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

APPENDIX

1a

APPENDIX A

PRECEDENTIAL

IN THE 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-0075)

District Judge: Honorable Joy Flowers Conti

___________________________________________

Argued September 24, 2020

(Filed March 29, 2021)

Before McKEE,

Judges.

JORDAN and RENDELL, Circuit

*

*

*

*

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

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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.

I.

BACKGROUND1

A. Simko’s Original

Discharge

Charge

and

Initial

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

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.

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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.

On May 24, 2013, Simko signed an EEOC charge

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

only box checked on the original charge was for

“[d]iscrimination based on . . . disability.” App. 33.

Specifically, Simko asserted that U.S. Steel

discriminated against him by denying him the

Spellman position and denying his request for an

accommodation. Simko also alleged in the charge

that he was later “subjected to negative comments

from other employees regarding my impairment,”

including one instance in which the “Walking Boss”

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

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

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

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

Labor Relations official denied Simko’s allegations of

discrimination. The EEOC did not take any action to

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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

Simko initially received a five-day suspension, which was

ultimately converted to a discharge.

2

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.

3

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three pages, a handwritten note that urged that he

was discharged in retaliation for his filing of the

original discrimination charge with the EEOC. In

relevant part, the letter provided:

Since I have filled [sic] the charges with the

EEOC I have been terminated twice and

placed on [a] last chance agreement with no

just cause by the company. The union only

calls me at [the] last minute with

information, they are not in contact with me

otherwise . . . . I believe anyone who

familiarizes themself [sic] with the details of

the case will clearly see it as retaliation for

filing charges with the EEOC.

App. 80–81 (emphasis added).

The EEOC did not take any action in response to

Simko’s November 2014 correspondence until

approximately one year later. By letter dated

November 23, 2015, an EEOC investigator notified

Simko that he had been assigned to Simko’s case.

The investigator further wrote that, based upon the

November 2014 correspondence, “it appears as

though you have been terminated by [U.S. Steel] on

two separate occasions during 2014 and that you

believe that the terminations were retaliatory

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

contains a handwritten note by the investigator,

dated November 23, 2015, indicating that the EEOC

contacted the U.S. Steel Labor Relations Department

and confirmed that Simko had been discharged.4 In

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.

4

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addition, the note stated, “Amended charge is to

follow including retaliatory discharge.” App. 83.

C. The EEOC Investigation, Amended Charge,

and Simko’s Federal Lawsuit

After the EEOC contacted Simko, he retained

counsel to represent him in his EEOC proceedings.

By letter dated December 18, 2015, the EEOC

investigator communicated to Simko’s counsel that

the EEOC had notified U.S. Steel “that an amended

charge was going to follow.” App. 87. On January 22,

2016, Simko’s counsel filed an amended EEOC

charge. The amended charge addressed Simko’s

failure to secure the Spellman position and his

subsequent discharges from U.S. Steel. The boxes for

disability discrimination and retaliation were both

checked.

After investigating the allegations set forth in the

amended charge, the EEOC on February 19, 2019

issued a determination of reasonable cause that U.S.

Steel retaliated against Simko. Specifically, the

EEOC investigator found that U.S. Steel disciplined

Simko more harshly for his violation of work rules

and regulations than a non-disabled comparator. The

EEOC attempted conciliation of the dispute, but after

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

April 1, 2019. On June 28, 2019, Simko filed this

lawsuit, asserting only a single count of retaliation in

connection with his final discharge from U.S. Steel. It

did not allege either disability discrimination or

failure to accommodate.

The District Court determined that Simko failed

to file a timely EEOC charge asserting his retaliation

claim because his amended charge claiming

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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

REVIEW

AND

STANDARD

OF

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. 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

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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

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 “chargefiling requirement is a processing rule, albeit a mandatory one,

not a jurisdictional prescription delineating the adjudicatory

authority of courts”).

5

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

6

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advanced in the alternative. First, both Simko and

the EEOC contend that his handwritten November

2014 correspondence to the EEOC itself constituted a

timely administrative charge. Second, the EEOC

alone argues that Simko was entitled to equitable

tolling of the statutory filing period because the

agency failed to promptly act on the November 2014

correspondence. Third, both Simko and the EEOC

urge that he did not have to file an additional EEOC

charge because his original, still-pending disability

discrimination charge encompassed his subsequent

claim of retaliation.

We reject these arguments. The first argument

was never asserted in the District Court and has not

been properly preserved for our review. The second

argument was raised only by the EEOC on appeal

and, for reasons we explain below, will not be

considered. With respect to the final argument, we

conclude that Simko’s retaliation claim is distinct

from his underlying EEOC charge and therefore

needed to be raised first in a timely filed charge. 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

appreciate the EEOC’s candor, but its acceptance of some degree

of fault does not alter our analysis.

10a

the basis for his federal lawsuit. They urge that,

despite its informal appearance, Simko’s handwritten

correspondence included all of the required contents

of an administrative charge. But as U.S. Steel points

out, Simko never raised this issue before the District

Court. In its opinion, the District Court sua sponte

commented on the handwritten letter, stating that it

“d[id] not constitute a ‘charge’ and Simko d[id] not

contend otherwise.” Simko v. United States Steel

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

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

first time, contend otherwise.

It is well-established that arguments raised for

the first time on appeal are not properly preserved

for appellate review. See Del. Nation v.

Pennsylvania, 446 F.3d 410, 416 (3d Cir. 2006); see

also Freeman v. Pittsburgh Glass Works, LLC, 709

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

consider issues that the parties have not raised

below.”). The general rule requiring preservation

“serves several important judicial interests,” such as

protecting the parties from unfair surprise,

“preventing district courts from being reversed on

grounds that were never urged or argued before

[them],” and promoting finality and the conservation

of judicial resources. Tri-M Grp., LLC v. Sharp, 638

F.3d 406, 416 (3d Cir. 2011) (alteration in original)

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

Cir. 2009)).

As a preliminary matter, the District Court’s

cursory statement that Simko’s handwritten

correspondence did not constitute a charge is, alone,

insufficient to preserve that issue for our review. U.S.

Steel contends that, by failing to raise that issue

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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 “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. &

12a

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

13a

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

competently represented by counsel.’” Hartig Drug

Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 267 (3d

Cir. 2016) (citation omitted) (quoting Nuveen Mun.

Tr. ex rel. Nuveen High Yield Mun. Bond Fund v.

WithumSmith Brown, P.C., 692 F.3d 283, 300 n.10

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

the EEOC attempts to resurrect an issue that Simko

abandoned on appeal. Accordingly, we will not

reconsider the District Court’s conclusion that

equitable tolling was not warranted.

C. Simko’s Original EEOC Charge Did Not

Encompass His Subsequent Retaliatory

Discharge Claim

Simko’s main argument on appeal is that he was

not required to file a timely retaliation charge

because his retaliation claim was encompassed

within his still-pending original charge of disability

discrimination. U.S. Steel responds, as it did before

the District Court, that Simko’s retaliation claim

cannot be bootstrapped to the original charge because

the two sets of allegations are sufficiently distinct,

and under the analysis required by our precedent,

Simko should have filed a separate charge for the

retaliation claim. We agree with U.S. Steel on this

issue.

As noted above, the ADA requires that a plaintiff

administratively exhaust all claims before seeking

relief in federal court. Burgh v. Borough Council of

Borough of Montrose, 251 F.3d 465, 469 (3d Cir.

2001); 42 U.S.C. §§ 12117(a), 2000e-5(b). These presuit 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,

14a

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

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

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.

7

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

15a

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

1018, 1025 (3d Cir. 1997) (identifying the “two

circumstances in which events subsequent to a filed

[EEOC] complaint may be considered as fairly

encompassed within that complaint”).

The exhaustion inquiry is highly fact specific.

Under our precedent, the Court must “examine

carefully the prior pending EEOC complaint and the

unexhausted claim on a case-by-case basis before

determining that a second complaint need not have

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.

16a

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, stillpending EEOC] complaints”).8

Even interpreting Simko’s charge liberally under

our fact-specific approach, the retaliation claim based

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.

8

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on his August 2014 termination does not fall fairly

within the scope of either (1) his original charge of

disability discrimination based on his being denied

the Spellman position in August 2012, or (2) the

EEOC investigation arising therefrom. See Waiters,

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

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

107 F.3d at 1025; Antol v. Perry, 82 F.3d 1291, 1295

(3d Cir. 1996). We address both prongs of the

analysis in turn.

Simko concedes that his retaliation claim fails

the first prong of the exhaustion analysis. Simply

put, no allegations of retaliation appeared on the face

of his original EEOC charge. Simko failed to check

the box indicating a claim of retaliation and his

narrative contained no reference to conduct that

could be construed as retaliatory. As U.S. Steel

argues, “the legal theories in the original charge and

amended charge are not the same, the incidents are

not the same, the individuals involved are not the

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

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

Accordingly, Simko’s retaliatory discharge claim does

not fall fairly within the scope of his EEOC charge.

The central dispute in this case, however,

concerns the second prong of the analysis—whether

Simko’s claim of retaliation falls “fairly within . . . the

investigation arising” from the initial EEOC charge.

Waiters, 729 F.2d at 237. At this step of the analysis,

we consider “the scope of the EEOC investigation

which can reasonably be expected to grow out of the

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

398–99. Simko and the EEOC primarily argue that

this prong may be satisfied simply based on the fact

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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 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

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.

19a

(1) whether the claim arises from the same set of

facts that support the original charge and (2) whether

the claim advances the same theory of discrimination

as the original charge.

