Ernest Pizio v. HTMT Global Solutions

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 13-1449
_____________

ERNEST PIZIO,

Appellant

v.

HTMT GLOBAL SOLUTIONS,
formerly known as SOURCE 1 HTMT, Inc.;
MS. VARADAN
_______________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-09-cv-01136)
District Judge: Hon. Jose L. Linares
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Argued
December 18, 2013

Before: JORDAN, VANASKIE and GREENBERG, Circuit Judges

(Filed: January 31, 2014)
_______________

Alan J. Genitempo, Esquire [ARGUED]
Piro, Zinna, Cifelli, Paris & Genitempo
360 Passaic Avenue
Nutley, NJ 07110-000
Counsel for Appellant
Nicholas J. Fortuna, Esquire
Paula Lopez, Esquire [ARGUED]
Allyn & Fortuna
1010 Avenue of the Americas
Third Floor
New York, NY 10018
Counsel for Appellee
_______________

OPINION OF THE COURT
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JORDAN, Circuit Judge

Ernest Pizio appeals a grant of summary judgment by the United States District

Court for the District of New Jersey to HTMT Global Solutions (“HTMT”) in this

employment discrimination action. For the reasons that follow, we will affirm in part and

otherwise reverse and remand.

I. BACKGROUND 1

Pizio was hired as a Vice President (“VP”) of Business Development by HTMT, a

company specializing in the outsourcing of information technology support and related

services. At the time of his hiring in December 2004, he was 56 years old. On at least

two occasions, Pizio applied to be the VP of Sales for HTMT but was passed over each

time: first, in favor of a 47-year-old African-American male, and second, after that

gentleman left, when two younger Indian males – Ashwin Devanni and Ramesh Anand –

were hired and Anand took on some supervisory responsibilities for sales.

1
In accordance with our standard of review, see infra note 4, we set forth the facts
in the light most favorable to Pizio, the non-moving party.

2
 Throughout his tenure with HTMT, Pizio repeatedly complained to HTMT’s

management that he felt discriminated against because of his age. He specifically

recalled a conversation with HTMT’s President, M.S. Varadan, after first failing to secure

the promotion to VP of Sales, in which Varadan allegedly told him that he was “too old”

for the position. (Supp. App. at 28, 68.) Subsequently, on two separate occasions, Pizio

sought legal advice because of what he perceived as age discrimination.

HTMT terminated Pizio’s employment at the end of March 2007. Pizio then

promptly retained counsel, who advised him that the deadline for filing a charge with the

U.S. Equal Employment Opportunity Commission (the “EEOC”) was calculated as 300

days “after an act of discrimination.” (Supp. App. at 25.) Taking the termination to be

the operative act of discrimination, the attorney told Pizio that the deadline would fall in

January of 2008. 2

On November 15, 2007, Pizio went to the EEOC about his termination and

submitted an Intake Questionnaire. In relevant part, he set out his allegations of

discrimination in answers to form questions as follows:

5. What happened to you that you believe was discriminatory? Include the
date(s) of harm, action(s) and include the name(s) and title(s) of the persons
who you believe discriminated against you. ...
A. Date 3/31/07. Action. Terminated for not attaining sales goal. Two other
people with the same title as me VP Business Development with no sales to

2
The attorney identified January 18 as the date but, in fact, the deadline based on
the termination was one week later, on January 25, 2008. The 300-day limitations period
is longer than the 180 days set forth in Title 42 section 2000e–5(e)(1) of the U.S. Code
because New Jersey, where this case arose, is considered a “deferral state.” In that case,
a complainant is provided 300 days to file a charge. See, e.g., Cardenas v. Massey, 269
F.3d 251, 255 n.2 (3d Cir. 2001); see also infra note 6 and accompanying text.

3
 their credit were not fired – Ashwin Devnani (age mid-thirties) Ramesh
Anand (age early forties). In addition, these gentlemen each had a base pay
$50,000/yr higher than mine.

6. What reason(s) were given to you for the acts you consider
discriminatory? By whom? Title? On 8/8/06 and two other occasions MS
Varadan President told me that I was too old. He said Partha Sarkar, CEO,
established a management staff in the thirties and forties.

(Supp. App. at 77-78.) Pizio checked “yes” to the question of whether he had “sought

help about this situation from a union, an attorney, or any other source.” (Id. at 79.)

