Michael Simko v. United States Steel Corp

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 20-1091
_____________

MICHAEL SIMKO,

Appellant

v.

UNITED STATES STEEL CORP
_____________________________________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No.: 2:19-cv-00765)
District Judge: Honorable Joy Flowers Conti
_____________________________________

Argued September 24, 2020

(Filed March 29, 2021)

Before: McKEE, JORDAN and RENDELL, Circuit Judges.

John E. Egers, Jr. (Argued)
Julian Law Firm
71 North Main Street
Washington, PA 15301

Counsel for Appellant

Gail S. Coleman (Argued)
Equal Employment Opportunity Commission
131 M. St., N.E.
Washington, D.C. 20507
 Counsel for Amicus Appellant
Equal Employment Opportunity Commission

Rodney M. Torbic (Argued)
United States Steel Corp
600 Grant Street, Suite 1515
Pittsburgh, PA 15219

Counsel for Appellee

_________

OPINION
_________

RENDELL, Circuit Judge.

In this employment discrimination case, Michael Simko
asserts one claim of retaliation against his former employer,
United States Steel Corp., under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Simko
alleges that in August 2014 he was discharged in retaliation for
filing an administrative charge of disability discrimination with
the Equal Employment Opportunity Commission (“EEOC”)
approximately fifteen months earlier. Simko’s original
charge—which alleged that U.S. Steel disqualified him for
another position on the basis of his hearing disability—was
timely filed. But he never filed a timely charge of retaliation
that formed the basis for his complaint before the District
Court. The District Court held that the later claim of retaliation
was not encompassed within the earlier charge, and, therefore,
that his failure to file a timely retaliation charge was fatal.
Accordingly, the District Court dismissed his complaint for
failure to exhaust administrative remedies. We will affirm.

2
I. BACKGROUND1

Simko, who suffers from hearing loss, began working
for U.S. Steel in August 2005. In August 2012, while he was
employed as a Larryman in the Blast Furnace Department of
the U.S. Steel plant in Braddock, Pennsylvania, he successfully
bid on an open position as Spellman in the Transportation
Department. During training for the position, Simko requested
a new two-way radio from a Transportation Department
supervisor to accommodate his hearing impairment, but U.S.
Steel did not provide the new radio or any other
accommodation. Although Simko completed the Spellman
training, he alleges that his trainer refused to approve his
completion of the training and “sign off” that he was able to
perform the Spellman duties because of his disability. App 33.
Having failed to secure the Spellman position, Simko resumed
working as a Larryman in the Blast Furnace Department.

A. Simko’s Original Charge and Initial
Discharge

On May 24, 2013, Simko signed an EEOC charge
alleging violations of the ADA against U.S. Steel. The only
box checked on the original charge was for “[d]iscrimination
based on . . . disability.” App. 33. Specifically, Simko asserted
that U.S. Steel discriminated against him by denying him the
Spellman position and denying his request for an
accommodation. Simko also alleged in the charge that he was
later “subjected to negative comments from other employees
regarding my impairment,” including one instance in which the
“Walking Boss” told him that “[i]f I couldn’t hear, I must be

1
The facts are drawn from Simko’s complaint and
exhibits to the parties’ briefs in support of, and opposition to,
U.S. Steel’s motion to dismiss. In reviewing a dismissal under
Federal Rule of Civil Procedure 12(b)(6), we “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.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.
2010); see also Levins v. Healthcare Revenue Recovery Grp.
LLC, 902 F.3d 274, 279 (3d Cir. 2018). The parties have not
disputed the authenticity of any documents in the record.
3
disabled and should not work anywhere in the plant.” App. 34.
The EEOC received the charge on May 28, 2013. By letter
dated August 7, 2013 to the EEOC, a U.S. Steel Labor
Relations official denied Simko’s allegations of
discrimination. The EEOC did not take any action to
investigate the charge or U.S Steel’s August 7, 2013 letter.

On December 30, 2013—while Simko’s charge was
still pending—U.S. Steel discharged Simko after an incident in
which a car he was operating lost power. Approximately five
months later, on May 27, 2014, Simko entered into a “last
chance agreement” with U.S. Steel and his union providing for
his reinstatement. Simko returned to work under the last
chance agreement on June 1, 2014, but he was discharged again
on August 19, 20142—this time, based on a safety violation.
Although Simko grieved the discharge through his union, the
union later withdrew the grievance.

B. The November 2014 Correspondence

On November 14, 2014,3 approximately three months
after Simko’s final discharge from U.S. Steel, the EEOC
received an undated handwritten letter and set of documents
from Simko (“November 2014 correspondence”). The
November 2014 correspondence comprised 14 pages,
including what appears to be Simko’s handwritten notes
regarding a union hearing on the violation of his last chance
agreement, a copy of his last chance agreement, copies of
safety incident reports, and, in the final three pages, a
handwritten note that urged that he was discharged in
retaliation for his filing of the original discrimination charge
with the EEOC. In relevant part, the letter provided:

Since I have filled [sic] the charges with the

2
Simko initially received a five-day suspension, which
was ultimately converted to a discharge.
3
Simko and the EEOC allege that the EEOC received the
November 2014 correspondence on November 14, 2014.
Because U.S. Steel does not contest this allegation, we will, as
the District Court did, assume its truth. The November 2014
correspondence was attached to Simko’s response to U.S.
Steel’s motion to dismiss, but it was not referenced in his civil
complaint.
4
 EEOC I have been terminated twice and placed
on [a] last chance agreement with no just cause
by the company. The union only calls me at [the]
last minute with information, they are not in
contact with me otherwise . . . . I believe anyone
who familiarizes themself [sic] with the details of
the case will clearly see it as retaliation for filing
charges with the EEOC.

App. 80–81 (emphasis added).

The EEOC did not take any action in response to
Simko’s November 2014 correspondence until approximately
one year later. By letter dated November 23, 2015, an EEOC
investigator notified Simko that he had been assigned to
Simko’s case. The investigator further wrote that, based upon
the November 2014 correspondence, “it appears as though you
have been terminated by [U.S. Steel] on two separate occasions
during 2014 and that you believe that the terminations were
retaliatory against you.” App. 84. Simko’s EEOC file also
contains a handwritten note by the investigator, dated
November 23, 2015, indicating that the EEOC contacted the
U.S. Steel Labor Relations Department and confirmed that
Simko had been discharged.4 In addition, the note stated,
“Amended charge is to follow including retaliatory discharge.”
App. 83.

C. The EEOC Investigation, Amended Charge,
and Simko’s Federal Lawsuit

After the EEOC contacted Simko, he retained counsel
to represent him in his EEOC proceedings. By letter dated
December 18, 2015, the EEOC investigator communicated to
Simko’s counsel that the EEOC had notified U.S. Steel “that
an amended charge was going to follow.” App. 87. On
January 22, 2016, Simko’s counsel filed an amended EEOC
charge. The amended charge addressed Simko’s failure to
secure the Spellman position and his subsequent discharges
from U.S. Steel. The boxes for disability discrimination and

4
The EEOC investigator’s November 23, 2015 letter and
handwritten note were not attached to the complaint but were
attached to Simko’s response to U.S. Steel’s motion to dismiss.
5
retaliation were both checked.

After investigating the allegations set forth in the
amended charge, the EEOC on February 19, 2019 issued a
determination of reasonable cause that U.S. Steel retaliated
against Simko. Specifically, the EEOC investigator found that
U.S. Steel disciplined Simko more harshly for his violation of
work rules and regulations than a non-disabled comparator.
The EEOC attempted conciliation of the dispute, but after
those efforts failed, it issued a right-to-sue letter on April 1,
2019. On June 28, 2019, Simko filed this lawsuit, asserting
only a single count of retaliation in connection with his final
discharge from U.S. Steel. It did not allege either disability
discrimination or failure to accommodate.

The District Court determined that Simko failed to file
a timely EEOC charge asserting his retaliation claim because
his amended charge claiming retaliation was filed 521 days
after the termination of his employment. The District Court
also held that Simko was not entitled to equitable tolling of the
ADA’s filing deadline because he was not misled by the EEOC
or prevented from filing the amended charge, and he offered
no reason why he could not file a timely claim. Thus, the
District Court concluded that since Simko never filed a timely
charge of retaliation with the EEOC, he failed to exhaust his
administrative remedies as required by the ADA, and it
dismissed his complaint. Simko timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. §
1331. We exercise appellate jurisdiction pursuant to 28 U.S.C
§ 1291. We review de novo a district court’s decision granting
a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014).
In reviewing a dismissal under Rule 12(b)(6), we accept all
well-pled factual allegations in the complaint as true and draw
all reasonable inferences in the plaintiff’s favor. Connelly v.
Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016).

III. DISCUSSION

Plaintiffs must exhaust their administrative remedies
before filing an ADA claim in federal court. See Churchill v.

