Anthony Hildebrand v. Allegheny County

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 13-1321
_____________

ANTHONY HILDEBRAND,
Appellant

v.

ALLEGHENY COUNTY, a political entity; ALLEGHENY
COUNTY DISTRICT ATTORNEY'S OFFICE
___________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 2-12-cv-01122)
District Judge: Honorable Arthur J. Schwab
___________

Argued November 7, 2013

Before: GREENAWAY, JR., VANASKIE and ROTH,
Circuit Judges

(Opinion Filed: June 27, 2014)

Marjorie E. Crist (Argued)
Crist Law Center, LLC
2500 Lawyers Building
428 Forbes Avenue
Pittsburgh, PA 15219
Counsel for Appellant

Anne N. Occhialino (Argued)
Equal Employment Opportunity Commission
131 M Street NE, 5th Floor
Washington, D.C. 20507
Counsel for Amicus Curiae Equal Employment
Opportunity Commission

Andrew F. Szefi
Virginia S. Scott (Argued)
Allegheny County Law Department
300 Fort Pitt Commons Building
445 Fort Pitt Boulevard
Pittsburgh, PA 15219
Counsel for Appellee Allegheny County

Bernard M. Schneider (Argued)
Brucker Schneider & Porter
300 Weyman Road, Suite 320
Pittsburgh, PA 15236
Counsel for Appellee Allegheny County District
Attorney’s Office

___________

OPINION OF THE COURT
___________

2
VANASKIE, Circuit Judge.

This appeal presents three issues on which we have not
previously ruled in a precedential opinion. First, whether an
employee terminated from a local government position may
maintain an action for age discrimination under 42 U.S.C. §
1983. Second, whether the pleading of exhaustion of
administrative remedies, a prerequisite to bringing a lawsuit
under the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. §§ 621-634, must satisfy the standards established
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). And third, whether a
complainant’s submission of the Equal Employment
Opportunity Commission’s revised Intake Questionnaire
constitutes the filing of a charge of discrimination.

As to the first question, we hold that a state or local
government employee may not maintain an age
discrimination claim under 42 U.S.C. § 1983, but must
instead proceed under the ADEA. As to the second question,
we hold that a plaintiff is not obligated to plead exhaustion of
administrative remedies with particularity, but may instead
allege in general terms that the required administrative
process has been completed. And finally, we hold that the
EEOC Intake Questionnaire, revised in the wake of Federal
Express Corp. v. Holowecki, 552 U.S. 389 (2008), when
properly completed, constitutes a charge of discrimination.

As a result of our holdings, we will affirm the District
Court’s dismissal of Appellant Anthony Hildebrand’s § 1983
claims but we will vacate the District Court’s dismissal of
Hildebrand’s ADEA claim against the Allegheny County
District Attorney’s Office as Hildebrand submitted a properly

3
completed Intake Questionnaire to the EEOC within the
deadline for filing a charge of discrimination, and Hildebrand
adequately pled the exhaustion of administrative remedies.
Finally, we will affirm the dismissal of the ADEA claims
against Appellee Allegheny County because it was not named
on the Intake Questionnaire, and was not identified as a
respondent to an age discrimination charge until after the
deadline for filing a charge of discrimination against it had
passed.

I. Background

Anthony Hildebrand was employed as a detective for
the Allegheny County District Attorney’s Office (“DA’s
Office”) for five years before he was terminated on February
18, 2011. Prior to his work at the DA’s Office, Hildebrand
spent fifteen years as an undercover narcotics detective with
the Pittsburgh Police Department.

On February 18, 2011, Hildebrand received a letter
suspending him without pay for five days pending discharge,
and announcing his termination effective that day. He filed
an internal grievance, but the termination was ultimately
upheld.

Hildebrand maintains that his termination was part of
“a well-known and established practice to push out older
workers through termination or forced resignation.”
(Appellant’s Br. 5.) He contends that he became a victim of
age-based discrimination beginning in 2009 when he was
assigned a new supervisor who, he asserts, demoted him
because of his age despite his satisfactory work performance.
As part of his demotion, Hildebrand states that he was

4
insulted on the basis of his age and relocated to an inferior
workplace. He further alleges that the discrimination he
faced was part of a hostile work environment that transcended
the conduct of any one employee.

On December 1, 2011, Hildebrand completed an
Intake Questionnaire (“the Intake Questionnaire”) with the
EEOC, indicating that he was the victim of discrimination on
the basis of his age. He also checked a box on the Intake
Questionnaire authorizing the EEOC to investigate his claim
and indicating that he “want[ed] to file a charge of
discrimination.” (EEOC Br. 3.) Subsequently, on January
11, 2012, Hildebrand completed a “Charge of
Discrimination” with the EEOC, naming the Allegheny
County District Attorney as the respondent. The EEOC
issued a right-to-sue letter on May 7, 2012, and Hildebrand
filed suit on August 7, 2012.