In Hicks, the plaintiff filed an EEOC charge

alleging only race discrimination, but later sued

asserting, inter alia, claims of both race

discrimination and sex discrimination. 572 F.2d at

962–63. The EEOC investigated the race

discrimination claim but failed to investigate sex

discrimination. Id. Nevertheless, we held that the

actual EEOC investigation did not necessarily set the

“outer limit” of the scope of the civil complaint. Id. at

966. Such a limitation would unfairly penalize a

plaintiff for an “unreasonably narrow or improperly

conducted” investigation by the EEOC. Id. Thus, the

issue was whether a reasonable investigation would

include a sex discrimination claim.

We noted that certain instances of sex

discrimination alleged in Hicks’s civil complaint

arose from the same conduct that supported his race

discrimination claims and that there was evidence

that the EEOC improperly failed to contact Hicks to

discuss his charge after it was filed. Id. On those

grounds, we remanded to the district court to

determine “whether the . . . investigation reasonably

would have included examination of the sex

discrimination claims,” such that those claims did not

need to have been exhausted by filing a separate

charge. Id. at 966, 970.

Waiters involved an investigation of retaliatory

conduct that went beyond the four corners of the

EEOC charge. Waiters filed a charge with the EEOC

asserting a claim of sex discrimination under Title

20a

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

21a

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] 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 factspecific 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

22a

suit in federal court claiming that he was discharged

in retaliation for filing his three charges. Id. at 1020.

He did not file an additional charge alleging

retaliatory discharge and the EEOC did not

investigate his termination. Id. at 1025. The district

court dismissed Robinson’s complaint for failure to

exhaust administrative remedies. Id. at 1020. On

appeal, we noted that the district court had failed to

examine the scope of the EEOC’s investigation, and—

as in Hicks—we remanded to determine whether a

reasonable investigation of Robinson’s charges would

have included his retaliatory discharge allegation. Id.

at 1026.

We draw several principles from these

precedents. Most importantly, the original charge is

the touchstone of our exhaustion analysis. See, e.g.,

Antol, 82 F.3d at 1296 (focusing on the “specifics of

. . . [the] charge” in determining whether a new claim

is encompassed by the charge). First, we closely

examine the original charge’s contents to determine

the reasonable scope of the EEOC investigation that

would likely occur. See Robinson, 107 F.3d at 1024.

Second, we parse the later claim and determine

whether its allegations would be covered in that

reasonable investigation. See Hicks, 572 F.2d at 966.

At bottom, we must compare the two sets of

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

23a

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

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

discrimination is still too tenuously related in time and

substance to Simko’s retaliatory discharge claim.

10

24a

contrast, the retaliation claim that Simko later filed

in the District Court alleges that his discharge from

the Blast Furnace Department in August 2014 was in

retaliation for his filing of the original discrimination

charge.

The original EEOC charge and Simko’s civil

complaint thus address discrete adverse employment

actions that occurred approximately two years apart

and involved different supervisors in different

departments. Under these facts, the scope of a

reasonable investigation arising out of Simko’s initial

charge would certainly include an inquiry into

whether Simko was qualified for the Spellman

position, U.S. Steel’s reasons for passing him over,

and identification of the person who secured the

position and why he or she was chosen. While such

an investigation could also inquire into whether any

other adverse actions were taken against him

relating to his disability or his having filed a charge,

a reasonable investigation in this case would not

have included an inquiry into Simko’s post-charge

firing. Simko’s allegations of retaliation are too

remote in time and substantively distinct from the

allegations of disability discrimination for a

reasonable EEOC investigation based on the original

charge to encompass the later events.11 And,

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

11

25a

importantly, the original charge and complaint allege

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

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.

26a

accommodation for his hearing disability and passed

him over for a job because of that same disability.

The initial charge included no additional instances of

unlawful discriminatory treatment, other than an

allegation that some other employees made “negative

comments” about Simko’s hearing impairment. App.

34. Unlike the plaintiff in Hicks, Simko did not later

allege a different theory of discrimination based on

some of the same underlying acts that supported his

initial theory of discrimination. And unlike in

Waiters, Simko’s initial charge of discrimination was

not followed by subsequent instances of the same

type of unlawful treatment. As previously discussed,

our exhaustion analysis is tied to the substance of

Simko’s only timely-filed claim in this case: that he

did not receive a reasonable accommodation and was

denied the Spellman job due to his disability.

The only other operative fact, namely Simko’s

discharge, came to light over seventeen months after

he submitted the initial charge, when he alerted the

EEOC that he was fired in retaliation for filing the

charge. But, would the allegedly retaliatory firing

have been included in an investigation that could

“reasonably be . . . expected to grow” out of the facts

surrounding his original charge of disability

discrimination, approximately two years prior?

Ostapowicz, 541 F.2d at 399. There is no basis in fact

or law for an answer in the affirmative. As we noted

above, the scope of a reasonable investigation into

Simko’s being passed over for a job based on his

disability would have involved a limited inquiry. If

we were to say that his later claim of retaliation was

encompassed by his—however distantly related—

initial charge of disability discrimination, we would

27a

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

28a

the basis of a new, distinct claim. It was due only to

that extended delay and Simko’s handwritten

November 2014 correspondence that the EEOC

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

allegations while his original charge was still

pending.

Thus, the EEOC investigation did not actually

grow out of the original charge. Instead, the

investigation arose from Simko’s handwritten

correspondence. After apparently taking no

investigative action for over two years following its

receipt of the original 2013 charge, the EEOC

commenced its investigation only after an

investigator read Simko’s correspondence and sent

Simko a letter inquiring about his case. Significantly,

that letter—dated November 23, 2015, over a year

after Simko’s November 2014 correspondence—

referenced only Simko’s retaliation allegations,

further demonstrating that the EEOC acted on the

basis of the November 2014 correspondence, not his

original charge. As we noted above, the EEOC file

included a comment that an amended charge was to

follow, “including retaliatory discharge.” App. 83.

That amended charge, however, was not timely filed.

Simko and the EEOC nevertheless urge that

because the EEOC ultimately did investigate the

retaliatory discharge claim, such an investigation

must have been “reasonable,” rendering it

unnecessary to file an additional timely charge. We

disagree.

As the District Court observed, this case does not

involve an EEOC investigation that was unduly

narrow, but rather, one that extended beyond the

face of the operative EEOC charge. Contrary to

29a

Simko and the EEOC’s arguments, however, we

analyze claims excluded from an EEOC investigation

in the same way that we analyze claims included in

the investigation. Our focus remains on the

investigation that can “reasonably be expected to

grow out of the charge.” Ostapowicz, 541 F.2d at 399.

This principle applies equally in cases where the

EEOC failed to investigate a claim, see, e.g.,

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

and cases where the EEOC broadened its

investigation to cover claims not included in the

charge, see Waiters, 729 F.2d at 238. Holding

otherwise—that is, treating all investigated claims as

exhausted—would create a one-way ratchet. The

EEOC’s choice to investigate certain employer

conduct would set 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

30a

expend time or resources investigating matters

unrelated to a pending charge.” EEOC’s Br. 24; see

also Hicks, 572 F.2d at 966. In support of this

position, they point to EEOC internal policies,

reflected in the EEOC’s Compliance Manual, which

govern the scope of investigations and the

circumstances in which the EEOC may broaden an

investigation. For example, these policies direct

investigators to remain alert to evidence of

retaliation during their investigations, inform their

supervisors in case such evidence surfaces, and notify

the employer that “the scope may be expanded or

limited based on information received during the

investigation.” EEOC Compl. Man. § 22.3, Scope of

Investigation, 2006 WL 4673367; see also EEOC

Compl. Man. § 2.8, Charges Warranting Priority

Handling, 2006 WL 4672924; EEOC Compl. Man.

§ 13.1, Litigation for Temporary or Preliminary

Relief: Introduction, 2006 WL 4673012.

In light of these practices and the presumption of

investigative regularity, Simko and the EEOC urge

that it was reasonable for the EEOC to broaden the

investigation beyond the four corners of the original

charge and that Simko’s retaliation claim therefore

satisfies the second prong of the exhaustion inquiry.

We reject this argument on two grounds. First, a

rebuttable presumption of regularity does not

foreclose judicial review of the scope of EEOC

investigations, as Simko argues. See, e.g., Robinson,

107 F.3d at 1026 (remanding to the district court to

“evaluate the reasonableness of the decision not to

investigate”); Antol, 82 F.3d at 1296 (holding that the

investigation “quite properly” focused on Antol’s

disability discrimination claim). Here, the EEOC’s

31a

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

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-2019enforcement-and-litigation-data (last visited Mar. 26, 2021).

12

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-youcan-expect-after-you-file-charge (last visited Mar. 26, 2021).

In this case, the agency’s delay in initiating

investigation alone far exceeded both of these time periods.

its

32a

information it gathers during the investigative

process. Nevertheless, the significant 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).

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.

13

33a

Accordingly, we do not defer to the EEOC on the

question of administrative exhaustion.

Simko and the EEOC further assert that filing an

additional EEOC charge was not necessary in this

case because the purpose of the ADA statutory

scheme was ultimately fulfilled: namely, the

facilitation of an informal dispute resolution process

between Simko and U.S. Steel. This argument,

however, ignores two other fundamental aims of the

exhaustion requirement: prompt notice to the

employer and swift dispute resolution. See, e.g.,

Morgan, 536 U.S. at 109 (“[B]y choosing what are

obviously quite short deadlines, Congress clearly

intended to encourage the prompt processing of all

charges of employment discrimination.” (internal

quotation marks omitted)); 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—

34a

and no later than December 18, 2015—the day of the

investigator’s letter to Simko’s counsel stating that

he had informed U.S. Steel about the amended

charge to be filed. This means that U.S. Steel did not

receive even informal notice of the retaliatory

discharge claim until some point between 161 days

and 186 days after the filing period expired.

