Petition for Writ of Certiorari — Michael Simko, Petitioner v. United States Steel Corporation

Supreme Court briefOct 6, 2021

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No. 21-____

IN THE

MICHAEL SIMKO,

Petitioner,

UNITED STATES STEEL CORP.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Edward C. DuMont

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

John E. Egers, Jr.

Counsel of Record

JULIAN LAW FIRM

71 North Main Street

Washington, PA 15301

(724) 228-1860

johnegers@julianlawfirm.

com

QUESTION PRESENTED

Whether, or under what circumstances, a claim

that an employer unlawfully retaliated against an

employee for filing a charge of discrimination with

the EEOC under the remedial structure of Title VII

may be addressed in an ensuing civil action, if the

employee did not file a second formal administrative

charge specifically alleging the retaliation.

RELATED PROCEEDINGS

Simko v. U.S. Steel Corp., No. 20-1091 (3d Cir.

Mar. 29, 2021).

Simko v. U.S. Steel Corp., No. 2:19-cv-00765

(W.D. Pa. Dec. 13, 2019).

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ v

PETITION FOR A WRIT OF CERTIORARI .............. 1

OPINIONS BELOW .................................................... 1

JURISDICTION........................................................... 1

RELEVANT STATUTORY PROVISIONS ................. 1

STATEMENT OF THE CASE..................................... 2

A. Legal background............................................ 2

B. Facts and procedural history.......................... 4

REASONS FOR GRANTING THE PETITION ........ 11

The circuits are divided over how to treat

allegations of retaliation for filing an

EEOC charge ...................................................... 12

A. Two

circuits

make

case-by-case

inquiries—but differ on the relevance

of the EEOC’s actual investigation .............. 12

B. Two circuits always require a new

charge ............................................................ 13

C. Seven circuits do not require a new

charge ............................................................ 15

D. The conflict is ripe for resolution now .......... 19

II. This case is a good vehicle for review of

this important question ...................................... 20

III. The decision below is wrong ............................... 23

CONCLUSION .......................................................... 30

APPENDIX

Appendix A, Opinion (Precedential) of the

United States Court of Appeals for the

Third Circuit, March 29, 2021 ........................... 1a

Appendix B, Opinion of the United States

District Court for the Western District of

Pennsylvania, December 13, 2019 ................... 63a

Appendix C, Order of the United States

District Court for the Western District of

Pennsylvania, dismissing the complaint,

December 13, 2019............................................ 84a

Appendix D, Opinion (denying petition for

rehearing) issued by the United States

Court of Appeals for the Third Circuit,

May 11, 2021 ..................................................... 85a

Appendix E, Relevant Statutory Provisions ........... 87a

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seq. ................................. 87a

§ 2000e-5. Enforcement provisions .............. 87a

Americans with Disabilities Act of 1990,

42 U.S.C. § 12101 et seq. .................................. 93a

§ 12112. Discrimination ............................... 93a

§ 12117. Enforcement................................... 93a

§ 12203. Prohibition against retaliation

and coercion .............................................. 94a

Appendix F, Civil Complaint filed by Michael

Simko in the United States District Court

for the Western District of Pennsylvania,

June 28, 2019 .................................................... 95a

TABLE OF AUTHORITIES

Page(s)

Cases

B.K.B. v. Maui Police Dep’t,

276 F.3d 1091 (9th Cir. 2002) ............................. 13

Baker v. Buckeye Cellulose Corp.,

856 F.2d 167 (11th Cir. 1988) ............................. 18

Clockedile v. N.H. Dep’t of Corrections,

245 F.3d 1 (1st Cir. 2001).............................passim

Duble v. FedEx Ground Package Sys., Inc.,

572 F. App’x 889 (11th Cir. 2014), cert

denied, 575 U.S. 1037 (2015) ........................ 19, 22

Duplan v. City of New York,

888 F.3d 612 (2d Cir. 2018) ..........................passim

Edelman v. Lynchburg Coll.,

535 U.S. 106 (2002) ............................................. 25

Ford v. Marion Cnty. Sheriff’s Off.,

942 F.3d 839 (7th Cir. 2019) .................... 16-17, 19

Franceschi v. U.S. Dep’t of Veterans Affs.,

514 F.3d 81 (1st Cir. 2008).................................. 19

Ft. Bend Cnty. v. Davis,

139 S. Ct. 1843 (2019) ........................... 2, 3, 16, 18

Gottlieb v. Tulane Univ.,

809 F.2d 278 (5th Cir. 1987) ............................... 16

Gupta v. E. Tex. State Univ.,

654 F.2d 411 (5th Cir. 1981) ........................passim

Haynes v. D.C. Water and Sewer Auth.,

924 F.3d 519 (D.C. Cir. 2019) ............................. 19

Hentosh v. Old Dominion Univ.,

767 F.3d 413 (4th Cir. 2014) ............................... 22

Arizona ex rel. Horne v. Geo Grp., Inc.,

816 F.3d 1189 (9th Cir. 2016) ................. 13, 19, 27

Jones v. Calvert Grp., Ltd.,

551 F.3d 297 (4th Cir. 2009) ............. 18, 19, 26, 27

Lincoln v. BNSF Ry.,

900 F.3d 1166 (10th Cir. 2018) ........................... 15

Malhotra v. Cotter & Co.,

885 F.2d 1305 (7th Cir. 1989) ................. 16, 17, 26

Martinez v. Potter,

347 F.3d 1208 (10th Cir. 2003) ............... 14, 15, 28

McKenzie v. Ill. Dep’t of Transp.,

92 F.3d 473 (7th Cir. 1996) ................................. 21

Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002) ......................................passim

Nealon v. Stone,

958 F.2d 584 (4th Cir. 1992) ............................... 18

Oubichon v. N. Am. Rockwell Corp.,

482 F.2d 569 (9th Cir. 1973) ................................. 3

Payne v. Salazar,

619 F.3d 56 (D.C. Cir. 2010) ......................... 19, 21

Redding v. Mattis,

327 F. Supp. 3d 136 (D.D.C. 2018) ..................... 22

Richter v. Advance Auto Parts, Inc.,

686 F.3d 847 (8th Cir. 2012) (per

curiam), cert. dismissed, 568 U.S. 1210

(2013) ................................................. 15, 20, 27, 28

Sanchez v. Standard Brands, Inc.,

431 F.2d 455 (5th Cir. 1970) ................................. 3

vii

Sanderson v. Wyo. Highway Patrol,

976 F.3d 1164 (10th Cir. 2020) ...................... 14-15

Spengler v. Worthington Cylinders,

615 F.3d 481 (6th Cir. 2010) ......................... 18, 19

Swearnigen-El v. Cook Cnty. Sheriff’s Dep’t,

602 F.3d 852 (7th Cir. 2010) ............................... 21

Terry v. Ashcroft,

336 F.3d 128 (2d Cir. 2003) ................................. 18

Vasquez v. Cnty. of Los Angeles,

349 F.3d 634 (9th Cir. 2003) ................... 12, 13, 29

Waiters v. Parsons,

729 F.2d 233 (3d Cir. 1984) ................................. 13

Williams v. Bd. of Ed. of Chi.,

982 F.3d 495 (7th Cir. 2020) ............................... 19

Woodford v. Ngo,

548 U.S. 81 (2006) ................................................. 3

Statutes

Americans with Disabilities Act of 1990, Pub.L.