Hildebrand’s complaint named Allegheny County
(“the County”), as well as the DA’s Office, as defendants.
His complaint asserted violations of the ADEA, Title VII
(retaliation), 42 U.S.C. § 1983 (asserting violation of the
Equal Protection Clause due to age-based discrimination, as
well as violation of his First Amendment free speech rights),
the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. §§
1421-1428, and the Pennsylvania Human Relations Act, 43
Pa. Cons. Stat §§ 951-963. His complaint also alleged:

All conditions precedent to
jurisdiction under section 706 of
Title VII, have occurred or been
complied with. Plaintiff filed a
claim of employment

5
 discrimination with the [EEOC].
The EEOC issued a Notice of
Right to Sue. This Complaint is
filed within 90 days of such
Notice of Right to Sue.

(A. 2.)

The County and the DA’s Office (collectively,
“Appellees”) separately filed motions to dismiss. On
December 7, 2012, the District Court granted the motions to
dismiss the Title VII retaliation claim. The District Court
also applied the pleading standards set forth in Twombly, 550
U.S. 544, and Iqbal, 556 U.S. 662, to Hildebrand’s assertion
that he satisfied all conditions precedent to filing suit under
the ADEA. Analyzing Hildebrand’s complaint in light of the
Iqbal/Twombly standard, the District Court stated:

Because [the complaint] fails to
provide any facts, i.e. specific
dates, as to when Plaintiff raised
his claim with the EEOC and
when the EEOC issued its right to
sue letter to Plaintiff, and because
Plaintiff failed to attach his Right
to Sue to the Complaint, . . . the
Complaint falls short of providing
the facts to establish whether he
has adequately exhausted his
administrative remedies.

6
(A. 112.) Accordingly, the Court dismissed the ADEA claim
without prejudice. The District Court also dismissed
Hildebrand’s section 1983 claims without prejudice.

Hildebrand filed an amended complaint, alleging with
greater particularity that he satisfied all conditions precedent
to filing suit under the ADEA. Specifically, he averred that
he had filed a timely charge of discrimination, the EEOC had
issued a right-to-sue letter, and he had filed the complaint
within 90 days of notice of the right-to-sue. He attached his
charge of discrimination and the EEOC right-to-sue letter to
the amended complaint.

Appellees each filed motions to dismiss the Amended
Complaint under Federal Rule of Civil Procedure 12(b)(6),
arguing, inter alia, that Hildebrand’s charge was untimely
because it was filed more than 300 days after the last date of
discrimination. Allegheny County also urged the District
Court to dismiss Hildebrand’s ADEA claim against the
County on the additional ground that the charge of
discrimination named only the DA’s Office as a defendant.

Hildebrand attached to his responses to the motions
his completed EEOC Intake Questionnaire. He contended
that the completed Intake Questionnaire constitutes a charge
and was filed within 300 days of the last date of
discrimination.

On January 4, 2013, the District Court dismissed
Hildebrand’s amended complaint. The District Court first
dismissed the ADEA claim, concluding that Hildebrand did
not file a “charge of discrimination” with the EEOC within
the requisite 300 days of the last date of discrimination.

7
Specifically, the District Court found that the last date of
alleged discrimination was Hildebrand’s February 18, 2011
termination, and that the charge of discrimination filed on
January 11, 2012 was therefore untimely. Thus, the District
Court concluded that Hildebrand failed to sufficiently plead
that he timely filed his claim with the EEOC “in light of the
Iqbal/Twombly standard.” (A. 307.) Finding that further
amendment would be futile, the District Court dismissed the
ADEA claim with prejudice.

As to his § 1983 claims, the District Court held that
Hildebrand failed to state a plausible claim against Allegheny
County under a theory of municipal liability, because he did
not plead sufficient facts to support a plausible inference that
the County had adopted a custom or practice of age
discrimination. The District Court also dismissed the § 1983
claims against the DA’s Office based on Hildebrand’s
concession that it was not a separate entity from the County
for purposes of § 1983. Finally, having dismissed with
prejudice all claims arising under federal law, the District
Court declined to exercise supplemental jurisdiction over the
remaining claims asserted under the Pennsylvania
Whistleblower Law and the Pennsylvania Human Relations
Act.

II. Discussion

The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331, 1343(a)(3), and 1367. We have jurisdiction
under 28 U.S.C. § 1291. We exercise plenary review over a
decision granting a motion to dismiss. Santiago v.
Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010).
Accordingly, “[w]e may affirm the district court on any

8
ground supported by the record.” Tourscher v. McCullough,
184 F.3d 236, 240 (3d Cir. 1999).

A. Hildebrand’s § 1983 Age Discrimination Claim

We turn first to Hildebrand’s claim brought under §
1983 that Appellees discriminated against him on the basis of
his age, in violation of the Equal Protection Clause of the
Fourteenth Amendment. Allegheny County argues that the
District Court properly dismissed this § 1983 cause of action,
contending that “[t]he ADEA ‘is the exclusive remedy for
claims of age discrimination in employment.’” (Allegheny
Cnty. Br. 19 (quoting Ahlmeyer v. Nev. Sys. of Higher Educ.,
555 F.3d 1051, 1060-61 (9th Cir. 2009)). For the reasons that
follow, we agree.

