upon two considerations. First, there was evidence

that Hicks “reasonably attempted to amend his charge to

include sex discrimination” but the EEOC erred in failing to

amend the claim.25 This, we found, “create[d] an excuse for the

failure to file a sex discrimination charge”26 regardless of

whether Hicks attempted to amend the charge within the

statutory filing period.27

Second, we concluded that there was a genuine issue of

material fact as to whether a properly conducted EEOC

investigation would have included an inquiry into sex

21

Hicks, 572 F.2d at 964–65.

22

Seredinski v. Clifton Precision Prods. Co., 776 F.2d 56, 65

(3d Cir. 1985) (quoting Gooding v. Warner-Lambert Co., 744

F.2d 354, 358–59 (3d Cir. 1984)).

23

Hicks, 572 F.2d at 963.

24

Id. at 964.

25

Id.

26

Id.

27

Id. (“The record does not indicate whether the attempt to

incorporate sex discrimination in the EEOC charge was made

within the required 180-day statutory period. Our resolution

of the amendment issue in this case does not depend on

whether the amendment would have been filed within that

time period.”).

5

discrimination. Hicks alleged that he was not contacted by the

investigator until the conclusion of the investigation.28 There

was “sufficient evidence to raise a fair inference that Hicks

would have told the EEOC investigator that he believed that

sex discrimination was a cause of the disparate treatment

alleged in his charge” had he been contacted earlier.29

We concluded that if, on remand, the District Court

found either that (1) “the EEOC improperly failed to accept an

amendment to Hicks’s charge which would have incorporated

sex discrimination” or (2) “a reasonable investigation of the

charge as filed would have encompassed the sex discrimination

claims” we would have jurisdiction over the sex discrimination

claim.30

As part of the inquiry into whether “the sex

discrimination claims [] would have been uncovered” we noted

that “there [wa]s a close nexus between the facts supporting the

claims of race and sex discrimination,”31 which increased the

likelihood that they would have been uncovered. We also noted

that “evidence of the investigatory practices of the agency”

would help us “conclude whether a reasonable inquiry would

have reached Hicks’s allegations.”32

The petitioner in Waiters filed a sex discrimination

claim with the EEOC alleging that she had been passed over

for a position in favor of a male applicant.33 One year later, she

filed a second claim with the EEOC alleging that her employer

had retaliated against her for filing that claim a year earlier.34

The EEOC investigated the claim and found that there was

support for Waiters’ allegations, but then the investigation was

28

Id. at 966.

29

Id.

30

Id. at 967.

31

Id.

32

Id. In Hicks we noted that we did not have such evidence

before us, so we could not consider whether the EEOC’s

investigatory practices supported an assertion of jurisdiction

over the unexhausted claim. Id. Fortunately, as my colleagues

note, we have the benefit of the EEOC’s guidance here.

33

Waiters, 729 F.2d at 235.

34

Id.

6

dropped: “no further action was taken by the EEOC, [the]

claim was never finally adjudicated by the agency, and no right

to sue letter ever issued.”35 Waiters continued to work at the

same employer, but in a different department on a different

program. Approximately two years later, while working on the

new program, she was fired.36 Her employer alleged

misconduct unrelated to the conduct that her prior retaliation

claim was based upon.37 Rather than filing another retaliation

claim with the EEOC, she sued in District Court alleging that

she had been fired in retaliation for filing her discrimination

claims with the EEOC.38

The District Court dismissed her action based on her

failure to file a second retaliation charge with the EEOC

specifically related to her discharge. We again reversed. We

held that she need not have filed another retaliation claim even

though years had passed since her prior claim and “the

allegedly discriminatory officials and acts [in her prior claim

we]re different” than the officials and acts that were the subject

of her retaliation claim filed in the District Court.39 We held

that even though the actors, acts, and departments were

different, “[w]here discriminatory actions continue[d] after the

filing of an EEOC complaint . . . the purposes of the statutory

scheme [we]re not furthered by requiring the victim to file

additional EEOC complaints.”40 Our reasoning rested upon

two considerations. The “core grievance—retaliation—[wa]s

the same” between Waiters’ new and prior charges. And “it

[wa]s clear that the allegations of the appellant’s complaint

f[e]ll within the scope of the [EEOC’s] investigation of the

charges.”41 In other words, we found it relevant that the EEOC

had already actually investigated retaliation against Waiters.