101–336, 104 Stat. 327 (July 26, 1990),

42 U.S.C. § 12101 et seq........................ 2, 6, 10, 26

42 U.S.C. § 12112.................................................. 1

42 U.S.C. § 12112(a) ............................................. 2

42 U.S.C. § 12117.............................................. 1, 2

42 U.S.C. § 12203.............................................. 1, 2

Civil Rights Act of 1964 (Title VII), Pub. L. 88–

352, 78 Stat. 241 (July 2, 1964), 42 U.S.C.

§ 2000e et seq................................................passim

42 U.S.C. § 2000e-2(a) .......................................... 2

42 U.S.C. § 2000e-4............................................... 2

42 U.S.C. § 2000e-5......................................passim

viii

42 U.S.C. § 2000e-5(b) .............................. 2, 23, 24

42 U.S.C. § 2000e-5(e) .......................................... 3

42 U.S.C. § 2000e-5(e)(1) ........................ 14, 23, 27

42 U.S.C. § 2000e-5(f)(1) ........................... 2, 24, 27

28 U.S.C. § 1254(1) ...................................................... 1

Rules and Regulations

29 C.F.R. § 1601.28(a) ............................................... 24

Other Authorities

Equal Opportunity Employment Commission,

EEOC Compliance Manual (2009),

https://perma.cc/CQ67-WTJC ............................. 23

Lindemann, Barbara T., et al., Employment

Discrimination Law (6th ed. 2020) ........ 2-3, 24, 25

Rosenthal, Lawrence, To File (Again) or Not to

File (Again): The Post-Morgan Circuit Split

Over the Duty to File an Amended or

Second EEOC Charge for Claims of Postcharge Employer Retaliation, 66 Baylor L.

Rev. 531 (2014) .................................................... 23

Wheeler, Brandon, Note, Amending Title VII to

Safeguard the Viability of Retaliation

Claims, 98 Minn. L. Rev. 775 (2013) .................. 23

PETITION FOR A WRIT OF CERTIORARI

Petitioner Michael Simko respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Third Circuit

in this case.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Third Circuit (Pet. App. 1a-62a) is

published at 992 F.3d 198. The district court’s

memorandum opinion and order (Pet. App. 63a-84a)

is unpublished, but may be found at 2019 WL

6828421.

JURISDICTION

The judgment of the court of appeals was entered

on March 29, 2021. Pet. App. 1a. A timely petition for

rehearing was denied on May 11, 2021. Pet. App.

85a-86a. On March 19, 2020, this Court entered a

standing order that extended the time to file a

petition for a writ of certiorari in this case to October

8, 2021. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

RELEVANT STATUTORY PROVISIONS

Relevant portions of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-5, are reprinted at Pet.

App. 87a-92a.

Relevant portions of the Americans with

Disabilities Act of 1990, 42 U.S.C. §§ 12112, 12117,

and 12203, are reprinted at Pet. App. 93a-94a.

STATEMENT OF THE CASE

A. Legal Background

Title VII of the Civil Rights Act of 1964 prohibits

discrimination in employment on the basis of race,

sex, religion, or other impermissible grounds. See 42

U.S.C. § 2000e-2(a). The Act includes remedial

provisions that apply not only under Title VII itself

but also to claims arising under other statutes, such

as the Americans with Disabilities Act of 1990. See,

e.g., 42 U.S.C. §§ 12117 and 12203(c), incorporating

42 U.S.C. §§ 2000e-4 et seq. The ADA prohibits both

discrimination on the basis of disability, 42 U.S.C.

§ 12112(a), and retaliation for seeking to assert or

protect rights under the Act, id. § 12203.

Under the Title VII structure, an aggrieved

employee first files a “charge” with the Equal

Employment Opportunity Commission. See 42 U.S.C.

§ 2000e-5(b). In general terms, the EEOC notifies the

employer, investigates the charge, and may seek to

conciliate the dispute. See id. After the Commission

has an opportunity to investigate, and if any attempt

at conciliation fails, either the government or the

charging party may file “a civil action.” Id. § 2000e5(f)(1); see generally, e.g., Ft. Bend Cnty. v. Davis,

139 S. Ct. 1843, 1846-1847 (2019) (describing

process).

Title VII imposes no textual limit on the claims

that may be made in such a civil action. But in

implementing its provisions, courts have generally

reasoned that the permissible scope of such an action

must be limited to some extent by the original charge

filed with the EEOC and later related developments.

See generally, e.g., 2 Barbara T. Lindemann et al.,

Employment Discrimination Law ch. 29.IV (6th ed.

2020); Clockedile v. N.H. Dep’t of Corrections, 245

F.3d 1, 4 (1st Cir. 2001) (Boudin, J.). One early case,

for example, held that a suit in court “may encompass

any kind of discrimination like or related to

allegations contained in the charge and growing out

of such allegations during the pendency of the case

before the Commission.” Sanchez v. Standard

Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)

(citation omitted). Another held that a suit “may

encompass any discrimination like or reasonably

related to the allegations of the EEOC charge,

including new acts occurring during the pendency of

the charge before the EEOC.” Oubichon v. N. Am.

Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973). A

claim not satisfying these standards may be

dismissed.

Courts often refer to these inferred limitations on

the scope of actions as “exhaustion requirement[s].”

E.g., Clockedile, 245 F.3d at 3-4. As the United States

has explained, however, Title VII’s charge-filing

requirement “does not resemble” structures “in which

Congress has channeled review of certain claims to

agencies and restricted judicial review accordingly.”

U.S. Br. 27, Ft. Bend Cnty. v. Davis, supra (No. 18525; filed Apr. 3, 2019). “Instead, individuals alleging

discrimination merely must give the EEOC a right of

first refusal before bringing their own suits.” Id. See

also Woodford v. Ngo, 548 U.S. 81, 98 (2006)

(observing that 42 U.S.C. § 2000e-5(e) is not “in any

sense an exhaustion provision”). Accordingly, while

this petition quotes from court decisions that use

“exhaustion” language, elsewhere we generally refer

to the statutory provisions involved as charge-filing

or claim-processing requirements.

