rely on such misrepresentations to their injury. Here, Michelson allegedly is the injured party, but Exxon must be considered the recipient which was induced to act in reliance on the memo. Plaintiff thus may not invoke this cause of action because he logically cannot satisfy the requirement that he himself must detrimentally rely on the alleged misrepresentation.
THE JOB TERMINATION
(a) Age Discrimination
In his September 10, 1984 brief opposing Exxon's motion for summary judgment, plaintiff for the first time invoked his rights under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. His original complaint rests only on the common law theory of wrongful discharge. He amended his complaint in March 1984. The amendment includes a paragraph alleging age discrimination, but again omits any mention of the ADEA. Instead, his pleading refers to his termination as a violation of the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. §§ 951, 952 (Purdon 1964). At a supplemental status conference held August 23, 1984, the court alerted plaintiff's counsel to his failure to plead an adequate ADEA cause of action. Docket Entry No. 47. Counsel responded by moving for leave to amend the complaint, but the motion mentions nothing about the grounds for amendment. Docket Entry No. 54. In essence, plaintiff asks the court to review his pleadings, alert him to any defects -- which we have already done -- and grant blanket leave to correct those defects so that his claim will be safe from attack. Suffice it to say that this is not our function. Federal Rule of Civil Procedure 15 requires liberal allowance of amendments when justice requires, but counsel at least must alert the court and opposing counsel to the substance of his proposed amendment. Despite repeated allowances, plaintiff has failed to plead an adequate cause of action under the ADEA.
Furthermore, it appears that plaintiff cannot bring an ADEA claim because the evidence of his compliance with administrative procedures is absent. The ADEA requires a prospective plaintiff to file charges with the Equal Employment Opportunity Commission ("EEOC") and to wait at least 60 days before he can bring suit in the district court. 29 U.S.C. § 626(d). Defendant has referred us to plaintiff's deposition testimony in which he admits to telephoning the EEOC once or twice but denies filing any charges. Michelson Dep. at 220-21, reprinted in defendant's Reply Brief. An affidavit by Eugene Reid, an EEOC employee, corroborates this testimony. Reid stated that the EEOC acknowledged the telephone calls by assigning them a charge number, but neither it nor Michelson pursued the matter. Docket Entry No. 52.
Plaintiff replied with an affidavit by Eugene Nelson, Pittsburgh Area Director for the EEOC, which seems to contradict the conclusion one might draw from the evidence above. Nelson states that plaintiff did file a charge against defendant. His opinion, though unbinding, is that Michelson's charge satisfied the ADEA jurisdictional requirements. Furthermore, Nelson sent a letter to Michelson in April 1984 informing him that his "charge was filed on September 21, 1983" and that he may proceed with a civil lawsuit. Docket Entry No. 53. Nowhere does Nelson state, however, that Michelson filed a written charge.
The Courts of Appeals for the Second, Fourth and Fifth Circuits have expressly held that notice to the EEOC must be in writing to satisfy ADEA requirements. Reich v. Dow Badische Co., 575 F.2d 363, 368-69 (2nd Cir. 1978), cert. denied 439 U.S. 1006, 58 L. Ed. 2d 683, 99 S. Ct. 621 (1978); Greene v. Whirlpool Corp., 708 F.2d 128, 130 (4th Cir. 1983); Woodard v. Western Union Telegraph Co., 650 F.2d 592 (5th Cir. 1981). We have not found a similar decision from the Court of Appeals for the Third Circuit. The court has recently stated that, "In order to constitute a charge that satisfies the requirement of section 626(d), notice to the EEOC must be of a kind that would convince a reasonable person that the grievant has manifested an intent to activate the Act's machinery." Bihler v. Singer Company, 710 F.2d 96, 99 (3d Cir. 1983). While this language may be interpreted as encompassing oral complaints, the Court there was addressing the sufficiency of a letter to the EEOC as a substitute for formal written filing. The majority throughout its discussion obviously assumes that the charge is written. Furthermore, Judge Weis in dissent aptly quotes from a published EEOC notice which stated, "to be sufficient, a charge shall be in writing. . .". 44 Fed. Reg. 37,974 (June 29, 1979) (our emphasis), reprinted at 710 F.2d at 101. Consequently, even if plaintiff had pleaded an adequate ADEA claim, the record contains no evidence that he submitted some written document to the EEOC pertaining to his job termination. Cf. Sutherland v. SKF Industries, Inc., 419 F. Supp. 610 (E.D. Pa. 1976) with Pieckelun v. Kimberly-Clark Corp., 493 F. Supp. 93 (E.D. Pa. 1980).
(b) Retaliatory Discharge
In the second branch of his job termination count, Michelson alleges that he was terminated in retaliation for filing workmen's compensation claims. He filed three claims in November 1983, two regarding back injuries and one citing tuberculosis as an employment-related injury. On its face, this claim appears to suffer from a fatal flaw: plaintiff scarcely could be discharged in September 1983 in retaliation for compensation claims filed in November 1983. He is saved at this phase of the analysis, however, by documents showing that in July 1983, company officials were aware of the substance of his claims and his intention to seek workmen's compensation. Michelson Affidavit, Ex. 4, Docket Entry No. 50. He also retained a lawyer that same month. Docket Entry No. 51. Placing these facts in the light most favorable to plaintiff, we are satisfied that he has cleared the first obstacle in pleading this cause of action and that further analysis and scrutiny of evidence is warranted.
The area of common law remedies for wrongful discharge was opened by the Pennsylvania Supreme Court in Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). Though holding favorably for the defendant, in a frequently cited passage the Court stated:
there are areas of an employee's life in which his employer has no legitimate interest. An intrusion in one of these areas by virtue of the employer's power of discharge might plausibly give rise to a cause of action, particularly where some recognized facet of public policy is threatened. The notion that substantive due process elevates an employer's privilege of hiring and discharging his employees to an absolute constitutional right has long since been discredited. But this case does not require us to define in comprehensive fashion the perimeters of this privilege, and we decline to do so. We hold only that where the complaint itself discloses a plausible and legitimate reason for terminating an at-will employment relationship and no clear mandate of public policy is violated thereby, an employee at will has no right of action against his employer for wrongful discharge.