6
Star Enters., 183 F.3d 184, 190 (3d Cir. 1999) (noting that
claims asserted under the ADA must be filed in adherence with
the administrative procedures set forth in Title VII); 42 U.S.C.
§§ 12117(a), 2000e-5.5 In Pennsylvania, an aggrieved party
must initiate this pre-suit procedure by filing a charge with the
EEOC within 300 days of the challenged employment action.
Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir.
2000); 42 U.S.C. § 2000e-5(e)(1).

It is undisputed that Simko filed his amended EEOC
charge of retaliation 521 days after the latest adverse
employment action at issue in the civil complaint—his final
discharge. Before the District Court and on appeal, U.S. Steel
urges that Simko’s civil complaint should therefore be
dismissed because he failed to file the retaliation charge within
the ADA’s 300-day filing period.

Despite his failure to meet the 300-day deadline, Simko
argues that he nonetheless satisfied the ADA’s pre-suit
requirements. The EEOC filed an amicus brief in which it also
urges that, contrary to the District Court’s conclusion, Simko
satisfied the ADA’s pre-suit filing requirements.6 Three
arguments are advanced in the alternative. First, both Simko
and the EEOC contend that his handwritten November 2014

5
While failure to file a timely charge may be a ground
for dismissal, that pre-suit requirement does not implicate a
district court’s subject matter jurisdiction. Rather, “like a
statute of limitations, [the filing deadline is] subject to waiver,
estoppel, and equitable tolling.” Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982); see also Fort Bend Cty., Texas
v. Davis, 139 S. Ct. 1843, 1851 (2019) (holding that the
“charge-filing requirement is a processing rule, albeit a
mandatory one, not a jurisdictional prescription delineating the
adjudicatory authority of courts”).
6
We noted at oral argument that it was unusual for the
EEOC to file an amicus brief in support of an appellant in
Simko’s position. Counsel for the EEOC stated that the agency
“made a mistake” by failing to help Simko convert his
November 2014 correspondence into a charge in a timely
manner. We appreciate the EEOC’s candor, but its acceptance
of some degree of fault does not alter our analysis.

7
correspondence to the EEOC itself constituted a timely
administrative charge. Second, the EEOC alone argues that
Simko was entitled to equitable tolling of the statutory filing
period because the agency failed to promptly act on the
November 2014 correspondence. Third, both Simko and the
EEOC urge that he did not have to file an additional EEOC
charge because his original, still-pending disability
discrimination charge encompassed his subsequent claim of
retaliation.

We reject these arguments. The first argument was
never asserted in the District Court and has not been properly
preserved for our review. The second argument was raised
only by the EEOC on appeal and, for reasons we explain
below, will not be considered. With respect to the final
argument, we conclude that Simko’s retaliation claim is
distinct from his underlying EEOC charge and therefore
needed to be raised first in a timely filed charge. His failure to
file a timely retaliation claim with the EEOC therefore dooms
his case.

A. We Will Not Reach the Unpreserved Issue of
Whether the November 2014 Correspondence
Constituted a Charge

Simko and the EEOC both contend that the District
Court should have concluded that the November 2014
correspondence—which was sent within 300 days of Simko’s
final discharge—itself constituted a timely EEOC charge that
may serve as the basis for his federal lawsuit. They urge that,
despite its informal appearance, Simko’s handwritten
correspondence included all of the required contents of an
administrative charge. But as U.S. Steel points out, Simko
never raised this issue before the District Court. In its opinion,
the District Court sua sponte commented on the handwritten
letter, stating that it “d[id] not constitute a ‘charge’ and Simko
d[id] not contend otherwise.” Simko v. United States Steel
Corp., No. CV 19-765, 2019 WL 6828421, at *3 (W.D. Pa.
Dec. 13, 2019). Simko and the EEOC now, for the first time,
contend otherwise.

It is well-established that arguments raised for the first
time on appeal are not properly preserved for appellate review.
See Del. Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir.
8
2006); see also Freeman v. Pittsburgh Glass Works, LLC, 709
F.3d 240, 249 (3d Cir. 2013) (“We generally refuse to consider
issues that the parties have not raised below.”). The general
rule requiring preservation “serves several important judicial
interests,” such as protecting the parties from unfair surprise,
“preventing district courts from being reversed on grounds that
were never urged or argued before [them],” and promoting
finality and the conservation of judicial resources. Tri-M Grp.,
LLC v. Sharp, 638 F.3d 406, 416 (3d Cir. 2011) (alteration in
original) (quoting Webb v. City of Phila., 562 F.3d 256, 263
(3d Cir. 2009)).

As a preliminary matter, the District Court’s cursory
statement that Simko’s handwritten correspondence did not
constitute a charge is, alone, insufficient to preserve that issue
for our review. U.S. Steel contends that, by failing to raise that
issue before the District Court, Simko waived any argument to
the contrary. Although we agree with U.S. Steel that Simko
did not preserve his argument on appeal, we think that, under
our most recent precedent, Simko’s failure is better
characterized as “forfeiture,” not “waiver.” See Barna v. Bd.
of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136,
146–47 (3d Cir. 2017). In Barna, we distinguished the two
terms, noting that “[t]he effect of failing to preserve an
argument will depend upon whether the argument has been
forfeited or waived.” Id. at 146. Waiver is the intentional
abandonment of an argument. Id. at 147. In contrast, forfeiture
“‘is the failure to make the timely assertion of a right,’ an
example of which is an inadvertent failure to raise an
argument.” Id. at 147 (quoting United States v. Olano, 507
U.S. 725, 733 (1993)). Because Simko’s failure to argue
before the District Court that the November 2014
correspondence qualified as a charge appears inadvertent, we
treat that argument as forfeited. See PDX N., Inc. v. Comm’r
N.J. Dep’t of Labor & Workforce Dev., 978 F.3d 871, 886 (3d
Cir. 2020).

While a court may not entertain waived arguments on
appeal, it may review forfeited arguments, but under only
“truly ‘exceptional circumstances.’” Barna, 877 F.3d at 147
(quoting Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3d
Cir. 2001)). These circumstances are “very ‘limited,’” id.
(quoting Webb, 562 F.3d at 263), and may include cases where

9
“the public interest requires that the issue[s] be heard or when
a manifest injustice would result from the failure to consider
the new issue[s],” United States v. Anthony Dell’Aquilla,
Enters. & Subsidiaries, 150 F.3d 329, 335 (3d Cir. 1998)
(alterations in original) (quoting Altman v. Altman, 653 F.2d
755, 758 (3d Cir. 1981)). Here, Simko offers no reasons for
his failure to urge before the District Court that his handwritten
correspondence and accompanying documents qualified as a
charge. Moreover, there is no public interest implicated or
manifest injustice, particularly because Simko knew how to
file a formal EEOC charge, as he had done in May 2013. In
short, there are no exceptional circumstances justifying
departure from our rule requiring preservation. Accordingly,
we will not address this issue.

B. Nor Will We Address the District Court’s
Ruling on Equitable Tolling

In its amicus brief, the EEOC alone urges that the
District Court erred by concluding that Simko was not entitled
to equitable tolling of the 300-day statutory filing period.
Specifically, the EEOC contends that, if the November 2014
correspondence did not qualify as an administrative charge, the
EEOC’s failure to promptly convert it to a charge should
warrant equitable tolling of the statutory deadline for Simko.
Although Simko litigated the equitable tolling issue before the
District Court, he did not present it to us as an issue on appeal.
We have held that the role of an amicus brief is to “elaborate[]
issues properly presented by the parties,” not “inject[] new
issues into an appeal.” N.J. Retail Merchs. Ass’n v. Sidamon-
Eristoff, 669 F.3d 374, 382 n.2 (3d Cir. 2012) (quoting
Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d
Cir. 2001)). Thus, “[a]n amicus normally ‘cannot expand the
scope of an appeal with issues not presented by the parties on
appeal,’ at least not ‘in cases where the parties are competently
represented by counsel.’” Hartig Drug Co. Inc. v. Senju
Pharm. Co., 836 F.3d 261, 267 (3d Cir. 2016) (citation
omitted) (quoting Nuveen Mun. Tr. ex rel. Nuveen High Yield
Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283,
300 n.10 (3d Cir. 2012)). By raising the equitable tolling issue,
the EEOC attempts to resurrect an issue that Simko abandoned
on appeal. Accordingly, we will not reconsider the District
Court’s conclusion that equitable tolling was not warranted.

10
 C. Simko’s Original EEOC Charge Did Not
Encompass His Subsequent Retaliatory
Discharge Claim

Simko’s main argument on appeal is that he was not
required to file a timely retaliation charge because his
retaliation claim was encompassed within his still-pending
original charge of disability discrimination. U.S. Steel
responds, as it did before the District Court, that Simko’s
retaliation claim cannot be bootstrapped to the original charge
because the two sets of allegations are sufficiently distinct, and
under the analysis required by our precedent, Simko should
have filed a separate charge for the retaliation claim. We agree
with U.S. Steel on this issue.

