Table of Authorities............................................................................... iii

Statement of Interest................................................................................ 1

Statement of the Issues............................................................................ 2

Statement of the Case.............................................................................. 3

A. Statement of Facts.......................................................................... 3

B. District Court’s Decision............................................................... 7

Summary of Argument......................................................................... 10

Argument............................................................................................... 12

I. Simko’s November 2014 letter to the EEOC constituted a valid,

timely charge of retaliation......................................................... 14

II. ... In the alternative, the district court should have tolled the charge-filing period because the EEOC violated its own regulations by failing to help Simko file a retaliation charge. 17

III. Simko may challenge retaliation for the filing of a previous charge without filing a new charge because the EEOC actually investigated his allegations........................................................ 22

IV. If this Court believes that its prior precedent precludes consideration of whether the EEOC actually investigated Simko’s allegations, the Court should consider this case initially en banc............................................................................ 26

Conclusion.............................................................................................. 32

Certificates of Counsel

Certificate of Service

Table of Authorities

Cases

Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34 (1st Cir. 2013)................................................................................................................. 12

Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th Cir. 1988)........... 29

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991).................................... 30

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256 (3d Cir. 2006)....... 14, 18

Carlson v. Christian Bros. Servs., 840 F.3d 466 (7th Cir. 2016)............. 13

Clockedile v. N.H. Dep’t of Corr., 245 F.3d 1 (1st Cir. 2001)...... 25, 29, 30

Duplan v. City of N.Y., 888 F.3d 612 (2d Cir. 2018).............................. 29

Edelman v. Lynchburg Coll., 535 U.S. 106 (2002).................. 13-14, 16-17

EEOC v. Farmer Bros. Co., 31 F.3d 891 (9th Cir. 1994)......................... 25

EEOC v. Vantage Energy Servs., Inc., 954 F.3d 749 (5th Cir. 2020)...... 13

Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008)................. 12, 14-17

Ford v. Marion Cty. Sheriff’s Office, 942 F.3d 839 (7th Cir. 2019)......... 29

Fort Bend Cty. v. Davis, 139 S. Ct. 1843 (2019).................................. 7, 17

Gupta v. E. Tex. State Univ., 654 F.2d 411 (5th Cir. Unit A Aug. 1981)................................................................................................................. 29

Hicks v. ABT Assocs., Inc., 572 F.2d 960 (3d Cir. 1978).... 8, 9, 20, 21, 24, 25

Holender v. Mut. Indus. N. Inc., 527 F.3d 352 (3d Cir. 2008)................ 15

Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3d Cir. 1984). 24-25

Ingels v. Thiokol Corp., 42 F.3d 616 (10th Cir. 1994)............................. 31

James v. Sutliff Saturn, Inc., 468 F. App’x 118 (3d Cir. 2012)............... 21

Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir. 2006)............ 18

Johnson v. Gen. Elec., 840 F.2d 132 (1st Cir. 1988)................................ 30

Jones v. Calvert Grp., Ltd., 551 F.3d 297 (4th Cir. 2009).................. 29, 31

Kocian v. Getty Ref. & Mktg. Co., 707 F.2d 748 (3d Cir. 1983)........ 19, 21

Lopez v. Davis, 531 U.S. 230 (2001)........................................................ 18

Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003).......................... 30, 31

McClain v. Lufkin Indus., Inc., 519 F.3d 264 (5th Cir. 2008)................. 25

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)......................... 7

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)............. 31-32

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992)........................................ 29

Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355 (1977).............. 26

Ostapowicz v. Johnson Bronze Co., 541 F.2d 394 (3d Cir. 1976)....... 23-24

Pizio v. HTMT Glob. Sols., 555 F. App’x 169 (3d Cir. 2014)........... 10, 19

Richter v. Advance Auto Parts, Inc., 686 F.3d 847 (8th Cir. 2012)... 30, 31

Robinson v. Dalton, 107 F.3d 1018 (3d Cir. 1997)................ 17, 20, 24, 27

Seredinski v. Clifton Precision Prods. Co., 776 F.2d 56 (3d Cir. 1985)... 22

Spengler v. Worthington Cylinders, 615 F.3d 481 (6th Cir. 2010)......... 29

Vasquez v. Cty. of Los Angeles, 349 F.3d 634 (9th Cir. 2004)................. 30

Vooys v. Bentley, 901 F.3d 172 (3d Cir. 2018) (en banc)....................... 27

Waiters v. Parsons, 729 F.2d 233 (3d Cir. 1984)......................... 22-23, 27

Wentz v. Md. Cas. Co., 869 F.2d 1153 (8th Cir. 1989)........................... 31

Williams v. CSX Transp. Co., 643 F.3d 502 (6th Cir. 2011)................... 13

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)........................ 17