In practice, construing Title VII’s charge-filing

requirement to limit the scope of claims in later

litigation has given rise to a variety of questions. See,

e.g., Clockedile, 245 F.3d at 4. This case involves one

such question, on which the courts of appeals have

reached conflicting results: May a claim that an

employer retaliated against an employee for filing a

charge with the EEOC be addressed in the ensuing

civil action, if the employee did not also file a further

charge specifically alleging the retaliation?

B. Facts and procedural history

1. a. Petitioner Michael Simko began working for

respondent U.S. Steel in 2005. Pet. App. 2a. 1 In 2012

he successfully bid for an opportunity to transfer

from his job as a larryman in the blast furnace

department to become a spellman in the

transportation department. Id. 2a-3a. 2 During

training for the spellman position, Simko requested

that the company provide a new two-way radio to

accommodate his partial hearing loss. Id. 3a. The

company provided no accommodation; and although

Simko completed the required training, his trainer

Because the district court granted U.S. Steel’s motion to

dismiss, the facts recited are drawn from the allegations in the

complaint and from documents attached to the briefing on the

motion to dismiss. See Pet. App. 2a n.1. There is no dispute over

the procedural history relevant to the question presented.

A “larryman” generally operates “larry cars,” which are

used to transport raw materials to the blast furnace where iron

is produced for steelmaking. See C.A. App. 101. A “spellman”

provides relief for locomotive operators and must be qualified to

operate locomotives. Id. 102.

refused to certify him to perform the spellman duties

because he could not hear. Id. 3a, 64a, 95a-97a.

Simko returned to a larryman position in November

2012. Id. 64a.

In May 2013, Simko filed a timely charge with

the EEOC, alleging that U.S. Steel discriminated

against him on the basis of disability when it refused

him a hearing accommodation and denied him the

spellman position. Pet. App. 3a. The EEOC notified

U.S. Steel of the charge, and in August 2013 the

company denied the allegations of discrimination. Id.

The Commission then took no action for an extended

period. See id. 3a-4a.

In December 2013, U.S. Steel discharged Simko

after an incident in which a larry car lost power. Pet.

App. 4a. Simko challenged the discharge through his

union, and in June 2014 he returned to work under a

“last chance” agreement. Id. In August 2014 he was

discharged again, this time after an alleged safety

violation. Id.

b. In November 2014, Simko sent the EEOC a

handwritten letter and additional documents to

supplement his still-pending discrimination charge.

Pet. App. 4a. Among other things, he explained that

since filing his initial charge he had been “terminated

twice and placed on [a] last chance agreement with

no just cause by the company.” Id. 5a (quoting C.A.

App. 80-81). He added: “I believe anyone who

familiarizes themself with the details of the case will

clearly see it as retaliation for filing charges with the

EEOC.” Id. (court’s emphasis and addition omitted).

The EEOC remained silent for another year. In

late November 2015, however, an EEOC investigator

wrote to Simko to seek more information. Pet. App.

5a. The investigator noted that “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.”

Id. (quoting C.A. App. 84; alteration in court’s

opinion). At this point, Simko retained counsel. Id.

6a. After further discussions with the investigator,

counsel filed a formal amended charge, including the

retaliation claim, on January 22, 2016. Id.

After receiving supplemental responses from

U.S. Steel and conducting its own investigation, the

EEOC determined that there was reasonable cause to

believe the company had retaliated against Simko for

seeking to assert his rights under the ADA—in

particular, by disciplining him more severely than a

non-disabled employee for similar alleged work-rule

violations. Pet. App. 6a. The Commission’s effort to

conciliate the dispute failed, and in April 2019 it

notified Simko of his right to sue. Id. Simko then filed

this suit, alleging a single claim of retaliation in

violation of the ADA. Id.; see id. 95a-100a.

2. The district court granted U.S. Steel’s motion

to dismiss. Pet. App. 63a-84a. That motion pointed

out that Simko’s charge amendment formally alleging

retaliation was filed outside the statutory period for

making that charge on a stand-alone basis. See id.

8a, 68a-69a, 82a-83a. Simko responded that for these

purposes a claim of retaliation for the filing of an

EEOC charge is properly treated as “within the

scope” of that initial charge. Id. 71a. But the district

court rejected that argument. 3

The court explained that the Third Circuit had

expressly rejected the Fifth Circuit’s “per se rule that

all claims of retaliation are ‘ancillary’ to the original

administrative complaint,” opting instead for “a caseby-case approach.” Pet. App. 74a. Under that

approach, the district court concluded that Simko’s

retaliation claim was “not fairly within the scope of

his original EEOC charge or the resulting [EEOC]

investigation.” Id. 79a; see id. 74a-81a. The court

acknowledged that in this case the EEOC “did

actually address retaliation[.]” Id. 71a; see id. 81a82a. It nonetheless refused to treat Simko’s claim as

properly presented for litigation, based on the court’s

own assessment that the Commission’s investigation

was “untimely made” and “unreasonably broad.” Id.

82a.

3. A divided panel of the Third Circuit affirmed.

Pet. App. 1a-62a.

a. As relevant here, the court of appeals first

rejected Simko’s argument—now joined by the EEOC

as amicus—that no separate administrative charge

was required to litigate his retaliation claim. Pet.

App. 13a; see id. 13a-27a. The court again expressly

rejected “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.” Pet. App. 16a (citing

decisions from Second, Fourth, and Fifth Circuits).

The court also rejected arguments based on equitable

tolling, waiver, or deference to the EEOC. Pet. App. 69a-71a.

Rather, it “adhere[d] to [its] precedent” requiring a

“case-by-case” inquiry involving “a careful examination of the nature of the relevant claims.” Id. 15a-16a

(citation omitted). 4

The court framed the “relevant test” as “a twopronged inquiry into whether ‘the acts alleged in the

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

the prior EEOC complaint, or [2] the investigation

arising therefrom.” Pet. App. 14a (citation omitted).

Here, Simko’s claim that U.S. Steel retaliated against

him for the filing of his initial EEOC charge could not

have been included in that charge itself. See id. 17a;

see also id. 39a-40a & n.18 (dissent). The “central

dispute” was thus whether the claim fell “‘fairly

within . . . the investigation arising’ from” that

charge. Id. 17a (citation omitted).

The court held that Simko’s retaliation claim

could not satisfy that requirement “simply based on

the fact that the EEOC actually did investigate” the

claim. Pet. App. 17a-18a. “To the contrary,” the court

explained, its test is “‘objective’ rather than

‘subjective’”: a court “must look only at the scope of

the EEOC investigation that would reasonably grow

out of, or arise from, the initial charge filed with the

EEOC, ‘irrespective of the actual content of the Commission’s investigation.’” Id. 18a (citations omitted).