1.

42 U.S.C. § 1983 provides, in pertinent part:

Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State or
Territory or the District of
Columbia, subjects, or causes to
be subjected, any citizen of the
United States or other person
within the jurisdiction thereof to
the deprivation of any rights,
privileges, or immunities secured
by the Constitution and laws, shall
be liable to the party injured in an
action at law, suit in equity, or

9
 other proper proceeding for
redress . . . .

Rather than conferring any substantive rights, section
1983 “provides a method for vindicating federal rights
elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271
(1994) (internal quotation marks and citations omitted).
“Nevertheless, § 1983 is a statutory remedy and Congress
retains the authority to repeal it or replace it with an
alternative remedy.” Smith v. Robinson, 468 U.S. 992, 1012
(1984), superseded by statute, Education of the Handicapped
Act, § 615(e)(4) as amended, 20 U.S.C. § 1415(e)(4). Thus,
“[s]ection 1983 claims are not available . . . where Congress
has evinced an intent to preclude such claims through other
legislation.” Ahlmeyer, 555 F.3d at 1055.

In determining whether a statutory enactment
precludes suit under § 1983, “[t]he crucial consideration is
what Congress intended.” Smith, 468 U.S. at 1012.
Congressional intent to preclude § 1983 claims may be
inferred “[w]hen the remedial devices provided in a particular
Act are sufficiently comprehensive.” Middlesex Cnty.
Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20-
21 (1981). In Sea Clammers, the Supreme Court held that a
plaintiff was precluded from bringing a § 1983 suit for
damages under the Federal Water Pollution Control Act
Amendments of 1972, 33 U.S.C. § 1251 et seq. (1976), and
the Marine Protection, Research, and Sanctuaries Act of
1972, 33 U.S.C. § 1401 et seq. (1976). 453 U.S. at 20-21.
Emphasizing the “unusually elaborate enforcement
provisions” of the statutory framework, id. at 13, the Court
concluded that “[a]llowing parallel § 1983 claims to proceed
. . . would have thwarted Congress’ intent in formulating and

10
detailing these provisions.” Fitzgerald v. Barnstable Sch.
Comm., 555 U.S. 246, 253 (2009).

The Supreme Court has also held that § 1983 suits
were precluded by statute in a case where a plaintiff sought
vindication of a constitutional – rather than a statutory – right.
See Smith, 468 U.S. 992. In Smith, plaintiffs alleged
violations of the Due Process and Equal Protection Clauses of
the Fourteenth Amendment, asserting a deprivation of the
right to “a free appropriate public education” for their
handicapped child. Id. at 1009. Focusing once again on the
“comprehensive nature of the procedures and guarantees” set
forth in the statute’s remedial scheme, the Court concluded
that Congress did not intend to “leave undisturbed the ability
of a handicapped child to go directly to court with an equal
protection claim to a free appropriate public education.” Id.
at 1011. Permitting such suits, the Court observed, would
“[a]llow[] a plaintiff to circumvent” congressional intent. Id.
at 1012.

Subsequently, in Rancho Palos Verdes v. Abrams, 544
U.S. 113 (2005), the Court again found that a comprehensive
remedial statutory framework precluded suit under § 1983.
The plaintiff in Rancho Palos Verdes filed suit under the
Telecommunications Act of 1996 and for damages under §
1983. Id. at 115. Applying its prior decisions in Sea
Clammers and Smith, the Court ruled that the
Telecommunications Act’s remedial scheme would be
“distort[ed]” by direct enforcement through § 1983. Id. at
127.

Most recently, the Court considered whether Title IX
of the Education Amendments of 1972, 20 U.S.C. § 1681(a),

11
precludes § 1983 claims of sex discrimination in violation of
the Equal Protection Clause. See Fitzgerald, 555 U.S. at 249.
In Fitzgerald, the plaintiffs alleged that their daughter, then
an elementary school student, suffered several incidents of
sexual harassment by another student while on the school bus,
and that the school’s response to their allegations had been
inadequate. Id. at 250. The plaintiffs brought suit, asserting
that their daughter had suffered sex discrimination in
violation of Title IX and the Equal Protection Clause of the
Fourteenth Amendment. Id. The Court of Appeals for the
First Circuit dismissed plaintiffs’ constitutional claims,
holding that Title IX provided the sole remedy for sex
discrimination in the education context. Id. at 251. The
Supreme Court reversed. Id. Reiterating that “the crucial
consideration is what Congress intended,” id. (citation
omitted), the Court signaled that its analysis of congressional
intent might differ depending upon whether the right asserted
under § 1983 arises from a statute or the Constitution:

In those cases in which the § 1983
claim is based on a statutory right,
evidence of such congressional
intent may be found directly in the
statute creating the right, or
inferred from the statute’s
creation of a comprehensive
enforcement scheme that is
incompatible with individual
enforcement under § 1983. In
cases in which the § 1983 claim
alleges a constitutional violation,
lack of congressional intent may
be inferred from a comparison of

12
 the rights and protections of the
statute and those existing under
the Constitution. Where the
contours of such rights and
protections diverge in significant
ways, it is not likely that Congress
intended to displace § 1983 suits
enforcing constitutional rights.