Statutes

Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.................. 1

§ 12117(a).................................................................................. 1, 12

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq...... 1

§ 2000e-5(b)............................................................................ 12, 20

§ 2000e-5(e)(1).......................................................................... 1, 12

Regulations and Rules

29 C.F.R. § 1601.3(a)............................................................................... 13

29 C.F.R. § 1601.6(a)......................................................................... 18, 19

29 C.F.R. § 1601.9................................................................................... 13

29 C.F.R. § 1601.12(b)....................................................................... 12, 16

Fed. R. App. P. 29(a)(2)........................................................................... 1

Fed. R. Civ. P. 12(b)(6)............................................................................. 7

Third Cir. I.O.P. 9.2................................................................................ 27

Administrative Materials

EEOC Compl. Man. § 2-IV, Threshold Issues: Timeliness,

2009 WL 2966756 (Aug. 6, 2009)..................................................... 31-32

EEOC Compl. Man. § 3, Appx. 3-B, Respondent Notification

Procedures: Information Sheet on Charges of Discrimination, Notice

of Non-Retaliation Requirements, 2006 WL 4672945 (June 1, 2006). 28

EEOC Compl. Man. § 13.1, Litigation for Temporary or Preliminary

Relief: Introduction, 2006 WL 4673012 (June 1, 2006)....................... 28

EEOC Compl. Man. § 13.4(b), Litigation for Temporary or Preliminary

Relief: Retaliation is Alleged, 2006 WL 4673015 (June 1, 2006)........ 28

EEOC Compl. Man. § 13.7, Litigation for Temporary or Preliminary

Relief: Respondent Notice, 2006 WL 4673018 (June 1, 2006)............ 28

Statement of Interest

Congress charged the Equal Employment Opportunity Commission (“EEOC”) with interpreting, administering, and enforcing Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. The ADA adopts the powers, remedies and procedures of Title VII of the Civil Rights Act of 1964, which requires individuals to file a timely charge with the EEOC before they may proceed in court. See 42 U.S.C. § 12117(a) (ADA); 42 U.S.C. § 2000e-5(e)(1) (Title VII enforcement provision).

The district court erroneously dismissed this lawsuit on the ground that Simko did not file a timely administrative charge with the EEOC. In the EEOC’s view, Simko’s charge was timely filed, and, regardless, no separate charge was required for Simko to challenge retaliation for filing a previous charge.

The district court’s narrow interpretation of the charge-filing requirement has significant implications for the EEOC’s administrative process. Accordingly, the EEOC files this brief as amicus curiae pursuant to Federal Rule of Appellate Procedure 29(a)(2).

Statement of the Issues

1. Did Simko’s November 2014 letter to the EEOC constitute a valid administrative charge because the letter can reasonably be construed as a request for the EEOC to take action, and Simko’s subsequent verification related back to the original filing date?

2. Even if Simko’s November 2014 letter did not constitute a valid charge, should the district court have tolled the charge-filing period because the EEOC violated its own regulations by failing to help him file a charge?

3. May Simko allege retaliation for the filing of a previous charge without having filed a new charge, because the EEOC actually investigated his allegations?

4. If this Court believes that its prior precedent precludes consideration of whether the EEOC actually investigated Simko’s allegations, should the Court hear the case initially en banc?

Statement of the Case

A. Statement of Facts

Michael Simko, who is hearing impaired, was a larryman in defendant U.S. Steel’s blast furnace department. Appx. 36 (EEOC Charge). All employees had trouble hearing radio calls and signals in the noisy work environment, but Simko’s hearing impairment compounded this problem. Id. at 37. In August 2012, Simko successfully bid to become a spellman in the transportation department. While training for that position, he requested a newer two-way radio as an accommodation for his disability. U.S. Steel did not provide the radio or offer any other reasonable accommodation. Id. at 36. In November 2012, Simko’s trainer determined that Simko could not work in the transportation area “because [he] cannot hear,” and Simko returned to his former position as a larryman. Id. at 37.

In May 2013, Simko filed an EEOC charge alleging that U.S. Steel had discriminated against him because of his disability, both by failing to provide a reasonable accommodation and by paying him at the wrong rate during his training period. Appx. 33. Seven months later, U.S. Steel fired him, allegedly for “unsatisfactory work.” Simko grieved the dismissal and was reinstated in June 2014 under a “last chance agreement.” Appx. 98 (US Steel Position Statement). U.S. Steel suspended him in August 2014 for an alleged safety violation, and then converted the suspension into a termination. Id. at 99.