The Majority focuses on two aspects of our decisions in

Hicks and Waiters—the “close factual nexus” in Hicks, and the

similarity of the substantive discrimination charges in

35

Id.

36

Id. at 236.

37

Id.

38

Id.

39

Id. at 238.

40

Id. at 237.

41

Id. at 238.

7

Waiters—and concludes that one or both of these factors must

be present in order for a subsequently filed claim to relate

back.42 But, as I discuss below, neither opinion made either

factor a prerequisite, and in so concluding, the Majority ignores

other considerations that we found relevant to the relation back

analysis in those decisions.

Several principles, in addition to those discussed by the

Majority, emerge from Hicks and Waiters. First, there are

multiple ways in which a petitioner can demonstrate that an

unexhausted claim is reasonably within the scope of an earlier-

filed claim. As my colleagues recognize, a subsequent claim of

discrimination or retaliation may reasonably relate back to an

earlier-filed charge of discrimination if the filed and unfiled

claims share a close factual nexus. But Hicks also establishes

that “evidence of the investigatory practices of the agency” are

relevant to our reasonableness determination.43 Stated another

way, evidence from the agency itself, such as EEOC guidance

showing that a properly conducted EEOC investigation would

or should have reached the unexhausted claim, can help a

petitioner establish that the unexhausted claim relates back to

a properly filed claim.

In addition, as my colleagues note, we consider whether

a prior and subsequent claim of discrimination share the same

core grievance in determining if a subsequent claim relates

back to the prior claim. But we also look to see whether the

EEOC actually investigated the unexhausted claim. The fact

that the EEOC’s investigation of the charges include the

substance of the unexhausted claim helps to establish that the

claim reasonably fell within the scope of the prior complaint.44

Finally, if a petitioner attempts to amend a charge and the

EEOC erroneously fails to recognize the amendment, a

petitioner may be excused from filing a new charge with the

42

See Maj. Op. at 20.

43

Hicks, 572 F.2d at 967.

44

Waiters, 729 F.2d at 238 (concluding that the unexhausted

claim was within the scope of the previous complaint in part

because “it [wa]s clear that the allegations of the [District

Court] complaint f[e]ll within the scope of the [EEOC’s]

investigation of the charges”).

8

EEOC before bringing his or her claim before the District

Court.45

Our holding today is inconsistent with our approach in

Hicks and Waiters. Moreover, my colleagues overlook that we

have not previously held that a claim that was actually

investigated by the EEOC was not reasonably within the scope

of the initial charge that gave rise to the investigation.

Although I agree that we can review the reasonableness of a

completed EEOC investigation, I do not think my colleagues

give sufficient weight to the fact that the EEOC actually

investigated and attempted to conciliate Simko’s retaliation

claim in determining the reasonableness of that investigation.

Given our analysis in Hicks and Waiters, I am persuaded that

the investigation here was reasonable and the investigation’s

scope should not be viewed as unreasonable merely because of

the delay that occurred.46

III.

Because “the EEOC has considerable expertise in the

area of employment discrimination,”47 I am not as willing as

45

Hicks, 572 F.2d at 967.

46

In other cases, we have emphasized the importance of the

EEOC actually having investigated the claim at issue. For

example, in Ostapowicsz, we found vital that “conciliation

discussions and proposals . . . between the Commission and

the employer” included the new charge that was at issue

there. 541 F.2d at 399. We noted that had the new charge at

issue not been included in the investigation and conciliation

efforts, “there would be some force to the defendant’s

contention that Ostapowicz could not bring herself within the

scope of the EEOC charge.” Id. But because the new charge

was included in the conciliation efforts, we allowed it to

proceed. Similarly, in Waiters, we found it persuasive that

“the allegations of the [] complaint f[e]ll within the scope of

the [EEOC’s] investigation of the charges.” 729 F.2d at 238.

47

Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir.

2005); see also, e.g., Butler v. West, 164 F.3d 634, 642 (D.C.

Cir. 1999) (The EEOC has “a measure of expertise and

familiarity with employment discrimination disputes that

federal judges cannot readily match.”); Muller Optical Co.

v. EEOC, 743 F.2d 380, 395 (6th Cir. 1984) (“[T]he EEOC

9

my colleagues to brush aside the EEOC’s own conclusion that

it was reasonable to include the subsequent acts of retaliation

in its investigation.

