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Simko v. United States Steel Corp.

United States District Court, W.D. Pennsylvania

December 13, 2019

MICHAEL SIMKO, Plaintiff,
v.
UNITED STATES STEEL CORP. Defendant.

          OPINION

          JOY FLOWERS CONTI SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the court is a motion to dismiss this case in its entirety (ECF No. 6) filed by defendant United States Steel Corporation (“USSteel”), with a brief in support. Plaintiff Michael Simko (“Simko”) filed a response and brief in opposition to the motion (ECF Nos. 11, 12), USSteel filed a reply brief (ECF No. 16). On October 17, 2019, the court held oral argument on the motion and requested further briefing. The supplemental briefing was completed on December 2, 2019 (ECF Nos. 18, 19) and the motion is ripe for decision. The court appreciates the thorough and professional memoranda of law submitted by counsel for both parties.

         Factual and Procedural Background

         The facts are taken from the complaint (ECF No. 1) and are accepted as true for the purpose of resolving the motion to dismiss. Simko began working for USSteel on August 22, 2005. In August 2012, Simko was a larryman in the blast furnace department at the Edgar Thompson plant in Braddock, Pennsylvania, when he successfully bid for a position as a spellman in the transportation department.

         During his spellman training, Simko sought an accommodation for his hearing loss by requesting a newer two-way radio. No. accommodation was provided. Simko's trainer refused to approve the completion of Simko's spellman training because Simko could not hear. Simko returned to his work as a larryman in November 2012. (ECF No. 12-1).

         Simko filed a charge with the EEOC alleging violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.. The charge of discrimination was signed on May 24, 2013, and received by the EEOC on May 28, 2013. On December 30, 2013, Simko was discharged (for the first time) for a car having lost power. (ECF No. 12-9 at 2). On May 27, 2014, Simko entered into a Last Chance Agreement and returned to work on June 1, 2014.

         On August 19, 2014, Simko was discharged again. USSteel stated the discharge was based on a safety violation that occurred on August 15, 2014. The initial discipline for the incident was a five-day suspension, but it was converted into a discharge. Complaint ¶¶ 19-20. Simko grieved the discharge. The union withdrew the grievance.

         Included in the documents submitted by Simko in response to the motion to dismiss[1] is an undated[2] handwritten letter to the EEOC stating, in relevant part, that Simko believed his discharge was in retaliation for filing charges with the EEOC. (ECF No. 12-2 at 12-14). This letter is not referenced in the complaint. There was no apparent action taken by the EEOC for the next year.

         The first reference by the EEOC to a retaliation claim occurred in a letter from an investigator dated November 23, 2015. (ECF No. 12-4). Counsel entered an appearance with the EEOC on Simko's behalf on November 30, 2015, and on January 21, 2016, submitted an amended charge to the EEOC, alleging retaliation.[3] (ECF No. 12-9). In the amended charge, Simko stated that the latest date that discrimination took place was “08-19-2014.” Id. The EEOC investigated the retaliatory discharge claim. On February 19, 2019, the EEOC issued a Determination that USSteel retaliated because it disciplined Simko more severely than a non-disabled comparator. (ECF No. 12-14). The Determination did not clearly state whether the retaliatory motivation was based on Simko's disability or his prior EEOC charge. Id.

         Standard of Review

         As set forth in Connelly v. Lane Construction Corp., 809 F.3d 780, 786-87 (3d Cir. 2016):

A complaint may be dismissed under Rule 12(b)(6) for “failure to state a claim upon which relief can be granted.” But detailed pleading is not generally required. The Rules demand “only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n. 27 (3d Cir. 2010). Although the plausibility standard “does not impose a probability requirement, ” Twombly, 550 U.S. at 556, it does require a pleading to show “more than a sheer possibility that a defendant has acted unlawfully, ” Iqbal, 556 U.S. at 678. A complaint that pleads facts “merely consistent with a defendant's liability ... stops short of the line between possibility and plausibility of entitlement to relief.” Id. (citation and internal quotation marks omitted). The plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675. Second, it should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679.

         At the final step, the court is to assume all well-pled allegations to be true, construe those allegations in the light most favorable to the plaintiff, draw all reasonable inferences from them in favor of the plaintiff, and ask whether they “raise a reasonable expectation that discovery will reveal evidence” to support the legal claim being asserted. Id. at *7.

         Legal Analysis

         In the complaint, Simko asserts a single claim for retaliation under the ADA in connection with his second discharge in August 2014. USSteel contends that the retaliation claim is time barred and must be dismissed with prejudice.

         Before a claimant may bring suit in federal court, he must exhaust his administrative remedies. Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d Cir. 1997). In Pennsylvania, a verified charge must be filed with the EEOC within 300 days of the alleged unlawful employment practice. Urban v. Bayer Corp. Pharm. Div., 245 Fed.Appx. 211, 212 (3d Cir. 2007) (citing Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000)). The United States Supreme Court recently explained that a “charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” Fort Bend Cty., Texas v. Davis, 139 S.Ct. 1843, 1851 (2019). The Third Circuit Court of Appeals similarly instructs that a nonjurisdictional claim-processing rule “still has teeth.” Guerra v. Consol. Rail Corp., 936 F.3d 124, 135-36 (3d Cir. 2019).

         To determine whether a charge alleging unlawful termination was timely filed, the limitations period is measured from the date on which the employee was advised of his termination. Urban, 245 Fed.Appx. at 213 (citing Delaware State College v. Ricks, 449 U.S. 250, 258 (1980); and Watson, 235 F.3d at 855). In this case, 521 calendar days elapsed from the date Simko was discharged until he filed an EEOC charge alleging a retaliatory termination. Simko acknowledges that the 300-day filing period elapsed.

         Simko contends however, that his amended charge should be regarded as timely because: (1) the limitations period should be equitably tolled when he sent a handwritten letter to the EEOC complaining about retaliation within three months of his discharge (ECF No. 12-2), but the EEOC failed to take action for over a year; (2) USSteel waived this defense by not raising it sooner; and (3) the EEOC rejected USSteel's untimeliness defense. Simko also argues that his retaliation claim relates back to his original EEOC charge in 2013. Each of these arguments will be addressed.

         A. Equitable tolling

         The handwritten letter[4] (ECF No. 12-2) does not constitute a “charge” and Simko does not contend otherwise. The document is not verified, as required, and did not cause the EEOC to initiate an investigation. Urban, 245 Fed.Appx. at 213 (citing Buck v. Hampton Twp. Sch. Dist,452 F.3d 256, 265 (3d Cir. 2006). Although Simko was ...


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