Simko—who was not yet represented by counsel—wrote to the EEOC in November 2014, saying, “Since I have filed charges with the EEOC I have been terminated twice and placed on [a] last chance agreement with no just cause by the company.... I believe anyone who familiarizes themselves with the details of the case will clearly see it as retaliation for filing charges with the EEOC.” Appx. 80-81. The EEOC received this letter on November 14, 2014. Appx. 69.

On November 23, 2015, a newly assigned EEOC investigator wrote to Simko, stating, “I had a chance to review the materials you submitted as a rebuttal to Respondent’s position and wanted to discuss with you the current status of your charge and the direction of the investigation. Based upon what I have read, it appears as though you have been terminated by the Respondent on two separate occasions during 2014 and that you believe that the terminations were retaliatory against you.” Appx. 84. The investigator said he needed to discuss these allegations with Simko. Id.

That same day, the investigator contacted U.S. Steel. U.S. Steel’s attorney confirmed Simko’s termination, effective October 25, 2014. The investigator advised U.S. Steel that an amended charge alleging retaliatory discharge would follow after he spoke with Simko. Appx. 83 (Investigator Notes); Appx. 87 (Investigator Letter).

On December 14, 2015, the investigator interviewed Simko regarding his retaliation allegations. Appx. 87 (Investigator Letter). Four days later, he mailed Simko’s attorney a draft amended charge. Id. Simko made corrections to this draft, and the EEOC incorporated his changes into a revised amended charge. The EEOC mailed Simko the revised draft on January 15, 2016, and Simko filed the amended charge, alleging both disability discrimination and retaliation, on January 21, 2016. Appx. 36, 90-91.

Upon receipt of the January 21 charge, U.S. Steel told the EEOC that it had neither discriminated nor retaliated against Simko. It explained that it had disciplined and terminated him not in retaliation for filing a charge, but because of his unsatisfactory work and subsequent safety violation. Appx. 97-100.

In September 2018, the EEOC conducted an on-site investigation, interviewed witnesses, and reviewed the disciplinary records of Simko and another employee. Appx. 106 (Investigation Notes). In a pre-determination interview, the EEOC told U.S. Steel that the records revealed Simko had been treated more harshly than the comparator, and the discrepancy suggested a retaliatory motive. The EEOC requested U.S. Steel’s written response. Appx. 107-08.

U.S. Steel responded that Simko’s retaliation allegations were untimely because he should have filed an EEOC charge within three hundred days of his termination. It also responded on the merits, repeating that it had disciplined and fired Simko because of his work performance and safety violation, not because of retaliation. Appx. 110-11.

In February 2019, the EEOC found reasonable cause to believe that U.S. Steel had retaliated against Simko and offered the parties the opportunity to conciliate the retaliation claim. Appx. 112-14. In March 2019, the EEOC determined that efforts to conciliate had been unsuccessful and issued Simko a right-to-sue notice. Appx. 115-16. He then filed this lawsuit, claiming only that U.S. Steel had retaliated against him. Appx. 26.

B. District Court’s Decision

U.S. Steel moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) because Simko had not “exhaust[ed] his administrative remedies.”[1] Appx. 39. His retaliation allegation was not within the scope of his original EEOC charge, U.S. Steel argued, because the original charge made no mention of retaliation and the underlying facts were unconnected to Simko’s subsequent termination. The scope of the EEOC’s actual investigation was irrelevant, U.S. Steel said. Appx. 42-45.

Simko responded that he had fulfilled the administrative prerequisites to suit because the EEOC had investigated retaliation, found reasonable cause to believe that retaliation had occurred, and offered the parties the opportunity to conciliate that dispute. U.S. Steel thus had ample opportunity to respond to the retaliation allegation. Appx. 60-61. He also argued, inter alia, that the charge-filing deadline should be equitably tolled because the EEOC had failed to act immediately on his written complaint. Appx. 59-60.

The district court recognized that the scope of a civil action is not limited to the precise allegations of an EEOC charge but, rather, extends to the scope of an investigation that can be reasonably expected to grow out of the charge. Appx. 9 (citing Hicks v. ABT Assocs., Inc., 572 F.2d 960, 963 (3d Cir. 1978)). However, the court said, it is not enough that the EEOC would have discovered the new allegation during the course of a reasonable investigation. The new allegation still must be “reasonably within the scope of the charge filed with the EEOC.” Appx. 10. “‘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. (citing Hicks, 572 F.2d at 967).

Here, the court concluded, Simko’s retaliation claim was not “fairly” within the scope of his original charge because the charge’s “core grievance” was discrimination, not retaliation, and it involved unrelated conduct and individuals. Appx. 14. Moreover, the second discharge did not occur until almost two years after the charge was filed, and U.S. Steel did not cite Simko’s request for a reasonable accommodation as the basis for either of his terminations. Thus, the court said, “[t]here is no reason that the EEOC or U.S. Steel would have reasonably or fairly been put on notice and investigated an alleged August 2014 retaliatory discharge as part of its investigation of the 2012 alleged failure to accommodate Simko’s hearing loss.” Appx. 15. The court found it irrelevant that the EEOC actually investigated and offered the parties the opportunity to conciliate the retaliation claim. Appx. 16-17.