This is particularly true when we consider that we

liberally construe claims for the purpose of relation back.48 In

addition, “[c]ourts have generally determined that the

parameters of the civil action in the District Court are defined

by the scope of the EEOC investigation . . . including new acts

which occurred during the pendency of proceedings before the

Commission.”49 It is also important to recall that we “presume

the regularity of the EEOC’s investigation.”50 We should not

lightly conclude that the EEOC’s commitment of resources and

time to an investigation into discrimination was unreasonable.

Accordingly, since the EEOC actually investigated

Simko’s retaliation claim, we must begin with the presumption

that the investigation was reasonable. And because “evidence

of the investigatory practices of the agency” are relevant to

determining “whether a reasonable inquiry would have reached

[any additional] allegations,”51 we must also consider the

EEOC’s general practices. These practices offer further

support for the reasonableness of the investigation here.

As the Majority recognizes, EEOC investigators are

told to look for “evidence of retaliation during their

investigations, inform their supervisors in case such evidence

surfaces, and notify the employer that ‘the scope may be

expanded or limited based on information received during the

investigation.’”52 Indeed, the EEOC Manual states that “if it is

has developed considerable expertise in the field

of employment discrimination since Congress created it by

the Civil Rights Act of 1964.”); Maskin v. Chromalloy Am.

Corp., 1986 WL 4481, at *13 (E.D. Pa. Apr. 14, 1986)

(“The EEOC has special expertise in investigating charges of

discrimination, and its expertise should not be ignored.”).

48

Hicks, 572 F.2d at 965.

49

Ostapowicz, 541 F.2d at 399–400.

50

Hicks, 572 F.2d at 966.

51

Id. at 967.

52

Maj. Op. at 23 (citing EEOC Compl. Man. § 22.3, Scope of

Investigation).

10

found during the investigation that the charging party has been

discriminated against because s/he filed the charge, [the]

EEOC may investigate the retaliation issue based on the

original charge.”53 Yet, my colleagues dismiss the importance

of this statement in the Manual by focusing on the differences

in the initial allegations of discrimination and the subsequent

allegations of retaliation.54

I submit, however, that the EEOC’s policy is eminently

reasonable because even a minimally well-informed employer

in today’s marketplace knows better than to admit that an

employee was terminated in retaliation for filing a claim of

discrimination. As we explained in Aman v. Cort Furniture

Rental Corp.,55 “[d]efendants of even minimal sophistication

will neither admit discriminatory animus or [sic] leave a paper

trail demonstrating it.”56 All we need do is substitute

“retaliatory animus” for “discriminatory animus” to appreciate

the reasonableness of the EEOC’s policy and the scope of its

investigation.

Neither party disputes that Simko’s initial disability

discrimination charge in May 2013 was timely. While it was

still pending before the EEOC, U.S. Steel fired Simko

allegedly for unrelated reasons.57 In November 2014, a few

months after being fired, while the disability discrimination

charge was still pending before the EEOC, Simko wrote to the

EEOC stating his belief that he was fired “as retaliation for

filing charges with the EEOC.”58 Simko’s timely filed initial

53

See EEOCCM, § 2.8 Charges Warranting Priority

Handling, 2006 WL 4672924 (emphasis added).

54

See Maj. Op. at 24–25.

55

85 F.3d 1074 (3d Cir. 1996).

56

Id. at 1082 (quoting Riordan v Kempiners, 831 F.2d 690,

697 (7th Cir. 1987)) (internal quotation marks omitted).

57

The mere fact that U.S. Steel claimed Simko was fired for

job performance is of little import for the reasons articulated

in Cort Furniture, supra.

58

App. 80–81. As noted above, I agree with my colleagues

that Simko’s argument that the November 2014

correspondence should have been construed as a charge was

forfeited because counsel failed to raise it below. See Maj.

Op. at 8–10. But, the procedural default aside, as the EEOC

11

disability discrimination claim, therefore, is the alleged basis

of the retaliation claim. It is difficult to see how the retaliation

claim cannot be said to have, at least in part, grown out of the

original charge. Absent the initial charge of discrimination,

there would be no basis for the retaliation.