Id. at 252-53 (internal citations and quotation marks omitted).

Notwithstanding the distinction between statutorily-
created rights and constitutionally-conferred rights, the Court
emphasized that, “[i]n determining whether a subsequent
statute precludes enforcement of a federal right under § 1983
. . . primary emphasis [is placed] on the nature and extent of
that statute’s remedial scheme.” Id. This was true even
where plaintiffs, such as those in Smith, “relied on § 1983 to
assert independent constitutional rights,” rather than statutory
rights. Id. Indeed, the Court observed that in each of the
cases where it found a statute to be the exclusive remedy for
an asserted right, “the statutes at issue required plaintiffs to
comply with particular procedures and/or to exhaust
particular administrative remedies prior to filing suit,” and
“‘[a]llowing a plaintiff to circumvent’ the statutes’ provisions
[by suing directly under § 1983] would have been
‘inconsistent with Congress’ carefully tailored scheme.’” Id.
at 254-55 (quoting Smith, 468 U.S. at 1012).

Turning to the question of whether Title IX precludes
suit under § 1983 for sex discrimination, the Court first found
that Title IX does not provide a comprehensive enforcement
scheme, emphasizing that Title IX’s “remedies – withdrawal

13
of federal funds and an implied cause of action – stand in
stark contrast to the ‘unusually elaborate,’ ‘carefully tailored,’
and ‘restrictive’ enforcement schemes of the statutes at issue
in Sea Clammers, Smith, and Rancho Palos Verdes.” Id. at
255. The Court observed that Title IX does not contain an
administrative exhaustion requirement or a notice provision.
Id. Affording particular weight to Title IX’s lack of an
express private right of action, the Court noted that it “has
never held that an implied right of action had the effect of
precluding suit under § 1983.” Id. Given the absence in Title
IX of a detailed remedial scheme, the Court concluded that
“parallel and concurrent § 1983 claims will neither
circumvent required procedures, nor allow access to new
remedies.” Id. at 255-56. The Court found further support
for its conclusion that gender discrimination covered by Title
IX could be pursued by way of a § 1983 suit by analyzing
“the substantive rights and protections guaranteed under Title
IX and under the Equal Protection Clause.” Id. at 256. The
Court found that “Title IX’s protections are narrower in some
respects and broader in others.” Id. For instance, Title IX
exempts several activities that can be challenged under the
Equal Protection Clause, such as discrimination in admissions
decisions of elementary and secondary schools, and all
activities of military service schools, as well as traditionally
single-sex public colleges. Id. at 257. Additionally, the
Court cited incongruous standards for establishing liability
under Title IX and the Equal Protection Clause, explaining
that, while “a Title IX plaintiff can establish school district
liability by showing that a single school administrator with
authority to take corrective action responded . . . with
deliberate indifference,” the same plaintiff would be required
to show a municipal policy, custom, or practice under § 1983.
Id. at 257-58. Because of this disparity in coverage, as well

14
as Title IX’s lack of a comprehensive enforcement
framework, the Fitzgerald Court concluded that, in passing
Title IX, Congress did not intend to preclude sex
discrimination claims in the context of education under §
1983. Id. at 258.

2.

Prior to Fitzgerald, a number of our sister Courts of
Appeals had held that the ADEA precludes § 1983 claims of
age discrimination. See Ahlmeyer, 555 F.3d at 1057; Tapia-
Tapia v. Potter, 322 F.3d 742 (1st Cir. 2003); Migneault v.
Peck, 158 F.3d 1131 (10th Cir. 1998), vacated on other
grounds by Bd. of Regents of Univ. of N.M. v. Migneault, 528
U.S. 1110 (2000); Lafleur v. Tex. Dep’t of Health, 126 F.3d
758 (5th Cir. 1997); Chennareddy v. Bowsher, 935 F.2d 315
(D.C. Cir. 1991); Zombro v. Baltimore City Police Dept., 868
F.2d 1364 (4th Cir. 1989). The Seventh Circuit – the only
Court of Appeals to consider this question after Fitzgerald – ,
however, reached the opposite conclusion. See Levin v.
Madigan, 692 F.3d 607, 622 (2012).