The court declined to consider whether Simko’s November

2014 letter to the EEOC should be treated as the equivalent of a

formal charge, or whether the Commission’s failure to convert it

promptly into such a charge should toll the statutory deadline.

Pet. App. 9a-13a. The court considered those arguments not

properly presented, and they are not at issue here. See also id.

36 n.2 (McKee, J., concurring in part and dissenting in part).

The court articulated “several principles,” Pet.

App. 22a, to guide this simultaneously hypothetical

and “fact-specific” inquiry, id. 18a. First, a court must

“closely examine the original charge’s contents” and

“determine the reasonable scope of the EEOC

investigation that would likely occur.” Id. 22a. Next,

it must “parse the later claim and determine whether

its allegations would be covered in that reasonable

investigation.” Id. A court may “look for factual

similarities or connections”—but “factual overlap

alone” is not sufficient, if the new allegations “do not

fall within the ‘gravamen’ of the initial charge.” Id.

22a-23a (citation omitted). Conversely, even if there

is “no factual nexus,” the court “may also consider

whether the two sets of allegations advance the same

theory of discrimination[.]” Id. 23a.

In the court’s view, Simko’s claim that he was

ultimately terminated in retaliation for filing his

original EEOC charge was “only tenuously related to

the substance of” that charge. Pet. App. 23a-24a. The

court acknowledged that a “reasonable investigation”

of the initial charge “could also inquire into whether

any other adverse actions were taken against him

relating to his disability or his having filed a charge.”

Id. 24a. But it concluded that “in this case” such an

investigation “would not have included an inquiry

into Simko’s post-charge firing,” which was “too

remote in time and substantively distinct from the

allegations of disability discrimination[.]” Id. 24a; see

also id. 25a-27a.

The court also rejected arguments based on the

EEOC’s policies and practices, the presumption of

administrative regularity, and the Commission’s

express position on the facts of this case. Pet. App.

29a-33a. And it disagreed with Simko and the EEOC

that an additional formal charge was unnecessary

here because, in light of the EEOC’s actual

investigation, “the purpose of the ADA [and Title VII]

statutory scheme was ultimately fulfilled: namely,

the facilitation of an informal dispute resolution

process between Simko and U.S. Steel.” Id. 33a. The

court pointed instead to “two other fundamental aims

of the exhaustion requirement: prompt notice to the

employer and swift dispute resolution.” Id.; see id.

33a-34a. Accordingly, while acknowledging that the

outcome was “unfortunate,” the court held that

Simko could not proceed on his retaliation claim. Id.

34a-35a.

b. Judge McKee dissented in part. Pet. App. 36a62a. He accepted the Third Circuit’s “prior rejection

of a per se rule which would [make] all retaliation

claims automatically relate back to the earlier claim

upon which they [are] based[.]” Id. 55a-56a. But he

did “not believe that the facts here justif[ied] concluding that the EEOC’s investigation was unreasonably

broad.” Id. 40a-41a.

Judge McKee was “not as willing as [his]

colleagues to brush aside the EEOC’s own conclusion”

about the reasonableness of including retaliation in

its investigation. Pet. App. 47a-48a. He noted that, as

the majority acknowledged, the EEOC’s Compliance

Manual instructed investigators to look for evidence

of retaliation; to inform employers that the scope of

inquiry could be expanded based on information

received during the investigation; and that if they

found indications of retaliation for the filing of a

charge, they could investigate the retaliation on the

basis of the original charge. Id. 48a-49a, citing id. 30a

(majority opinion).

The dissent further emphasized that “[h]aving

actually investigated and attempted to conciliate the

retaliation claim, the EEOC fulfilled the purpose of

the exhaustion requirement.” Pet. App. 51a. Simko’s

employer received notice; participated in the agency’s

investigation, including a site visit; was “invited to

conciliate”; and “understood that it was facing a

retaliation charge before Simko brought suit[.]” Id.

Accordingly, there was “nothing to be served by

requiring Simko to have filed a second complaint.” Id.

(brackets and citation omitted).

The dissent observed that “[a]n individual who

alleges retaliation for the filing of a previous charge

is not ‘gaming the system[.]’” Pet. App. 61a. That sort

of retaliation “must necessarily come after the charge

is filed.” Id. Here, it was “quite reasonable” for the

EEOC, “after being alerted by Simko about retaliation for the filing of the initial charge, to also investigate the alleged retaliation.” Id. 61a-62a. And that

conclusion was “reinforced” where the Commission

“actually investigated the discrimination, concluded

that there was evidence of retaliation, and attempted

to conciliate the dispute.” Id. 62a.

REASONS FOR GRANTING THE PETITION

This case presents a recurrent question on which

the courts of appeals are in persistent conflict: When,

if ever, may a claim of retaliation for filing a charge

of discrimination with the EEOC be addressed in an

ensuing civil action, if the employee did not file a

further charge specifically alleging the retaliation?

Two circuits, including the court below, answer that

question on a case-by-case basis—but disagree over

whether a suit may proceed where, as here, the

EEOC actually investigated the retaliation claim.

Two other circuits would always dismiss a suit in the

absence of a second formal charge. And seven circuits

would always allow a suit like Simko’s to proceed.

This Court should hold that the majority rule is

correct. At a minimum, the Court should hold that a

retaliation claim is properly presented for litigation if

the EEOC actually investigated it, as happened here.

And in any event the Court should grant review and

resolve the conflict to give claimants, employers, and

courts the benefits of a clear and uniform rule.

The circuits are divided over how to treat

allegations of retaliation for filing an EEOC

charge.

A. Two circuits make case-by-case inquiries—

but differ on the relevance of the EEOC’s

actual investigation.

The Third and Ninth Circuits both consider the

question here case-by-case. Pet. App. 15a; see

Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 644646 (9th Cir. 2003). But unlike the Third Circuit, the

Ninth would have allowed the claim here to proceed.

The decision below sets out the Third Circuit’s

position in detail. Pet. App. 13a-23a. The court

expressly recognized, but refused to adopt, the “broad

per se rule followed by” some other courts, under

which Simko would have prevailed. Id. 16a; see Part

I.C, infra. Instead, because Simko’s claim that U.S.

Steel retaliated against him for the filing of his initial

EEOC charge did not (of course) appear in that

charge itself, the court asked whether the claim fell

“‘fairly within . . . the [administrative] investigation

arising’ from the initial EEOC charge.” Pet. App. 17a

(quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d

Cir. 1984)); see also id. 14a-15a.

The court explained that its test is “objective”: a

court must “look only at the scope of the EEOC

investigation that would reasonably grow out of, or

arise from, the initial charge filed with the EEOC,”

not at the actual scope of the real investigation. Pet.