As is regular practice at the EEOC, and as is explicitly

contemplated by the EEOC guidance, an EEOC investigator

wrote back to Simko and contacted U.S. Steel in November

2015 to inform U.S. Steel that it was expanding its

investigation into retaliation and that a formal retaliation

charge was forthcoming.59 The EEOC investigated the

retaliation claim on-site at U.S. Steel in September 2018.60 And

in February 2019, the EEOC determined that there was

reasonable cause to believe U.S. Steel had retaliated against

Simko.61

Having actually investigated and attempted to conciliate

the retaliation claim, the EEOC fulfilled the purpose of the

exhaustion requirement. We have previously stated that the

“purpose of the filing requirement is to enable the EEOC to

investigate and, if cause is found, to attempt to use informal

means to reach a settlement of the dispute.”62 That happened

here. U.S. Steel was a part of the EEOC’s investigation of the

retaliation claim, including when the EEOC made a site visit.63

U.S. Steel therefore was on notice of the investigation, invited

to conciliate, and understood that it was facing a retaliation

charge before Simko brought suit in District Court.

All of these factors demonstrate the reasonableness of

the investigation here and would do so even absent the

presumption of reasonableness which attaches that

itself recognizes, the agency very likely erred in failing to

construe the correspondence as a formal charge.

59

App. 83.

60

App. 106.

61

A112–14.

62

Maj. Op. at 11 (citing Anjelino v. New York Times Co., 200

F.3d 73, 93 (3d Cir. 1999)).

63

App. 106.

12

investigation.64 Accordingly, “there [is] nothing to be served

by requiring [Simko] to [have] file[d] a second complaint”65

other than allowing U.S. Steel to escape any liability for

conduct that Simko may be able to prove is illegal. Doing so

undermines the statutory purpose and regulatory scheme of the

EEOC. Because Simko’s “current claim falls within the scope

of the prior investigation, and [he] would be entitled to sue on

the complaint that led to that investigation, [Simko] was free

to bring this suit without further exhausting h[is]

administrative remedies.”66

IV.

The Majority concludes that despite the fact that the

EEOC actually investigated and attempted to conciliate the

claim, it does not relate back to the initial disability charge

because it referenced events that were discrete and remote from

the events referenced in the initial charge.67 But we have

previously rejected similar arguments and concluded that

claims may relate back even where they are based on discrete

events, occurring years apart.

In Waiters, 30 months elapsed between the initial

charge and the adverse employment action, but we concluded

that the claims related back. Just as U.S. Steel and the Majority

argue here, the defendant there argued that the original charge

and the retaliation claim were very different—“different

officials are alleged to be responsible for the allegedly

discriminatory acts, more than thirty months passed between

the formal complaint and the discharge, and the alleged

retaliatory acts are of a different nature.”68 The defendant

therefore argued that this “preclude[d] us from holding that the

claim based on the discharge is within the scope of the

investigation that arose from the formal complaint.” 69 We

disagreed. We allowed the claim to proceed because “it [wa]s

64

Hicks, 572 F.2d at 966 (“[C]ourts should presume the

regularity of the EEOC’s investigation.”).

65

Robinson, 107 F.3d at 1024–25.

66

Waiters, 729 F.2d at 235.

67

See Maj. Op. at 18–20.

68

Waiters, 729 F.2d at 238.

69

Id.

13

clear that the allegations of the appellant’s complaint fall

within the scope of the district director’s investigation of the

charges.”70 This was true even where “[t]he investigation

clearly went beyond the specific problem alleged in the formal

complaint.”71 So too here. Through no fault of Simko, the

EEOC delayed investigating his claims—and, to its substantial

credit, the EEOC concedes its error in delaying the

investigation of Simko’s claim. Nevertheless, the retaliation

claim was eventually part of the agency’s investigation and

U.S. Steel participated in the investigation and conciliation

process.

