Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit
2-28-1997
Robinson v. Dalton Precedential or Non-Precedential:
Docket 96-1212
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Recommended Citation "Robinson v. Dalton" (1997). 1997 Decisions. Paper 49. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/49
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No. 96-1212
DENNIS ROBINSON, Appellant
v.
JOHN H. DALTON, SECRETARY TO UNITED STATES DEPARTMENT OF THE NAVY
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 95-cv-04043)
Submitted Pursuant to Third Circuit LAR 34.1(a) November 4, 1996
Before: SLOVITER, Chief Judge McKEE and ROSENN, Circuit Judges
(Opinion Filed February 28, 1997)
Mark S. Scheffer Larry Pitt & Associates Philadelphia, PA 19103
Counsel for Appellant
David R. Hoffman Office of United States Attorney Philadelphia, PA 19106
Counsel for Appellee
1 OPINION OF THE COURT
SLOVITER, Chief Judge.
Plaintiff, who filed a Title VII action alleging that
he was fired from the Navy in retaliation for his previous
charges of racial discrimination, appeals from the district
court's dismissal for lack of subject matter jurisdiction. On
appeal, we must examine both the procedure for the district
courts to use in deciding whether a plaintiff failed to exhaust
administrative remedies and the type of agency action that
warrants application of equitable tolling. We also consider when
a previously filed administrative complaint encompasses a charge
based on a subsequent discharge. I.
Facts and Procedural History
During 1989, Dennis Robinson, an employee at the
Philadelphia Naval Shipyard, filed three separate complaints with
the Navy's Equal Employment Opportunity (“EEO”) Office alleging racial discrimination and retaliation. From the information
available to us it appears that at different times during the
year (March 14, March 29, and June 26), Robinson filed complaints
alleging that the Navy 1) denied his sick leave from August 27 -
October 26, 1988 and promoted a white employee to permanent
general foreman; 2) placed him on an unauthorized leave status on
January 25, 27, 30 and, as well as February 1 and 3, 1989; and 3)
issued him an indebtedness letter of $9,800 for disapproved sick
leave and cited him for creating an asbestos hazard. These
2 complaints were consolidated and, following administrative
proceedings and investigation, resulted in a finding by the EEOC
of no discrimination by the Department of the Navy. Robinson's
request for reconsideration was denied and the EEO issued a
letter on May 4, 1995 informing him that he had no further rights
of administrative appeal but could file a civil action in federal
district court within 90 days.
In addition to the absences referred to in his EEO
complaints, Robinson was absent from his job without
authorization for a long period beginning on November 27, 1989.
He was instructed on January 5, 1990 to contact his employee
relation specialist to explain the reasons for his prolonged
absence and was told that his failure to do so by January 12,
1990 would result in his absence being unauthorized and that the
Navy would take action to terminate his employment at the
shipyard. Robinson failed to comply with the Navy’s directions.
On January 26, 1990 the Navy wrote to Robinson that it
proposed to remove him from his employment due to excessive
unauthorized absences and creating an asbestos hazard. Robinson
responded with a letter from his doctor but the Navy determined
that this letter did not adequately justify Robinson's absence
and it requested additional information. Robinson never provided
any further information. The Navy then terminated his employment
on April 5, 1990.
3 Robinson brought this suit in district court claiming
that he was fired in retaliation for the previous charges of
racial discrimination. He invoked jurisdiction based on Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1
Although Robinson's complaint alleges that he had filed
a complaint with the Navy's EEO counselor and exhausted all of
his administrative prerequisites, App. at 15, the Navy moved to
dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim or Rule 56 for summary judgment, asserting that Robinson
had failed to exhaust his administrative remedies. The district
court converted the motion into a Rule 12(b)(1) motion and then
conducted a three-day evidentiary hearing to determine whether it
had jurisdiction over the claim.
Among the evidence relevant to the district court's
ultimate ruling was Robinson's testimony that he talked to an EEO
counselor over the telephone, who he thought was Shirley Brown,
who told him that he did not have to file a complaint, App. at
89, and his affidavit stating that the counselor told him that
since he had other claims of retaliation pending, he did not have
to file another separate complaint, App. at 50. In response, the
Navy provided a computer printout from the Navy EEO office which
showed that Robinson had first contacted an EEO officer on
October 3, 1990, six months after he was terminated. Karl Pusch,
an EEO counselor, testified that he remembered completing an EEO
1. Robinson's complaint alluded to a claim of disability under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., but this claim was dismissed along with the others without discussion and Robinson's brief fails to include any argument related thereto.