The court also rejected Simko’s alternative arguments. In relevant part, the court held that none of the qualifying circumstances for equitable tolling applied: U.S. Steel had not actively misled Simko, he had not been prevented from asserting his rights, and he had not timely asserted his rights in the wrong forum. Appx. 7 (citing Pizio v. HTMT Glob. Sols., 555 F. App’x 169, 176 (3d Cir. 2014)). “Although Simko was pro se at the time,” the court said, “he knew how to file a proper EEOC charge because he had done so in May 2013.” Id. The court added, “[t]he handwritten letter does not constitute a ‘charge’ and Simko does not contend otherwise.” Appx. 6.

Summary of Argument

Simko’s November 2014 letter to the EEOC satisfied all the required elements of an administrative charge. The letter alleged that U.S. Steel had retaliated against Simko for having filed a charge in 2013, and said, “I believe anyone who familiarizes themselves with the details of the case will clearly see it as retaliation.” Appx. 80-81. This was an implicit request for the EEOC to consider retaliation as part of its ongoing investigation. Simko’s verification of the retaliation allegations in his January 2016 charge related back to the November 2014 letter. Accordingly, Simko filed a timely charge.

Even if Simko’s November 2014 letter did not qualify as a charge, the district court erred by refusing to toll the charge-filing deadline. The EEOC violated its mandatory obligation to assist Simko in filing a retaliation charge. Any failure to covert the November 2014 letter into a formal charge was the EEOC’s fault, not Simko’s.

In any event, Simko was not required to file a new charge alleging retaliation for the filing of a previous charge. Well-established circuit precedent provides that an individual need not file a new charge if the EEOC actually investigates the new allegations, which is what occurred here. The EEOC’s handling of Simko’s charge thus fully satisfied the purposes of the charge-filing requirement.

Finally, if this Court disagrees with the foregoing arguments, the EEOC supports Simko’s request for initial hearing en banc. In our view, retaliation for the filing of a charge is, necessarily, reasonably related to the original charge. This Court should reject its fact-specific analysis and adopt the same per se rule that the majority of other circuits already apply.

Argument

The ADA requires employees to file a charge with the EEOC within 300 days of the alleged discrimination.[2] 42 U.S.C. § 12117(a) (ADA provision adopting powers, remedies, and procedures of Title VII); 42 U.S.C. § 2000e-5(e)(1) (Title VII enforcement provision). “Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires.” 42 U.S.C. § 2000e-5(b).

EEOC regulations provide that “a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.” 29 C.F.R. § 1601.12(b). In Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008),[3] the Supreme Court held, “[i]n addition to the information required by the regulations, i.e., an allegation and the name of the charging party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.” Id. at 402.

EEOC regulations also require a charge to be “verified.” 29 C.F.R. § 1601.9. The regulations define the term “verified” as “sworn to or affirmed before a notary public, designated representative of the Commission, or other person duly authorized by law to administer oaths and take acknowledgments, or supported by an unsworn declaration in writing under penalty of perjury.” 29 C.F.R. § 1601.3(a). As both the Supreme Court and this Court have recognized, verification is sufficient as long as it occurs before an employer must respond to a charge. Edelman v. Lynchburg Coll., 535 U.S. 106, 113 (2002); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 258 (3d Cir. 2006).

In accordance with these principles, the district court erred in failing to recognize that Simko’s charge was timely, verified, and sufficient to address his retaliation allegations.

I. Simko’s November 2014 letter to the EEOC constituted a valid, timely charge of retaliation.

Simko’s November 2014 letter to the EEOC satisfied all prerequisites for a charge, including timely verification before U.S. Steel was required to respond to it. As noted above, a document is a charge if it is “reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.” Holowecki, 552 U.S. at 402. This standard is not difficult to meet.

“Title VII [] sets up a ‘remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.’ The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes.” Id. at 402-03 (citations omitted). Thus, “a wide range of documents” may qualify as charges. Id. at 402.

Even when an individual does not specifically ask the EEOC to act on his allegations, “[t]here might be instances where the indicated discrimination is so clear or pervasive that the agency could infer from the allegations themselves that action is requested and required.” Id. at 405. This Court found one such instance in Holender v. Mutual Industries North Inc., 527 F.3d 352 (3d Cir. 2008), concluding, “We will not fault Holender for failing to include a specific request for a remedy…. A charge, submitted by counsel or not, may imply such a request.” Id. at 357.