The leading case concluding that the ADEA precludes
§ 1983 claims of age discrimination is Zombro v. Baltimore
City Police Department, 868 F.2d 1364. See Ahlmeyer, 555
F.3d at 1056. In Zombro, the Fourth Circuit held that
Congress intended the ADEA to be the exclusive remedy for
claims of age discrimination, reasoning that private causes of
action brought directly under § 1983 “would severely
undermine, if not debilitate, the enforcement mechanism
created by Congress under the ADEA.” 868 F.2d at 1369.
Zombro focused on the ADEA’s comprehensive statutory
scheme, which “was structured to facilitate and encourage

15
compliance through an informal process of conciliation and
mediation.” Id. at 1366. Providing a plaintiff with “direct
and immediate access to the federal courts” via § 1983 could
result in “the comprehensive administrative process . . . .
be[ing] bypassed, and the goal of compliance through
mediation . . . . be[ing] discarded.” Id. Given these concerns,
the Zombro court reached what it deemed “[t]he inescapable
conclusion” that the ADEA precludes suits under § 1983 for
age discrimination. Id. at 1366-67.

After Zombro, the Courts of Appeals for the First,
Fifth, Ninth, Tenth, and District of Columbia Circuits agreed.
See Tapia-Tapia, 322 F.3d at 745; Lafleur, 126 F.3d at 760;
Ahlmeyer, 555 F.3d at 1057; Migneault, 158 F.3d at 1140;
Chennareddy, 935 F.2d at 318. In light of the Supreme
Court’s decision in Fitzgerald, however, the Seventh Circuit
diverged from this consensus view, concluding instead that
the ADEA does not preclude constitutional claims of age
discrimination asserted under § 1983. Levin, 692 F.3d at 617.

While recognizing that “the ADEA sets forth a rather
comprehensive remedial scheme,” id. at 618, Levin
interpreted Fitzgerald as setting a higher bar for inferring
preclusive intent in cases where a plaintiff alleges a
constitutional violation. Id. To imply congressional intent to
preclude constitutional claims, the Levin court held that
“some additional indication of congressional intent” is
required. Id. at 619. Emphasizing that the ADEA lacks
express language evincing congressional intent to preclude §
1983 suits, Levin considered the statute’s purpose. The court
reasoned that “the ADEA does not purport to provide a
remedy for violation of constitutional rights,” but rather, “it
provides a mechanism to enforce only the substantive rights

16
created by the ADEA itself.” Id. at 619 (citing Zombro, 868
F.2d at 1373 (Murnaghan, J., concurring in part and
dissenting in part)) (internal quotation marks omitted). Levin
then distinguished the Supreme Court’s decision in Smith,
which found that the Individuals with Disabilities Education
Act (“IDEA”), Pub. L. 94-142, precluded suit under § 1983
for a Constitutional violation, explaining that the IDEA was
passed to address the constitutional requirement to provide a
public education for handicapped children. Id. at 619.
Without express language addressing preclusion, and “absent
any additional indication from Congress,” the Levin Court
declined to infer an intent to preclude constitutional claims of
discrimination. Id. at 620. The court in Levin then compared
the rights and protections offered by the ADEA and the Equal
Protection Clause, and found several significant differences:
first, an ADEA plaintiff may sue only an employer,
employment agency, or labor organization, whereas a § 1983
plaintiff is free to sue any individual who “caused or
participated in the alleged deprivation of the plaintiff’s
constitutional rights”; second, the ADEA limits claims by
certain individuals, such as elected officials, who are not
exempted from bringing suit under § 1983; and third, unlike
under § 1983, state employees are effectively barred from
bringing suit under the ADEA because their employers are
shielded by Eleventh Amendment immunity. Id. at 621. In
light of these differences, and in the absence of express
congressional intent to the contrary, the Levin court
concluded that the ADEA is not the exclusive remedy for age
discrimination claims. Id. at 621-22.

3.

17
 We agree with the Levin court that the issue of whether
the ADEA precludes a § 1983 cause of action for age
discrimination in employment presents a “close call.” Id. at
617. Contrary to Levin, however, we conclude that, on
balance, the relevant considerations weigh in favor of finding
that the ADEA does indeed bar such § 1983 claims.

The Supreme Court has consistently indicated that the
comprehensiveness of a statute’s remedial scheme is the
primary factor in determining congressional intent. See
Fitzgerald, 555 U.S. at 253 (“[W]e have placed primary
emphasis on the nature and extent of [a] statute’s remedial
scheme.”) (emphasis added). Fitzgerald reaffirms the
Court’s jurisprudence on this issue as articulated in Sea
Clammers, Smith, and Rancho Palos Verdes. Id. at 254
(observing that, in each of prior cases, “[o]ffering plaintiffs a
direct route to court via § 1983 would have circumvented [the
relevant statute’s comprehensive] procedures.”). Indeed,
Fitzgerald cited with approval the Court’s statement in Sea
Clammers that, “[w]hen the remedial devices provided in a
particular Act are sufficiently comprehensive, they may
suffice to demonstrate congressional intent to preclude the
remedy of suits under § 1983.” Id. at 253 (quoting Sea
Clammers, 453 U.S. at 20) (emphasis added). To be sure,
Fitzgerald’s analysis of the different substantive protections
afforded by Title IX and the Equal Protection Clause provides
an additional framework for determining whether a section
1983 cause of action is foreclosed. Nevertheless, we do not
believe it disturbed the basic principle that, absent indications
to the contrary, we may infer that Congress intended to
preclude § 1983 claims when it provides a sufficiently
comprehensive remedial scheme for the vindication of a
federal constitutional right.