Notably, he checked only the box for age discrimination in response to the form question,

“What is the reason (basis) for your claim of employment discrimination?” (Id. at 77.) 3

On December 4, 2007, Pizio’s attorney sent HTMT a letter stating that Pizio had

filed a discrimination charge with the EEOC. In response, on January 16, 2008, HTMT’s

attorney said that she had been retained to represent HTMT “in connection with Ernie

Pizio’s EEOC Charge.” (App. at 69.) In between Pizio’s letter and HTMT’s response,

the EEOC issued a charge number based on Pizio’s Intake Questionnaire, and an EEOC

investigator, Philip Dudt, scheduled an interview with Pizio for January 15, 2008.

According to Corrado Gigante, Director of the Newark Area Office of the EEOC, where

Pizio had submitted his Intake Questionnaire in person, “[i]t [wa]s common practice to

issue a Charge Number based on an In-Take Questionnaire.” (App. at 63 (Gigante

Affidavit).)

On January 14, 2008 – the day before Pizio’s scheduled interview – Dudt

rescheduled the interview for February 7, 2008. Why the interview was rescheduled is

3
The other options on the form were discrimination based on sex, disability,
national origin, color, religion, retaliation, and pregnancy.
4
the subject of disagreement. Pizio maintains that he was told by the EEOC that his

interview needed to be rescheduled. According to Dudt’s case-log, however, on

January 11, Dudt “[had a] msg from Pizzio stating he [wanted] to reschedule intake

interview,” and then on January 14, Dudt “spoke w/ Pizio & he agreed to reschedule his

intake interview for 2/7 @ 10:00 am.” (App. at 70.) 4 Gigante corroborated that

narrative, noting that Pizio had canceled the January interview.

The same day as the rescheduled interview, February 7, 2008 – which was after

the deadline for Pizio to file a charge – the EEOC formally alleged that HTMT had taken

unlawful employment actions against Pizio on the basis of age and national origin. In

HTMT’s March 28, 2008 “position statement,” filed in response to the EEOC allegations,

the company argued that Pizio had signed a release that barred any charge of

discrimination. HTMT did not, however, challenge the timeliness of Pizio’s filing with

the EEOC. In fact, as Gigante noted in his affidavit:

During the EEOC’s investigation, HTMT Global Solutions defended Ernest
Pizio’s allegations on the merits of the complaint. Nothing in the EEOC
file indicates that at any time HTMT Global Solutions raised issues with
regard to the timeliness or effectiveness of Ernest Pizio’s charge.

(App. at 64 (Gigante Affidavit).)

Following its own investigation, the EEOC issued a determination letter stating

that HTMT had “subjected” Pizio “to discrimination based on his age (58) and national

origin (Non-Indian).” (App. at 74-75 (the “Determination”).) The EEOC then

4
At Dudt’s deposition four years later, he was uncertain of how or why the
interview was rescheduled. Explaining that he could not recall exactly what happened,
he said that, “based on my notes,” Pizio was the one who rescheduled the interview.
(App. at 92 (Dudt’s deposition).)
5
unsuccessfully pursued mediation with HTMT, during which HTMT set forth several

defenses to the EEOC Determination. Later, after finding “reasonable cause to believe

that violations of the statute(s) occurred with respect to some or all of the matters alleged

in the charge,” the EEOC authorized Pizio to file a lawsuit against HTMT. (App. at 84

(Notice of Right to Sue).)

Accordingly, Pizio filed suit against HTMT and Varadan in the District of New

Jersey, alleging age discrimination in violation of the Age Discrimination in Employment

Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and discrimination on the basis of

national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., all with respect to his termination and allegations related to compensation

and advancement opportunities.

HTMT eventually filed a motion for summary judgment, which the District Court

granted. The Court held that Pizio’s Intake Questionnaire was not sufficient to constitute

a charge of discrimination under applicable law, and that Pizio had therefore “failed to

exhaust his administrative remedies.” (App. at 1 (District Court Opinion).) The Court

noted that “[i]t is undisputed that Pizio was terminated on March 31, 2007 and that he

was required to file a charge on or before January 25, 2008 … . Accordingly, the

February 7, 2008 charge [issued by the EEOC] falls outside the 300-day period

associated with that claim.” (Id. at 10.) With respect to Pizio’s request for equitable

tolling, the Court held that no circumstances had been shown that would make tolling

appropriate.