Like the plaintiff’s written communication in Holender, Simko’s November 2014 letter implicitly requested the EEOC to act. Simko wrote to the EEOC knowing that it was already considering U.S. Steel’s conduct. His letter detailed subsequent mistreatment, stating, “my problems started recently when I filed charges with the EEOC—terminated 2x for no reason (retaliation) since charges were filed.” Appx. 70. He added, “I believe anyone who familiarizes themselves with the details of the case will clearly see it as retaliation for filing charges with the EEOC.” Appx. 80-81. These statements are sufficiently clear “that the agency could infer from the allegations themselves that action is requested and required.” Holowecki, 552 U.S. at 405.

Simko did not contemporaneously verify his November 2014 letter, but he was not required to do so. The amended charge that he filed on January 21, 2016, verified his claim of retaliation. Appx. 92. That verification “relates back” to his otherwise valid and timely November 2014 charge. See 29 C.F.R. § 1601.12(b) (verification that occurs subsequent to an initial filing “relates back” to the initial filing date); Edelman, 535 U.S. at 118 (calling this regulation an “unassailable interpretation” of Title VII).

The purpose of the verification requirement is to “protect employers from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury. This object, however, demands an oath only by the time the employer is obliged to respond to the charge, not at the time an employee files it with the EEOC.” Edelman, 535 U.S. at 113.

That purpose was served here. The EEOC notified U.S. Steel of the new charge on January 26, 2016, and only then asked U.S. Steel to address the retaliation allegations. Appx. 95. U.S. Steel sent its position statement five weeks later in response to this request. Appx. 97. Thus, straightforward application of Holowecki and Edelman to Simko’s November 2014 letter compels the conclusion that the letter constitutes a valid, timely charge of retaliation.

II. In the alternative, the district court should have tolled the charge- filing period because the EEOC violated its own regulations by failing to help Simko file a retaliation charge.

Even assuming Simko’s November 2014 letter did not, itself, constitute a charge, “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, 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., 139 S. Ct. at 1850 (“Title VII’s charge-filing requirement is not of jurisdictional cast.”); Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) (permitting equitable tolling “even if there has been a complete failure to file”). Equitable tolling is appropriate here because, if the November 2014 letter was not a charge, then the EEOC erred by failing to convert it into one.

EEOC regulations require the Commission to assist in the filing of a charge. The regulations state, “The Commission shall receive information concerning alleged violations of … the ADA … from any person. Where the information discloses that a person is entitled to file a charge with the Commission, the appropriate office shall render assistance in the filing of a charge.” 29 C.F.R. § 1601.6(a) (emphasis added). This duty is nondiscretionary, as courts have recognized in interpreting the word “shall” in other contexts. See Lopez v. Davis, 531 U.S. 230, 241 (2001) (Congress’s use of the word “shall” indicates an intent to “impose discretionless obligations”); Buck, 452 F.3d at 261 (use of the word “shall” indicates that a requirement is “mandatory”); Jilin Pharm. USA, Inc. v. Chertoff, 447 F.3d 196, 203 (3d Cir. 2006) (distinguishing “may,” which is discretionary, from “shall,” which is not).

Simko’s November 2014 letter fell within the scope of 29 C.F.R. § 1601.6(a), as its contents disclosed that he was entitled to file a charge. Nonetheless, the EEOC did not immediately help him do so.

The district court mistakenly believed that the EEOC’s failure to assist Simko did not warrant equitable tolling because Simko “was not prevented in any way (let alone an extraordinary way) from exercising his rights.” Appx. 7. In so holding, the district court assumed that equitable tolling is justified only in three limited circumstances: “(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.” Id. (quoting Pizio, 555 F. App’x at 176).

In fact, this Court has expressly said that those grounds for equitable tolling are “not exclusive.” Kocian v. Getty Ref. & Mktg. Co., 707 F.2d 748, 753 (3d Cir. 1983), superseded by regulation on other grounds. Rather, “[o]nce an individual has done all he reasonably can do to amend his charge in accordance with the Commission’s regulations, the statutory policy of providing the EEOC with an opportunity to reconcile the grievance has been fulfilled … and [t]he individual employee should not be penalized by the improper conduct of the Commission.” Hicks, 572 F.2d at 964-65.

That reasoning applies here. As required, Simko’s November 2014 letter gave the EEOC the “opportunity to reconcile” his claim of retaliation for the filing of his original charge. The EEOC took that opportunity and investigated, found reasonable cause on, and gave the parties the opportunity to conciliate his claim. See 42 U.S.C. § 2000e-5(b). The failure to convert his letter into a timely charge is the EEOC’s fault, not Simko’s.