App. 18a (emphasis added); see id. 22a-23a. Applying

that principle here, id. 23a-34a, the court concluded

that although “the EEOC actually investigated and

attempted to conciliate Simko’s retaliation claim,” id.

27a, the district court “correctly dismissed his

complaint for failure to exhaust administrative

remedies,” id. 35a.

The Ninth Circuit, too, considers case-by-case

whether retaliation claims are properly presented.

See Vasquez, 349 F.3d at 644. Unlike the Third

Circuit, however, the Ninth considers not only what

investigation “could reasonably be expected to grow

out of the charge” initially filed, but also “the scope of

the EEOC’s actual investigation.” Id. at 644 (emphasis added); see also B.K.B. v. Maui Police Dep’t, 276

F.3d 1091, 1100 (9th Cir. 2002); cf. Arizona ex rel.

Horne v. Geo Grp., Inc., 816 F.3d 1189, 1205 (9th Cir.

2016) (discussing similar issue in EEOC class action).

Thus, the Ninth Circuit would have allowed Simko’s

claim to proceed.

B. Two circuits always require a new charge.

Other circuits that have addressed the question

have rejected case-by-case analysis, instead adopting

one of two conflicting per se rules. On one side of that

division, the Eighth and Tenth Circuits hold that an

employee like Simko must always file a second formal

administrative charge. They base that rule on this

Court’s decision in Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101 (2002).

Morgan considered the application of Title VII’s

time limit for filing charges with the EEOC—in most

cases, within 300 days “after the alleged unlawful

employment practice occurred.” 42 U.S.C. § 2000e5(e)(1); Morgan, 536 U.S. at 109. The Court granted

review to resolve a conflict and held that a claimant

could not recover for any older “discrete retaliatory or

discriminatory act,” even if it could be viewed as part

of an “ongoing violation.” Morgan, 536 U.S. at 110.

The Court reasoned that each older “incident of discrimination” or “retaliatory adverse employment decision” was “a separate actionable ‘unlawful employment practice’” subject to the statutory limitations

bar. Id. at 114 (quoting 42 U.S.C. § 2000e-5(e)(1)).

In Martinez v. Potter, 347 F.3d 1208 (10th Cir.

2003), the Tenth Circuit held that Morgan required a

similar act-by-act approach to the question presented

here. The district court in that case had determined

that certain retaliation allegations were not “like or

reasonably related to” other allegations that had been

properly exhausted. Id. at 1210. But the Tenth

Circuit based its affirmance on Morgan, which it

thought required holding that a plaintiff must always

file a separate charge “to exhaust administrative

remedies for each individual discriminatory or

retaliatory act.” Id. at 1211. See also, e.g., Sanderson

v. Wyo. Highway Patrol, 976 F.3d 1164, 1170-1171

(10th Cir. 2020); Lincoln v. BNSF Ry., 900 F.3d 1166,

1181 (10th Cir. 2018).

A divided panel of the Eighth Circuit adopted the

same rule in Richter v. Advance Auto Parts, Inc., 686

F.3d 847, 850-853 (8th Cir. 2012) (per curiam) (agreeing with Martinez), cert. dismissed, 568 U.S. 1210

(2013) (No. 12-854). The court dismissed a plaintiff’s

suit because she had not filed a new EEOC charge,

specifically alleging retaliation, when she was fired

just days after filing her initial charge. See also id. at

857-861 (Bye, J., dissenting on this point).

In these courts Simko’s retaliation claim would

have been dismissed, as it was below. But the

dismissal would have resulted from a categorical rule

based on an interpretation of this Court’s precedent

and the statutory text—not from a case-by-case

judicial assessment of the reasonableness of the

EEOC’s proceedings.

C. Seven circuits do not require a new charge.

Finally, seven circuits would have applied the

opposite categorical rule. Those courts would have

treated Simko’s claim as properly presented because

he alleged that U.S. Steel retaliated against him for

filing his original charge of discrimination with the

EEOC.

The Fifth Circuit, for example, has long held that

it is “unnecessary for a plaintiff to exhaust

administrative remedies prior to urging a retaliation

claim growing out of an earlier charge” that is

properly before the court. Gupta v. E. Tex. State

Univ., 654 F.2d 411, 414 (5th Cir. Unit A Aug. 1981).

In Gupta, for example, the plaintiff professor filed an

EEOC charge alleging that his university employer

discriminated against him in compensation and other

ways. Id. at 412. After the Commission issued a

right-to-sue letter and Gupta sued, the university

declined to renew his employment contract. Id. at

413. Gupta argued in court that the nonrenewal “was

in retaliation for his filing charges with the EEOC,”

but he never filed a separate administrative charge to

that effect. Id. The court held that no such charge

was required. Id. at 413-414. It reaffirmed that

analysis in Gottlieb v. Tulane Univ., 809 F.2d 278,

283-284 (5th Cir. 1987), even where the alleged

retaliation did not occur until after trial in the

district court on the underlying discrimination

claim. 5

Other courts have adopted similar rules. In

Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir.

1989), the plaintiff filed an EEOC charge alleging

racial discrimination in the denial of promotions. Id.

at 1308. The employer later fired the plaintiff—after

the EEOC had concluded its review and the plaintiff

had filed suit. Id. The plaintiff amended his

complaint to allege that he was fired in retaliation for

filing the initial charge. Id. The Seventh Circuit

allowed the claim to proceed, “adopting the rule that

a separate administrative charge is not prerequisite

to a suit complaining about retaliation for filing the

first charge.” Id. at 1312; see also, e.g., Ford v.

The Fifth Circuit phrased its holdings in terms of

“ancillary jurisdiction.” Gupta, 654 F.2d at 414. As this Court

has since made clear, the claim-processing rules at issue here do

not affect subject-matter jurisdiction. Ft. Bend Cnty. v. Davis,

139 S. Ct. 1843, 1851 (2019). The phrasing does not affect the

analysis of the proper rule.

Marion Cnty. Sheriff’s Off., 942 F.3d 839, 857 n.11

(7th Cir. 2019) (“[W]e have long held that a plaintiff

need not file a new charge alleging post-charge

retaliation by the employer.”).

Similarly, in Clockedile v. New Hampshire

Department of Corrections, 245 F.3d 1 (1st Cir.