Pizio timely appealed.

6
II. DISCUSSION 5

Pizio contends that the District Court erred in concluding that his Intake

Questionnaire did not constitute a charge of discrimination and that he therefore failed to

timely exhaust his administrative remedies. In the alternative, he says that the Court

erred in not applying equitable tolling to his case. We agree with him only with respect

to the District Court’s erroneous decision that he failed to exhaust administrative

remedies as to an age discrimination claim based on his termination. The remainder of

the Court’s rulings are sound.

1. What Can Constitute a Charge

Before a plaintiff may bring an action under the ADEA or Title VII, he or she

must file a charge with the EEOC within 180 days of the alleged unlawful employment

action. See 29 U.S.C. § 626(d)(A) (ADEA); 42 U.S.C. § 2000e-5(e)(1) (Title VII). That

deadline is extended to 300 days when the complainant lives in a “deferral state,” such as

New Jersey. 6 See 29 U.S.C. § 626(d)(B); 42 U.S.C. § 2000e–5(e)(1); Cardenas v.

5
The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of
summary judgment de novo and “view inferences to be drawn from the underlying facts
in the light most favorable to the nonmoving party.” Montanez v. Thompson, 603 F.3d
243, 248 (3d Cir. 2010). “Summary judgment is appropriate where the [c]ourt is satisfied
‘that there is no genuine [dispute] as to any material fact and that the moving party is
entitled to judgment as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986) (citation omitted). A genuine dispute exists only if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
6
“[B]ecause New Jersey has an anti-discrimination law, a claim must be presented
to the EEOC within 300 days of the alleged unlawful employment practice.” Massey,
269 F.3d at 255 n.2 (citing 42 U.S.C. § 2000e-5(e)(1)). The EEOC considers its 180-day
7
Massey, 269 F.3d 251, 255 n.2 (3d Cir. 2001). A plaintiff in New Jersey therefore has

failed to exhaust administrative remedies under the ADEA or Title VII and is barred from

bring an action under those statutes if he or she fails to file a charge with the EEOC

within that 300-day time period.

The EEOC defines a “charge” as a “statement filed with the Commission by or on

behalf of an aggrieved person which alleges that the named prospective defendant has

engaged in or is about to engage in actions in violation of the [ADEA or Title VII].” 29

C.F.R. § 1626.3. In Federal Express Corp. v. Holowecki, a case involving discrimination

charges under the ADEA, the Supreme Court acknowledged that the EEOC’s definition

of what constitutes a “charge” is hazy. 552 U.S. 389, 395 (2008). Given that lack of

clarity, the Court concluded that a document can count as a charge as long as it satisfies

two requirements. First, it must contain the information required by EEOC regulations,

namely,

(1)-(2) the names, addresses, and telephone numbers of the person making
the charge and the charged entity; (3) a statement of facts describing the
alleged discriminatory act; (4) the number of employees of the charged
employer; and (5) a statement indicating whether the charging party has
initiated state proceedings.

Id. at 396 (citing 29 C.F.R. § 1626.8(a)). Second, the document must be such that

it can “be reasonably construed as a request for the agency to take remedial action

to protect the employee’s rights or otherwise settle a dispute between the employer

filing deadline to extend to 300-days when a “state or local agency enforces a law that
prohibits employment discrimination on the same basis” as a federal law. Time Limits for
Filing a Charge, U.S. EEOC, http://www.eeoc.gov/employees/timeliness.cfm (last
visited Jan. 14, 2014).
8
and the employee.” Id. at 402. Although the Court recognized that it was

adopting a “permissive standard” that would allow a “wide range of documents” to

be considered as “charges,” it said that that result “is consistent with the design

and purpose of the ADEA.” Id. Formality is not essential; indeed “a charge can

be a form, easy to complete, or an informal document, easy to draft.” Id. at 403.

We too have emphasized that “[t]here is no need to require ... some magic

combination of words explicitly seeking agency action.” Holender v. Mut. Indus.

