their rights when they file written charges, signed
under oath, which are assigned EEOC charge numbers, but somehow fail to
make it onto EEOC letterhead timely. See Deily v. Waste Management of
Allentown, 118 F. Supp.2d 539, 543 FN 5 (E.D.Pa. 2000).
In Deily, the court found in favor of a plaintiff whose formal EEOC
Charge of Discrimination was not signed until 304 days after the last
date of discrimination. Id. The Deily complaint was timely, despite the
eventual tardiness of the formal Charge, because the plaintiff filed an
EEOC Intake Questionnaire and an Allegation of Employment Discrimination
form on day 209 after the last incident of discrimination: well within
the 300-day limitations period. Id. The court observed, "There is a
substantial body of case law among the district courts of this circuit
and in the other circuits to support plaintiff's contention that a timely
filed intake questionnaire either constitutes an official charge or tolls
the 300-day limitations period." Id., citing_Ricciardi v. Consolidated
Rail Corp., 2000 WL 1456736 at 2 (E.D.Pa. Sept. 29, 2000) (filing of
intake questionnaire tolls 300-day limitations period); Bullock v. Balis
& Co., Inc., 1999 WL 527792 at 2 (E.D.Pa. July 22, 1999) (intake
questionnaire constitutes official charge for statutory filing purposes)
(citing Peterson v. City of Wichita, 888 F.2d 1307, 1309 (10th Cir.),
cert. denied, 495 U.S. 932, 110 S.Ct. 2173, 109 L.Ed.2d 502 (1990);
Casavantes v. California State Univ., 732 F.2d 1441, 1443 (9th Cir.
1984); Price v. Southwestern Bell Tel., 687 F.2d 74, 78 (5th Cir.
1982)); but see Gulezian v. Drexel Univ., 1999 WL 153720 at *3 (E.D.Pa.
Mar. 19, 1999) (intake questionnaire insufficient where EEOC advises
grievant that more information is necessary).
We follow Deily and the cases it cites in this regard. We also agree
with, but distinguish Gulezian, cited for the proposition that the
statute is not tolled where the EEOC requests more information after
receiving an Intake Questionnaire. In Gulezian, the plaintiff completed
within the statutory period a questionnaire with insufficient information
to comprise a discrimination charge. Id. at *2. The EEOC finally received
his FAX'ed statement detailing more extensively the basis for his claim
on the 304th day. Id. The court found this date to be the Plaintiff's
filing date, though it occurred two weeks before the plaintiff actually
received an EEOC Charge number. Id. Because the filing date occurred
outside the statute of limitations, his discrimination complaint was
time-barred. On the other hand, in our case, Plaintiff submitted a
thorough, sworn statement and received a charge number well within the
The Third Circuit notes that the time limitations under the
anti-discrimination statutes are statutes of limitations, not
jurisdictional requirements. See, e.g., Oshiver, 38 F.3d at 1387. The
distinction's significance rests in the fact that jurisdictional
requirements are enforced regardless of equitable considerations, whereas
statutes of limitations are enforced "in keeping with our goal of
interpreting humanitarian legislation in a human and commonsensical
manner so as to prevent unnecessarily harsh results in particular cases."
Id. Here, common sense dictates that Plaintiff would believe his charge
was filed with the EEOC on the date the agency received his sworn,
detailed complaint. Plaintiff would know he was protected from exceeding
the 300-day statutory period as of the date he learned that a charge
number had been assigned to his case.
The Supreme Court has explained that the statute of limitations exists
to guarantee "the protection of the . . . [law] to
those who promptly
assert their rights, [and] also protect employers from the burden of
defending claims arising from employment decisions that are long past."
Delaware State College v. Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498, 66
L.Ed.2d 431 (1980). Here, Defendant submits no evidence that it was
prejudiced by the EEOC's delay in serving the Charge of Discrimination.
Indeed, Defendant admits that soon after Plaintiff's discharge it was on
notice that he intended to file suit, inasmuch as Defendant acknowledges
correspondence in which Plaintiff's attorney made this apparent beginning
only a few weeks after Plaintiff's departure.
For the foregoing reasons, we will not dismiss Plaintiff's ADEA
unlawful discharge claim on timeliness grounds, nor Plaintiff's other
ADEA discrimination claims occurring or continuing within 300 days of
April 6, 1998. As one Eastern District court held, interpreting the Third
Circuit, "[S]ince a plaintiff's claim of employment discrimination may
only be based on conduct that occurred within the limitations period,
. . . the filing of the administrative complaint isolates the conduct upon
which the claim rests." Frederick v. Reed, 1994 WL 57213, *3 (E.D.Pa.),
citing inter alia Jewett v. International Tel. & Tel., Corp., 653 F.2d 89,
91 (3d Cir.), cert. denied, 454 U.S. 969, (1981). Thus, Plaintiff's
discriminatory performance evaluation and demotion claims are actionable
inasmuch as they occurred after June 10, 1997, or, in the case of
promotions, inasmuch as Plaintiff applied before June 10 but he remained
qualified and the promotion remained available and unfilled after this
date. See Miller v. Beneficial Management Corp., 977 F.2d 834, 844 (3rd
Cir. 1992) (ongoing failure to promote may be a continuing violation).
On the other hand, whether Plaintiff exhausted his administrative
remedies with respect to his allegations concerning harassment by younger
co-workers presents a more difficult question. Plaintiff's Complaint
states, at line 22, "Plaintiff, throughout the course of his employment,
and in particular after his first year of regular employment with
Defendants, began experiencing age-based harassment." Complaint at p. 5.