As noted above, the ADA requires that a plaintiff
administratively exhaust all claims before seeking relief in
federal court. Burgh v. Borough Council of Borough of
Montrose, 251 F.3d 465, 469 (3d Cir. 2001); 42 U.S.C. §§
12117(a), 2000e-5(b). These pre-suit requirements, which
include the step of filing a charge and receiving a right-to-sue
letter from the EEOC, are “essential parts of the statutory plan,
designed to correct discrimination through administrative
conciliation and persuasion if possible, rather than by formal
court action.” Ostapowicz v. Johnson Bronze Co., 541 F.2d
394, 398 (3d Cir. 1976); see also Anjelino v. New York Times
Co., 200 F.3d 73, 94 (3d Cir. 1999) (“[T]he purpose of the
filing requirement is to enable the EEOC to investigate and, if
cause is found, to attempt to use informal means to reach a
settlement of the dispute.”). The Supreme Court has also
emphasized that a fundamental aim of the pre-suit
requirements is to “give prompt notice to the employer” and
“encourage the prompt processing of all charges of
employment discrimination.” Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 109, 121 (2002) (internal quotation
marks omitted). The exhaustion requirement thus advances the
remedial purposes of the ADA.

The “relevant test” for determining whether a later
claim needs to be exhausted despite the filing of a previous
charge is a two-pronged inquiry into whether “the acts alleged
in the subsequent . . . suit are fairly within the scope of [1] the
prior EEOC complaint, or [2] the investigation arising

11
therefrom.”7 Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.
1984); see also Robinson v. Dalton, 107 F.3d 1018, 1025 (3d
Cir. 1997) (identifying the “two circumstances in which events
subsequent to a filed [EEOC] complaint may be considered as

7
The Waiters inquiry is a disjunctive test—that is, a
plaintiff need not file an additional EEOC charge if the
allegations of the civil complaint are fairly within the scope of
(1) the pending EEOC charge or (2) the investigation arising
from the charge.
As Simko notes, however, on at least two occasions, we
have treated the inquiry as being conjunctive. For example, in
Hicks v. ABT Associates, Inc., we determined that a
finding that the EEOC would have discovered a
claim for sex discrimination in the course of a
reasonable investigation does not itself meet the
standard of Ostapowicz [and satisfy the
exhaustion requirement]. This evidence merely
rebuts the presumption that the scope of the
actual investigation is “what can reasonably be
expected to grow out of the charge of
discrimination.” 541 F.2d at 398–99. The
district court must further find that the sex
discrimination claims which would have been
uncovered were reasonably within the scope of
the charge filed with the EEOC.
572 F.2d 960, 967 (3d Cir. 1978) (emphasis added). In Howze
v. Jones & Laughlin Steel Corp., which was decided less than
a year after Waiters, we summarized Hicks as holding that a
“district court may assume jurisdiction over additional charges
if they are reasonably within the scope of the complainant’s
original charges and if a reasonable investigation by the EEOC
would have encompassed the new claims.” 750 F.2d 1208,
1212 (3d Cir. 1984) (emphasis added). The Howze court
notably failed to mention Waiters.
Notwithstanding this minor conflict of authority, since
Howze we have consistently applied the disjunctive
formulation of the exhaustion test set forth in Waiters. See
Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996); Robinson v.
Dalton, 107 F.3d 1018, 1025 (3d Cir. 1997); Mandel v. M & Q
Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013).
Accordingly, the disjunctive test governs our analysis in this
case.
12
fairly encompassed within that complaint”).

The exhaustion inquiry is highly fact specific. Under
our precedent, the Court must “examine carefully the prior
pending EEOC complaint and the unexhausted claim on a case-
by-case basis before determining that a second complaint need
not have been filed.” Robinson, 107 F.3d at 1024. Simko and
the EEOC urge that we should adopt the broad per se rule
followed by some courts of appeals that treat post-charge
claims of retaliation as exhausted when they arise during the
pendency of a prior charge. See, e.g., Duplan v. City of New
York, 888 F.3d 612, 622 (2d Cir. 2018); Nealon v. Stone, 958
F.2d 584, 590 (4th Cir. 1992); Gupta v. E. Texas State Univ.,
654 F.2d 411, 414 (5th Cir. 1981). We have said, however,
that such a per se rule, “whether express or applied in practice,
would eviscerate the remedial purposes of the exhaustion
requirement.” Robinson, 107 F.3d at 1024. We have already
rejected this per se argument and will adhere to our precedent
that requires a careful examination of the nature of the relevant
claims. See Waiters, 729 F.2d at 237 n.10 (declining to adopt
what the Court characterized as the Fifth Circuit’s rule that “all
claims of ‘retaliation’ against a discrimination victim based on
the filing of an EEOC complaint are ‘ancillary’ to the original
complaint”); Robinson, 107 F.3d at 1024 (also rejecting a per
se rule that post-charge retaliation claims “necessarily fall[]
within the scope of . . . [previously filed, still-pending EEOC]
complaints”).8

Even interpreting Simko’s charge liberally under our
fact-specific approach, the retaliation claim based on his
August 2014 termination does not fall fairly within the scope
of either (1) his original charge of disability discrimination
based on his being denied the Spellman position in August
2012, or (2) the EEOC investigation arising therefrom. See

8
Similarly, Simko urges that his retaliation claim is
sufficiently related to his original charge of disability
discrimination under our case-by-case approach because, by
definition, retaliation requires a “predicate action protected by
the ADA,” and his original charge “was a prerequisite to the
existence of the retaliation claim.” Appellant’s Br. 62.
Because such an argument merely restyles the same per se rule
that we have previously rejected, we also reject it here.
13
Waiters, 729 F.2d at 235; see also Mandel v. M & Q Packaging
Corp., 706 F.3d 157, 163 (3d Cir. 2013); Robinson, 107 F.3d
at 1025; Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). We
address both prongs of the analysis in turn.

Simko concedes that his retaliation claim fails the first
prong of the exhaustion analysis. Simply put, no allegations of
retaliation appeared on the face of his original EEOC charge.
Simko failed to check the box indicating a claim of retaliation
and his narrative contained no reference to conduct that could
be construed as retaliatory. As U.S. Steel argues, “the legal
theories in the original charge and amended charge are not the
same, the incidents are not the same, the individuals involved
are not the same, the work locations are not the same, and the
time-periods are not the same.” Appellee’s Br. 20–21.
Accordingly, Simko’s retaliatory discharge claim does not fall
fairly within the scope of his EEOC charge.

The central dispute in this case, however, concerns the
second prong of the analysis—whether Simko’s claim of
retaliation falls “fairly within . . . the investigation arising”
from the initial EEOC charge. Waiters, 729 F.2d at 237. At
this step of the analysis, we consider “the scope of the EEOC
investigation which can reasonably be expected to grow out of
the charge of discrimination.” Ostapowicz, 541 F.2d at 398–
99. Simko and the EEOC primarily argue that this prong may
be satisfied simply based on the fact that the EEOC actually
did investigate Simko’s retaliatory discharge claim, albeit
more than two years after he filed his initial charge.9 To the
contrary, our precedent emphasizes that the Court must look
only at the scope of the EEOC investigation that would
reasonably grow out of, or arise from, the initial charge filed

9
Simko pushes this argument one step further: He urges
that our case-by-case analysis and precedent are not even
applicable in this case because the EEOC ultimately
investigated his retaliation claim and issued a right-to-sue letter
based on that claim. He contends that our fact-specific
exhaustion inquiry instead applies only in cases where either
(1) the claim at issue was not presented to the EEOC or (2) the
EEOC failed to investigate the claim. We disagree. No
authority from our Court supports such a strict limitation on the
exhaustion analysis.
14
with the EEOC, “irrespective of the actual content of the
Commission’s investigation.” Hicks v. ABT Assocs., Inc., 572
F.2d 960, 966 (3d Cir. 1978); see also Howze v. Jones &
Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984)
(holding that “[w]hether the actual EEOC investigation
uncovered any evidence of retaliation is of no consequence” in
determining whether a new claim of retaliation is encompassed
in the original EEOC charge). As such, we agree with the
District Court’s characterization of our exhaustion analysis as
“objective” rather than “subjective.” Simko, 2019 WL
6828421, at *7.

Given the fact-specific nature of the exhaustion inquiry,
our precedent in this area—Hicks, Waiters, Antol, and
Robinson—provides useful guidance. As these cases
demonstrate, when determining whether a claim fairly or
reasonably falls within the investigation arising from a charge,
courts consider (1) whether the claim arises from the same set
of facts that support the original charge and (2) whether the
claim advances the same theory of discrimination as the
original charge.