The Majority also argues that the claims cannot relate

back because disability discrimination is substantively

different from retaliation. But we have previously concluded

that claims that differ in kind may also relate back so long as

they reasonably would have been included in the investigation

of the initial charge. As described above, in Hicks we

concluded that a charge of sex discrimination could relate back

to a charge of race discrimination because, had the EEOC

properly investigated the claim, the petitioner would have put

the EEOC on notice of sex discrimination as well.72 Simko’s

claims are connected with a much stronger tether than those in

Hicks. Simko did communicate with the EEOC and put the

agency on notice of the retaliation claim—a claim that was

actually investigated. And although the court in Hicks noted

that part of the reason it concluded the claims could relate back

was because both the sex and race discrimination claims arose

out of the same set of facts, here there is more to support the

reasonableness of the investigation than was present in Hicks.

Simko’s retaliation claim was actually investigated by the

EEOC; moreover, the EEOC guidance instructs that

investigations into retaliation arising out of discrimination

claims are a normal part of the process and relate back to the

initial charge of discrimination; and finally, the contemplated

administrative process was fulfilled when Simko and U.S.

70

Id. (emphasis added).

71

Id. See also Ostapowicz, 541 F.2d at 399 (“The additional

charges filed during the pendency of the administrative

proceedings may fairly be considered explanations of the

original charge and growing out of it.”).

72

Hicks, 572 F.2d at 962.

14

Steel were involved in the investigation and conciliation

process. As noted, “[t]he purpose of the filing requirement is

to initiate the statutory scheme for remedying discrimination. .

. . Thus, the effect of the filing requirement is essentially to

permit the EEOC to use informal, non-judicial means of

reconciling the differences between the charging party and an

employer.”73

Additionally, as I have argued above, we must not lose

sight of the fact that claims of retaliation are intrinsically

tethered to claims of discrimination; they rarely arise in a

vacuum or in an environment devoid of claims of

discrimination. Indeed, this is precisely why the EEOC’s

policy of allowing investigations into substantive

discrimination to include allegations of retaliation is so

eminently reasonable. In fact, a contrary policy that would

preclude or discourage inquiries into whether an employee

alleging discrimination had suffered retaliation would be

unreasonable.

The Majority argues that considering the facts of

Simko’s disability discrimination claim in light of the

appropriate test demonstrates that any tether it has to the

retaliation claim is “conclusory” and does not “actually

exist[].”74 But in so arguing, my colleagues appear to ignore

the clear connection between the two claims. Simko’s

allegation that he was fired in retaliation for filing a disability

discrimination claim means that his disability discrimination

claim is both a factual and legal basis for his retaliation claim.

Stated differently, his claim alleges that but for his filing of a

disability discrimination claim, he would not have faced the

allegedly retaliatory discharge. Such a connection between the

claims is hardly “conclusory.”75 As I explain below, I agree

73

Id. at 963 (citing Ostapowicz, 541 F.2d at 398.)

74

Maj. Op. at 21.

75

Curiously, on the one hand, the Majority agrees with the

“general proposition” that “retaliation charges are

intrinsically related to previous charges of discrimination,”

Maj. Op. at 19 n.11, and it notes that a reasonable

“investigation could [] inquire into whether any other adverse

actions were taken against [Simko] relating to his disability or

his having filed a charge,” id. at 19 (emphasis added), but, in

15

with the Majority that, due to our prior rejection of a per se rule

which would have made all retaliation claims automatically

relate back to the earlier claim upon which they were based,76

a petitioner must show more than the simple fact that he or she

filed a subsequent retaliation claim in order to be excused from

having to file a second formal charge with the EEOC. But

Simko has shown much more than that here.

Concluding that Simko’s retaliation claim relates back

here would not run afoul of our prior rejection of such a per se

rule. It is not true that all such cases will evidence the apparent

nexus between a prior discriminatory act and a subsequent

discharge that appears here. Here it is not simply the fact that

Simko alleged retaliation before the District Court that causes

his claim to relate back. He attempted to amend his claim to

include retaliation; he put the EEOC on notice that he

suspected retaliation was the reason for his firing; and, of

course, the EEOC actually investigated the retaliation claim,

issued a right to sue letter, and attempted to conciliate the

claim. All of these are factors which we have previously

concluded support the reasonableness of allowing an

unexhausted claim to proceed.77 The fact that Simko is alleging

the same sentence, concludes that “a reasonable investigation

in this case would not have included an inquiry into Simko’s

post-charge firing.” Id. But if a reasonable inquiry could

inquire into “[Simko] having filed a charge,” and Simko

alleges that his having filed a charge is what caused his firing,

then a reasonable inquiry would necessarily include “an

inquiry into his post-charge firing.” That is what our

precedent says. See, e.g., Ostapowicz, 541 F.2d at 398-99

(Reasonable investigations may “includ[e] new acts which

occurred during the pendency of proceedings before the

Commission.”). And that is what the EEOC concluded when

it investigated the post-charge firing and found that Simko

was likely retaliated against.