2001), the plaintiff filed an EEOC charge alleging

sexual harassment. Id. at 2. In the ensuing lawsuit

she also alleged retaliation, pointing to acts that

occurred after her administrative charge and even

after she filed suit. Id. at 3, 5. Noting the “recurrent

problem” of “whether (or to what extent) a lawsuit

following a discrimination complaint can include a

claim of retaliation not made to the agency,” id. at 4,

the First Circuit considered the positions adopted by

other courts and the EEOC, which filed an amicus

brief, see id. at 4-5 & n.3. It concluded that “claims of

retaliation are homogeneous enough and sufficiently

distinct from other problems to justify a general

rule,” and that “[o]n balance, . . . the cleanest rule is

this: retaliation claims are preserved so long as the

retaliation is reasonably related to and grows out of

the discrimination complained of to the agency—e.g.,

the retaliation is for filing the agency complaint

itself.” Id. at 6. “Someday,” the court remarked, “the

Supreme Court will bring order to this subject; until

then, this is a practical resolution of a narrow but

recurring problem.” Id.

The Second, Fourth, Sixth, and Eleventh Circuits

have likewise held that a second EEOC charge is not

required for a court to consider a plaintiff’s claim that

an employer retaliated for the filing of an initial

charge, so long as the suit is otherwise timely. In

Duplan v. City of New York, 888 F.3d 612 (2d Cir.

2018), for example, the Second Circuit explained that

it has “long recognized” that “if a plaintiff has already

filed an EEOC charge,” the requirements for suit are

“also met for a subsequent claim ‘alleging retaliation

by an employer against an employee for filing an

EEOC charge.’” Id. at 624 (quoting Terry v. Ashcroft,

336 F.3d 128, 151 (2d Cir. 2003)); see id. at 622-625.

In Jones v. Calvert Grp., Ltd., 551 F.3d 297, 301304 (4th Cir. 2009), the Fourth Circuit reaffirmed its

adherence to a similar rule: “a claim of ‘retaliation for

the filing of an EEOC charge’” is actionable without a

separate administrative charge because it “is indeed

‘like or reasonably related to and grow[s] out of such

allegations.’” Id. at 302 (quoting Nealon v. Stone, 958

F.2d 584, 590 (4th Cir. 1992)). 6 See also Spengler v.

Worthington Cylinders, 615 F.3d 481, 489 n.3 (6th

Cir. 2010) (“Retaliation claims are typically excepted

from the filing requirement because they usually

arise after the EEOC charge is filed.”); Baker v.

Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.

1988) (following Gupta).

In any of these circuits, the courts would have

addressed the merits of Simko’s retaliation claim.

Jones spoke in terms of subject-matter jurisdiction. See

551 F.3d at 301. In that respect it was abrogated by this Court’s

decision in Fort Bend County v. Davis, 139 S. Ct. at 1851. As

with the Fifth Circuit’s decision in Gupta, however, recognizing

that Title VII’s claim-processing rules are not jurisdictional in

that sense does not affect the analysis of how they apply in

particular situations.

D. The conflict is ripe for resolution now.

There is no prospect that further percolation will

resolve the present conflict among the lower courts or

aid in this Court’s consideration of the issue. Most

courts of appeals settled on their positions long ago.

And while this Court’s decision in Morgan caused the

Eighth and Tenth Circuits to adopt a new rule, in the

twenty years since that decision other courts have

adhered to their prior decisions.

The Fourth Circuit has expressly rejected any

change to its retaliation rule based on Morgan. See

Jones v. Calvert Group Ltd., 551 F.3d at 303 (“we do

not read Morgan that broadly”). Other courts have

continued to apply their existing rules, despite being

well aware of Morgan. See, e.g., Duplan, 888 F.3d at

622-625 & n.10 (discussing and applying existing

doctrine on retaliation claims while citing Morgan for

other reasons); Ford, 942 F.3d at 857 n.11; Spengler,

615 F.3d at 489 n.3; Franceschi v. U.S. Dep’t of

Veterans Affs., 514 F.3d 81, 86 (1st Cir. 2008). 7

To be clear, even these latter decisions were not

mere rote applications of existing rules that were not

challenged in particular cases. The Second Circuit’s

Some decisions have noted the post-Morgan conflict without taking a definitive position. See, e.g., Williams v. Bd. of Ed.

of Chi., 982 F.3d 495, 503 n.13 (7th Cir. 2020); Haynes v. D.C.

Water and Sewer Auth., 924 F.3d 519, 526-527 & n.1 (D.C. Cir.

2019); Ariz. ex rel. Horne, 816 F.3d at 1205-1206 & n.11; see

also Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (Garland,

J.) (noting issue); cf. Duble v. FedEx Ground Package Sys., Inc.,

572 F. App’x 889, 893 (11th Cir. 2014) (citing Morgan but

distinguishing existing circuit precedent on facts of case), cert

denied, 575 U.S. 1037 (2015) (No. 14-1028).

recent Duplan decision, for example, thoughtfully

discusses the reasons for and limits of its rule. See

888 F.3d at 622-625. So, for all its flaws, does the

Third Circuit’s decision in this case. See Pet. App.

14a-23a (reviewing precedents and reasoning in

detail); id. 15a, 23a-34a (conducting case-specific

exhaustion inquiry); cf. id. 14a, 33a-34a (citing

Morgan several times). Older cases, too, have

discussed the reasons for treating retaliation claims

like Simko’s as properly presented. See, e.g.,

Clockedile, 245 F.3d at 4-6; Gupta, 654 F.2d at 414;

infra Part III. On the other side of the conflict, the

Eighth and Tenth Circuits have fully aired their

reasons for concluding that Morgan requires a

different result. See, e.g., Richter, 686 F.3d at 850853; id. at 857-861 (Bye, J., dissenting on this point).

Under these circumstances, there is no reason to

defer review. On the contrary, only this Court can

assess the conflicting positions and, as Judge Boudin

forecast, “bring order to this subject.” Clockedile, 245

F.3d at 6.

II. This case is a good vehicle for review of this

important question.

1. This case is a good vehicle for conducting that

assessment. As it comes to this Court, the case

presents a core factual scenario for consideration of

the question presented.

Petitioner Simko filed a charge of disability

discrimination with the EEOC. He alleges that, while

that charge was pending before the Commission, his

employer retaliated against him for making the

initial filing. See Duplan, 888 F.3d at 622 (calling

this “the paradigmatic case for which the ‘reasonably

related’ doctrine was adopted”). He did not file a

timely second charge alleging the retaliation; but in

its investigation of the initial charge the EEOC

became aware of and actually investigated the issue.

In the process, the EEOC gave express notice to

Simko’s employer and sought its response. Indeed,

the Commission ultimately found reasonable cause to

believe retaliation had occurred, and sought to

conciliate the parties’ dispute over that precise

unlawful practice. When conciliation failed, the

Commission notified Simko of his right to sue. Simko

then brought a timely civil action, alleging only the

retaliation.

This clean factual presentation is important.