In Hicks, the plaintiff filed an EEOC charge alleging
only race discrimination, but later sued asserting, inter alia,
claims of both race discrimination and sex discrimination. 572
F.2d at 962–63. The EEOC investigated the race
discrimination claim but failed to investigate sex
discrimination. Id. Nevertheless, we held that the actual
EEOC investigation did not necessarily set the “outer limit” of
the scope of the civil complaint. Id. at 966. Such a limitation
would unfairly penalize a plaintiff for an “unreasonably narrow
or improperly conducted” investigation by the EEOC. Id.
Thus, the issue was whether a reasonable investigation would
include a sex discrimination claim.

We noted that certain instances of sex discrimination
alleged in Hicks’s civil complaint arose from the same conduct
that supported his race discrimination claims and that there was
evidence that the EEOC improperly failed to contact Hicks to
discuss his charge after it was filed. Id. On those grounds, we
remanded to the district court to determine “whether the . . .
investigation reasonably would have included examination of
the sex discrimination claims,” such that those claims did not

15
need to have been exhausted by filing a separate charge. Id. at
966, 970.

Waiters involved an investigation of retaliatory conduct
that went beyond the four corners of the EEOC charge.
Waiters filed a charge with the EEOC asserting a claim of sex
discrimination under Title VII against her employer, and over
a year later she filed a second charge alleging that the employer
retaliated against her for having submitted the earlier
complaint. Waiters, 729 F.2d at 235. After she filed the second
charge, Waiters was discharged. Id. at 236. Waiters did not
file a new charge based on her termination. Id. She then
brought suit in federal court alleging that she was discharged
in retaliation for exercising her rights under Title VII. Id.

The district court concluded that Waiters should have
filed another charge with the EEOC after she was discharged
and dismissed Waiters’s complaint for failure to exhaust
administrative remedies. Id. We reversed. While Waiters’s
second EEOC charge was limited to a specific instance of
retaliation, the EEOC investigation extended beyond that
individual allegation and uncovered a subsequent pattern of
retaliatory harassment by different officials. Id. at 235 n.2,
238. Although the post-charge retaliatory conduct involved
different officials and episodes of misconduct that occurred
over thirty months later, we held that “the core grievance—
retaliation—is the same and, at all events, it is clear that the
allegations of the appellant’s complaint fall within the scope of
the [EEOC’s] investigation of the charges contained in the . . .
[second EEOC] complaint.” Id. at 238. Thus, Waiters did not
need to file a separate charge regarding her new retaliatory
discharge claim. Id.

We reached a different conclusion, on different facts, in
Antol v. Perry. In that case, Antol filed a federal lawsuit
alleging both disability discrimination under the Rehabilitation
Act, 29 U.S.C. § 791 et seq., and gender discrimination under
Title VII for failure to hire. Antol, 82 F.3d at 1293. Although
Antol exhausted his remedies with respect to his claim of
disability discrimination, he never raised allegations of gender
discrimination at any point in the administrative proceedings
and the EEOC did not investigate gender discrimination. Id. at
1295. We concluded that “[t]he specifics of [Antol’s]

16
disability discrimination charge d[id] not fairly encompass a
claim for gender discrimination merely because investigation
would reveal that Antol is a man and the two employees who
received the positions [were] women.” Id. at 1296. In
addition, we determined that the EEOC investigation properly
focused on “the gravamen of Antol’s complaint—disability
discrimination” and that neither the EEOC nor the employer
had been put on notice of the new gender discrimination claim.
Id. Accordingly, Antol’s failure to exhaust administrative
remedies for his gender discrimination claim barred that claim.
Id.

Robinson is our most recent precedential opinion
addressing the exhaustion of claims arising from post-charge
events. There, we applied our fact-specific exhaustion inquiry
to a post-charge claim of retaliatory discharge. Robinson, 107
F.3d at 1024. Robinson filed three EEOC charges alleging
racial discrimination and retaliation against his employer, the
Navy, for denying him sick leave, placing him on unauthorized
leave status, and issuing him an “indebtedness letter” for taking
unapproved sick leave and creating an asbestos hazard. Id. at
1019, 1025. After Robinson filed these charges, the Navy
terminated his employment, pointing to his excessive
unauthorized absences and the asbestos hazard—the subject
matter of his prior charges—as the basis for his discharge. Id.
at 1019–20. Robinson then brought suit in federal court
claiming that he was discharged in retaliation for filing his
three charges. Id. at 1020. He did not file an additional charge
alleging retaliatory discharge and the EEOC did not investigate
his termination. Id. at 1025. The district court dismissed
Robinson’s complaint for failure to exhaust administrative
remedies. Id. at 1020. On appeal, we noted that the district
court had failed to examine the scope of the EEOC’s
investigation, and—as in Hicks—we remanded to determine
whether a reasonable investigation of Robinson’s charges
would have included his retaliatory discharge allegation. Id. at
1026.

We draw several principles from these precedents.
Most importantly, the original charge is the touchstone of our
exhaustion analysis. See, e.g., Antol, 82 F.3d at 1296 (focusing
on the “specifics of . . . [the] charge” in determining whether a
new claim is encompassed by the charge). First, we closely

17
examine the original charge’s contents to determine the
reasonable scope of the EEOC investigation that would likely
occur. See Robinson, 107 F.3d at 1024. Second, we parse the
later claim and determine whether its allegations would be
covered in that reasonable investigation. See Hicks, 572 F.2d
at 966. At bottom, we must compare the two sets of allegations
and evaluate whether they are sufficiently related such that a
reasonable investigation of the original charge would address
the subsequent, unexhausted claims. In comparing the two sets
of allegations, we look for factual similarities or connections
between the events described in the claims, the actors involved,
and the nature of the employer conduct at issue. See id. at 965
(noting that some instances of sex discrimination alleged in the
civil complaint “arise from the same acts which support claims
for race discrimination” described in the underlying charge).
Such factual overlap alone, however, does not guarantee that
the new allegations are encompassed by the original charge if
they do not fall within the “gravamen” of the initial charge. See
Antol, 82 F.3d at 1296 (rejecting the male plaintiff’s attempt to
recharacterize his disability discrimination claim for failure-to-
promote as a gender discrimination claim merely on the ground
that two women secured positions over him). But even if we
find no factual nexus, we may also consider whether the two
sets of allegations advance the same theory of discrimination,
as in Waiters. See 729 F.2d at 238.

With these principles in mind, we turn to the fact pattern
presented here. Unlike in Waiters, the additional allegations
that the EEOC investigated after it received the November
2014 correspondence were only tenuously related to the
substance of the original charge. Simko’s original EEOC
charge was based on the Transportation Department’s failure
to accommodate his hearing disability and its alleged
discrimination against him by its refusal to approve him for the
Spellman position in August 2012.10 By contrast, the

10
As the District Court noted, the fact that Simko’s
original charge of disability discrimination also alleged that his
“Walking Boss” made a discriminatory comment in November
2012 about his hearing impairment does not sufficiently
expand the effective scope of the original charge to include his
later retaliation claim. That specific allegation of disability

18
retaliation claim that Simko later filed in the District Court
alleges that his discharge from the Blast Furnace Department
in August 2014 was in retaliation for his filing of the original
discrimination charge.

The original EEOC charge and Simko’s civil complaint
thus address discrete adverse employment actions that
occurred approximately two years apart and involved different
supervisors in different departments. Under these facts, the
scope of a reasonable investigation arising out of Simko’s
initial charge would certainly include an inquiry into whether
Simko was qualified for the Spellman position, U.S. Steel’s
reasons for passing him over, and identification of the person
who secured the position and why he or she was chosen. While
such an investigation could also inquire into whether any other
adverse actions were taken against him relating to his disability
or his having filed a charge, a reasonable investigation in this
case would not have included an inquiry into Simko’s post-
charge firing. Simko’s allegations of retaliation are too remote
in time and substantively distinct from the allegations of
disability discrimination for a reasonable EEOC investigation
based on the original charge to encompass the later events.11
And, importantly, the original charge and complaint allege

discrimination is still too tenuously related in time and
substance to Simko’s retaliatory discharge claim.
11
Our dissenting colleague says that retaliation charges
are intrinsically related to previous charges of
discrimination. We do not disagree with this as a general
proposition, but the allegation that an adverse employment
action occurred in retaliation for the filing of an initial EEOC
charge does not necessarily mean that “a close nexus” of
supporting facts, Hicks, 572 F.2d at 967, or a common “core
grievance,” Waiters, 729 F.2d at 238, exist. We have only held
that unexhausted claims of retaliatory discharge fall within the
scope of the investigation reasonably arising out of the original
claim when the original claim included “the same retaliatory
intent inherent in the [subsequent] retaliatory discharge
claim.” Robinson, 107 F.3d at 1026; see also Waiters, 729
F.2d at 238 (“[T]he core grievance—retaliation—is the
same.”). We will not expand that exception to the exhaustion
requirement to cover such tenuously related conduct as in this
case.
19
different types of discrimination—in one, disability
discrimination and failure to accommodate and in the other,
retaliation. Absent “a close nexus” of supporting facts, Hicks,
572 F.2d at 967, or a common “core grievance,” Waiters, 729
F.2d at 238, we conclude that a reasonable investigation of
Simko’s original charge of disability discrimination would not
unearth facts about his allegations of retaliation nearly two
years later.