Moreover, U.S. Steel was not formally put on notice

of the retaliatory discharge claim until after Simko’s

counsel filed his amended EEOC charge on January

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

Given this timeline, excusing the exhaustion

requirement for Simko’s retaliation claim would

undercut the Supreme Court’s emphasis on “strict

adherence” to the pre-suit requirements and the

statutory scheme’s aims of notice and prompt dispute

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

We thus conclude that Simko’s subsequent

retaliation claim would not have fallen within the

reasonable scope of an EEOC investigation into his

original discrimination charge. Accordingly, his

retaliation claim fails the second prong of the

exhaustion inquiry.

While it is unfortunate that Simko did not timely

amend his initial charge on his own and that the

EEOC did not promptly react to his November 2014

correspondence, we cannot hold that the later claim

is encompassed within the initial charge because

Simko’s retaliatory discharge claim does not fairly, or

reasonably, fall within the scope of his original

charge or an EEOC investigation that would arise

therefrom. Thus, he needed to file an amended

charge advancing that claim within the ADA’s 300day filing period. Because he failed to do so, the

35a

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.

36a

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

1

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

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.

2

37a

file a claim with the [EEOC].”3 “The purpose of [the

filing requirement] . . . is to afford the EEOC the

opportunity to settle disputes through conference,

conciliation, and persuasion, avoiding unnecessary

action in court.”4

If, after a petitioner files a claim, subsequent

discriminatory acts occur, the petitioner does not

need to file a new formal charge with the EEOC so

long as the new allegations “fall[ ] within the scope of

a prior EEOC complaint or the investigation which

arose out of it.”5 This “includ[es] new acts which

occurred during the pendency of proceedings before

the Commission.”6 This is quite reasonable because

“additional charges filed during the pendency of the

administrative proceedings may fairly be considered

explanations of the original charge and growing out

of it.”7

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

3

2000).

4

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

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.”).

5

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

(3d Cir. 1976). See also Robinson v. Dalton, 107 F.3d 1018, 1025

6

(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.

38a

Moreover, we liberally construe the scope of an

EEOC complaint when considering whether a

subsequent claim falls within the ambit of an earlier

claim: “In determining the content of the original

complaint for purposes of applying [relation back], we

keep in mind that charges are most often drafted by

one who is not well versed in the art of legal

description. Accordingly, the scope of the original

charge should be liberally construed.”8 Indeed, that is

precisely the situation here. The letter that led to the

EEOC’s eventual investigation was handwritten by

Simko, a lay plaintiff with no legal training or

experience. We have also previously concluded that

where the petitioner “attempted to amend his

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

bring a civil action based on the charge that he

attempted to include. Even a failed attempt to amend

a charge “create[d] an excuse for the failure to file a[n

amended] charge.”10

We have established two factors to determine if a

claim of discrimination relates back to a prior claim.

We look to see whether the subsequent claim “(1)

falls within the scope of a prior EEOC complaint, or

(2) falls within the scope of the 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

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

8

1978).

9

Id. at 964.

10

Id.

11

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

235).

39a

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. 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

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.

12

13

App. 33.

14

App. 25.

15

App. 80–81.

16

App. 84.

17

App. 106; App. 112–17.

40a

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

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.

18

19

Ostapowicz, 541 F.2d at 399.

20

See Maj. Op. at 15–18.

41a

concluding that the

unreasonably broad.

EEOC’s

investigation

was

Indeed, we have cautioned that, in conducting an

inquiry into reasonableness, “[t]he individual

employee should not be penalized by the improper

conduct of the Commission.”21 We have also

reaffirmed the “sound and established policy that

procedural technicalities should not be used to

prevent Title VII claims from being decided on the

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

affect a claimant’s ability to pursue his or her claim.

II.

The petitioner in Hicks brought a claim before

the District Court alleging race and sex

discrimination even though he had only filed a race

discrimination charge with the EEOC. The District

Court concluded that it did not have “jurisdiction

over Hicks’s claims of sex discrimination because a

charge of such discrimination had not been filed with

the EEOC.”23 We reversed. We held that Hicks’

failure to formally file a sex discrimination charge

with the EEOC did not “preclude[] jurisdiction over

the sex discrimination claims.”24 That holding was

based upon two considerations. First, there was

evidence that Hicks “reasonably attempted to amend

his charge to include sex discrimination” but the

21

Hicks, 572 F.2d at 964–65.

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)).

22

23

Hicks, 572 F.2d at 963.

24

Id. at 964.

42a

EEOC erred in failing to amend the claim.25 This, we

found, “create[d] an excuse for the failure to file a sex

discrimination charge”26 regardless of whether Hicks

attempted to amend the charge within the statutory

filing period.27

Second, we concluded that there was a genuine

issue of material fact as to whether a properly

conducted EEOC investigation would have included

an inquiry into sex discrimination. Hicks alleged that

he was not contacted by the investigator until the

conclusion of the investigation.28 There was

“sufficient evidence to raise a fair inference that

Hicks would have told the EEOC investigator that he

believed that sex discrimination was a cause of the

disparate treatment alleged in his charge” had he

been contacted earlier.29

We concluded that if, on remand, the District

Court found either that (1) “the EEOC improperly

failed to accept an amendment to Hicks’s charge

which would have incorporated sex discrimination” or

(2) “a reasonable investigation of the charge as filed

would have encompassed the sex discrimination

25

Id.

26

Id.

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.”).

27

28

Id. at 966.

29

Id.

43a

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 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

30

Id. at 967.

31

Id.

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.

32

33

Waiters, 729 F.2d at 235.

34

Id.

35

Id.

44a

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

36

Id. at 236.

37

Id.

38

Id.

39

Id. at 238.

40

Id. at 237.

45a

within the scope of the [EEOC’s] investigation of the

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

the EEOC had already actually investigated

retaliation against Waiters.

The Majority focuses on two aspects of our

decisions in Hicks and Waiters—the “close factual

nexus” in Hicks, and the similarity of the substantive

discrimination charges in Waiters—and concludes

that one or both of these factors must be present in

order for a subsequently filed claim 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

41

Id. at 238.

42

See Maj. Op. at 20.

43

Hicks, 572 F.2d at 967.

46a

unexhausted claim, can help a petitioner establish

that the unexhausted claim relates back to a properly

filed claim.

In addition, as my colleagues note, we consider

whether a prior and subsequent claim of

discrimination share the same core grievance in

determining if a subsequent claim relates back to the

prior claim. But we also look to see whether the

EEOC actually investigated the unexhausted claim.

The fact that the EEOC’s investigation of the charges

include the substance of the unexhausted claim helps

to establish that the claim reasonably fell within the

scope of the prior complaint.44 Finally, if a petitioner

attempts to amend a charge and the EEOC

erroneously fails to recognize the amendment, a

petitioner may be excused from filing a new charge

with the EEOC before bringing his or her claim

before the District Court.45

Our holding today is inconsistent with our

approach in Hicks and Waiters. Moreover, my

colleagues overlook that we have not previously held

that a claim that was actually investigated by the

EEOC was not reasonably within the scope of the

initial charge that gave rise to the investigation.

Although I agree that we can review the

reasonableness of a completed EEOC investigation, I

do not think my colleagues give sufficient weight to

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”).

44

45

Hicks, 572 F.2d at 967.

47a

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

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.

46

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 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.”).

47

48a

willing as my colleagues to brush aside the EEOC’s

own conclusion that it was reasonable to include the

subsequent acts of retaliation in its investigation.

This is particularly true when we consider that

we liberally construe claims for the purpose of

relation back.48 In addition, “[c]ourts have generally

determined that the parameters of the civil action in

the District Court are defined by the scope of the

EEOC investigation . . . including new acts which

occurred during the pendency of proceedings before

the Commission.”49 It is also important to recall that

we “presume the regularity of the EEOC’s

investigation.”50 We should not lightly conclude that

the EEOC’s commitment of resources and time to an

investigation into discrimination was unreasonable.

Accordingly,

since

the

EEOC

actually

investigated Simko’s retaliation claim, we must begin

with the presumption that the investigation was

reasonable. And because “evidence of the

investigatory practices of the agency” are relevant to

determining “whether a reasonable inquiry would

have reached [any additional] allegations,”51 we must

also consider the EEOC’s general practices. These

practices offer further support for the reasonableness

of the investigation here.

As the Majority recognizes, EEOC investigators

are told to look for “evidence of retaliation during

their investigations, inform their supervisors in case

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.

49a

such evidence surfaces, and notify the employer that

‘the scope may be expanded or limited based on

information received during the investigation.’”52

Indeed, the EEOC Manual states that “if it is found

during the investigation that the charging party has

been discriminated against because s/he filed the

charge, [the] EEOC may investigate the retaliation

issue based on the original charge.”53 Yet, my

colleagues dismiss the importance of this statement

in the Manual by focusing on the differences in the

initial allegations of discrimination and the

subsequent allegations of retaliation.54

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

eminently reasonable because even a minimally wellinformed 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.

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

Investigation).

52

See EEOCCM, § 2.8 Charges Warranting Priority

Handling, 2006 WL 4672924 (emphasis added).

53

54

See Maj. Op. at 24–25.

55

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

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

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

56

50a

Neither party disputes that Simko’s initial

disability discrimination charge in May 2013 was

timely. While it was still pending before the EEOC,

U.S. Steel fired Simko allegedly for unrelated

reasons.57 In November 2014, a few months after

being fired, while the disability discrimination charge

was still pending before the EEOC, Simko wrote to

the EEOC stating his belief that he was fired “as

retaliation for filing charges with the EEOC.”58

Simko’s timely filed initial disability discrimination

claim, therefore, is the alleged basis of the retaliation

claim. It is difficult to see how the retaliation claim

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

the original charge. Absent the initial charge of

discrimination, there would be no basis for the

retaliation.