4 intake form on that day. A mail record shows that the EEO office
sent Robinson a Notice of Final Interview on October 15, 1990.
Furthermore, Brown and Pusch both testified that they would never
have advised a complainant not to file a complaint.
The district court dismissed Robinson’s complaint
stating that we need not decide whether Robinson was not telling the truth in his affidavit or whether he simply misrecollects the events of 1990, since it is sufficient merely to conclude that he has not met his burden of showing either that he timely contacted an EEO counselor within thirty days of his termination or that an EEO counselor misled him into failing to follow the proper procedures.
App. at 27. Robinson filed a timely appeal. II.
Discussion A.
We do not reach on this appeal the merits of Robinson’s
Title VII claim. Rather, we limit our consideration to the
procedure used by the district court in dismissing the action under Rule 12(b)(1), the sufficiency of Robinson's contention of
equitable estoppel, and the effective scope to be given a pending
EEOC complaint.
It is a basic tenet of administrative law that a
plaintiff must exhaust all required administrative remedies
before bringing a claim for judicial relief. McKart v. United
States, 395 U.S. 185, 193 (1969). We have explained that the
purposes of the exhaustion requirement are to promote
administrative efficiency, "respect[] executive autonomy by
5 allowing an agency the opportunity to correct its own errors,”
provide courts with the benefit of an agency's expertise, and
serve judicial economy by having the administrative agency
compile the factual record. Heywood v. Cruzan Motors, Inc., 792
F.2d 367, 370 (3d Cir. 1986).
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000(e)-16, establishes the exclusive remedy for federal
employees who allege discrimination in the workplace. Under
regulations promulgated by the EEOC in effect in 1990, an
aggrieved federal employee was required to initiate contact with
an agency counselor within 30 days of “the effective date of an
alleged discriminatory personnel action, or the date that the
aggrieved person knew or reasonably should have known of the
discriminatory event or personnel action.” 29 C.F.R. §
1613.214(a)(1)(i) (1990). A formal EEOC complaint must be filed
“within 15 calendar days after the date of receipt of the notice
of the right to file a complaint.” 29 C.F.R. §
1613.214(a)(1)(ii). Finally, in order to bring an action in
district court the employee must do so either within 30 days of
receipt of notice of final agency action or within 180 days from
the date of filing the complaint if the agency has not reached a
decision. 29 C.F.R. § 1613.281 (1990). Thus, exhaustion
requires both consultation with an agency counselor and filing a
formal EEOC complaint within the required times.
In its motion to dismiss, the Navy argued that Robinson
had waited over six months after he was terminated before seeking
EEO counseling and then failed to file a formal EEOC complaint
6 after his final counseling session. Robinson's response was
twofold: first, that he did not have to exhaust his
administrative remedies because his termination was fairly
included within the scope of his pending EEOC complaints and
second, that he did contact an EEO Counselor within 30 days of
his termination and was told that he did not have to file an
additional charge of retaliation. He argued that because he was
misled by the EEO Counselor, the Navy should be estopped from
challenging his failure to exhaust or timely file. The district
court granted the Navy's motion, and dismissed.
On appeal, Robinson argues that the district court
erred in failing to treat the Navy's motion to dismiss for lack
of jurisdiction as a motion for summary judgment once the court
looked beyond the face of the pleadings, and that summary
judgment was precluded because there were disputed issues of
material fact.
Ordinarily, if “matters outside the pleadings are
presented to . . . the court, the motion shall be treated as one
for summary judgment.” Fed. R. Civ. Pro. 12(c). On the other
hand, when there is a factual question about whether a court has
jurisdiction, the trial court may examine facts outside the
pleadings and thus “the trial court may proceed as it never could
under 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a
factual 12(b)(1) motion is the trial court’s jurisdiction -- its
very power to hear the case.” Mortensen v. First Federal Sav. and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). We have
explained that in such a circumstance, a trial court “is free to
7 weigh the evidence and satisfy itself as to the existence of its
power to hear the case.” Intern. Ass’n of Machinists & Aerospace
Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711 (3d Cir.
1982). Unlike the procedure governing summary judgment, under a
Rule 12(b)(1) motion to dismiss “no presumptive truthfulness
attaches to plaintiff’s allegations, and the existence of
disputed material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.”
