Simko v. U.S. Steel Corp

• Decision Date: 29 March 2021
• Docket Number: No. 20-1091,20-1091
• Citation: 992 F.3d 198
• Parties: Michael SIMKO, Appellant v. UNITED STATES STEEL CORP
• Court: U.S. Court of Appeals — Third Circuit

992 F.3d 198

Michael SIMKO, Appellant

v.UNITED STATES STEEL CORP

No. 20-1091

United States Court of Appeals, Third Circuit.

Argued September 24, 2020

Filed March 29, 2021

OPINION

RENDELL, Circuit Judge.

In this employment discrimination case, Michael Simko asserts one claim of retaliation against his former employer, United States Steel Corp., under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq . Simko alleges that in August 2014 he was discharged in retaliation for filing an administrative charge of disability discrimination with the Equal Employment Opportunity Commission ("EEOC") approximately fifteen months earlier. Simko's original charge—which alleged that U.S. Steel disqualified him for another position on the basis of his hearing disability—was timely filed. But he never filed a timely charge of retaliation that formed the basis for his complaint before the District Court. The District Court held that the later claim of retaliation was not encompassed within the earlier charge, and, therefore, that his failure to file a timely retaliation charge was fatal. Accordingly, the District Court dismissed his complaint for failure to exhaust administrative remedies. We will affirm.

I. BACKGROUND¹

Simko, who suffers from hearing loss, began working for U.S. Steel in August 2005. In August 2012, while he was employed as a Larryman in the Blast Furnace Department of the U.S. Steel plant in Braddock, Pennsylvania, he successfully bid on an open position as Spellman in the Transportation Department. During training for the position, Simko requested a new two-way radio from a Transportation Department supervisor to accommodate his hearing impairment, but U.S. Steel did not provide the new radio or any other accommodation. Although Simko completed the Spellman training, he alleges that his trainer refused to approve his completion of the training and "sign off" that he was able to perform the Spellman duties because of his disability. App 33. Having failed to secure the Spellman position, Simko resumed working as a Larryman in the Blast Furnace Department.

A. Simko's Original Charge and Initial Discharge

On May 24, 2013, Simko signed an EEOC charge alleging violations of the ADA against U.S. Steel. The only box checked on the original charge was for "[d]iscrimination based on ... disability." App. 33. Specifically, Simko asserted that U.S. Steel discriminated against him by denying him the Spellman position and denying his request for an accommodation. Simko also alleged in the charge that he was later "subjected to negative comments from other employees regarding my impairment," including one instance in which the "Walking Boss" told him that "[i]f I couldn't hear, I must be disabled and should not work anywhere in the plant." App. 34. The EEOC received the charge on May 28, 2013. By letter dated August 7, 2013 to the EEOC, a U.S. Steel Labor Relations official denied Simko's allegations of discrimination. The EEOC did not take any action to investigate the charge or U.S. Steel's August 7, 2013 letter.

On December 30, 2013—while Simko's charge was still pending—U.S. Steel discharged Simko after an incident in which a car he was operating lost power. Approximately five months later, on May 27, 2014, Simko entered into a "last chance agreement" with U.S. Steel and his union providing for his reinstatement. Simko returned to work under the last chance agreement on June 1, 2014, but he was discharged again on August 19, 2014² —this time, based on a safety violation. Although Simko grieved the discharge through his union, the union later withdrew the grievance.

B. The November 2014 Correspondence

On November 14, 2014,³ approximately three months after Simko's final discharge from U.S. Steel, the EEOC received an undated handwritten letter and set of documents from Simko ("November 2014 correspondence"). The November 2014 correspondence comprised 14 pages, including what appears to be Simko's handwritten notes regarding a union hearing on the violation of his last chance agreement, a copy of his last chance agreement, copies of safety incident reports, and, in the final three pages, a handwritten note that urged that he was discharged in retaliation for his filing of the original discrimination charge with the EEOC. In relevant part, the letter provided:

Since I have filled [sic] the charges with the EEOC I have been terminated twice and placed on [a] last chance agreement with no just cause by the company. The union only calls me at [the] last minute with information, they are not in contact with me otherwise .... I believe anyone who familiarizes themself [sic] with the details of the case will clearly see it as retaliation for filing charges with the EEOC.