The district court placed undue emphasis on the fact that Simko could have filed a retaliation charge on his own.[4] Simko was pro se at the time, something this Court weighs favorably when considering equitable tolling. Kocian, 707 F.2d at 755. His letter expressed the belief that the EEOC would confirm his allegation of retaliation for the filing of his charge, and in fact, the EEOC did so through the administrative process. Although Simko certainly could have gone further and filed a formal charge, it would not be reasonable to require a pro se individual to do so when the EEOC itself believed that he had done enough. See infra at 26-32.

If the EEOC was wrong, Simko should not be penalized for the EEOC’s mistake. Simko did “all that he [could] reasonably do to amend his charge in accordance with the Commission’s regulations.” Hicks, 572 F.2d at 964. That is all that was required. See James v. Sutliff Saturn, Inc., 468 F. App’x 118, 122-23 (3d Cir. 2012) (employee who relied on state agency’s express but erroneous filing instructions would not be penalized for lack of verification); see also Kocian, 707 F.2d at 753 n.8 (“In the absence of a procedural violation by the EEOC … we see no grounds for equitable tolling.”); id. at 753 (EEOC’s bureaucratic delay could justify equitable tolling).

Tolling the filing deadline presents no equitable concerns for U.S. Steel, and U.S. Steel has not suggested otherwise. The EEOC notified U.S. Steel during the course of its investigation that Simko had alleged retaliation for the filing of his charge, U.S. Steel responded to this allegation, and the EEOC gave the parties the opportunity to conciliate this issue. Appx. 83, 97, 115. No purpose would be served by denying Simko access to the federal courts in these circumstances. See Seredinski v. Clifton Precision Prods. Co., 776 F.2d 56, 65 (3d Cir. 1985) (citing “sound and established policy that procedural technicalities should not be used to prevent Title VII claims from being decided on the merits”) (citation omitted).

III. Simko may challenge retaliation for the filing of a previous charge without filing a new charge because the EEOC actually investigated his allegations.

Simko did not need to file a new charge because the EEOC actually investigated his allegation that U.S. Steel had retaliated against him for having filed the original charge. Well-established law provides that an individual need not file a charge when new allegations “fall[ ] within the scope of a prior EEOC complaint or the investigation which arose out of it, provided that the victim can still bring suit on the earlier complaint.” Waiters v. Parsons, 729 F.2d 233, 235 (3d Cir. 1984) (emphasis added). The district court failed to apply the second part of this test. Appx. 9.

In Waiters, 729 F.2d at 238, this Court allowed a plaintiff to challenge retaliation for the filing of a previous charge without filing a new charge because the EEOC actually investigated her retaliation allegations. To be sure, the Waiters Court characterized the “core grievance” of the original charge as retaliation, but the Court viewed this as, at most, additional support for allowing Waiters’s claim to proceed. Id. It explained, “[A]t all events, 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. at 235.

The Court applied the same reasoning to a new substantive discrimination claim in Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 399 (3d Cir. 1976). There, the Court allowed a plaintiff to pursue a claim of sex discrimination in the machine shop division because the EEOC had investigated it, even though the charge on which the lawsuit was based referred only to sex discrimination in the shipping department.

EEOC investigations are entitled to a presumption of regularity. Hicks, 572 F.2d at 966. Thus, the Court should assume that the EEOC would not expend time or resources investigating matters unrelated to a pending charge. Insofar as this Court might worry that a hypothetical individual “could greatly expand an investigation simply by alleging new or different facts when he was contacted by the Commission following his charge,” id. at 967, that concern is not implicated here. An individual who alleges retaliation for the filing of a previous charge is not “gaming the system,” as he is not complaining of conduct that he could have raised in the first instance.

Indeed, this Court has occasionally criticized EEOC investigations for not going far enough, but never for going too far. See Robinson, 107 F.3d at 1026 (remanding to determine whether EEOC should have investigated retaliatory discharge when charge alleged race discrimination and previous retaliation); Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984) (allowing plaintiff to challenge retaliation as an additional reason for same adverse employment action challenged in race discrimination charge, even though EEOC only investigated race discrimination); Hicks, 572 F.2d at 966-67 (remanding to determine whether EEOC should have discovered sex discrimination when investigating race discrimination because both allegations stemmed from same factual nexus).

Other circuits have also recognized that a plaintiff may satisfy the pre-suit requirements without filing a new charge when an EEOC investigation actually addresses a new allegation. See Clockedile v. N.H. Dep’t of Corr., 245 F.3d 1, 5 (1st Cir. 2001) (“‘scope of the investigation’ test … , where it refers to an actual investigation by the agency, correlates fairly well with the … aims of the statutory scheme”); McClain v. Lufkin Indus., Inc., 519 F.3d 264, 274 (5th Cir. 2008) (“actual scope of the EEOC’s investigation … is clearly pertinent to an exhaustion inquiry”); EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994) (plaintiff may pursue additional claim “if that claim fell within the scope of the EEOC’s actual investigation”).