18
 Thus, we cannot agree with Levin that Congress must
provide some “additional indication” of its intent. Levin, 692
F.3d at 619. Fitzgerald does not suggest the need for a
statement of “clear or manifest congressional intent in either
the language of the statute or the legislative history,” as Levin
requires. See Levin, 692 F.3d at 621. Rather, Fitzgerald
reaffirmed the principle that, where a statute imposes
procedural requirements or provides for administrative
remedies, permitting a plaintiff to proceed directly to court
via § 1983 would be “inconsistent with Congress’ carefully
tailored scheme.” Fitzgerald, 555 U.S. at 255 (quoting Smith,
468 U.S. at 1012).

Here, there can be no debate that the ADEA provides a
comprehensive remedial scheme. Under the ADEA, it is
unlawful for an employer to, among other things, “fail or
refuse to hire or to discharge any individual or otherwise
discriminate against any individual . . . because of such
individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA
expressly provides a private right of action to employees. Id.
§ 626(c). Before an employee may file suit under the ADEA,
however, a plaintiff is required to exhaust administrative
remedies by filing a charge of discrimination with the EEOC.
Id. § 626(d)(1). The EEOC is then directed to notify all
respondents named in the employee’s charge of
discrimination and to “promptly seek to eliminate any alleged
unlawful practice by informal methods of conciliation,
conference, and persuasion.” Id. § 626(d)(2). Unless the
EEOC elects to file suit to enforce the employee’s claim, an
employee may commence suit sixty days after filing a charge.
Id. §§ 626(c)(1), (d)(1). In light of these requirements, we
agree with the majority of our sister Courts of Appeals that

19
this scheme would be undermined if plaintiffs could sue
directly under § 1983. See, e.g., Zombro, 868 F.2d at 1366
(“[Under § 1983, the] plaintiff would have direct and
immediate access to the federal courts, the comprehensive
administrative process would be bypassed, and the goal of
compliance through mediation would be discarded.”).

Moreover, we do not believe that the rights and
protections of the ADEA and the Equal Protection Clause
differ in such significant ways as to demonstrate
congressional intent to allow parallel § 1983 claims alleging
age discrimination. The ADEA is intended to “promote
employment of older persons based on their ability rather than
age; to prohibit arbitrary age discrimination in employment;
[and] to help employers and workers find ways of meeting
problems arising from the impact of age on employment.” 29
U.S.C. § 621(b). Under the Equal Protection Clause, age
classifications receive only rational basis review. Kimel v.
Florida Bd. of Regents, 528 U.S. 62, 83 (2000) (“States may
discriminate on the basis of age without offending the
Fourteenth Amendment if the age classification in question is
rationally related to a legitimate state interest.”). By
prohibiting “arbitrary age discrimination,” the ADEA
encompasses the protections afforded by the Fourteenth
Amendment, while significantly expanding prohibitions on
age discrimination elsewhere.

Although, as the Levin court emphasizes, the potential
defendants are different under the ADEA and § 1983, 1 we do

1
Under the ADEA, a plaintiff may sue his employer,
an employment agency, or a labor organization. 29 U.S.C. §
623. In contrast, a § 1983 plaintiff can sue an individual

20
not believe this distinction significant enough to demonstrate
congressional intent to permit both claims. Additionally, we
think the fact that certain government employees are either
exempted from the ADEA, or limited to certain remedies, see
29 U.S.C. §§ 623(j), 630(f), demonstrates congressional
intent to specifically define the rights of those employees
rather than to permit such employees to circumvent these
limitations by filing directly under § 1983. See Sea
Clammers, 453 U.S. at 15 (“In the absence of strong indicia
of a contrary congressional intent, we are compelled to
conclude that Congress provided precisely the remedies it
considered appropriate.”).

“We do not lightly conclude that Congress intended to
preclude reliance on § 1983 as a remedy for a substantial
equal protection claim.” Smith, 468 U.S. at 1012. Because
we believe, however, that § 1983 suits are “inconsistent with
Congress’ carefully tailored scheme,” id., we join the
majority of Courts of Appeals in concluding that Congress
intended the ADEA to be the exclusive remedy for claims of
age discrimination in employment. Accordingly, we will
affirm the District Court’s dismissal of Hildebrand’s § 1983
claim of age discrimination.

B. Hildebrand’s § 1983 Retaliation Claims

Hildebrand seeks vindication for two additional
alleged violations under § 1983, contending that he was
retaliated against for his use of the internal grievance process

whose actions caused a deprivation of his constitutional
rights. Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir.
2011).