N. Inc., 527 F.3d 352, 357 (3d Cir. 2008).

In this case, Pizio submitted an Intake Questionnaire within the 300-day window

that contained all of the details required by EEOC regulations for a charge of age

discrimination based on termination. That is not in dispute. The issue, instead, goes to

the second requirement from Holowecki: whether the Questionnaire can be “reasonably

construed as a request for the agency to take remedial action to protect the employee’s

rights or otherwise settle a dispute between the employer and the employee.” Holowecki,

552 U.S. at 402. We believe it can.

To decide whether a filing constitutes a charge, it “must be examined from the

standpoint of an objective observer to determine whether, by a reasonable construction of

its terms, the filer requests the agency to activate its machinery and remedial processes.”

Id. at 402 (citing Bihler v. Singer Co., 710 F.2d 96, 99 (3d Cir. 1983)). Viewed

objectively, Pizio’s Intake Questionnaire does make such a request, at least as to a claim

of age discrimination based on his termination. The Questionnaire adequately explains

the alleged discrimination he faced and notes that he had retained counsel. Unlike the

9
complainant in Holowecki, who supplemented her questionnaire “with a detailed six-page

affidavit,” 552 U.S. at 405, Pizio provided no such corroborating information, but

supplementation is not always necessary. As the Questionnaire itself states, “[w]hen this

form constitutes the only timely written statement of allegations of employment

discrimination, the Commission will, consistent with 29 CFR § 1601.12(b) and 29 CFR

§ 1626.8(b), consider it to be a sufficient charge of discrimination under the relevant

statute(s).” (App. at 60.) Pizio’s Intake Questionnaire contains the essential details and

makes a sufficient request for remedial action to suffice as a charge of age discrimination

as to HTMT’s decision to terminate his employment. 7

The District Court further found it problematic that HTMT had never been served

with a copy of Pizio’s Intake Questionnaire, aptly noting that 42 U.S.C. § 2000e-5(e)(1)

requires that notice of a charge “be served” within ten days on the person against whom

7
The difficulty in deciding whether an intake questionnaire on its own should
constitute a bona-fide charge is not new. Since Holowecki, courts have disagreed on the
conditions under which a questionnaire can be considered a charge, sometimes relying on
the language of the questionnaire itself. Compare Dyson v. District of Columbia, 710
F.3d 415, 418 (D.C. Cir. 2013) (noting that an “Intake Questionnaire is not a Charge of
discrimination” when the questionnaire itself reminds the claimants that if he or she has
“‘not heard from an EEOC office within 30 days of mailing’ the Questionnaire,” it is
incumbent upon the claimant to reach out to the EEOC and timely file), with
Bland v. Fairfax Cnty., 799 F. Supp. 2d 609, 616-17 (E.D. Va. 2011) (holding that when
the intake questionnaire itself states it can be treated as a charge, that language can be
“reasonably construed as a request for the agency to take remedial action to protect the
Plaintiff’s rights or otherwise settle a dispute between the employer and the employee”).
While the questionnaire at issue here provides plainly that, if it is the “only timely written
statement of allegations of employment discrimination” (App. at 60), it will be deemed a
charge, an express statement like that is not a necessity for a questionnaire to be
considered a charge. Again, there are no magic words. The relevant inquiry is whether
the standard set in Holowecki has been met. It has been in this case.

10
the charge is made. See 29 C.F.R. § 1601.14(a). While that was not done here, the fault

lies with the agency, not Pizio, since it is the Commission who “shall serve respondent.”

Id. Because EEOC regulations and practices do not clearly distinguish between an intake

questionnaire that can serve as a charge and one that cannot, the EEOC at times has had

difficulty in discharging its service burden. Wilkerson v. Grinnell Corp., 270 F.3d 1314,

1318 (11th Cir. 2001). The lesson of Holowecki, though, “is that both parties must bear

the consequences of the EEOC’s acts. This result is ‘unfortunate’ but ‘unavoidable.’”

Holender, 527 F.3d at 357 (quoting Holowecki, 552 U.S. at 407).

In any event, even though the EEOC did not fulfill its duty to formally notify

HTMT of the charge embodied in the Questionnaire, the company was well aware of it.