As is regular practice at the EEOC, and as is

explicitly contemplated by the EEOC guidance, an

EEOC investigator wrote back to Simko and

contacted U.S. Steel in November 2015 to inform U.S.

Steel that it was expanding its investigation into

retaliation and that a formal retaliation charge was

forthcoming.59 The EEOC investigated the retaliation

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.

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 itself recognizes, the

agency very likely erred in failing to construe the

correspondence as a formal charge.

58

59

App. 83.

51a

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 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

60

App. 106.

61

A112–14.

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

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

62

63

App. 106.

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

regularity of the EEOC’s investigation.”).

64

65

Robinson, 107 F.3d at 1024–25.

52a

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

66

Waiters, 729 F.2d at 235.

67

See Maj. Op. at 18–20.

68

Waiters, 729 F.2d at 238.

53a

“preclude[d] us from holding that the claim based on

the discharge is within the scope of the investigation

that arose from the formal complaint.”69 We

disagreed. We allowed the claim to proceed because

“it [wa]s clear that the allegations of the appellant’s

complaint fall within the scope of the district

director’s investigation of the charges.”70 This was

true even where “[t]he investigation clearly went

beyond the specific problem alleged in the formal

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

the EEOC delayed investigating his claims—and, to

its substantial credit, the EEOC concedes its error in

delaying the investigation of Simko’s claim.

Nevertheless, the retaliation claim was eventually

part of the agency’s investigation and U.S. Steel

participated in the investigation and conciliation

process.

The Majority also argues that the claims cannot

relate back because disability discrimination is

substantively different from retaliation. But we have

previously concluded that claims that differ in kind

may also relate back so long as they reasonably

would have been included in the investigation of the

initial charge. As described above, in Hicks we

concluded that a charge of sex discrimination could

relate back to a charge of race discrimination

because, had the EEOC properly investigated the

69

Id.

70

Id. (emphasis added).

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.”).

71

54a

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. 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, nonjudicial 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

72

Hicks, 572 F.2d at 962.

73

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

55a

precisely why the EEOC’s policy of allowing

investigations into substantive discrimination to

include allegations of retaliation is so eminently

reasonable. In fact, a contrary policy that would

preclude or discourage inquiries into whether an

employee alleging discrimination had suffered

retaliation would be unreasonable.

The Majority argues that considering the facts of

Simko’s disability discrimination claim in light of the

appropriate test demonstrates that any tether it has

to the retaliation claim is “conclusory” and does not

“actually exist[].”74 But in so arguing, my colleagues

appear to ignore the clear connection between the

two claims. Simko’s allegation that he was fired in

retaliation for filing a disability discrimination claim

means that his disability discrimination claim is both

a factual and legal basis for his retaliation claim.

Stated differently, his claim alleges that but for his

filing of a disability discrimination claim, he would

not have faced the allegedly retaliatory discharge.

Such a connection between the claims is hardly

“conclusory.”75 As I explain below, I agree with the

74

Maj. Op. at 21.

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 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

75

56a

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

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.

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

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

76

57a

allowing an unexhausted claim to proceed.77 The fact

that Simko is alleging a retaliation claim (as opposed

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 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

58a

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 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

the retaliation claim is properly within the scope of the

investigation of Simko’s initial charge.

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.

78

79

Maj. Op. at 21.

80

Id.

59a

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 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.

81

Hicks, 572 F.2d at 966.

82

Id.

60a

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. [§] 2000e-5(b), does not

83

See Maj. Op. at 24 n.12.

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.”).

84

61a

bar a civil 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 “includ[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,

85

Id. at 964 (emphasis added).

86

Id.

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.

87

88

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

89

Ostapowicz, 541 F.2d at 399.

62a

during the course of its investigation of Simko’s claim

of disability discrimination, after being alerted by

Simko about retaliation for the filing of the initial

charge, to also investigate the alleged retaliation.

That conclusion is reinforced here where the EEOC

guidance tells us that such retaliation investigations

are routine, and where the EEOC actually

investigated the discrimination, concluded that there

was evidence of retaliation, and attempted to

conciliate the dispute. Accordingly, I must

respectfully dissent from my colleagues’ analysis.

63a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

MICHAEL SIMKO,

CIVIL ACTION NO.

19-765

Plaintiff,

v.

JUDGE JOY

FLOWERS CONTI

UNITED STATES

STEEL CORP.,

Defendant.

[Filed 12/13/2019]

OPINION

Pending before the court is a motion to dismiss

this case in its entirety (ECF No. 6) filed by

defendant

United

States

Steel

Corporation

(“USSteel”), with a brief in support. Plaintiff Michael

Simko (“Simko”) filed a response and brief in

opposition to the motion (ECF Nos. 11, 12), USSteel

filed a reply brief (ECF No. 16). On October 17, 2019,

the court held oral argument on the motion and

requested further briefing. The supplemental briefing

was completed on December 2, 2019 (ECF Nos. 18,

19) and the motion is ripe for decision. The court

appreciates

the

thorough

and

professional

memoranda of law submitted by counsel for both

parties.

Factual and Procedural Background

The facts are taken from the complaint (ECF No.

1) and are accepted as true for the purpose of

64a

resolving the motion to dismiss. Simko began

working for USSteel on August 22, 2005. In August

2012, Simko was a larryman in the blast furnace

department at the Edgar Thompson plant in

Braddock, Pennsylvania, when he successfully bid for

a position as a spellman in the transportation

department.

During his spellman training, Simko sought an

accommodation for his hearing loss by requesting a

newer two-way radio. No accommodation was

provided. Simko’s trainer refused to approve the

completion of Simko’s spellman training because

Simko could not hear. Simko returned to his work as

a larryman in November 2012. (ECF No. 12-1).

Simko filed a charge with the EEOC alleging

violations of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq. The charge of

discrimination was signed on May 24, 2013, and

received by the EEOC on May 28, 2013. On December

30, 2013, Simko was discharged (for the first time) for

a car having lost power. (ECF No. 12-9 at 2). On May

27, 2014, Simko entered into a Last Chance

Agreement and returned to work on June 1, 2014.

On August 19, 2014, Simko was discharged

again. USSteel stated the discharge was based on a

safety violation that occurred on August 15, 2014.

The initial discipline for the incident was a five-day

suspension, but it was converted into a discharge.

Complaint ¶¶ 19-20. Simko grieved the discharge.

The union withdrew the grievance.

65a

Included in the documents submitted by Simko in

response to the motion to dismiss1 is an undated2

handwritten letter to the EEOC stating, in relevant

part, that Simko believed his discharge was in

retaliation for filing charges with the EEOC. (ECF

No. 12-2 at 12-14). This letter is not referenced in the

complaint. There was no apparent action taken by

the EEOC for the next year.

The first reference by the EEOC to a retaliation

claim occurred in a letter from an investigator dated

November 23, 2015. (ECF No. 12-4). Counsel entered

an appearance with the EEOC on Simko’s behalf on

November 30, 2015, and on January 21, 2016,

submitted an amended charge to the EEOC, alleging

retaliation.3 (ECF No. 12-9). In the amended charge,

Simko stated that the latest date that discrimination

took place was “08-19-2014.” Id. The EEOC

investigated the retaliatory discharge claim. On

February 19, 2019, the EEOC issued a Determination

that USSteel retaliated because it disciplined Simko

more severely than a non-disabled comparator. (ECF

No. 12-14). The Determination did not clearly state

whether the retaliatory motivation was based on

Simko’s disability or his prior EEOC charge. Id.

EEOC documents may be considered in deciding a motion

to dismiss without converting the motion into one for summary

judgment. Branum v. United Parcel Serv., Inc., 232 F.R.D. 505,

507 n.1 (W.D. Pa. 2005).

1

Simko states in his brief that EEOC received this letter on

November 14, 2014. (ECF No. 12 at 8). The court will assume

the truth of this allegation.

2

USSteel argues that by filing this amended charge, Simko

concedes that his retaliatory discharge claim was not within the

scope of his original charge.

3

66a

Standard of Review

As set forth in Connelly v. Lane Construction

Corp., 809 F.3d 780, 786-87 (3d Cir. 2016):

A complaint may be dismissed under Rule

12(b)(6) for “failure to state a claim upon

which relief can be granted.” But detailed

pleading is not generally required. The Rules

demand “only ‘a short and plain statement of

the claim showing that the pleader is entitled

to relief,’ in order to ‘give the defendant fair

notice of what the ... claim is and the grounds

upon which it rests.’” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)). “To

survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citation and internal quotation

marks omitted). “A claim has facial

plausibility when the plaintiff pleads factual

content that allows the court to draw the

reasonable inference that the defendant is

liable for the misconduct alleged.” Id.; see

also Sheridan v. NGK Metals Corp., 609 F.3d

239, 262 n. 27 (3d Cir. 2010). Although the

plausibility standard “does not impose a

probability requirement,” Twombly, 550 U.S.

at 556, it does require a pleading to show

“more than a sheer possibility that a

defendant has acted unlawfully,” Iqbal, 556

U.S. at 678. A complaint that pleads facts

“merely consistent with a defendant's liability

... stops short of the line between possibility

67a

and plausibility of entitlement to relief.” Id.

(citation and internal quotation marks

omitted). The plausibility determination is “a

context-specific task that requires the

reviewing court to draw on its judicial

experience and common sense.” Id. at 679.