He later refers in his Complaint to "extreme intimidation tactics" (lines
28 and 29) which "became worse" after Defendants were notified that
Plaintiff would be deposed in litigation against it. Id. at p. 6.
Finally, Plaintiff mentions two discreet incidents, in which his car was
attacked with cow manure and in which he overheard a Defendant employee
saying he would break Plaintiff's legs. Id. at pp. 7, 10. Neither
Plaintiff's initial charge with the EEOC nor his formal EEOC Charge of
Discrimination specifically describe any of this alleged harassment and
intimidation, but his EEOC Charge references "deliberate intimidation
tactics and problems."
In its seminal opinion dealing with the proper scope of complaints
arising from inadequate EEOC charges, the Fifth Circuit permitted a
plaintiff to proceed with her complaint based on national origin
discrimination despite the fact that her EEOC charge only alleged
sex-based discrimination. Sanchez v. Standard Brands, Inc., 431 F.2d 455
(5th Cir. 1970). The Court observed, "Mindful of the remedial and
humanitarian underpinnings of Title VII and of the crucial role played by
the private litigant in the statutory scheme, courts construing Title VII
have been extremely reluctant to allow procedural technicalities to bar
claims brought under the Act charges." Id. at 460-461. Consistent with
this thinking, the Sanchez court held that "the civil action is much more
intimately related to the EEOC investigation than to the words of the
charge which originally triggered the investigation." Id. at 466. "In
other words," the Fifth Circuit
explained, "the `scope' of the judicial
complaint is limited to the `scope' of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination." Id.
Thus, the court permitted Sanchez to proceed on a previously unstated
basis of discrimination because it found that the facts alleged in her
EEOC charge might have led the agency to discover during the course of
its investigation the types of discrimination she subsequently alleged in
her complaint. Id.*fn4
Likewise, we find Plaintiff's harassment claims could be timely because
the EEOC's investigation of "deliberate intimidation tactics and
problems," included in his formal EEOC Charge, might have reasonably led
to the agency's investigation of the age-based harassment described in
However, Plaintiff only alleges one specific incident related to
harassment or intimidation occurring within the statutory period. On June
23, 1997, Plaintiff overheard a younger, Defendant employee saying he
would break Plaintiff's legs. Complaint at p. 10. The incident did not
seem to concern Plantiff's age, but rather, his expected testimony in an
unrelated suit pending against Defendant. Thus, his ADEA harassment
claims are insufficient as a matter of law and must be time-barred
— not because of his failure to specifically allege them in his
EEOC filings, but because he alleges no age-based harassment within 300
days of those filings.
Even though Plaintiff failed to allege age-based harassment within the
300-day period, we find that evidence Plaintiff may present showing
age-based harassment and Defendant's lack of an appropriate response may
be relevant at trial to establish Defendant's discriminatory animus
— a necessary element of Plaintiff's remaining age discrimination
claims. See generally Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,
1083 (3d Cir. 1996) ("The words themselves are only relevant for what
they reveal-the intent of the speaker."); Iadimarco v. Runyon,
190 F.3d 151, 157 (3d Cir. 1999) ("The Supreme Court has recognized that
an employer who discriminates will almost never announce a discriminatory
animus or provide employees or courts with direct evidence of
On the other hand, Plaintiff's PHRA claims are untimely and must be
dismissed since his EEOC charge was filed beyond the State law's 180-day
statute of limitations. 43 Pa.C.S.A. §§ 959(a)(h), 962; Vincent v.
Fuller Co., 532 Pa. 547, 616 A.2d 969, 974 (Pa. 1992). In Vincent,
the Pennsylvania Supreme Court discussed the statute of limitations under
the PHRA in cases involving dual filings.*fn5 Vincent, 616 A.2d at 971.
The Vincent court allowed an undisputed lower court holding on the matter
to stand, explaining:
The [lower] court noted that Vincent had first filed
a charge of discrimination . . . with the EEOC . . .
100 days after the date of the layoff. Although this
was within the 180 day period for filing under Title
VII [of the Civil Rights Act of 1964 — see
Footnote 4], and EEOC's transmittal of this charge
constitutes a filing under the [Pennsylvania] Human
Relations Act, Lukus v. Westinghouse Electric Corp.,
276 Pa. Super. 232, 419 A.2d 431 (1980), the time
limit for filing a complaint under the [PHRA] was, at
that time, ninety days. The filing by way of
transmittal from the EEOC was thus untimely, and any
statutory cause of action as to the layoff was
barred. Vincent, 616 A.2d at 971.
Though the Vincent court spoke only in dicta upholding the lower
court's decision in this regard, the policy Vincent described remains
effectively the law applied to discrimination actions in Pennsylvania.
See, e.g., Graves v. Pennsylvania Human Relations Com'n, 634 A.2d 701,
703, 160 Pa.Cmwlth. 65, 69 (1993) (case filed beyond 180 days dismissed
as untimely); Deily, 118 F. Supp.2d at 543-544 ("Plaintiff's PHRA claim
. . . fails because it was not filed with the Pennsylvania Human
Relations Commission (`PHRC') within 180 days of the last discriminatory
act."); Frederick, 1994 WL 57213 at *4. The parties do not present and we
do not find State cases after Vincent directly addressing the
consequences of an EEOC charge cross-filed after the state deadline but
before the federal one.