Our dissenting colleague cites the appropriate test
repeatedly: If discriminatory acts occur after a plaintiff files his
EEOC charge, he need not file an additional charge if the new
allegations are “fairly [or reasonably] within the scope of . . .
the investigation arising” out of the initial charge. Waiters, 729
F.2d at 237. As the dissent recognizes, in conducting this
inquiry, we ask whether the new claim should “reasonably
[have] be[en] expected to grow out of the [initial] charge.”
Ostapowicz, 541 F.2d at 399. However, the dissent fails to
consider the facts in light of the test. As we have done in the
other cases applying our exhaustion analysis, we must look at
the facts as they are alleged in the charge and the civil
complaint. And the facts here are unique.

What was the initial charge? Here, Simko claimed that
U.S. Steel denied him a reasonable accommodation for his
hearing disability and passed him over for a job because of that
same disability. The initial charge included no additional
instances of unlawful discriminatory treatment, other than an
allegation that some other employees made “negative
comments” about Simko’s hearing impairment. App. 34.
Unlike the plaintiff in Hicks, Simko did not later allege a
different theory of discrimination based on some of the same
underlying acts that supported his initial theory of
discrimination. And unlike in Waiters, Simko’s initial charge
of discrimination was not followed by subsequent instances of
the same type of unlawful treatment. As previously discussed,
our exhaustion analysis is tied to the substance of Simko’s only
timely-filed claim in this case: that he did not receive a
reasonable accommodation and was denied the Spellman job
due to his disability.

The only other operative fact, namely Simko’s
discharge, came to light over seventeen months after he

20
submitted the initial charge, when he alerted the EEOC that he
was fired in retaliation for filing the charge. But, would the
allegedly retaliatory firing have been included in an
investigation that could “reasonably be . . . expected to grow”
out of the facts surrounding his original charge of disability
discrimination, approximately two years prior? Ostapowicz,
541 F.2d at 399. There is no basis in fact or law for an answer
in the affirmative. As we noted above, the scope of a
reasonable investigation into Simko’s being passed over for a
job based on his disability would have involved a limited
inquiry. If we were to say that his later claim of retaliation was
encompassed by his—however distantly related—initial
charge of disability discrimination, we would be establishing a
de facto per se rule, contrary to our holdings in Waiters, 729
F.2d at 237 n.10, and Robinson, 107 F.3d at 1024.

The dissent urges that we should conclude Simko’s
post-charge retaliation claim was encompassed in his original
charge because his retaliation claim is strongly “tethered” to
his initial charge of disability discrimination and failure to
accommodate. Dissent Op. 15. We reject this conclusory
assertion. As relevant here, a “tether” actually exists only
when the allegations in the later charge would fall within the
reasonable scope of the investigation into the allegations of the
original charge. Simko’s situation fails that test. The dissent
glosses over the differences between the two very different
types of allegations in the initial charge and the civil complaint
and instead focuses on the fact that the EEOC actually
investigated and attempted to conciliate Simko’s retaliation
claim. Those ex-post facts do not determine the reasonable
scope of an EEOC investigation.

Even if our exhaustion inquiry turned on the actual—
rather than reasonable—scope of investigation arising from a
charge, Simko’s retaliation claim should still be dismissed.
That is because the investigation in this case did not actually
“aris[e]” from, Waiters, 729 F.2d at 237, or “grow out of,”
Hicks, 572 F.2d at 967, the underlying discrimination charge.
Critically, the EEOC failed to investigate Simko’s original
charge, and during the approximately thirty-month delay
between the filing of his original charge and the EEOC
investigator’s response to his November 2014 correspondence,
he experienced a change in circumstances that formed the basis

21
of a new, distinct claim. It was due only to that extended delay
and Simko’s handwritten November 2014 correspondence that
the EEOC learned of, and was able to investigate, Simko’s new
allegations while his original charge was still pending.

Thus, the EEOC investigation did not actually grow out
of the original charge. Instead, the investigation arose from
Simko’s handwritten correspondence. After apparently taking
no investigative action for over two years following its receipt
of the original 2013 charge, the EEOC commenced its
investigation only after an investigator read Simko’s
correspondence and sent Simko a letter inquiring about his
case. Significantly, that letter—dated November 23, 2015,
over a year after Simko’s November 2014 correspondence—
referenced only Simko’s retaliation allegations, further
demonstrating that the EEOC acted on the basis of the
November 2014 correspondence, not his original charge. As
we noted above, the EEOC file included a comment that an
amended charge was to follow, “including retaliatory
discharge.” App. 83. That amended charge, however, was not
timely filed.

Simko and the EEOC nevertheless urge that because the
EEOC ultimately did investigate the retaliatory discharge
claim, such an investigation must have been “reasonable,”
rendering it unnecessary to file an additional timely charge.
We disagree.

As the District Court observed, this case does not
involve an EEOC investigation that was unduly narrow, but
rather, one that extended beyond the face of the operative
EEOC charge. Contrary to Simko and the EEOC’s arguments,
however, we analyze claims excluded from an EEOC
investigation in the same way that we analyze claims included
in the investigation. Our focus remains on the investigation
that can “reasonably be expected to grow out of the charge.”
Ostapowicz, 541 F.2d at 399. This principle applies equally in
cases where the EEOC failed to investigate a claim, see, e.g.,
Robinson, 107 F.3d at 1025; Hicks, 572 F.2d at 966, and cases
where the EEOC broadened its investigation to cover claims
not included in the charge, see Waiters, 729 F.2d at 238.
Holding otherwise—that is, treating all investigated claims as
exhausted—would create a one-way ratchet. The EEOC’s

22
choice to investigate certain employer conduct would set the
bare minimum scope of a civil complaint while its failure to
investigate other conduct would not restrict the “outer limit” of
the complaint, Hicks, 572 F.2d at 966. Such a rule would
undermine the remedial aims of the pre-suit filing requirements
by permitting a charging party to “greatly expand an
investigation simply by alleging new and different facts when
he was contacted by the [EEOC] following his charge.” Id. at
967. Simko’s November 2014 correspondence did just that—
it introduced new allegations of retaliation based on facts
distinct from those alleged in his original charge.

Simko and the EEOC’s other arguments that his
retaliatory discharge claim fell within the scope of a reasonable
EEOC investigation are unpersuasive. They both contend that
EEOC investigations are entitled to a presumption of regularity
and that, in essence, we should “assume that the EEOC would
not expend time or resources investigating matters unrelated to
a pending charge.” EEOC’s Br. 24; see also Hicks, 572 F.2d
at 966. In support of this position, they point to EEOC internal
policies, reflected in the EEOC’s Compliance Manual, which
govern the scope of investigations and the circumstances in
which the EEOC may broaden an investigation. For example,
these policies direct investigators to remain alert to evidence of
retaliation during their investigations, inform their supervisors
in case such evidence surfaces, and notify the employer that
“the scope may be expanded or limited based on information
received during the investigation.” EEOC Compl. Man. §
22.3, Scope of Investigation, 2006 WL 4673367; see also
EEOC Compl. Man. § 2.8, Charges Warranting Priority
Handling, 2006 WL 4672924; EEOC Compl. Man. § 13.1,
Litigation for Temporary or Preliminary Relief: Introduction,
2006 WL 4673012.