Under the pleading regime established by

Twombly and Iqbal, a court reviewing the

sufficiency of a complaint must take three

steps. First, it must “tak[e] note of the

elements [the] plaintiff must plead to state a

claim.” Iqbal, 556 U.S. at 675. Second, it

should identify allegations that, “because

they are no more than conclusions, are not

entitled to the assumption of truth.” Id. at

679; see also Burtch v. Milberg Factors, Inc.,

662 F.3d 212, 224 (3d Cir. 2011) (“Mere

restatements of the elements of a claim are

not entitled to the assumption of truth.”

(citation and editorial marks omitted)).

Finally, “[w]hen there are well-pleaded

factual allegations, [the] court should assume

their veracity and then determine whether

they plausibly give rise to an entitlement to

relief.” Iqbal, 556 U.S. at 679.

At the final step, the court is to assume all well-pled

allegations to be true, construe those allegations in

the light most favorable to the plaintiff, draw all

reasonable inferences from them in favor of the

plaintiff, and ask whether they “raise a reasonable

expectation that discovery will reveal evidence” to

support the legal claim being asserted. Id. at *7.

68a

Legal Analysis

In the complaint, Simko asserts a single claim for

retaliation under the ADA in connection with his

second discharge in August 2014. USSteel contends

that the retaliation claim is time barred and must be

dismissed with prejudice.

Before a claimant may bring suit in federal court,

must exhaust his administrative remedies.

Robinson v. Dalton, 107 F.3d 1018, 1020–21 (3d Cir.

1997). In Pennsylvania, a verified charge must be

filed with the EEOC within 300 days of the alleged

unlawful employment practice. Urban v. Bayer Corp.

Pharm. Div., 245 F. App’x 211, 212 (3d Cir. 2007)

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

854 (3d Cir. 2000)). The United States Supreme

Court recently explained that a “charge-filing

requirement is a processing rule, albeit a mandatory

one, not a jurisdictional prescription delineating the

adjudicatory authority of courts.” Fort Bend Cty.,

Texas v. Davis, 139 S. Ct. 1843, 1851 (2019). The

Third Circuit Court of Appeals similarly instructs

that a nonjurisdictional claim-processing rule “still

has teeth.” Guerra v. Consol. Rail Corp., 936 F.3d

124, 135–36 (3d Cir. 2019).

he

To determine whether a charge alleging unlawful

termination was timely filed, the limitations period is

measured from the date on which the employee was

advised of his termination. Urban, 245 F. App’x at

213 (citing Delaware State College v. Ricks, 449 U.S.

250, 258 (1980); and Watson, 235 F.3d at 855). In this

case, 521 calendar days elapsed from the date Simko

was discharged until he filed an EEOC charge

69a

alleging

a

retaliatory

termination.

Simko

acknowledges that the 300-day filing period elapsed.

Simko contends however, that his amended

charge should be regarded as timely because: (1) the

limitations period should be equitably tolled when he

sent a handwritten letter to the EEOC complaining

about retaliation within three months of his

discharge (ECF No. 12-2), but the EEOC failed to

take action for over a year; (2) USSteel waived this

defense by not raising it sooner; and (3) the EEOC

rejected USSteel’s untimeliness defense. Simko also

argues that his retaliation claim relates back to his

original EEOC charge in 2013. Each of these

arguments will be addressed.

A. Equitable tolling

The handwritten letter4 (ECF No. 12-2) does not

constitute a “charge” and Simko does not contend

otherwise. The document is not verified, as required,

and did not cause the EEOC to initiate an

investigation. Urban, 245 F. App’x at 213 (citing

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 265

(3d Cir. 2006). Although Simko was pro se at the

time, he knew how to file a proper EEOC charge

because he had done so in May 2013.5

4

The documents were produced by Simko’s counsel in the

format they were received from EEOC. The letter appears to be

part of a larger document because page one starts: “In closing

....” (ECF No. 12-2 at 12.) Simko is primarily complaining in the

letter about his first discharge in December 2013, the lack of

support from his union, and being brought back on a Last

Chance Agreement. Id. at 13.

Simko concedes that the May 2013 charge did not allege

retaliation. (ECF No. 12 at 8).

5

70a

The EEOC’s mere failure to act on the

handwritten letter does not justify equitable tolling of

the 300-day filing period. The court of appeals has

recognized three circumstances in which equitable

tolling would be appropriate: “(1) [W]here the

defendant has actively misled the plaintiff respecting

the plaintiff's cause of action, and that deception

causes non-compliance with an applicable limitations

provision; (2) where the plaintiff in some

extraordinary way has been prevented from asserting

his rights; or (3) where the plaintiff has timely

asserted his or her rights mistakenly in the wrong

forum.” Pizio v. HTMT Glob. Sols., 555 F. App’x 169,

176 (3d Cir. 2014) (citations omitted). None of these

circumstances apply in this case. Simko does not

allege that USSteel actively misled him. Simko was

not prevented in any way (let alone an extraordinary

way) from exercising his rights. Simko did not

explain why he could not have simply filed a timely

amended charge with the EEOC to assert a

retaliatory discharge. Finally, Simko did not timely

assert his rights in the wrong forum. In sum, under

the standard established by the court of appeals

there is no basis to equitably toll the limitations

period.

B. EEOC finding of timeliness/ waiver

It is well-settled that courts are not bound by the

EEOC’s view of whether a claim is timely filed.

Urban, 245 F. App’x at 213 (“our case law is clear

that ‘the EEOC’s belief as to the timeliness of a

charge is not determinative.’”) (quoting Kocian v.

Getty Ref. & Mktg. Co., 707 F.2d 748, 754 n. 9 (3d

Cir. 1983), overruled on other grounds by Colgan v.

71a

Fisher Sci. Co., 935 F.2d 1407, 1414 (3d Cir. 1991)

(en banc)).

It is equally clear that USSteel would not waive

this defense by failing to raise it with the EEOC. As

this court explained, “the non-adversarial, nonbinding nature of EEOC proceedings means that an

employer's failure to raise the timeliness issue before

the EEOC cannot have the binding effect of a

waiver.” Byrnes v. Herion, Inc.,757 F.Supp. 648, 653

(W.D. Pa. 1990) (“[W]e are unable to find any

authority for the proposition that a waiver under

these circumstances would be appropriate.”). In any

event, USSteel did, in fact, argue to the EEOC that

Simko’s retaliatory discharge claim was untimely

filed. (ECF No. 12-13).

In sum, the amended charge filed in January

2016 does not satisfy Simko’s administrative

prerequisites. USSteel’s defense that the amended

claim is untimely is cognizable and meritorious.

C. Whether the retaliation claim is within the

scope of Simko’s original charge

Simko argues that his retaliatory discharge claim

is within the scope of his original charge. Simko also

contends that his claim is cognizable because the

EEOC investigation in this case did actually address

retaliation, albeit not until two and a half years later.

These are the issues on which the court requested

supplemental briefing.

1. Third Circuit Court of Appeals precedent

The court notes, as an initial matter, that if court

of appeals precedential decisions are in conflict, it is

the older opinion that controls. Kossler v. Crisanti,

72a

564 F.3d 181, 194 (3d Cir. 2009) (“[t]his Circuit has

long held that if its cases conflict, the earlier is the

controlling authority and the latter is ineffective as

Pardini v. Allegheny

precedents.”)

(quoting

Intermediate Unit, 524 F.3d 419, 426 (3d Cir. 2008)).

An aggrieved employee is required to file a charge

to initiate the statutory scheme for remedying

discrimination. Hicks v. ABT Associates, Inc., 572

F.2d 960, 963 (3d Cir. 1978). Once the EEOC receives

a charge, it gives notice to the employer and

investigates whether there is reasonable cause to

believe that the charge is true. Id. If cause is found,

the EEOC must attempt to settle the dispute on an

informal basis. Id. If no reasonable cause is found, or

if reconciliation attempts prove futile, the charging

party is issued a right to sue letter. Id. In Waiters v.

Parsons, 729 F.2d 233 (3d Cir. 1984), the court

explained the underlying rationale for not requiring

that a new formal charge be filed if the new

allegations of discrimination are related to the

original charge: “Once the EEOC has tried to achieve

a consensual resolution of the complaint, and the

discrimination continues, there is minimal likelihood

that further conciliation will succeed.” Id. at 237.

Under these circumstances, the policy of promoting

conciliation would not be furthered by allowing the

defendants to delay having to answer in court for

additional discriminatory actions taken against an

employee for asserting her rights. Id. at 238.

As Simko recognizes, the oldest case to address

whether a new claim of discrimination relates back to

an earlier charge is Hicks. In Hicks, the court

adopted an objective test: “Once a charge of some sort

is filed with the EEOC, [ ] the scope of a resulting

73a

private civil action in the district court is defined by

the scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of

discrimination.” 572 F.2d at 966 (emphasis added,

citations omitted). The court further explained that a

discrimination claim is within the scope of the charge

if, presuming a reasonable investigation had

occurred, the EEOC would have been informed of

that discrimination claim. Id. at 967.

The court cautioned that a mere finding that the

EEOC would have discovered a claim for

discrimination in the course of a reasonable

investigation “does not itself meet the standard.” Id.

A district court must further find that the claims

which would have been uncovered were reasonably

within the scope of the charge filed with the EEOC.

“Otherwise, the charging party could greatly expand

an investigation simply by alleging new and different

facts when he was contacted by the Commission

following his charge.” Id.

In Hicks, the employee’s original charge alleged

only race discrimination. The court held that there

was a genuine issue of fact about whether the

employee reasonably attempted to amend his charge

to include sex discrimination, which the EEOC

improperly refused to accept. Id. at 964. The court

noted that the amendment could relate back to the

original filing date even if the amendment was filed

beyond the 180-day deadline. Id. at 965. The court

emphasized that the alleged sex discrimination arose

“from the same acts which support claims for race

discrimination.” Id. The claim of sex discrimination

“Hicks says he tried to have incorporated in his

charge would have been ‘directly related to’ the facts

74a

in the original charge and thus would have related

back to the original filing date.” Id. In reasonably

investigating the charge of race discrimination, there

was a “fair inference that Hicks would have told the

EEOC investigator that he believed that sex

discrimination was a cause of the disparate

treatment.” Id. at 966.