Mortensen, 549 F.2d at 891.
Although the district court in this case described its
preliminary evaluation as “jurisdictional,” this court has
previously determined that questions of whether a plaintiff has
timely exhausted the administrative remedies in Title VII actions
“are in the nature of statutes of limitation. They do not affect
the district court’s subject matter jurisdiction.” Hornsby v.
United States Postal Service, 787 F.2d 87, 89 (3d Cir.
1986)(citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
392-98)(1982)). Moreover, in Title VII cases courts are
permitted in certain limited circumstances to equitably toll
filing requirements, even if there has been a complete failure to
file, which necessarily precludes characterizing such
requirements as "jurisdictional." See Bowen v. City of New York, 476 U.S. 467, 482 (1986)(exhaustion excused for same reasons as
those allowing tolling of the statute of limitations); see also
Waiters v. Parsons, 729 F.2d 233, 236 (3d Cir. 1984)(failure to
file EEOC complaint not jurisdictional and district court should
consider application of waiver, estoppel or tolling).
8 It follows that the Navy's motion to dismiss should
have been treated under Rule 12(b)(6), the Rule invoked by the
Navy, rather than converted into a Rule 12(b)(1) motion for lack
of jurisdiction, as the district court did. Timeliness of
exhaustion requirements are best resolved under Rule 12(b)(6)
covering motions to dismiss for failure to state a claim. As we
explained in Hornsby, “[t]he causes of action created by Title
VII do not arise simply by virtue of the events of discrimination
which that title prohibits. A complaint does not state a claim
upon which relief may be granted unless it asserts the
satisfaction of the precondition to suit specified by Title VII:
prior submission of the claim to the EEOC [] for conciliation or
resolution.” 787 F.2d at 90. A district court may rule on a
Rule 12(b)(1) motion when on the face of the pleadings it is
clear that administrative remedies have not been exhausted, but
this rule is “inapplicable to the resolution of disputed issues
of material fact with respect to the applicability of statutes of
limitations.” Id. at 89.
The Court of Appeals for the Seventh Circuit reached
the same conclusion on facts quite similar to those before this
court. In Rennie v. Garett III, 896 F.2d 1057 (7th Cir. 1990), a former Navy employee brought a Title VII action alleging sex
discrimination and retaliation. The district court dismissed her
complaint under Rule 12(b)(1) for failure to exhaust, after
making a credibility determination that she had not met with an
EEO counselor and discussed her retaliation claims. Id. at 1058- 59. The Court of Appeals cited and followed our decision in
9 Hornsby, overturned its own court precedent, and reversed the
dismissal, holding that timely exhaustion of administrative
remedies "should be construed as a statute of limitations and not
as a jurisdictional prerequisite.” Id. at 1062. It directed the
district court on remand to make a factual determination about
plaintiff's possible equitable tolling arguments without the Rule
12(b)(1) burdens of “summary dismissals.” Id. at 1062-63.
We therefore agree with Robinson that the district
court's inquiry should have been made pursuant to a Rule 12(b)(6)
motion for failure to state a claim. Once Robinson pled the
applicability of the equitable tolling doctrine which went beyond
the face of the pleadings, the district court should have treated
the issue of equitable tolling in a manner consistent with Rule
56 for summary judgment. See Hornsby, 787 F.2d at 89; Oshiver v.
Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391-92 (3d Cir.
1994). B.
Under the summary judgment standard we view the
evidence in the light most favorable to Robinson and take all of
his allegations as true. However, we will not reverse the
district court’s dismissal if, “apply[ing] the same test the
district court should have utilized initially,” plaintiff is not
entitled as a matter of law to equitable tolling. Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1413 (3d Cir.), cert.
denied, 502 U.S. 941 (1991).
In Oshiver, this court explained that equitable tolling of statutes of limitation “may be appropriate: (1) where the
10 defendant has actively misled the plaintiff respecting the
plaintiff’s cause of action; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his or her
rights; or (3) where the plaintiff has timely asserted his or her
rights mistakenly in the wrong forum.” 38 F.3d at 1387.
Robinson neither claims that the Navy actively misled
him nor that he filed this action in the wrong forum. Thus, he
would be entitled to equitable tolling only if his allegation
that he was misled by an EEO counselor fit within the second
category where a plaintiff “in some extraordinary way has been
prevented from asserting his or her rights.”