In this case, there was no need for the new charge because the EEOC’s actual investigation fully achieved the purposes of the administrative prerequisites to suit. See Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 372 & n.32 (1977) (EEOC keeps respondents apprised of progress of investigation, and “[p]rompt notice of a reasonable-cause determination also serves to cure any deficiencies in the 10-day notice that may result from EEOC amendment of the claimed violation after investigation”). The EEOC gave U.S. Steel the opportunity to respond, and U.S. Steel took advantage of that opportunity. Appx. 97 (U.S. Steel Position Statement). U.S. Steel has not been prejudiced, and it has not argued otherwise. The defendant is now free to litigate its position de novo in court.

IV. If this Court believes that its prior precedent precludes consideration of whether the EEOC actually investigated Simko’s allegations, the Court should consider this case initially en banc.

If this Court is not persuaded by any of the foregoing arguments, the EEOC supports Appellant’s request that the Court hear this case initially en banc. The Court’s interpretation of the charge-filing rules has a profound effect on the EEOC’s administrative processes. Accordingly, the issue warrants initial consideration by the full Court. See Third Cir. I.O.P. 9.2; see also Vooys v. Bentley, 901 F.3d 172, 175 (3d Cir. 2018) (en banc) (merits decision following sua sponte order for initial hearing en banc).

Currently, this Court applies a fact-specific analysis to determine whether an individual must file a new charge when he alleges retaliation for the filing of a previous charge. Waiters, 729 F.2d at 237 n.10. A per se rule excusing such a charge, the court has explained, “whether express or applied in practice, would eviscerate the remedial purposes of the exhaustion requirement.” Robinson, 107 F.3d at 1024.

This reasoning ignores the unique nature of retaliation for the filing of a previous charge. Such retaliation necessarily is reasonably related to the original charge; it happens as a direct result of an individual’s having initiated the administrative process. A contrary rule is inconsistent with the EEOC’s standard investigative practice and is out of step with the majority of courts of appeals.

The EEOC instructs charging parties to notify it “if any attempt at retaliation is made.” EEOC Compl. Man. § 3, Appx. 3-B, Respondent Notification Procedures: Information Sheet on Charges of Discrimination, Notice of Non-Retaliation Requirements, 2006 WL 4672945 (June 1, 2006). Additionally, the EEOC directs its investigators to “be alert” to retaliation during their investigations. EEOC Compl. Man. § 13.1, Litigation for Temporary or Preliminary Relief: Introduction, 2006 WL 4673012 (June 1, 2006).

The EEOC prioritizes retaliation for the filing of a charge in part because “employer retaliation against [the charging party] can, if not stopped, hinder EEOC’s ability to enforce the law.” EEOC Compl. Man. § 13.4(b), Litigation for Temporary or Preliminary Relief: Retaliation is Alleged, 2006 WL 4673015 (June 1, 2006). Thus, even without a retaliation charge, if the EEOC becomes aware of retaliation for the filing of a charge, it notifies the respondent that it is expanding its investigation. EEOC Compl. Man. § 13.7, Litigation for Temporary or Preliminary Relief: Respondent Notice, 2006 WL 4673018 (June 1, 2006).

In light of the EEOC’s practice, requiring a new charge when a respondent retaliates for the filing of the original charge would create a procedural hurdle with no practical effect. See Duplan v. City of N.Y., 888 F.3d 612, 622 (2d Cir. 2018) (“ongoing EEOC investigation on the first charge would be expected to uncover and address any related retaliation”); Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. Unit A Aug. 1981) (“double filing [ ] would serve no purpose”). Moreover, “a plaintiff that has already been retaliated against one time for filing an EEOC charge will naturally be reluctant to file a separate charge, possibly bringing about further retaliation.” Jones v. Calvert Grp., Ltd., 551 F.3d 297, 302 (4th Cir. 2009), abrogated on other grounds by Fort Bend Cty., 139 S. Ct. 1843.