In light of these practices and the presumption of
investigative regularity, Simko and the EEOC urge that it was
reasonable for the EEOC to broaden the investigation beyond
the four corners of the original charge and that Simko’s
retaliation claim therefore satisfies the second prong of the
exhaustion inquiry. We reject this argument on two grounds.
First, a rebuttable presumption of regularity does not foreclose
judicial review of the scope of EEOC investigations, as Simko
argues. See, e.g., Robinson, 107 F.3d at 1026 (remanding to

23
the district court to “evaluate the reasonableness of the decision
not to investigate”); Antol, 82 F.3d at 1296 (holding that the
investigation “quite properly” focused on Antol’s disability
discrimination claim). Here, the EEOC’s inaction for over two
years on Simko’s original charge is sufficient to rebut the
presumption that its subsequent investigation of Simko’s
charge was regular or reasonable.12

Second, the EEOC Compliance Manual does not
persuade us that a reasonable investigation of the original
charge in this case would have included the post-charge
retaliation allegations. We do not question the EEOC’s policy
that officials prioritize retaliation claims or inquire about
possible retaliation while investigating a discrimination
charge. Nor do we question that the EEOC often changes the
scope of investigations based on the information it gathers
during the investigative process. Nevertheless, the significant

12
We recognize that limited resources and the significant
volume of charges filed with the EEOC each year make some
amount of administrative delay inevitable. For example, in
Fiscal Year 2019 alone, the EEOC received 72,675 charges of
workplace discrimination. See Press Release, U.S. Equal
Employment Opportunity Commission, EEOC Releases Fiscal
Year 2019 Enforcement and Litigation Data (Jan. 24, 2020),
https://www.eeoc.gov/newsroom/eeoc-releases-fiscal-year-
2019-enforcement-and-litigation-data (last visited Mar. 26,
2021).
Nevertheless, two points of reference underscore that
the EEOC’s delay in this case was out of the ordinary. First,
under the ADA, a charging party must permit the EEOC a
minimum of 180 days to investigate and attempt to resolve his
dispute, only after which he may demand a right-to-sue letter
and proceed to federal court. See Occidental Life Ins. Co. of
California v. EEOC, 432 U.S. 355, 360–61 (1977); 42 U.S.C.
§ 2000e-5(f)(1). Second, according to the EEOC, the average
length of an investigation is approximately ten months. See
U.S. Equal Employment Opportunity Commission, What You
Can Expect After You File a Charge,
https://www.eeoc.gov/what-you-can-expect-after-you-file-
charge (last visited Mar. 26, 2021).
In this case, the agency’s delay in initiating its
investigation alone far exceeded both of these time periods.
24
differences between Simko’s original charge of disability
discrimination and his later claim of retaliatory discharge
foreclose the possibility that a reasonable investigation would
have reached his post-charge claim, even in light of the
EEOC’s own practices.13

Relatedly, we do not give more weight to these
arguments about exhaustion merely because the EEOC itself
has taken the position that a reasonable investigation would
have encompassed Simko’s retaliation claim. Courts refuse to
defer to the EEOC’s litigation position when, as here, it is “not
embodied in any formal issuance from the agency, such as a
regulation, guideline, policy statement or administrative
adjudication.” Gregory v. Ashcroft, 501 U.S. 452, 485 n.3
(1991) (White, J., concurring); see also Bowen v. Georgetown
Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to what
appears to be nothing more than an agency’s . . . litigating
position would be entirely inappropriate.”). Specifically, when
a district court considers whether a plaintiff has exhausted his
administrative remedies, “[n]o deference may be accorded the
EEOC or the complaint investigator’s finding with respect to
the plaintiff’s compliance.” McBride v. CITGO Petroleum
Corp., 281 F.3d 1099, 1105–06 (10th Cir. 2002). Accordingly,
we do not defer to the EEOC on the question of administrative
exhaustion.

Simko and the EEOC further assert that filing an
additional EEOC charge was not necessary in this case because
the purpose of the ADA statutory scheme was ultimately
fulfilled: namely, the facilitation of an informal dispute
resolution process between Simko and U.S. Steel. This
argument, however, ignores two other fundamental aims of the
exhaustion requirement: prompt notice to the employer and
swift dispute resolution. See, e.g., Morgan, 536 U.S. at 109
(“[B]y choosing what are obviously quite short deadlines,

13
The dissent characterizes what occurred after the EEOC
received the November 14 correspondence as the agency
“expanding” its investigation into Simko’s initial charge.
Dissent Op. 12. The EEOC did no such thing. There never
was a disability discrimination investigation in the first place.
Instead, the EEOC embarked on a discrete investigation into
retaliation based on the handwritten letter.
25
Congress clearly intended to encourage the prompt processing
of all charges of employment discrimination.” (internal
quotation marks omitted)); 42 U.S.C. § 2000e-5(b), (e)(1)
(requiring that the EEOC serve notice on the employer against
whom the charge is made within 10 days of the filing of the
charge). In addition to advancing those goals, the Supreme
Court has emphasized that “strict adherence” to the ADA’s
procedural requirements “is the best guarantee of evenhanded
administration of the law.” Morgan, 536 U.S. at 108 (quoting
Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).

While the EEOC did ultimately investigate and attempt
pre-complaint conciliation between Simko and U.S. Steel, this
process was significantly delayed. Critically, U.S. Steel did
not receive any notice of Simko’s retaliation claim until well
after the end of the 300-day filing period. The parties agree
that U.S. Steel was informally notified of Simko’s retaliation
allegations no earlier than November 23, 2015—the day of the
EEOC investigator’s note to Simko’s file—and no later than
December 18, 2015—the day of the investigator’s letter to
Simko’s counsel stating that he had informed U.S. Steel about
the amended charge to be filed. This means that U.S. Steel did
not receive even informal notice of the retaliatory discharge
claim until some point between 161 days and 186 days after
the filing period expired. Moreover, U.S. Steel was not
formally put on notice of the retaliatory discharge claim until
after Simko’s counsel filed his amended EEOC charge on
January 22, 2016, 221 days after the end of the filing period.
Given this timeline, excusing the exhaustion requirement for
Simko’s retaliation claim would undercut the Supreme Court’s
emphasis on “strict adherence” to the pre-suit requirements and
the statutory scheme’s aims of notice and prompt dispute
adjudication. See Morgan, 536 U.S. at 108–09.

We thus conclude that Simko’s subsequent retaliation
claim would not have fallen within the reasonable scope of an
EEOC investigation into his original discrimination charge.
Accordingly, his retaliation claim fails the second prong of the
exhaustion inquiry.

While it is unfortunate that Simko did not timely amend
his initial charge on his own and that the EEOC did not
promptly react to his November 2014 correspondence, we

26
cannot hold that the later claim is encompassed within the
initial charge because Simko’s retaliatory discharge claim does
not fairly, or reasonably, fall within the scope of his original
charge or an EEOC investigation that would arise therefrom.
Thus, he needed to file an amended charge advancing that
claim within the ADA’s 300-day filing period. Because he
failed to do so, the District Court correctly dismissed his
complaint for failure to exhaust administrative remedies.

IV. CONCLUSION

For the foregoing reasons, we will affirm the
District Court’s dismissal of Simko’s complaint.

27
McKEE, Circuit Judge, concurring in part and dissenting in
part.

A petitioner need not file a new formal charge with the
Equal Employment Opportunity Commission if that charge is
“within the scope of a prior EEOC complaint or the
investigation which arose out of it.”1 I must respectfully dissent
from the Majority opinion because the EEOC investigation of
Simko’s retaliation claim was reasonably within the scope of
the investigation arising out of Simko’s initial disability
discrimination claim. Thus, Simko’s retaliation claim related
back to his earlier timely disability discrimination claim and
the District Court erred in dismissing Simko’s retaliation claim
for failure to exhaust his administrative remedies.2

I.

In Pennsylvania, “a complainant has 300 days from the
date of the adverse employment decision to file a claim with
the [EEOC].”3 “The purpose of [the filing requirement] . . . is
to afford the EEOC the opportunity to settle disputes through
conference, conciliation, and persuasion, avoiding unnecessary
action in court.”4

1
Waiters v. Parsons, 729 F.2d 233, 235 (3d Cir. 1984).
2
I agree with my colleagues’ decision to dismiss the first two
claims raised by Simko and the EEOC. Simko’s strongest
argument would have been that his November 2014 letter to
the EEOC should have been construed as a formal EEOC
charge of retaliation. However, that argument has been
forfeited because Simko did not raise it before the District
Court. See Maj. Op. at 8–10. I agree with my colleagues that
the District Court’s cursory, sua sponte consideration of the
issue—which simply noted that the letter did not constitute a
charge and that Simko did not argue otherwise—is
insufficient to preserve the issue. Id. at 9–10. We also cannot
reach the EEOC’s claim that the court should have equitably
tolled the charge-filing period during the time after Simko
sent his November 2014 letter to the EEOC because the claim
was not included in Simko’s notice of appeal. See id. at 10.
3
Watson v. Eastman Kodak Co., 235 F.3d 851, 852 (3d Cir.
2000).
4
Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996).
1
 If, after a petitioner files a claim, subsequent
discriminatory acts occur, the petitioner does not need to file a
new formal charge with the EEOC so long as the new
allegations “fall[ ] within the scope of a prior EEOC complaint
or the investigation which arose out of it.”5 This “includ[es]
new acts which occurred during the pendency of proceedings
before the Commission.”6 This is quite reasonable because
“additional charges filed during the pendency of the
administrative proceedings may fairly be considered
explanations of the original charge and growing out of it.”7

Moreover, we liberally construe the scope of an EEOC
complaint when considering whether a subsequent claim falls
within the ambit of an earlier claim: “In determining the
content of the original complaint for purposes of applying
[relation back], we keep in mind that charges are most often
drafted by one who is not well versed in the art of legal
description. Accordingly, the scope of the original charge
should be liberally construed.”8 Indeed, that is precisely the
situation here. The letter that led to the EEOC’s eventual
investigation was handwritten by Simko, a lay plaintiff with no
legal training or experience. We have also previously
concluded that where the petitioner “attempted to amend his
[EEOC] charge,”9 but failed to do so, he could still bring a civil
action based on the charge that he attempted to include. Even