The applicable EEOC regulation provides that the agency
"shall extend the time limits [for filing a complaint] when the
complainant shows that he/she was not notified of the time limits
and was not otherwise aware of them, was prevented by
circumstances beyond the complainant’s control from submitting
the matter within the time limits; or for other reasons
considered sufficient by the agency.” 29 C.F.R. § 1613.214(a)(4)
(1990).
Robinson does not contend that he was unaware of the
procedural requirements and the need to file a complaint within
30 days. At most he alleges that he contacted an EEO counselor
by telephone within the 30 day requirement and was advised that
in light of his pending complaints he did not have to file an
additional complaint for retaliatory discharge. Accepting as
true Robinson's version of the events, and disregarding the EEOC
records offered by the Navy which show that Robinson appeared for
11 his initial counseling session six months after he was
discharged, we hold that one phone conversation with an EEO
counselor does not rise to the level of being prevented in an
"extraordinary way" by the EEOC from asserting his rights. Nor,
using the language of the EEOC regulation, was he "prevented" by
circumstances beyond his control from timely submitting the
matter.
These facts are unlike those in Albano v. Schering-
Plough Corp., 912 F.2d 384 (9th Cir. 1990), cert. denied, 498
U.S. 1085 (1991), where the EEOC refused to amend plaintiff's
timely complaint to include an allegation of discriminatory
discharge. In that case, the court held that equitable tolling
was justified where in refusing the amendment the EEOC failed to
follow its own rules, the plaintiff had at least 14 conversations
with the EEOC attempting to amend, and on at least three
occasions the agency's employee assured plaintiff that his new
claim was encompassed within the claim being investigated.
Nor is Robinson in the position of the plaintiff in
Steffen v. Meridian Life Ins. Co., 859 F.2d 534 (7th Cir. 1988),
who had filled out an intake questionnaire and was advised by an
EEOC officer that this was sufficient to preserve his ADEA claim.
Indeed, in Steffen the EEOC appeared as amicus curiae arguing that filling out an intake questionnaire should be enough to
satisfy the filing requirement, thereby further justifying
equitable estoppel.
Running throughout the equitable estoppel cases is the
12 obligation of the plaintiff to exercise due diligence to preserve
his or her claim. The Supreme Court has explained that
“[f]ederal courts have typically extended equitable relief only
sparingly . . . . We have generally been much less forgiving in
receiving late filings where the claimant failed to exercise due
diligence in preserving his legal rights.” Irwin v. Department
of Veterans Affairs, 498 U.S. 89, 96 (1990). While a plaintiff
may justifiably rely on written communications from the EEOC,
which was held to be enough to warrant equitable estoppel in
Jennings v. American Postal Workers Union, 672 F.2d 712, 714-15
(8th Cir. 1982) (letter from EEOC that the Civil Service
Commission, not it, had jurisdiction), Robinson offers nothing
more than one alleged phone conversation. Cf. Dartt v. Shell Oil
Co., 539 F.2d 1256, 1261 (10th Cir. 1976)(holding that equitable
tolling should be allowed where agency neglected to inform
plaintiff of filing deadlines despite numerous phone
conversations, at least once a month, to check on the progress of
the investigation), aff'd by an equally divided Court, 434 U.S.
99 (1977) (per curiam).
Robinson was not inexperienced in the procedures
required to maintain a discrimination complaint, having already
filed three such complaints. See Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 755 (3d Cir.), cert. denied 464 U.S.
852 (1983). His failure to confirm the advice allegedly received
on the telephone by written communication or even by another
telephone communication shows an absence of the due diligence
13 which the Supreme Court has regarded as a condition for equitable
tolling. See Irwin, 448 U.S. at 96.
Furthermore, should a plaintiff in Robinson's position
be able to circumvent exhaustion requirements by simply asserting
s/he was given erroneous telephone advice from an agency
employee, equitable tolling would be converted from a remedy
available only sparingly and in extraordinary situations into one
that can be readily invoked by those who have missed carefully
drawn deadlines. We cannot extend the doctrine that far. Thus
we agree with the district court that Robinson “ha[d] not met his
burden of showing . . . that an EEO counselor had misled him into
failing to follow the proper procedures.” App. at 27. C.