Analysis in this area can be complicated by a variety

of factors, many of which have produced their own

decisional fissures. Some courts, for example, treat

alleged retaliation of other sorts (such as for making

an internal complaint to a supervisor) differently

where it occurs before an initial EEOC charge has

been filed, rather than in retaliation for (and thus

necessarily after) that first filing. 8 Some courts will

not treat a claim of retaliation for filing a charge as

properly presented without a further charge if the

alleged retaliation occurred after the conclusion of

the EEOC’s investigation of the first charge. 9 Some

See, e.g., Swearnigen-El v. Cook Cnty. Sheriff’s Dep’t, 602

F.3d 852, 864-865, 864 n.9 (7th Cir. 2010); McKenzie v. Ill. Dep’t

of Transp., 92 F.3d 473, 482-483 (7th Cir. 1996) (noting conflict

on this issue).

Compare Payne v. Salazar, 619 F.3d at 65, with, e.g.,

Clockedile, 245 F.3d at 5-6. An unpublished Eleventh Circuit

decision suggests, conversely, that where the alleged retaliation

will not entertain a claim of retaliation for the filing

of a particular charge if the plaintiff’s ultimate civil

action was not filed within the requisite time period

after the receipt of a right-to-sue letter based on that

specific charge. 10

Here, none of these special situations would

impede the Court from considering the core question

presented. Moreover, in this case the EEOC, despite

the absence of any formal second charge, actually

became aware of the retaliation issue, specifically

investigated it, found reasonable cause, and sought to

conciliate it. The facts thus present the question of

what amounts to adequate administrative claimprocessing in the sharpest possible relief. Compare,

e.g., Pet. App. 27a-34a (majority opinion) with id.

36a, 40a-41a, 46a-62a (McKee, J., dissenting in part).

2. That issue also warrants this Court’s review.

The question presented here is a “recurrent problem”

under the remedial provisions of Title VII. Clockedile,

245 F.3d at 4. It arises frequently, and has generated

confusion and divergence in results. See, e.g.,

Redding v. Mattis, 327 F. Supp. 3d 136, 139-140

(D.D.C. 2018) (discussing post-Morgan debate in

district court opinions). Commentators have likewise

discussed the issue, focusing on the sharp conflict

between the Eighth and Tenth Circuits and others

occurred while an initial charge was still pending before the

EEOC, the plaintiff could not include a retaliation claim in later

litigation where he “chose not to amend or file a new charge”

with the Commission. Duble, 572 F. App’x at 893.

See, e.g., Duplan, 888 F.3d at 623-624; but see Hentosh

v. Old Dominion Univ., 767 F.3d 413, 416-418 (4th Cir. 2014).

after Morgan. See Lawrence Rosenthal, To File

(Again) or Not to File (Again): The Post-Morgan

Circuit Split Over the Duty to File an Amended or

Second EEOC Charge for Claims of Post-charge

Employer Retaliation, 66 Baylor L. Rev. 531 (2014);

Brandon Wheeler, Note, Amending Title VII to

Safeguard the Viability of Retaliation Claims, 98

Minn. L. Rev. 775 (2013).

The EEOC, too, has recognized the importance of

the question. Its Compliance Manual instructs that

retaliatory acts may be challenged without a second

formal charge, expressly rejecting the reasoning of

contrary decisions. EEOC Compliance Manual,

Section 2: Threshold Issues, § 2-IV(C)(1)(a) & n.185

(2009), https://perma.cc/CQ67-WTJC. And the Commission has filed briefs advancing that position in

several cases, including this one. See Pet. App. 8a-9a,

28a-33a; EEOC C.A. Br. 26-32; id. at 30-31 (arguing

that the Eighth and Tenth Circuits have misread

Morgan). With the lower courts locked in disagreement, the view of the expert federal administrative

agency clear, and the question continuing to arise,

this Court should grant review to settle the matter.

III. The decision below is wrong.

Finally, the decision below is wrong.

1. The text and structure of Title VII’s remedial

provisions require that enforcement begin with the

filing of a “charge” with the EEOC. See 42 U.S.C.

§§ 2000e-5(b), (e)(1). The EEOC “shall serve a notice

of the charge” on the employer “within ten days, and

shall make an investigation thereof.” Id. § 2000e-5(b).

If the Commission determines there is “reasonable

cause to believe that the charge is true,” it must

“endeavor to eliminate any such alleged unlawful

employment practice by informal methods of

conference, conciliation, and persuasion.” Id. If

conciliation fails, the Commission “may bring a civil

action” against the employer (or, for certain

government employers, refer the matter to the

Attorney General). Id. § 2000e-5(f)(1).

More commonly, the Commission notifies “the

person aggrieved” that there will be no government

suit. 42 U.S.C. § 2000e-5(f)(1). Within 90 days of that

notice, “a civil action may be brought against the

respondent named in the charge . . . by the person

claiming to be aggrieved.” Id. Similarly, if the

Commission determines after investigation that there

is not reasonable cause to believe a charge is true, it

nonetheless provides the charging party with notice

of the right to file an individual “civil action.” Id.

§§ 2000e-5(b), (f)(1). Moreover, if the charging party

simply wishes to proceed directly, the Commission

will provide a similar right-to-sue letter on request at

any time once 180 days have passed from the filing of

the charge, and in many cases even during the first

180 days. 29 C.F.R. § 1601.28(a).

The phrase “civil action” is different from, and

normally broader than, the term “charge.” And as the

First Circuit has observed, “Title VII does not say

explicitly that the court suit must be limited to just

what was alleged in the agency complaint,” or supply

any precise rule for determining what connection is

required between the two. Clockedile, 245 F.3d at 4.

As noted above (see supra at 2-3), in construing the

statute courts have generally “assum[ed] that some

kind of a relationship must exist[.]” Id.; see generally,

e.g., 2 Barbara T. Lindemann et al., Employment

Discrimination Law ch. 29.IV (6th ed. 2020). But in

defining the metes and bounds of such a judicially

inferred procedural limitation, courts may not impose

technical rules that are inconsistent with Title VII’s

structure and objectives.

2. Title VII is designed to enable effective

enforcement for employees (who are often proceeding,

at least initially, without counsel), to provide

employers with timely notice, and to give both parties

an opportunity for resolution through administrative

investigation and informal conciliation. See, e.g., Pet.

App. 13a-14a; id. 51a (McKee, J., dissenting in part);

Lindemann, Employment Discrimination Law ch.

29.IV.A. Once an employee has filed an initial charge

of discrimination, it does not serve those goals to

require the employee to file second or successive

formal charges in order to preserve the ability to

challenge new acts of retaliation. And that is

especially true where, as here, the EEOC learns of

and investigates such acts even without any new

charge.

As the Fifth Circuit explained in its influential

Gupta decision, “[i]t is the nature of retaliation

claims” of the sort at issue here “that they arise after

the filing of the [initial] EEOC charge.” 654 F.2d at

414. Requiring a “double filing” with the Commission

in such cases serves “no purpose except to create

additional procedural technicalities[.]” Id. That sort

of “needless procedural barrier,” id., is especially

problematic where, as is common, an employee is

unrepresented during part or all of the time a charge

is pending before the Commission. See Edelman v.