5
Waiters, 729 F.2d at 235 (emphasis added); see also id.
(“Since we conclude that appellant’s current claim falls
within the scope of the prior investigation, and that appellant
would be entitled to sue on the complaint that led to that
investigation, appellant was free to bring this suit without
further exhausting her administrative remedies.”).
6
Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398–99
(3d Cir. 1976). See also Robinson v. Dalton, 107 F.3d 1018,
1025 (3d Cir. 1997) (describing that even where an
investigation was “broadened by the EEOC” and included
“events that occurred after the filing of the informal
complaint,” we concluded “there was nothing to be served by
requiring [claimant] to file a second complaint”).
7
Ostapowicz, 541 F.2d at 399.
8
Hicks v. ABT Assocs., Inc., 572 F.2d 960, 965 (3d Cir.
1978).
9
Id. at 964.
2
a failed attempt to amend a charge “create[d] an excuse for the
failure to file a[n amended] charge.”10

We have established two factors to determine if a claim
of discrimination relates back to a prior claim. We look to see
whether the subsequent claim “(1) falls within the scope of a
prior EEOC complaint, or (2) falls within the scope of the
EEOC ‘investigation which arose out of it.’”11 The first inquiry
is determined by the face of the complaint itself. To resolve the
second inquiry, we look at the content and results of the EEOC
investigation to determine if the new claim should “reasonably
[have] be[en] expected to grow out of the [initial] charge.”12

Here, Simko timely filed a disability discrimination
claim against U.S. Steel.13 While that claim was pending before
the EEOC, he was fired.14 He subsequently wrote to the EEOC
detailing his belief that he was fired in retaliation for filing his
initial discrimination claim. He wrote, “I believe anyone who
familiarizes themself [sic] with the details of the case will
clearly see it as retaliation for filing charges with the EEOC.”15
The EEOC then expanded the disability discrimination
investigation to include retaliation.16 The EEOC notified U.S.

10
Id.
11
Robinson, 107 F.3d at 1025 (citing Waiters, 729 F.2d at
235).
12
Ostapowicz, 541 F.2d at 399. Some claims that were not
presented to the EEOC at all may still proceed in District
Court because we have held that the actual EEOC
investigation does not necessarily “set[] the outer limit to the
scope of the civil complaint.” Hicks, 572 F.2d at 966. We
have allowed some of these unexhausted claims to proceed so
as not to punish the claimant for a failure of the EEOC. We
have concluded that “[i]f the EEOC’s investigation is
unreasonably narrow or improperly conducted, the plaintiff
should not be barred from his statutory right to a civil action.”
Id.
13
App. 33.
14
App. 25.
15
App. 80–81.
16
App. 84.
3
Steel, investigated the claim, found evidence of retaliation, and
attempted to conciliate the claim.17

Simko concedes that his initial complaint alleged only
disability discrimination and did not include a charge of
retaliation.18 Accordingly, we must determine whether the
retaliation claim could “reasonably [have] be[en] expected to
grow out of the [initial disability discrimination] charge.”19 As
I explain below, a number of factors govern that
reasonableness inquiry. These include the normal course of
EEOC investigations, whether the petitioner attempted to
amend the claim to include the additional charge, and whether
the claim was actually investigated.

My colleagues’ analysis of the reasonableness of the
scope of the EEOC’s investigation is guided by four cases:
Hicks, Waiters, Antol, and Robinson.20 In each of these cases,
we considered whether claims that petitioners brought for the
first time before the District Court (and that had not been filed
with the EEOC) could relate back to earlier discrimination
claims that each petitioner had properly filed with the EEOC.
Each petitioner in those cases claimed that the new charge s/he
filed related back to the earlier-filed charge. Below, I discuss
some the principles that we can take from these cases. While
these cases are instructive, I realize that none of them
addressed the issue before us now—whether an EEOC
investigation was too broad and thus unreasonable such that an
actually investigated claim should be prevented from
proceeding in District Court. I do not believe that the facts here
justify concluding that the EEOC’s investigation was
unreasonably broad.

Indeed, we have cautioned that, in conducting an
inquiry into reasonableness, “[t]he individual employee should
not be penalized by the improper conduct of the

17
App. 106; App. 112–17.
18
This, however, of course is true with any charge alleging
retaliation for filing a substantive discrimination charge
because the discrimination charge must predate the
retaliation.
19
Ostapowicz, 541 F.2d at 399.
20
See Maj. Op. at 15–18.
4
Commission.”21 We have also reaffirmed the “sound and
established policy that procedural technicalities should not be
used to prevent Title VII claims from being decided on the
merits.”22 In short, errors by the EEOC should not affect a
claimant’s ability to pursue his or her claim.

II.

The petitioner in Hicks brought a claim before the
District Court alleging race and sex discrimination even though
he had only filed a race discrimination charge with the EEOC.
The District Court concluded that it did not have “jurisdiction
over Hicks’s claims of sex discrimination because a charge of
such discrimination had not been filed with the EEOC.”23 We
reversed. We held that Hicks’ failure to formally file a sex
discrimination charge with the EEOC did not “preclude[]
jurisdiction over the sex discrimination claims.”24 That holding
was based upon two considerations. First, there was evidence
that Hicks “reasonably attempted to amend his charge to
include sex discrimination” but the EEOC erred in failing to
amend the claim.25 This, we found, “create[d] an excuse for the
failure to file a sex discrimination charge”26 regardless of
whether Hicks attempted to amend the charge within the
statutory filing period.27

Second, we concluded that there was a genuine issue of
material fact as to whether a properly conducted EEOC
investigation would have included an inquiry into sex

21
Hicks, 572 F.2d at 964–65.
22
Seredinski v. Clifton Precision Prods. Co., 776 F.2d 56, 65
(3d Cir. 1985) (quoting Gooding v. Warner-Lambert Co., 744
F.2d 354, 358–59 (3d Cir. 1984)).
23
Hicks, 572 F.2d at 963.
24
Id. at 964.
25
Id.
26
Id.
27
Id. (“The record does not indicate whether the attempt to
incorporate sex discrimination in the EEOC charge was made
within the required 180-day statutory period. Our resolution
of the amendment issue in this case does not depend on
whether the amendment would have been filed within that
time period.”).
5
discrimination. Hicks alleged that he was not contacted by the
investigator until the conclusion of the investigation.28 There
was “sufficient evidence to raise a fair inference that Hicks
would have told the EEOC investigator that he believed that
sex discrimination was a cause of the disparate treatment
alleged in his charge” had he been contacted earlier.29

We concluded that if, on remand, the District Court
found either that (1) “the EEOC improperly failed to accept an
amendment to Hicks’s charge which would have incorporated
sex discrimination” or (2) “a reasonable investigation of the
charge as filed would have encompassed the sex discrimination
claims” we would have jurisdiction over the sex discrimination
claim.30

As part of the inquiry into whether “the sex
discrimination claims [] would have been uncovered” we noted
that “there [wa]s a close nexus between the facts supporting the
claims of race and sex discrimination,”31 which increased the
likelihood that they would have been uncovered. We also noted
that “evidence of the investigatory practices of the agency”
would help us “conclude whether a reasonable inquiry would
have reached Hicks’s allegations.”32

The petitioner in Waiters filed a sex discrimination
claim with the EEOC alleging that she had been passed over
for a position in favor of a male applicant.33 One year later, she
filed a second claim with the EEOC alleging that her employer
had retaliated against her for filing that claim a year earlier.34
The EEOC investigated the claim and found that there was
support for Waiters’ allegations, but then the investigation was

28
Id. at 966.
29
Id.
30
Id. at 967.
31
Id.
32
Id. In Hicks we noted that we did not have such evidence
before us, so we could not consider whether the EEOC’s
investigatory practices supported an assertion of jurisdiction
over the unexhausted claim. Id. Fortunately, as my colleagues
note, we have the benefit of the EEOC’s guidance here.
33
Waiters, 729 F.2d at 235.
34
Id.
6
dropped: “no further action was taken by the EEOC, [the]
claim was never finally adjudicated by the agency, and no right
to sue letter ever issued.”35 Waiters continued to work at the
same employer, but in a different department on a different
program. Approximately two years later, while working on the
new program, she was fired.36 Her employer alleged
misconduct unrelated to the conduct that her prior retaliation
claim was based upon.37 Rather than filing another retaliation
claim with the EEOC, she sued in District Court alleging that
she had been fired in retaliation for filing her discrimination
claims with the EEOC.38

The District Court dismissed her action based on her
failure to file a second retaliation charge with the EEOC
specifically related to her discharge. We again reversed. We
held that she need not have filed another retaliation claim even
though years had passed since her prior claim and “the
allegedly discriminatory officials and acts [in her prior claim
we]re different” than the officials and acts that were the subject
of her retaliation claim filed in the District Court.39 We held
that even though the actors, acts, and departments were
different, “[w]here discriminatory actions continue[d] after the
filing of an EEOC complaint . . . the purposes of the statutory
scheme [we]re not furthered by requiring the victim to file
additional EEOC complaints.”40 Our reasoning rested upon
two considerations. The “core grievance—retaliation—[wa]s
the same” between Waiters’ new and prior charges. And “it
[wa]s clear that the allegations of the appellant’s complaint
f[e]ll within the scope of the [EEOC’s] investigation of the
charges.”41 In other words, we found it relevant that the EEOC
had already actually investigated retaliation against Waiters.