Finally, we consider Robinson's alternative argument
that he did not have to file a separate EEOC complaint alleging
retaliatory discharge in light of his already pending EEOC
complaints. Robinson relied for this argument on our decision in
Waiters v. Parsons, 729 F.2d 233 (3d Cir. 1984)(per curiam), a
case in which we held it was not necessary for the plaintiff to
have filed an additional complaint when she was discharged.
Because such a holding is fact specific, we review that decision
in some detail.
In Waiters we held that the mere fact that a complainant has pending a complaint of discrimination does not
mean that the requirements of administrative exhaustion are
necessarily excused. Such a rule, whether express or applied in
practice, would eviscerate the remedial purposes of the
14 exhaustion requirement. This court expressly declined to adopt
the per se rule it attributed to the Fifth Circuit. We described
the ruling that we rejected as one that "held that all claims of
'retaliation' against a discrimination victim based on the filing
of an EEOC complaint are 'ancillary' to the original complaint,
and that therefore no further EEOC complaint need be filed.
Gupta [v. East Texas State University, 654 F.2d 411, 413-14 (5th
Cir. l981]." Waiters, 729 F.2d at 237 n.10.
Although other courts of appeals seem to have adopted a
broad per se rule, stating that any complaint of retaliation
occurring during the time when prior EEOC complaints are pending
necessarily falls within the scope of those complaints, see,
e.g., Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994),
Gupta, 654 F.2d at 413-14, Kirkland v. Buffalo Bd. of Educ., 622
F.2d 1066, 1066-68 (2d Cir. 1980) (per curiam), Nealon v. Stone,
958 F.2d 584, 584-90 (4th Cir. 1992), Baker v. Buckeye Cellulose
Corp., 856 F.2d 167, 167-69 (11th Cir. 1988), while some others
have limited this per se rule to require that the prior EEOC
complaint specifically allege retaliatory conduct, see McKenzie v. Illinois Dep't. of Transp., 92 F.3d 473, 483 (7th Cir. 1996),
Ang v. Procter & Gamble Co., 932 F.2d 540, 547 (6th Cir. 1991),
our court in Waiters rejected any per se rule.
Notwithstanding the array of seemingly contrary
authority, as a panel we are not free to diverge from our court's
written precedent. See Third Circuit's Internal Operating
Procedures, Ch. 9.1. We thus follow the approach of our own case
law, which has been to examine carefully the prior pending EEOC
15 complaint and the unexhausted claim on a case-by-case basis
before determining that a second complaint need not have been
filed.
In Waiters, the plaintiff, a female social worker at
the Veterans Administration Medical Center in Coatesville,
Pennsylvania (VAMC), had filed an informal complaint with the
EEOC alleging sex discrimination in the promotion of a male
employee but withdrew that complaint after mediation resulted in
her being given a position in a new program. The next year,
however, she filed a formal complaint with the EEOC alleging
continuing discrimination in retaliation for having made the
earlier informal complaint.
After an EEOC investigation, the district director
found that Waiters was subjected to harassment following the
informal EEOC complaint and concluded that Waiters was
discriminated against because she opposed practices unlawful
under Title VII. Waiters, 729 F.2d at 235 n.2. Waiters was
discharged the following year for a number of miscellaneous
reasons. On Waiters' appeal, the Merit Systems Protection Board
reduced the sanction to a 60-day suspension, but Waiters,
continuing to press her claim to 60 days' back pay and counsel
fees, filed suit.
The district court dismissed her complaint for failure
to exhaust her administrative remedies. On appeal, this court
reversed, explaining that "[a] victim of discrimination is not
required to exhaust administrative remedies with respect to a
claim concerning an incident which falls within the scope of a
16 prior EEOC complaint or the investigation which arose out of it,
provided that the victim can still bring suit on the earlier
complaint." Waiters, 729 F.2d at 235. We held that a separate
EEOC filing alleging retaliatory discharge was not necessary
because the EEOC investigation went beyond the specific
allegations in the formal complaint and looked at the employer's
entire conduct. Id. The EEOC district director had concluded
that “a pattern of events that occurred after the filing of the
informal complaint demonstrated that officials at VAMC
‘retaliated’ against appellant for filing the informal
complaint.” Id. at 238. Because Waiters alleged "that her
discharge was the product of this same retaliatory intent," we
concluded that although the officials and acts were different,
"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 district director's
investigation of the charges contained in the 1979 formal
complaint." Id. at 238.
Thus, 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. 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
17 there was nothing to be served by requiring Waiters to file a
second complaint. Id.