Lynchburg Coll., 535 U.S. 106, 115 (2002) (“Title VII

[is] ‘a remedial scheme in which laypersons, rather

than lawyers, are expected to initiate the process.’”

(citation omitted)). Eliminating such a trap for the

unwary or unrepresented can also help “deter

employers from attempting to discourage employees

from exercising their rights under Title VII” or the

ADA. Gupta, 654 F.2d at 414; see also, e.g., Duplan,

888 F.3d at 622-623; Malhotra, 885 F.2d at 1312

(“having once been retaliated against for filing an

administrative charge, the plaintiff will naturally be

gun shy about inviting further retaliation by filing a

second charge complaining about the first retaliation”); Jones v. Calvert Grp., Ltd., 551 F.3d at 302.

The Second Circuit has further explained that

where, as here, alleged retaliation occurs while a

charge is pending before the Commission, “the ongoing EEOC investigation on the first charge would

be expected to uncover and address any related

retaliation,” without any need for a second formal

charge. Duplan, 888 F.3d at 622. The EEOC itself has

made the same point, including in its amicus brief

below in this case. See EEOC C.A. Br. 27-29; id. at 29

(new-charge requirement “would create a procedural

hurdle with no practical effect”); see also Clockedile,

245 F.3d at 4-5 (discussing and relying on EEOC

amicus brief in that case). Certainly there is no

practical significance to a second formal charge

where, as here, the Commission in fact investigated

the retaliation question—and, indeed, found reasonable cause and sought to conciliate the matter.

Moreover, in cases involving alleged retaliation

while an initial charge remains pending, the

employer has always been put on notice by that

charge that there is a perceived problem, and can if it

wishes seek some mutually agreeable pre-litigation

resolution. Thus, in terms of the purposes of the Title

VII claim-processing structure, there is nothing

further to be gained from “[f]orcing the parties into

two concurrent agency proceedings.” See Duplan, 888

F.3d at 622.

3. This Court’s decision in Morgan does not

counsel a different result. Morgan disapproved the

use of a “continuing violation” theory that allowed

new EEOC charges to reach back and include, for

liability purposes, some older adverse actions that

were otherwise expressly barred by the statutory

period for filing charges. See 536 U.S. at 105, 107.

The Court focused on text specifying that “[a] charge

under this section shall be filed within” a specified

period “after the alleged unlawful employment

practice occurred.” Id. at 109 (quoting 42 U.S.C.

§ 2000e-5(e)(1); brackets added, emphasis omitted).

And it reasoned in part that the term “practice”

generally applies “to a discrete act or single

‘occurrence,’ even when it has a connection to other

acts.” Id. at 111.

Nothing in Morgan’s analysis of the time-bar

provision at issue there speaks to how principles not

specified in the statutory text should limit the scope

of a “civil action” brought under 42 U.S.C. § 2000e5(f)(1). As the Fourth Circuit and others have pointed

out, Morgan “does not purport to address the extent

to which an EEOC charge,” once timely made,

“satisfies exhaustion requirements for claims of

related, post-charge events.” Jones v. Calvert Grp.,

Ltd., 551 F.2d at 303 (emphasis added); see also Ariz.

ex rel. Horne, 816 F.3d at 1205-1206; Richter, 686

F.3d at 858-861 (Bye, J., dissenting in part); EEOC

C.A. Br. 31-32. In particular, a claim that an

employer retaliated against the charging party for

filing an EEOC charge can, by definition, arise only

after the charge was filed. Allowing litigation of that

retaliation claim in court raises no concern about

using the EEOC charge to “pull in” allegations based

on otherwise time-barred pre-charge acts. Compare

Morgan, 536 U.S. at 113.

4. In any event, even if Morgan suggested the

need for some different analysis in this case, that

would only be another reason for review. Unlike the

Eighth and Tenth Circuits’ decisions in Richter and

Martinez, the decision below does not purport to rely

on Morgan. Although it cited Morgan on other points,

e.g. Pet. App. 14a, 33a-34a, the Third Circuit did not

focus on statutory text, and it did not craft or apply

any bright-line rule requiring a new formal charge to

challenge any alleged act of retaliation. On the

contrary, it adhered to its “case-by-case” approach to

assessing the permissible scope of litigation claims,

id. 15a, applying judicially crafted rules based on the

court’s view of some of the purposes served by the

Title VII claim-processing structure, e.g., id. 13a-15a,

22a-23a. And the court would have allowed Simko’s

retaliation claim to proceed if it thought that claim

was “fairly within the scope of . . . the [EEOC] investigation arising” from his original charge. Id. 14a.

Yet, after extensive analysis, the court concluded

that a retaliation claim the Commission in fact

investigated and in fact sought to conciliate with the

employer was nonetheless barred from court—

because the investigation actually undertaken by the

EEOC was, in the court’s view, unreasonably broad.

Pet. App. 28a-29a. See also id. 41a (McKee, J.,

dissenting in part); id. 82a-83a (district court). As

discussed above, that analysis conflicts even with the

approach of the only other court that uses a case-bycase approach to the question. See Vasquez, 349 F.3d

at 644 (allowing litigation of all claims “that fall

within the scope of the EEOC’s actual investigation”).

And frankly, it is difficult to understand. At a bare

minimum, a plaintiff’s claim of retaliation for the

filing of an EEOC charge should be recognized as

properly presented for litigation if the retaliation

issue was actually investigated by the Commission

during its processing of the related charge.

Eight years after he filed his first EEOC charge,

petitioner Simko has not had his day in court. The

EEOC found reasonable cause to believe that U.S.

Steel retaliated against him for filing that first

charge, and tried but failed to conciliate the dispute.

Simko then brought this civil action to obtain

adjudication of his retaliation claim, just as

contemplated by Title VII’s remedial structure. And

yet, the courts below dismissed his suit—because as a

pro se claimant he did not file a separate formal

administrative charge, and because reviewing judges

decided that the EEOC’s actual investigation of his

first charge was unreasonably broad.

That outcome to this case is not compelled by—or

even based on—anything in the text of Title VII. It is

different from the outcome that would have resulted

if Simko’s case had arisen in any of eight other

circuits. It perpetuates a deep and entrenched circuit

conflict, involving a recurrent issue in an area of

frequent litigation and great importance. It is

contrary to the known position of the EEOC, as

expressed in its brief below in this case. And by

creating traps for unwary and often unrepresented

claimants while at best only complicating proceedings

before the Commission and the courts, it manages to

be not only unfair but also inefficient. This Court

should grant review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,