United States District Court, W.D. Pennsylvania
FLOWERS CONTI SENIOR UNITED STATES DISTRICT JUDGE.
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.
and Procedural Background
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.
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).
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.
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.
in the documents submitted by Simko in response to the motion
to dismiss is an undated 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.
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. (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.
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
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.
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.
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.
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).
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.
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.
handwritten letter (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