Most courts of appeals hold that retaliation for filing a charge is reasonably related to the underlying charge. See Clockedile, 245 F.3d at 6 (1st Cir.); Duplan, 888 F.3d at 622 (2d Cir.); Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992); Gupta, 654 F.2d at 414 (5th Cir.); Spengler v. Worthington Cylinders, 615 F.3d 481, 489 n.3 (6th Cir. 2010); Ford v. Marion Cty. Sheriff’s Office, 942 F.3d 839, 857 n.11 (7th Cir. 2019); Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988). But see Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851-52 (8th Cir. 2012) (post-charge retaliation claims are not “like or reasonably related to” original charge); Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003) (federal-sector case relying on private-sector precedents).[5]

The First Circuit once held that retaliation for filing a charge was not reasonably related to the original charge if the charging party had not mentioned it to the EEOC. Johnson v. Gen. Elec., 840 F.2d 132, 139 (1st Cir. 1988). But it reversed itself when the EEOC explained that it would likely discover such retaliation anyway. The court explained, “[W]e think that Johnson’s rule regarding retaliation claims should be abandoned simply because its premise as to what the EEOC investigates turns out to be incorrect.” Clockedile, 245 F.3d at 4.

The Eighth and Tenth Circuits do require new charges when an individual alleges retaliation for the filing of a previous charge, but both courts rely on faulty logic. Although each previously agreed that no new charge was required, see Wentz v. Md. Cas. Co., 869 F.2d 1153, 1154 (8th Cir. 1989); Ingels v. Thiokol Corp., 42 F.3d 616, 624-25 (10th Cir. 1994), they reversed themselves based on the Supreme Court’s unrelated decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). See Richter, 686 F.3d at 851-52; Martinez, 347 F.3d at 1210-11.

Morgan held that a plaintiff may not recover for discrete acts of discrimination related to facts alleged in a timely EEOC charge if they occurred more than three hundred days before the charge was filed. 536 U.S. at 110. The Supreme Court explained that Congress intended “to encourage the prompt processing of all charges of employment discrimination.” Id. at 109. That concern does not affect subsequent related acts, such as retaliation for the filing of a charge, which the EEOC routinely includes in ongoing investigations. Accordingly, the Eighth and Tenth Circuits were correct initially, and should not have reversed course. See Jones, 551 F.3d at 303 (Morgan does not require separate charge for post-charge retaliation); see also EEOC Compl. Man. § 2-IV, Threshold Issues: Timeliness, 2009 WL 2966756, at n.185 (Aug. 6, 2009) (“Morgan does not affect existing case law that permits subsequent related acts to be addressed in an ongoing proceeding.”).

Conclusion

The EEOC respectfully asks this Court to vacate the order of dismissal and remand for further proceedings. Should the Court disagree with the EEOC’s arguments, we respectfully urge it to hear this case initially en banc, and to adopt a per se rule that no new charge is required when an individual alleges retaliation for the filing of a previous charge.

Respectfully submitted,

SHARON FAST GUSTAFSON s/ Gail S. Coleman

General Counsel Attorney

MD Bar No. 199101080003

JENNIFER S. GOLDSTEIN EQUAL EMPLOYMENT

Associate General Counsel OPPORTUNITY COMMISSION

131 M Street, NE, 5th Floor

ELIZABETH E. THERAN Washington, DC 20507

Assistant General Counsel (202) 663-4055

gail.coleman@eeoc.gov

[1] The parties and the district court all refer to “exhaustion of administrative remedies,” but that term is inaccurate with respect to the ADA’s pre-suit requirements. See Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1846 (2019) (describing EEOC process, instead, as “precondition to suit”). “‘[C]ourt actions under Title VII are de novo proceedings and … a Commission “no reasonable cause” finding does not bar a lawsuit ….’” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799 (1973) (citation omitted).

[2] In jurisdictions without a state or local agency with authority to address employment discrimination claims, this deadline is 180 days. 42 U.S.C. § 2000e-5(e)(1).

[3] Although Holowecki arose under the Age Discrimination in Employment Act, its holding extends beyond the ADEA to other statutes with similar charge-filing requirements. See Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34, 42 n.1 (1st Cir. 2013) (applying Holowecki to Title VII charge because, “[w]hile Holowecki considered the question of what constitutes a charge under the ADEA, ‘the filing provisions of the ADEA and Title VII are virtually in haec verba, the former having been patterned after the latter’”) (citation omitted); see also EEOC v. Vantage Energy Servs., Inc., 954 F.3d 749, 754 (5th Cir. 2020) (ADA); Carlson v. Christian Bros. Servs., 840 F.3d 466, 467-68 (7th Cir. 2016) (ADA); Williams v. CSX Transp. Co., 643 F.3d 502, 508 & n. 2 (6th Cir. 2011) (Title VII).

[4] The court evidently accepted U.S. Steel’s argument likening Simko to the federal employee in Robinson, 107 F.3d 1018, who did not exercise due diligence when he relied on erroneous information from his agency’s own EEO counselor and did not file a complaint. The situation is quite different here, where it was the EEOC, not Simko’s employer, that misled him.

[5] The Ninth Circuit, like this Court, applies a fact-specific analysis. See Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 644-45 (9th Cir. 2004); Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991).