The next relevant precedential decision of the

court of appeals was Waiters. In Waiters, the court

rejected the Fifth Circuit Court of Appeals’ per se

rule that all claims of retaliation are “ancillary” to

the original administrative complaint and therefore

no further EEOC complaint need be filed. 729 F.2d at

237 n. 10 (quoting Gupta v. East Texas State

University, 654 F.2d 411 (5th Cir. 1981)). Instead,

the court adopted a case-by-case approach under

which district courts must examine carefully the

initial charge and the additional claim to determine

whether a second charge should have been filed. See

Crawford v. Verizon Pa., Inc., 103 F. Supp.3d 597,

610 (E.D. Pa. 2015).

In Waiters, the initial complaint charged a

specific instance of retaliation for the filing of her

informal complaint a year earlier. The EEOC

investigation went beyond the specific problem

alleged in the formal complaint and found evidence of

retaliatory intent in a pattern of actions by the

employer. 729 F.2d at 238. The employee alleged that

her discharge (for which she did not file a new

charge) was the product of this same retaliatory

intent. The employer argued that the discharge claim

was not within the scope of the investigation because

different

officials

committed

the

allegedly

discriminatory acts, more than thirty months passed

75a

between the formal complaint and the discharge, and

the alleged retaliatory acts were of a different nature.

The court rejected this argument, and explained:

“While it is true that the allegedly discriminatory

officials and acts are different, the core grievanceretaliation-is the same and, at all events, it is clear

that the allegations of the appellant’s complaint fall

within the scope of the district director’s

investigation of the charges contained in the 1979

formal complaint.” Id. (emphasis added).

In Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir.

1996), the court held that a charge of disability

discrimination did not encompass a new claim for

gender discrimination. The court explained that the

“specifics of his disability discrimination charge do

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 are women.” Id. at 1296.

Because the EEOC investigation properly focused on

disability discrimination, neither the EEOC nor the

employer were put on notice of a gender

discrimination claim. Id. at 1296. The court explained

that the employee failed to exhaust administrative

remedies for his gender discrimination claim because

the EEOC was not afforded “the opportunity to settle

[the gender discrimination] disputes through

conference, conciliation, and persuasion, avoiding

unnecessary action in court.” Id. Antol distinguished

Waiters “because [in Waiters ] the core grievances in

the suit filed and the earlier EEOC complaint were

the same—retaliation.” Id. at 1295.

In Robinson v. Dalton, 107 F.3d 1018, 1024 (3d

Cir. 1997), the court of appeals provided additional

76a

guidance on how to determine whether a new claim

falls within the scope of the original charge. Robinson

described the Waiters decision as follows:

in Waiters we identified two circumstances in

which events subsequent to a filed complaint

may be considered as fairly encompassed

within that complaint, either where the

incident (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.” Id. at 235.6 We decided that the EEOC

investigation, which apparently had been

broadened by the EEOC, encompassed the

underlying conduct leading to the ultimate

discharge, and that there was nothing to be

served by requiring Waiters to file a second

complaint. Id.

Id. at 1025.

In Robinson, the EEOC expressly declined to

include the employee’s retaliatory discharge claim in

its investigation, even though the subject of his prior

complaints was used as a basis for the employer’s

decision to discharge him. Id. at 1025-26. The court

reiterated that the Third Circuit Court of Appeals

rejected the “per se” rule that all retaliation claims

fall within the scope of a prior charge, but courts

must examine carefully the prior pending EEOC

complaint and the unexhausted claim on a case-byIn Waiters, the court added the proviso “provided that the

victim can still bring suit on the earlier complaint.” 729 F.2d at

235. If a claim is bootstrapped to a prior EEOC charge that is

untimely, neither claim is properly before the court. Fenton v.

Port Auth. of NY & NJ, 777 F. App’x 45, 49 (3d Cir. 2019).

6

77a

case basis. Id. at 1024. The case was remanded for

further consideration. The Robinson decision

identified several factors:

Factors the district court may consider in

making this determination include 1)

whether the previous three complaints

alleged the same retaliatory intent inherent

in the retaliatory discharge claim, Waiters,

729 F.2d at 238, 2) whether the subject of

these previous complaints were used as a

basis for the Navy’s decision to terminate

Robinson; and 3) whether the EEOC should

have been put on notice of Robinson's claim of

retaliatory

discharge

and

therefore

investigated that claim, Hicks, 572 F.2d at

966. In light of our precedent, the court may

also want to reexamine whether there is

enough overlapping in Robinson’s subsequent

allegations with the earlier complaints that

this discharge complaint fairly falls within

the scope of the earlier complaints.

Id. at 1026.7

This court asked the parties to consider whether

the Third Circuit Court of Appeals’ test is objective or

subjective. In Hicks, the court held that the

parameters of the civil action are defined by the scope

In Robinson v. Consol Pennsylvania Coal Co. LLC, No.

2:18-CV-00555-NR, 2019 WL 6338464, at *7 (W.D. Pa. Nov. 27,

2019), the court recently explained that the test “turns on

whether there is a close nexus between the facts supporting

each claim or whether additional charges made in the judicial

complaint may fairly be considered explanations of the original

charge or growing out of it.”

7

78a

of the EEOC investigation which can “reasonably” be

expected to grow out of the charge. 572 F.2d at 966.

In Antol, the court similarly explained that the claim

must fall “fairly” within the scope of the prior EEOC

complaint. 82 F.3d at 1295. These decisions adopt an

objective test, that is not dependent upon the actual

scope of the EEOC investigation.

Waiters contains inconsistent language. It

purported to adopt the “fairly within the scope of the

prior EEOC complaint” test, citing Hicks. 729 F.2d at

237. The court also stated, however, that an employee

is not required to exhaust administrative remedies if

the incident “falls within the scope of a prior EEOC

complaint or the investigation which arose out of it.”

Id. at 235 (omitting a reference to “reasonably” or

“fairly”). Waiters recognized that the EEOC’s actual

investigation of retaliation was broader than the

original charge. Id. at 238. The decision in Robinson,

in describing Waiters, entirely omitted any reference

to charges “reasonably” and “fairly” arising from the

investigation. 107 F.3d at 1025. Robinson appears to

endorse a subjective test in which exhaustion is not

required when the charge was actually within the

scope of the EEOC’s investigation. The court of

appeals continues, however, to apply the objective

test. See Mandel v. M & Q Packaging Corp., 706 F.3d

157, 164 (3d Cir. 2013) (adopting “fairly within scope”

test and holding that original charge of sexual

harassment did not encompass claim of retaliation).

The court believes that these precedents can be

harmonized. The lesson of Waiters is that the EEOC

investigation of an original claim of retaliation will

necessarily encompass additional allegations of

retaliation, because it is the same “core grievance”

79a

(i.e., same kind of discrimination). The lesson of

Hicks and Robinson is that an EEOC investigation

could reasonably encompass different types of

discrimination if they are based on the same set of

underlying facts. The lesson of Antol is that a new

claim is not fairly within the scope of an EEOC

investigation if it is based on different facts and a

different kind of discrimination. As noted above, to

the extent that the decisions cannot be reconciled, the

older, objective standard set forth in Hicks and Antol

is controlling.

2. Application to this case

With this background, the court concludes, after

a careful analysis, that the conduct alleged by Simko

in the complaint in this case (i.e., retaliation in

connection with Simko’s second termination in

August 2014) is not fairly within the scope of his

original EEOC charge or the resulting investigation.

It is Antol, not Waiters, that is most analogous to this

case.

Simko’s complaint is based on a different kind of

discrimination than his original charge. Unlike

Waiters, the “core grievance” in Simko’s initial

charge did not involve retaliation – there was no

reference to retaliation in Simko’s original charge at

all. Simko’s original EEOC charge, as in Antol,

alleged

disability

discrimination

in

the

transportation

department

for

failing

to

accommodate Simko’s hearing loss for a position as a

spellman. (ECF No. 12-1).

Simko’s retaliatory discharge claim is also based

on different facts than his original charge. Simko’s

disability discrimination claim was relatively narrow

80a

and discrete. The two individuals identified in the

original charge were a trainer, Kevin Puckey, and a

supervisor, Brian Spiller, in the transportation

department. The alleged conduct was a failure to

accommodate his hearing loss by providing a newer

two-way radio. A timely investigation of the incident

involving the transportation department would not

have encompassed the alleged retaliatory discharge

alleged in the complaint in this case, which involved

different supervisors, a different department, and a

different, discrete safety violation incident. Simko’s

second discharge did not even occur until almost two

years later, in August 2014.8

The subject of the original EEOC charge (Simko’s

efforts to seek accommodation for his hearing loss)

was not cited by USSteel as the basis for either of his

discharges. As set forth in Simko’s amended EEOC

charge, he was discharged on December 30, 2013, for

a car having lost power. (ECF No. 12-9). He was

discharged a second time in August 2014 (the only

claim set forth in the complaint) for violating a last

chance agreement by failing to sign-out in two areas.

Id. In sum, as in Antol, the complaint in this case

alleges a different kind of discrimination and is based

on entirely different facts from the original charge.

There is no reason that the EEOC or USSteel would

have reasonably or fairly been put on notice and

The last sentence of ¶ 3 of the initial charge arguably

expands the scope of the hearing loss inquiry to include

November 2012, when “Gary Evans, Walking Boss, told [Simko]

that if [he] couldn’t hear, [he] must be disabled and should not

work anywhere in the plant.” (ECF No. 12-1 at 2). This fact does

not change the court’s analysis because it does not implicate

retaliation.