76

See Maj. Op. at 13, 21 (citing Robinson, 107 F.3d at 1024,

and Waiters, 729 F.2d at 237 n.10).

77

Indeed, as the following two examples demonstrate, there

are other reasons why allowing Simko’s claim to relate back

here would not create a per se rule. For example, consider the

situation of a petitioner who files a timely race discrimination

claim with the EEOC, but later brings a retaliation claim

16

a retaliation claim (as opposed to another type of

discrimination claim) before the District Court only provides

one added benefit—because EEOC investigators are

specifically instructed to be alert to retaliation claims, the fact

that he alleges retaliation makes it more reasonable to conclude

that the investigation the agency conducted into the retaliation

was proper. But, of course, not every litigant claiming

before the District Court that was not brought before the

EEOC. If, prior to filing in District Court, the petitioner (i)

made no attempt to amend her claim to include retaliation; (ii)

did not notify the EEOC that she suspected she was retaliated

against for filing the race discrimination claim; and (iii) the

EEOC did not actually investigate retaliation; the only tie to

the prior race discrimination claim would be the fact that the

new claim before the District Court was a retaliation claim.

Although, as described above, there is some inherent

connection between a retaliation claim and the substantive

discrimination claim on which it is based, consonant with our

rejection of a per se rule, this, on its own, would not be

sufficient to show that the claim was “within the scope of a

prior EEOC complaint or the investigation which arose out of

it,” Waiters, 729 F.2d at 235, and therefore, petitioner’s claim

would fail.

Additionally, consider the situation in which an

employee alleges that she was retaliated against for

supporting her colleague’s disability discrimination claim.

This retaliation claim would not relate back to, for example, a

prior sex discrimination claim that the employee herself filed.

It would not relate back because the retaliation claim would

not have “grown out of the subject matter” of her earlier sex

discrimination claim. That retaliation claim would not depend

at all on the employee having first filed her sex discrimination

claim. Rather, the basis from which this retaliation claim

flowed would have been her support of her colleague’s

disability discrimination claim. By contrast, here, because the

retaliation is based on Simko’s own filing of a disability

discrimination claim in his case, it does arise, at least in part,

out of the subject matter of the initial charge. This, coupled

with Simko’s case specific circumstances outlined above, is

enough to show that the retaliation claim is properly within

the scope of the investigation of Simko’s initial charge.

17

retaliation will be able to point to all of these additional factors

in support.78

Nevertheless, my colleagues press even further in

rejecting the argument raised by Simko and joined by the

EEOC that the retaliation claims relate back. My colleagues

conclude that “[e]ven if our exhaustion inquiry turned on the

actual—rather than reasonable—scope of investigation arising

from a charge, Simko’s retaliation claim should still be

dismissed[.]”79 They argue that result must follow because the

investigation did not actually arise from the disability

discrimination charge. Rather, my colleagues conclude that the

investigation arose from Simko’s November 2014 letter to the

EEOC.80 However, based on our precedent and the actual

workings of EEOC investigations, that is a distinction without

difference. I have already explained that EEOC investigators

are instructed to look for retaliation in their investigations of

substantive discrimination claims and also explained why that

is so very reasonable. Communication with the petitioner

during the course of the investigation is a routine and necessary

part of such investigations. In fact, we held that the EEOC

erred when it failed to communicate with the petitioner during

the investigation in Hicks.81 We concluded that had the

investigation been reasonable and proper, the EEOC would

have communicated with Hicks, and that it was likely that

communication would have put the EEOC on notice of his

additional claim of sex discrimination.82 That is exactly what

occurred here.

During the course of the EEOC’s investigation of the

discrimination claim, Simko put the EEOC on notice of an

additional claim of retaliation that arose after he filed, and as a

78

Nor, however, are all of these additional factors necessarily

required. As we held in rejecting the per se rule in Robinson,

we must “examine carefully the prior pending EEOC

complaint and the unexhausted claim on a case-by-case basis”

to determine whether the unexhausted claim is reasonably

within the scope of the prior complaint. 107 F.3d at 1024.