21
in violation of the First and Fourteenth Amendments, and that
he was retaliated against on the basis of his political
patronage in violation of the First Amendment. The District
Court dismissed these allegations along with Hildebrand’s §
1983 age discrimination claim, finding that he had failed to
adequately plead that the County adopted a custom or practice
of such discrimination. The District Court also found, albeit
in a footnote, that Hildebrand’s amended complaint “fail[ed]
to pinpoint with any clarity which of his Constitutional rights
were negatively impacted by [Allegheny County],” that the
allegations of First and Fourteenth Amendment violations
were conclusory in nature, and that they therefore “fail[ed] to
meet the Iqbal/Twombly standard.” (A. 313 n.5.) As to the
claims of retaliation, we agree with the District Court’s
analysis.

Hildebrand brought each of these claims against
Allegheny County under a theory of municipal liability,
which requires him to demonstrate either that the County
officially adopted a “policy,” or unofficially adopted a
“custom,” of unconstitutional discrimination. See Monell v.
Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 690-
91 (1978). Hildebrand concededly proceeded on all § 1983
claims under a “custom” theory. “A plaintiff may establish a
custom . . . by showing that a given course of conduct,
although not specifically endorsed or authorized by law, is so
well-settled and permanent as virtually to constitute law.”
Watson v. Abington Twp., 478 F.3d 144, 155-56 (3d Cir.
2007) (citing Andrews v. City of Philadelphia, 895 F.2d 1469,
1480 (3d Cir. 1990) (internal quotation marks omitted)).

In his amended complaint, Hildebrand made the
following averments of retaliation: he alleged that he was

22
retaliated against by the Chief Detective and the Assistant
Chief Detective at the DA’s Office after he made a good faith
report expressing concerns about a fellow detective (A. 136
¶¶ S-T); that he was similarly retaliated against by the same
individuals after reporting a concern about the Office’s
procedure for charging drug crimes (Id. 138 ¶ X); that he was
retaliated against by the Assistant Chief Detective after he
filed an internal grievance against him alleging age-based
harassment (Id. 139-40 ¶¶ BB – DD); that he was
subsequently demoted in retaliation for his complaints about
the drug charging procedures (Id. 142 ¶ JJ); and that he was
harassed after members of the DA’s Office learned that he
had previously made political contributions to Joan Orie
Melvin in her candidacy for the Pennsylvania Supreme Court
(Id. 145-46 ¶ WW). Notwithstanding these allegations of
retaliation and harassment on the part of certain high-ranking
officials at the DA’s Office, Hildebrand does not allege that
Allegheny County established a custom of retaliating against
supporters of Ms. Melvin, or against Hildebrand or other
employees who utilized the internal grievance process.

While Hildebrand’s brief on appeal reasserts his claim
of retaliation, it does not point to any facts demonstrating that
there existed a custom in Allegheny County to retaliate
against employees on these bases. Rather, the portion of
Hildebrand’s brief dedicated to discussing his allegations in
support of municipal liability relate solely to his claims of age
discrimination. We therefore agree with the District Court
that Hildebrand failed to set forth a plausible claim for relief
against Allegheny County for retaliation, and we will affirm
their dismissal on that basis.

C. Hildebrand’s ADEA Claims

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 Having determined that Hildebrand’s § 1983 claims
were properly dismissed, we now turn to the District Court’s
dismissal of Hildebrand’s ADEA claim.

1. Whether the Iqbal/Twombly Pleading Standards Apply to
Fed. R. Civ. P. 9(c)

A plaintiff seeking relief under the ADEA must
exhaust his or her administrative remedies as mandated by 29
U.S.C. § 626(d). Section 626(d) requires plaintiffs in
“deferral states” such as Pennsylvania, which have a state
agency with authority to investigate claims of employment
discrimination, to file charges with the EEOC within 300
days of the last date of alleged discrimination. 29 U.S.C. §§
626(d)(2) & 633(b); Watson v. Eastman Kodak Co., 235 F.3d
851, 854 (3d Cir. 2000). A plaintiff’s obligation to timely file
with the EEOC is a condition precedent to filing suit under
the ADEA. Seredinski v. Clifton Precision Prods. Co., Div.
of Litton Sys., Inc., 776 F.2d 56, 64 (3d Cir. 1985) (Sarokin,
J., concurring in part and dissenting in part).

The pleading of a condition precedent is governed by
Federal Rule of Civil Procedure 9(c), which provides:

Conditions Precedent. In
pleading conditions precedent, it
suffices to allege generally that all
conditions precedent have
occurred or been performed. But
when denying that a condition
precedent has occurred or been

24
 performed, a party must do so
with particularity.

Fed. R. Civ. P. 9(c).

Here, Hildebrand’s original complaint alleged:

All conditions precedent to
jurisdiction under section 706 of
Title VII, have occurred or been
complied with. Plaintiff filed a
claim of employment
discrimination with the [EEOC].
The EEOC issued a Notice of
Right to Sue. This complaint is
filed within 90 days of such
Notice of Right to Sue.

(A. 2.)