App. 80–81 (emphasis added).

The EEOC did not take any action in response to Simko's November 2014 correspondence until approximately one year later. By letter dated November 23, 2015, an EEOC investigator notified Simko that he had been assigned to Simko's case. The investigator further wrote that, based upon the November 2014 correspondence, "it appears as though you have been terminated by [U.S. Steel] on two separate occasions during 2014 and that you believe that the terminations were retaliatory against you." App. 84. Simko's EEOC file also contains a handwritten note by the investigator, dated November 23, 2015, indicating that the EEOC contacted the U.S. Steel Labor Relations Department and confirmed that Simko had been discharged.⁴ In addition, the note stated, "Amended charge is to follow including retaliatory discharge." App. 83.

C. The EEOC Investigation, Amended Charge, and Simko's Federal Lawsuit

After the EEOC contacted Simko, he retained counsel to represent him in his EEOC proceedings. By letter dated December 18, 2015, the EEOC investigator communicated to Simko's counsel that the EEOC had notified U.S. Steel "that an amended charge was going to follow." App. 87. On January 22, 2016, Simko's counsel filed an amended EEOC charge. The amended charge addressed Simko's failure to secure the Spellman position and his subsequent discharges from U.S. Steel. The boxes for disability discrimination and retaliation were both checked.

After investigating the allegations set forth in the amended charge, the EEOC on February 19, 2019 issued a determination of reasonable cause that U.S. Steel retaliated against Simko. Specifically, the EEOC investigator found that U.S. Steel disciplined Simko more harshly for his violation of work rules and regulations than a non-disabled comparator. The EEOC attempted conciliation of the dispute, but after those efforts failed, it issued a right-to-sue letter on April 1, 2019. On June 28, 2019, Simko filed this lawsuit, asserting only a single count of retaliation in connection with his final discharge from U.S. Steel. It did not allege either disability discrimination or failure to accommodate.

The District Court determined that Simko failed to file a timely EEOC charge asserting his retaliation claim because his amended charge claiming retaliation was filed 521 days after the termination of his employment. The District Court also held that Simko was not entitled to equitable tolling of the ADA's filing deadline because he was not misled by the EEOC or prevented from filing the amended charge, and he offered no reason why he could not file a timely claim. Thus, the District Court concluded that since Simko never filed a timely charge of retaliation with the EEOC, he failed to exhaust his administrative remedies as required by the ADA, and it dismissed his complaint. Simko timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise appellate jurisdiction pursuant to 28 U.S.C § 1291. We review de novo a district court's decision granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Schmidt v. Skolas , 770 F.3d 241, 248 (3d Cir. 2014). In reviewing a dismissal under Rule 12(b)(6), we accept all well-pled factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Connelly v. Lane Const. Corp. , 809 F.3d 780, 787 (3d Cir. 2016).

III. DISCUSSION

Plaintiffs must exhaust their administrative remedies before filing an ADA claim in federal court. See Churchill v. Star Enters. , 183 F.3d 184, 190 (3d Cir. 1999) (noting that claims asserted under the ADA must be filed in adherence with the administrative procedures set forth in Title VII); 42 U.S.C. §§ 12117(a), 2000e-5.⁵ In Pennsylvania, an aggrieved party must initiate this pre-suit procedure by filing a charge with the EEOC within 300 days of the challenged employment action. Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000) ; 42 U.S.C. § 2000e-5(e)(1).

It is undisputed that Simko filed his amended EEOC charge of retaliation 521 days after the latest adverse employment action at issue in the civil complaint—his final discharge. Before the District Court and on appeal, U.S. Steel urges that Simko's civil complaint should therefore be dismissed because he failed to file the retaliation charge within the ADA's 300-day filing period.

Despite his failure to meet the 300-day deadline, Simko argues that he nonetheless satisfied the ADA's pre-suit requirements. The EEOC filed an amicus brief in which it also urges that, contrary to the District Court's conclusion, Simko satisfied the ADA's pre-suit filing requirements.⁶ Three arguments are advanced in the alternative. First, both Simko and the EEOC contend that his handwritten November 2014 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...