8

81a

investigated an alleged August 2014 retaliatory

discharge as part of its investigation of the 2012

alleged failure to accommodate Simko’s hearing loss.

Several courts have reached similar conclusions,

holding that nothing in the original charge could

have put the EEOC on notice of the employee’s later

retaliation claim. See Crawford, 103 F. Supp. 3d at

610; Thomas v. St. Mary Med. Ctr., 22 F. Supp. 3d

459, 471 (E.D. Pa. 2014) (employee failed to exhaust

retaliation claim because she failed to check the

“retaliation” box and presented no facts in support of

a retaliation claim in her initial charge); McGinnis v.

Donahoe, No. 12-1880, 2015 WL 507043 *12 (W.D.

Pa. Feb. 6, 2015) (retaliation and hostile work

environment claims not fairly within the scope of

original charge). In sum, the complaint must be

dismissed because Simko failed to exhaust his

administrative remedies regarding his retaliatory

discharge claim under applicable Third Circuit

precedent.

The court will briefly address Simko’s alternative

argument that exhaustion is excused because the

EEOC actually investigated his retaliation claim. In

this case, the EEOC did not conduct an unfairly

narrow investigation of Simko’s original charge in

May 2013 – instead, it apparently conducted no

investigation at all, for several years. In May 2015,

the EEOC began a belated investigation, Simko filed

an amended charge in January 2016 alleging

retaliation, and the EEOC eventually found the

discharge was retaliatory. The court in Hicks rejected

a standard that would penalize a plaintiff if the

“EEOC’s investigation is unreasonably narrow or

improperly conducted.” 572 F.2d at 966. This case

82a

presents the opposite situation – whether the

employer should be penalized if the EEOC’s

investigation is unreasonably broad (by addressing a

retaliation theory that was not reasonably within the

scope of Simko’s initial charge). The parties did not

cite any authorities addressing this particular

situation.

There are two fatal flaws with Simko’s argument.

First, the court of appeals in Hicks cautioned, in

adopting an objective test, that exhaustion of

remedies is not dependent on the actual scope of the

EEOC’s investigation. As the court explained:

“Otherwise, the charging party could greatly expand

an investigation simply by alleging new and different

facts when he was contacted by the Commission

following his charge.” Hicks, 572 F.2d at 967. Second,

under the circumstances of this case, the

investigation of Simko’s claim for retaliatory

discharge was untimely made. As the court recently

explained in Fenton, a new claim might relate back if

the employee can still sue on the original charge but

if a claim is bootstrapped to a prior EEOC charge

that is untimely, neither claim is properly before the

court. 777 F. App’x at 49. In this case, Simko has no

timely claim to which to bootstrap his retaliatory

discharge claim.

Conclusion

Simko’s complaint in this case seeks redress for

an alleged retaliatory discharge in August 2014.

Simko recognizes that he failed to file a charge of

retaliation with the EEOC within 300 days of that

discharge. For the reasons explained above, based

upon the undisputed record Simko’s amended charge

83a

is untimely and his retaliation claim is not within the

scope and does not relate back to his original EEOC

charge, which concerned a failure to accommodate his

hearing loss in August 2012.

Because

Simko

failed

to

exhaust

his

administrative remedies, any effort to amend the

complaint would be futile and inequitable. In

accordance with the foregoing, the motion to dismiss

(ECF No. 6) will be GRANTED and the complaint

will be dismissed with prejudice and without leave to

amend. The case will be marked closed.

An appropriate order follows.

December 13, 2019

BY THE COURT:

/s/ Joy Flowers Conti

Joy Flowers Conti

Senior United States District Judge

84a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

MICHAEL SIMKO,

Plaintiff,

v.

CIVIL ACTION NO.

19-765

JUDGE JOY

FLOWERS CONTI

UNITED STATES

STEEL CORP.,

Defendant.

[Filed 12/13/2019]

ORDER

AND NOW this 13th day of December, 2019, in

accordance with the memorandum opinion, it is

hereby ordered that the motion to dismiss (ECF No.

6) is GRANTED. The complaint is DISMISSED with

prejudice and without leave to file an amended

complaint. The case will be marked closed.

BY THE COURT:

/s/ Joy Flowers Conti

Joy Flowers Conti

Senior United States District Judge

85a

APPENDIX D

IN THE 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-0075)

_______________________

SUR PETITION FOR REHEARING

_______________________

Present: SMITH, Chief Judge, McKEE, AMBRO,

CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., SHWARTZ, KRAUSE, RESTREPO,

BIBAS, PORTER, MATEY, PHIPPS and RENDELL,1

Circuit Judges

The petition for rehearing filed by appellant in

the above-entitled case having been submitted to the

judges who participated in the decision of this Court

and to all the other available circuit judges of the

1

Judge Rendell’s vote is limited to panel rehearing only.

86a

circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing,

and a majority of the judges of the circuit in regular

service not having voted for rehearing, the petition

for rehearing by the panel and the Court en banc, is

denied.

BY THE COURT,

s/ Theodore A. McKee

Circuit Judge

Dated: May 11, 2021

SLC/cc: Counsel of Record

87a

APPENDIX E

RELEVANT STATUTORY PROVISIONS

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e et seq., provides in part as follows:

*

*

*

§ 2000e-5. Enforcement provisions

(a) Power of Commission to prevent unlawful

employment practices

The [Equal Employment Opportunity] Commission is

empowered, as hereinafter provided, to prevent any

person from engaging in any unlawful employment

practice as set forth in section 2000e-2 or 2000e-3 of

this title.

(b) Charges by persons aggrieved or member of

Commission of unlawful employment practices by

employers, etc.; filing; allegations; notice to

respondent; contents of notice; investigation by

Commission; contents of charges; prohibition on

disclosure of charges; determination of reasonable

cause; conference, conciliation, and persuasion for

elimination of unlawful practices; prohibition on

disclosure of informal endeavors to end unlawful

practices; use of evidence in subsequent

proceedings; penalties for disclosure of information;

time for determination of reasonable cause

Whenever a charge is filed by or on behalf of a person

claiming to be aggrieved, or by a member of the

Commission, alleging that an employer, employment

agency, labor organization, or joint labor-

88a

management committee controlling apprenticeship or

other training or retraining, including on-the-job

training programs, has engaged in an unlawful

employment practice, the Commission shall serve a

notice of the charge (including the date, place and

circumstances of the alleged unlawful employment

practice) on such employer, employment agency,

labor organization, or joint labor-management

committee (hereinafter referred to as the

“respondent”) within ten days, and shall make an

investigation thereof. Charges shall be in writing

under oath or affirmation and shall contain such

information and be in such form as the Commission

requires. Charges shall not be made public by the

Commission. If the Commission determines after

such investigation that there is not reasonable cause

to believe that the charge is true, it shall dismiss the

charge and promptly notify the person claiming to be

aggrieved and the respondent of its action. In

determining whether reasonable cause exists, the

Commission shall accord substantial weight to final

findings and orders made by State or local authorities

in proceedings commenced under State or local law

pursuant to the requirements of subsections (c) and

(d). If the Commission determines after such

investigation that there is reasonable cause to believe

that the charge is true, the Commission shall

endeavor to eliminate any such alleged unlawful

employment practice by informal methods of

conference, conciliation, and persuasion. Nothing said

or done during and as a part of such informal

endeavors may be made public by the Commission,

its officers or employees, or used as evidence in a

subsequent proceeding without the written consent of

the persons concerned. Any person who makes public

89a

information in violation of this subsection shall be

fined not more than $1,000 or imprisoned for not

more than one year, or both. The Commission shall

make its determination on reasonable cause as

promptly as possible and, so far as practicable, not

later than one hundred and twenty days from the

filing of the charge or, where applicable under

subsection (c) or (d), from the date upon which the

Commission is authorized to take action with respect

to the charge.

*

*

*

(e) Time for filing charges; time for service of notice

of charge on respondent; filing of charge by

Commission with State or local agency; seniority

system

(1) A charge under this section shall be filed within

one hundred and eighty days after the alleged

unlawful employment practice occurred and notice of

the charge (including the date, place and

circumstances of the alleged unlawful employment

practice) shall be served upon the person against

whom such charge is made within ten days

thereafter, except that in a case of an unlawful

employment practice with respect to which the

person aggrieved has initially instituted proceedings

with a State or local agency with authority to grant

or seek relief from such practice or to institute

criminal proceedings with respect thereto upon

receiving notice thereof, such charge shall be filed by

or on behalf of the person aggrieved within three

hundred days after the alleged unlawful employment

practice occurred, or within thirty days after

90a

receiving notice that the State or local agency has

terminated the proceedings under the State or local

law, whichever is earlier, and a copy of such charge

shall be filed by the Commission with the State or

local agency.