The District Court dismissed Hildebrand’s ADEA
claim, holding that he failed to sufficiently plead the
satisfaction of this condition precedent. Specifically, the
District Court applied the pleading standards set forth in
Twombly and Iqbal, which held that Federal Rule of Civil
Procedure 8(a) requires a plaintiff to allege “enough facts to
state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570; see also Iqbal, 556 U.S. at 678.

The District Court erred by applying Iqbal and
Twombly to Hildebrand’s pleading of the conditions
precedent to filing suit under the ADEA. Iqbal and Twombly
interpreted Federal Rule of Civil Procedure 8(a), which

25
governs the standard for pleading a claim for relief. The
pleading of conditions precedent is governed by Rule 9(c),
not Rule 8(a). Neither Iqbal nor Twombly purport to alter
Rule 9. We see no indication that those cases sought to
override the plain language of Rule 9(c), and we therefore
conclude that the pleading of conditions precedent falls
outside the strictures of Iqbal and Twombly.

2. The Intake Questionnaire

Our conclusion that the District Court erred in
applying Iqbal and Twombly to the pleading of conditions
precedent does not end our inquiry. Following the dismissal
of his first complaint, Hildebrand filed an amended
complaint, which alleged his satisfaction of the ADEA’s
conditions precedent in greater detail. Specifically,
Hildebrand alleged that he had filed a charge with the EEOC
within 300 days of the last date of discrimination. He
attached his charge of discrimination to his amended
complaint.

In their motions to dismiss the amended complaint,
Appellees contested Hildebrand’s asserted final date of
discrimination, contending that the last date of discrimination
was his February 18, 2011 termination. Under this reasoning,
Hildebrand’s charge of discrimination, which he filed on
January 11, 2012, would be untimely. In response to the
motions to dismiss, Hildebrand argued that the EEOC Intake
Questionnaire, which he filed on December 1, 2011,
constituted a timely-filed charge of discrimination.

The District Court dismissed Hildebrand’s ADEA
claims with prejudice, concluding that the last date of

26
discrimination was February 18, 2011, and that the January
11, 2012 charge was therefore untimely. The District Court
did not consider the Intake Questionnaire. 2 We agree that
Hildebrand’s Intake Questionnaire constitutes a timely filed
charge.

An EEOC filing constitutes a charge of discrimination
if it satisfies the requirements of 29 C.F.R. § 1626.6, and can
“reasonably [be] construed as a request for [the EEOC] to
take remedial action to protect the employee’s rights.” Fed.
Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). In
Holowecki, the Supreme Court adopted a “permissive”
interpretation of the charge requirement, explaining that a
“wide range of documents,” including an intake
questionnaire, “may be classified as charges.” Id. at 402.

2
Hildebrand concedes that the Intake Questionnaire
was not attached to his amended complaint. He did, however,
submit the questionnaire as an exhibit to his response to
Allegheny County’s motion to dismiss. While a court is
limited to considering the pleadings in deciding a Rule
12(b)(6) motion, we are satisfied that the Intake
Questionnaire was properly before the District Court. There
was no dispute as to its authenticity, and it directly
corroborated Hildebrand’s claim that he had satisfied the
conditions precedent to filing suit under the ADEA. See
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (“In
deciding a Rule 12(b)(6) motion, a court must consider only
the complaint, exhibits attached to the complaint, matters of
public record, as well as undisputedly authentic documents if
the complainant’s claims are based upon these documents.”).

27
 Following Holowecki, the EEOC revised its Intake
Questionnaire to require claimants to check a box to request
that the EEOC take remedial action. This box, commonly
referred to as “Box 2,” states:

I want to file a charge of
discrimination, and I authorize the
EEOC to look into the
discrimination I described above.
I understand that the EEOC must
give the employer, union, or
employment agency that I accuse
of discrimination information
about the charge, including my
name. . . .

(A. 262, 291). Under the revised form, an employee who
completes the Intake Questionnaire and checks Box 2
unquestionably files a charge of discrimination. Hildebrand
did precisely this. Additionally, Hildebrand’s questionnaire is
dated December 1, 2011, which is within 300 days of the
February 18, 2011 letter of suspension and notice of
termination. Thus, it was timely filed.

The Intake Questionnaire did not, however, preserve
Hildebrand’s claim against Allegheny County. As the County
observes, Hildebrand’s EEOC Intake Questionnaire names
“Allegheny County District Attorney’s Office” as the only
respondent. Thus, it fails to allege any discrimination on the
part of the County. We will therefore vacate the District
Court’s dismissal of Hildebrand’s ADEA claim as to the
DA’s Office because the Intake Questionnaire was a timely
filed charge of discrimination, but we will affirm dismissal of

28
the ADEA claim against Allegheny County, because the
Intake Questionnaire demonstrates that Hildebrand failed to
timely exhaust his administrative remedies as to the County.

III.

For the foregoing reasons, we will affirm in part,
vacate in part, and remand for further proceedings consistent
with this opinion.

29