79

Maj. Op. at 21.

80

Id.

81

Hicks, 572 F.2d at 966.

82

Id.

18

result of, his initial claim. Such communication is not only

contemplated by our caselaw; it is encouraged by it and it is

required by the EEOC’s guidance. Thus, I fail to see how it

was unreasonable for the EEOC to inquire into any acts of

retaliation. Indeed, the EEOC would have been derelict if it had

not done so. The very fact that the investigation arose from

Simko’s November 2014 letter is actually evidence of its

reasonableness. I do not think we can so easily dismiss the

EEOC’s assessment of what is a reasonable investigation in

such cases.

The Majority next takes issue with the length of time

that the investigation took. And while the EEOC has

commendably and forthrightly admitted that the prolonged

delay was a mistake, that should not defeat Simko’s claim; he

did not cause the delay. I do not dispute my colleagues’ claim

that the length of time that the investigation took is out of the

ordinary.83 However, there is nothing in the statute or

precedent that allows us to find that unreasonably delaying an

investigation is sufficient to overturn our presumption that the

investigation that was conducted was reasonable. In fact, if

anything, our caselaw points to the opposite conclusion. We

have consistently maintained that where the EEOC errs, we do

not to allow the errors to adversely impact a claim. For

example, in Hicks we noted, “[t]he failure of the EEOC to

accept [an] amendment is . . . [a] failure of the agency to follow

the statute and its own regulations,” but we concluded that

“[t]he individual employee should not be penalized by the

improper conduct of the Commission.”84 I cannot understand

why we now penalize Simko for the agency’s laxity.

And we have concluded that much more egregious

failures by the EEOC than simple delay do not preclude a

petitioner’s suit. For example, “failure of the EEOC to give

notice of a charge to the employer involved or its failure to

attempt reconciliation, both of which are required by section

706(b) of Title VII, 42 U.S.C. s 2000e-5(b), does not bar a civil

83

See Maj. Op. at 24 n.12.

84

Hicks, 572 F.2d at 964–65. See also id. at 966 (“We reject

such a limitation . . . [that would] ask[] the court to penalize a

plaintiff for the possible misconduct of the EEOC.”).

19

suit by the charging party.”85 This is because an “individual’s

right to bring a civil action . . . should not be defeated by the

EEOC’s failure to comply with its statutory obligations.”86 Our

holding today is to the contrary.87

Finally, the Majority is concerned that failing to dismiss

Simko’s claim could encourage gamesmanship in the claim

filing process by allowing a claimant to “greatly expand an

investigation simply by alleging new and different facts when

he was contacted by the [EEOC] following his charge.”88 But

that alleged risk is not at issue here. An individual who alleges

retaliation for the filing of a previous charge is not “gaming the

system,” because s/he is not complaining of discriminatory

conduct that arose before the initial claim of discrimination.

The retaliation must necessarily come after the charge is filed.

Here, in the face of new alleged acts of discrimination, Simko

appropriately “include[ed] [in his charge] new acts which

occurred during the pendency of proceedings before the

Commission.”89

V.

In sum, I believe that our precedent requires the

conclusion that it was quite reasonable for the EEOC, during

the course of its investigation of Simko’s claim of disability

discrimination, after being alerted by Simko about retaliation

for the filing of the initial charge, to also investigate the alleged

retaliation. That conclusion is reinforced here where the EEOC

guidance tells us that such retaliation investigations are routine,

and where the EEOC actually investigated the discrimination,

concluded that there was evidence of retaliation, and attempted

85

Id. at 964 (emphasis added).

86

Id.

87

The Majority recognizes that it is “unfortunate” that “the

EEOC did not promptly react to his November 2014

correspondence,” Maj. Op. at 36, but then proceeds to do

what our caselaw warns against and punishes Simko for the

EEOC’s failure.

88

Maj. Op. at 23 (quoting Hicks, 572 F.2d at 967.).

89

Ostapowicz, 541 F.2d at 399.

20

to conciliate the dispute. Accordingly, I must respectfully

dissent from my colleagues’ analysis.

21