*

*

*

(f) Civil action by Commission, Attorney General,

or person aggrieved; preconditions; procedure;

appointment of attorney; payment of fees, costs, or

security; intervention; stay of Federal proceedings;

action for appropriate temporary or preliminary

relief pending final disposition of charge;

jurisdiction and venue of United States courts;

designation of judge to hear and determine case;

assignment of case for hearing; expedition of case;

appointment of master

(1) If within thirty days after a charge is filed with

the Commission or within thirty days after expiration

of any period of reference under subsection (c) or (d),

the Commission has been unable to secure from the

respondent a conciliation agreement acceptable to the

Commission, the Commission may bring a civil action

against any respondent not a government,

governmental agency, or political subdivision named

in the charge. In the case of a respondent which is a

government, governmental agency, or political

subdivision, if the Commission has been unable to

secure from the respondent a conciliation agreement

acceptable to the Commission, the Commission shall

take no further action and shall refer the case to the

Attorney General who may bring a civil action

against such respondent in the appropriate United

91a

States district court. The person or persons aggrieved

shall have the right to intervene in a civil action

brought by the Commission or the Attorney General

in a case involving a government, governmental

agency, or political subdivision. If a charge filed with

the Commission pursuant to subsection (b) is

dismissed by the Commission, or if within one

hundred and eighty days from the filing of such

charge or the expiration of any period of reference

under subsection (c) or (d), whichever is later, the

Commission has not filed a civil action under this

section or the Attorney General has not filed a civil

action in a case involving a government,

governmental agency, or political subdivision, or the

Commission has not entered into a conciliation

agreement to which the person aggrieved is a party,

the Commission, or the Attorney General in a case

involving a government, governmental agency, or

political subdivision, shall so notify the person

aggrieved and within ninety days after the giving of

such notice a civil action may be brought against the

respondent named in the charge (A) by the person

claiming to be aggrieved or (B) if such charge was

filed by a member of the Commission, by any person

whom the charge alleges was aggrieved by the

alleged unlawful employment practice. Upon

application by the complainant and in such

circumstances as the court may deem just, the court

may appoint an attorney for such complainant and

may authorize the commencement of the action

without the payment of fees, costs, or security. Upon

timely application, the court may, in its discretion,

permit the Commission, or the Attorney General in a

case involving a government, governmental agency,

or political subdivision, to intervene in such civil

92a

action upon certification that the case is of general

public importance. Upon request, the court may, in

its discretion, stay further proceedings for not more

than sixty days pending the termination of State or

local proceedings described in subsection (c) or (d) of

this section or further efforts of the Commission to

obtain voluntary compliance.

*

*

*

93a

The Americans with Disabilities Act of 1990, 42

U.S.C. §§ 12101 et seq., provides in part as follows:

Subchapter I – Employment

*

*

*

§ 12112. Discrimination

(a) General rule

No covered entity shall discriminate against a

qualified individual on the basis of disability in

regard to job application procedures, the hiring,

advancement, or discharge of employees, employee

compensation, job training, and other terms,

conditions, and privileges of employment.

*

*

*

§ 12117. Enforcement

(a) Powers, remedies, and procedures

The powers, remedies, and procedures set forth in

sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and

2000e-9 of this title shall be the powers, remedies,

and procedures this subchapter provides to the

Commission, to the Attorney General, or to any

person alleging discrimination on the basis of

disability in violation of any provision of this chapter,

or regulations promulgated under section 12116 of

this title, concerning employment.

*

*

*

94a

Subchapter IV – Miscellaneous Provisions

*

§ 12203.

coercion

Prohibition

*

*

against

retaliation

and

(a) Retaliation

No person shall discriminate against any individual

because such individual has opposed any act or

practice made unlawful by this chapter or because

such individual made a charge, testified, assisted, or

participated in any manner in an investigation,

proceeding, or hearing under this chapter.

(b) Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or

interfere with any individual in the exercise or

enjoyment of, or on account of his or her having

exercised or enjoyed, or on account of his or her

having aided or encouraged any other individual in

the exercise or enjoyment of, any right granted or

protected by this chapter.

(c) Remedies and procedures

The remedies and procedures available under

sections 12117, 12133, and 12188 of this title shall be

available to aggrieved persons for violations of

subsections (a) and (b), with respect to subchapter I,

subchapter II and subchapter III, respectively.

*

*

*

95a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

PITTSBURGH DIVISION

MICHAEL SIMKO,

Plaintiff,

v.

Civil Action No.

2:19-cv-765

UNITED STATES STEEL

CORPORATION,

Defendant.

COMPLAINT

AND NOW comes Michael Simko by and through

his attorneys, JULIAN LAW FIRM and JOHN E.

EGERS, JR., ESQUIRE and hereby alleges and

states as follows:

PRELIMINARY STATEMENT

1. The Plaintiff, Michael Simko (“Simko”) brings

this action against United States Steel

Corporation (“USS”) for violations of the

Americans with Disabilities Act of 1990 (“ADA”)

as amended by the ADA Amendments Act of 2008

(“ADAAA”),

42

U.S.C.§§12101

to

12213

(collectively the “ADA”).

2. USS retaliated against Simko in violation of the

ADA by terminating him in response to his

requests for reasonable accommodation and his

complaint(s) regarding violation of the ADA. As a

96a

result, Simko has suffered significant emotional

and monetary damages.

PARTIES

3. Simko is an adult male individual with a

residence address of P.O. Box 13, 1296

Bentleyville Road Van Voorhis, PA 15366.

4. USS is a Delaware Corporation with a corporate

headquarters located in Pittsburgh, Pennsylvania.

5. USS is an employer as defined by the ADA.

6. USS does business in multiple locations including

its Edgar Thompson Plant at 13th Street and

Braddock Avenue, Braddock, Pennsylvania 15104.

JURISDICTION AND VENUE

7. This Court has jurisdiction over this action

pursuant to 28 U.S.C. § 1331, in that this is a civil

action arising under the ADA.

8. Venue is proper under 28 U.S.C. § 1391(b)(1) and

(b)(2).

FACTS

9. USS began employing Simko on August 22, 2005.

10. In August of 2012, Simko held the larryman

position in the blast furnace department at USS’s

Edgar Thompson Plant.

11. That same month of August 2012, Simko

successfully bid on the position of spellman in the

transportation department.

12. During his spellman training, Simko requested an

accommodation for his hearing loss by requesting

a newer two-way radio from Brian Spiller, but this

97a

accommodation was never granted and no other

accommodations were offered or considered by

USS or its personnel.

13. Simko completed all parts of the required training

for the spellman position.

14. Simko’s trainer, Kevin Puckey refused to approve

the completion of Simko’s spellman training

because of his disability or because he was

regarded as being disabled because Simko could

not hear.

15. Simko had filed a charge with the Equal

Employment Opportunity Commission alleging

violations of the ADA on the basis that he was

denied employment as a spellman, denied

reasonable accommodation and returned to his

former job as a larryman because he was disabled

or regarded as being disabled because he could not

hear.

16. Simko’s charge of discrimination was signed on

May 24, 2013 and received by the EEOC on May

28, 2013 (and subsequently amended on January

22, 2016).

17. Thereafter, Simko was returned back to his

assignment as a larryman by USS until he was

discharged effective December 30, 2013.

18. On May 27, 2014, Simko entered into a Last

Chance Agreement with USS and his union and

returned to work on June 1, 2014.

19. Simko continued to work until August 19, 2014

when he was discharged a second time for what

USS said was a safety violation that occurred on

August 15, 2014.

98a

20. Simko’s initial discipline for this safety violation

of August 15, 2014 was initially a five-day

suspension, but was later converted to a

discharge.

21. Simko grieved the discharge, but his union

withdrew the grievance.

22. On February 19, 2019, the Equal Employment

Opportunity Commission (EEOC) issued a

Determination finding reasonable cause to believe

that unlawful employment practices occurred

under the ADA, specifically that USS retaliated

against Simko.

23. Although the EEOC invited the parties to engage

in conciliation, conciliation did not occur and a

Notice of Conciliation of Failure was issued by the

EEOC on March 13, 2019.

24. On April 1, 2019, the EEOC issued a Notice of the

Right to Sue to Simko.

25. This Complaint has been filed within ninety (90)

days of receipt of that Notice.

COUNT I – RETALIATION

26. Simko was an employee of USS as defined by the

ADA.

27. Simko was qualified for his position with USS

when he was fired on August 19, 2014.

28. Simko engaged in protective activity under the

ADA by requesting an accommodation and

subsequently filing a charge of discrimination

with the EEOC.

99a

29. USS subjected Simko to a materially adverse

action by converting a five-day suspension of

Simko for violation of safety rules to a permanent

discharge of his employment.

30. Simko’s discharge was an act of retaliation by

USS caused by Simko’s engagement in protected

activity.

31. USS’s reason for terminating Simko was

pretextual and baseless as USS discharged Simko

based on the fact that he requested

accommodation for his disability and filed a

charge of discrimination.

32. USS treated a comparator of Simko’s, Kenneth

Moses, differently in that it did not accelerate Mr.

Moses’s eventual termination for safety rules as it

did for Simko.

33. Simko has suffered damages as a result of USS’s

unlawful retaliatory actions including emotional

distress, past and future lost wages and benefits,

and the cost of bringing this action.

34. USS intentionally violated Simko’s rights under

the ADA with malice or reckless indifference and

as a result they are liable for punitive damages.

PRAYER FOR RELIEF

WHEREFORE, Simko

judgment as follows:

respectfully

requests

A. An acceptance of jurisdiction over this matter by

this Honorable Court;

B. Award Simko his past and future losses of wages

and all other benefits plus interest;

100a

C. Award Simko

damages;

compensatory

and

punitive

D. To order USS to reinstate Simko to a position

comparable to his former position without loss of

seniority or in lieu of his reinstatement, award

him front pay;

E. Award Simko all costs and reasonable attorney’s

fees incurred in connection with this action;

F. Grant Simko such additional and alternative

relief as this Honorable Court deems just and

proper.

DEMAND FOR JURY TRIAL

Simko demands a trial by jury on all claims

properly triable by a jury.

Respectfully submitted,

Date: June 28, 2019

JULIAN LAW FIRM

/s/ John E. Egers, Jr., Esquire

JOHN E. EGERS, JR., ESQUIRE

Attorney for Plaintiff,

Michael Simko

PA ID No. 89172

71 North Main Street

Washington, Pennsylvania 15301

724 228-1860

Facsimile: 724-225-9643

johnegers@julianlawfirm.com