In her initial letter to Pizio’s counsel, HTMT’s lawyer specifically asked that all

correspondence or communications “in connection with Ernie Pizio’s EEOC Charge” be

directed to her. (App. at 69.) On this record, there can be no credible claim that HTMT

was not aware of that charge. In a related context, we have held that,

where the employer had the opportunity to point out the plaintiff’s failure to
verify the charge, and thus challenge its sufficiency, at the EEOC
investigation stage, but declined to do so, ... [it would be] inequitable at
best [to rigidly apply the verification requirement]. At worst, it gives
employers an incentive not to raise a plaintiff’s failure to verify her charge
before the EEOC, in the hope that plaintiff will not discover the “technical”
error until it is too late, and that the employer will be able to secure
dismissal of any subsequent federal suit on that basis. It neither furthers the
verification requirement’s purpose of protecting employers from having to
respond to frivolous claims nor comports with the Supreme Court’s Title
VII guidance.

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 264 (3d Cir. 2006). The same lesson

applies here with respect to what can constitute a charge. If HTMT had a question about

11
the validity of Pizio’s filing as a charge, and hence about the timeliness of administrative

action, it was incumbent on the company to raise that argument rather than proceeding on

the merits alone.

Having said that, the Questionnaire only takes Pizio so far. It gets him within the

time limit for a charge of age discrimination associated with his termination but not for a

charge of discrimination based on national origin or anything else. His additional claims

surfaced only in his later arguments to the EEOC and are therefore untimely for being

made after the 300-day deadline.

2. Equitable Tolling

“We preface our analysis of the equitable tolling doctrine with the observation that

the time limitations set forth in Title VII are not jurisdictional.” Oshiver v. Levin,

Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994) (citing Hart v. J.T. Baker

Chemical Co., 598 F.2d 829, 831 (3d Cir. 1979)). “The doctrine of equitable tolling

stops a statute of limitations period from running after a claim has accrued, but should be

applied ‘sparingly.’” Podobnik v. U.S. Postal Service, 409 F.3d 584, 591 (3d Cir. 2005)

(citation omitted). The plaintiff therefore bears the burden of demonstrating that he

exercised reasonable diligence and that equitable tolling is appropriate under the

circumstances. Id. at 591. We have held that there are generally three circumstances

where equitable tolling would be appropriate:

(1) [W]here the defendant has actively misled the plaintiff respecting the
plaintiff’s cause of action, and that deception causes non-compliance with
an applicable limitations provision; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his rights; or (3)

12
 where the plaintiff has timely asserted his or her rights mistakenly in the
wrong forum.

Id. (citing Oshiver, 38 F.3d at 1387). We have also noted that “equitable tolling is proper

only when the ‘principles of equity would make [the] rigid application [of a limitation

period] unfair.’” Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)

(alterations in original). The benefit of tolling is meant for those who have “‘exercised

reasonable diligence in investigating and bringing [their] claims.’” Id. (alteration in

original) (citation omitted). In other words, “[m]ere excusable neglect is not sufficient.”

Id. (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).

Although Pizio argues that he should be afforded the benefit of equitable tolling,

the facts do not warrant that relief. Pizio was not actively misled by HTMT or anyone

else; he was not in any extraordinary way prevented from asserting his rights; and he did

not assert his rights in the wrong forum. Any fault for the failure to schedule an

interview during the 300-day limitations period falls on Pizio’s own shoulders. While he

maintains that he was not the one who rescheduled his interview, there is no evidence that

he did anything to keep the interview within the 300-day filing period. 8 There is also no

evidence to suggest that he was in any way inhibited in some exceptional fashion from

8
Pizio’s version of the facts is highly suspect. “When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380 (2007). While it is true that Dudt could not recall who had rescheduled the
interview, Dudt maintained a contemporaneous record in the ordinary course of business
and he has absolutely no incentive to shade the truth. Nonetheless, even taking Pizio at
his word, the circumstances here are not so “extraordinary” that equitable tolling is
appropriate.

13
scheduling his interview earlier or from including all of his claims in his earlier-filed

Intake Questionnaire. As the District Court noted, Pizio had retained an attorney who

immediately advised Pizio that the filing deadline was imminent. Pizio’s failure to

pursue his other discrimination claims within the 300-days deadline is nothing more than

a consequence of neglect.

Under these circumstances, equitable tolling is not appropriate and we will

therefore affirm the District Court’s decision on that point.

III. CONCLUSION

For the foregoing reasons, we will reverse the District Court on the question of

whether Pizio had exhausted his administrative remedies as they pertain to a charge of

age discrimination based on his termination, but we will affirm in all other respects.

14