We compare Waiters' situation with Robinson's
administrative claims and investigation. We base our analysis on
the proceedings described in the EEOC's Final Decision dated June
2, 1993 and its earlier denial of his request to reopen, dated
March 18, 1991, as we have little else of relevance before us.
It appears that in each of Robinson's three complaints, one
complaining of the disapproval of his sick leave from August 27
through October 26, 1988, and the promotion of a white employee
to the new permanent position of Insulator General Foreman,
another complaining that he had been carried in an unauthorized
leave status in late January and early February 1989, and the
third complaining of the issuance of an indebtedness letter for
disapproved sick leave and for creating an asbestos hazard,
Robinson also complained of retaliation.
Following a finding of no discrimination, Robinson
filed a Request to Reopen with the EEOC. Although the EEOC
denied the request to reopen because it did not contain any new
and material evidence, the EEOC did vacate the decision and
remand for a supplemental investigation of Robinson's formal
complaint of race, color, and reprisal discrimination. At the
same time, the EEOC noted "that the complaint and appellant's
prior complaints are interrelated in that they all raise issues
related to sick leave usage during a particular period and they
all appear to involve the same agency decision-makers." It
concluded that "it would appear to be in the interest of
18 efficient and prompt complaint processing to investigate all
three complaints concurrently." It continued: "Finally, we note
that none of appellant's three complaints challenge his demotion
or termination or any other action appealable to the MSPB." The
EEOC refused to investigate the charge of retaliatory discharge
because a complaint had not been timely filed.
The district court determined that Robinson’s three
timely filed complaints, which the court viewed as concerning
whether the specific absences were authorized or not, were not
"related" to the subsequent discharge because of Robinson's
intervening prolonged absence. The court treated the termination
as in response to this later absence and therefore unrelated to
the earlier events. From the meager record before us, we are
unable to determine whether that was a permissible conclusion at
this preliminary stage. It is apparent, however, that the
district court failed to discuss the ground which was the basis
of our decision in Waiters that the complainant's subsequent
discharge fell within the earlier complaints - i.e. the scope of
the EEOC's investigation.
Robinson is at a disadvantage here because the EEOC
expressly declined to include his later discharge in its
investigation. In Ostapowicz v. Johnson Bronze Co., we explained that “the parameters of the civil action in the district court
are defined by the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of
discrimination, including new acts which occurred during the
pendency of proceedings before the Commission.” 541 F.2d 394,
19 398-99 (3d Cir. 1976) (citations omitted). Thereafter, we held
in Hicks v. ABT Associates, Inc., 572 F.2d 960, 965 (3d Cir.
1978), that if the EEOC investigation is too narrow, a plaintiff
should not be barred from raising additional claims in district
court.
In Hicks, the plaintiff alleged racial discrimination
in his termination and filed a timely charge with the EEOC. Id.
at 962. The EEOC found that there was no reasonable cause to
believe that Hicks was discriminated against based on race. Id.
at 963. Hicks then filed suit in district court alleging race
and sex discrimination. Id. The district court dismissed the
charge of sex discrimination because that charge had not been
filed with the EEOC. Id. On appeal we remanded, explaining that
even though the EEOC had limited its investigation to the charge
of race discrimination, the district court must evaluate the
reasonableness of that investigation. Id. at 965.
We are in a similar position in this case in that the
EEOC declined to investigate Robinson’s allegations of
retaliatory discharge because a separate complaint had not been
filed with the EEOC, and the district court did not evaluate the
reasonableness of the decision not to investigate. Thus we find
it appropriate to remand this case to the district court.
In the first place, we are hampered by the absence in
the record of the actual complaints and have been obliged to rely
on the summaries of those complaints in the EEOC's rulings. In
the second place, we note with some puzzlement that the reasons
given by the Navy for its discharge appear to include some of the
20 same incidents referred to by Robinson in his three timely
complaints, i.e. excessive leave and creating an asbestos hazard.
Therefore, we are unable to understand why the EEOC declined to
investigate Robinson's discharge. We believe that the district
court will be in a better position to collect the relevant
material, question the parties on the implications, and decide in
the first instance whether the EEOC’s limited investigation was
reasonable under the circumstances.
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. III.
For the reasons set forth, we will vacate the order
dismissing this action and remand for further proceedings
consistent with this opinion.
_____________________________
TO THE CLERK:
21 Please file the foregoing opinion.
__________________________ Chief Judge
22 23