The Majority focuses on two aspects of our decisions in
Hicks and Waiters—the “close factual nexus” in Hicks, and the
similarity of the substantive discrimination charges in

35
Id.
36
Id. at 236.
37
Id.
38
Id.
39
Id. at 238.
40
Id. at 237.
41
Id. at 238.
7
Waiters—and concludes that one or both of these factors must
be present in order for a subsequently filed claim to relate
back.42 But, as I discuss below, neither opinion made either
factor a prerequisite, and in so concluding, the Majority ignores
other considerations that we found relevant to the relation back
analysis in those decisions.

Several principles, in addition to those discussed by the
Majority, emerge from Hicks and Waiters. First, there are
multiple ways in which a petitioner can demonstrate that an
unexhausted claim is reasonably within the scope of an earlier-
filed claim. As my colleagues recognize, a subsequent claim of
discrimination or retaliation may reasonably relate back to an
earlier-filed charge of discrimination if the filed and unfiled
claims share a close factual nexus. But Hicks also establishes
that “evidence of the investigatory practices of the agency” are
relevant to our reasonableness determination.43 Stated another
way, evidence from the agency itself, such as EEOC guidance
showing that a properly conducted EEOC investigation would
or should have reached the unexhausted claim, can help a
petitioner establish that the unexhausted claim relates back to
a properly filed claim.

In addition, as my colleagues note, we consider whether
a prior and subsequent claim of discrimination share the same
core grievance in determining if a subsequent claim relates
back to the prior claim. But we also look to see whether the
EEOC actually investigated the unexhausted claim. The fact
that the EEOC’s investigation of the charges include the
substance of the unexhausted claim helps to establish that the
claim reasonably fell within the scope of the prior complaint.44
Finally, if a petitioner attempts to amend a charge and the
EEOC erroneously fails to recognize the amendment, a
petitioner may be excused from filing a new charge with the

42
See Maj. Op. at 20.
43
Hicks, 572 F.2d at 967.
44
Waiters, 729 F.2d at 238 (concluding that the unexhausted
claim was within the scope of the previous complaint in part
because “it [wa]s clear that the allegations of the [District
Court] complaint f[e]ll within the scope of the [EEOC’s]
investigation of the charges”).
8
EEOC before bringing his or her claim before the District
Court.45

Our holding today is inconsistent with our approach in
Hicks and Waiters. Moreover, my colleagues overlook that we
have not previously held that a claim that was actually
investigated by the EEOC was not reasonably within the scope
of the initial charge that gave rise to the investigation.
Although I agree that we can review the reasonableness of a
completed EEOC investigation, I do not think my colleagues
give sufficient weight to the fact that the EEOC actually
investigated and attempted to conciliate Simko’s retaliation
claim in determining the reasonableness of that investigation.
Given our analysis in Hicks and Waiters, I am persuaded that
the investigation here was reasonable and the investigation’s
scope should not be viewed as unreasonable merely because of
the delay that occurred.46
III.

Because “the EEOC has considerable expertise in the
area of employment discrimination,”47 I am not as willing as

45
Hicks, 572 F.2d at 967.
46
In other cases, we have emphasized the importance of the
EEOC actually having investigated the claim at issue. For
example, in Ostapowicsz, we found vital that “conciliation
discussions and proposals . . . between the Commission and
the employer” included the new charge that was at issue
there. 541 F.2d at 399. We noted that had the new charge at
issue not been included in the investigation and conciliation
efforts, “there would be some force to the defendant’s
contention that Ostapowicz could not bring herself within the
scope of the EEOC charge.” Id. But because the new charge
was included in the conciliation efforts, we allowed it to
proceed. Similarly, in Waiters, we found it persuasive that
“the allegations of the [] complaint f[e]ll within the scope of
the [EEOC’s] investigation of the charges.” 729 F.2d at 238.
47
Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir.
2005); see also, e.g., Butler v. West, 164 F.3d 634, 642 (D.C.
Cir. 1999) (The EEOC has “a measure of expertise and
familiarity with employment discrimination disputes that
federal judges cannot readily match.”); Muller Optical Co.
v. EEOC, 743 F.2d 380, 395 (6th Cir. 1984) (“[T]he EEOC
9
my colleagues to brush aside the EEOC’s own conclusion that
it was reasonable to include the subsequent acts of retaliation
in its investigation.

This is particularly true when we consider that we
liberally construe claims for the purpose of relation back.48 In
addition, “[c]ourts have generally determined that the
parameters of the civil action in the District Court are defined
by the scope of the EEOC investigation . . . including new acts
which occurred during the pendency of proceedings before the
Commission.”49 It is also important to recall that we “presume
the regularity of the EEOC’s investigation.”50 We should not
lightly conclude that the EEOC’s commitment of resources and
time to an investigation into discrimination was unreasonable.

Accordingly, since the EEOC actually investigated
Simko’s retaliation claim, we must begin with the presumption
that the investigation was reasonable. And because “evidence
of the investigatory practices of the agency” are relevant to
determining “whether a reasonable inquiry would have reached
[any additional] allegations,”51 we must also consider the
EEOC’s general practices. These practices offer further
support for the reasonableness of the investigation here.

As the Majority recognizes, EEOC investigators are
told to look for “evidence of retaliation during their
investigations, inform their supervisors in case such evidence
surfaces, and notify the employer that ‘the scope may be
expanded or limited based on information received during the
investigation.’”52 Indeed, the EEOC Manual states that “if it is

has developed considerable expertise in the field
of employment discrimination since Congress created it by
the Civil Rights Act of 1964.”); Maskin v. Chromalloy Am.
Corp., 1986 WL 4481, at *13 (E.D. Pa. Apr. 14, 1986)
(“The EEOC has special expertise in investigating charges of
discrimination, and its expertise should not be ignored.”).
48
Hicks, 572 F.2d at 965.
49
Ostapowicz, 541 F.2d at 399–400.
50
Hicks, 572 F.2d at 966.
51
Id. at 967.
52
Maj. Op. at 23 (citing EEOC Compl. Man. § 22.3, Scope of
Investigation).
10
found during the investigation that the charging party has been
discriminated against because s/he filed the charge, [the]
EEOC may investigate the retaliation issue based on the
original charge.”53 Yet, my colleagues dismiss the importance
of this statement in the Manual by focusing on the differences
in the initial allegations of discrimination and the subsequent
allegations of retaliation.54

I submit, however, that the EEOC’s policy is eminently
reasonable because even a minimally well-informed employer
in today’s marketplace knows better than to admit that an
employee was terminated in retaliation for filing a claim of
discrimination. As we explained in Aman v. Cort Furniture
Rental Corp.,55 “[d]efendants of even minimal sophistication
will neither admit discriminatory animus or [sic] leave a paper
trail demonstrating it.”56 All we need do is substitute
“retaliatory animus” for “discriminatory animus” to appreciate
the reasonableness of the EEOC’s policy and the scope of its
investigation.

Neither party disputes that Simko’s initial disability
discrimination charge in May 2013 was timely. While it was
still pending before the EEOC, U.S. Steel fired Simko
allegedly for unrelated reasons.57 In November 2014, a few
months after being fired, while the disability discrimination
charge was still pending before the EEOC, Simko wrote to the
EEOC stating his belief that he was fired “as retaliation for
filing charges with the EEOC.”58 Simko’s timely filed initial

53
See EEOCCM, § 2.8 Charges Warranting Priority
Handling, 2006 WL 4672924 (emphasis added).
54
See Maj. Op. at 24–25.
55
85 F.3d 1074 (3d Cir. 1996).
56
Id. at 1082 (quoting Riordan v Kempiners, 831 F.2d 690,
697 (7th Cir. 1987)) (internal quotation marks omitted).
57
The mere fact that U.S. Steel claimed Simko was fired for
job performance is of little import for the reasons articulated
in Cort Furniture, supra.
58
App. 80–81. As noted above, I agree with my colleagues
that Simko’s argument that the November 2014
correspondence should have been construed as a charge was
forfeited because counsel failed to raise it below. See Maj.
Op. at 8–10. But, the procedural default aside, as the EEOC
11
disability discrimination claim, therefore, is the alleged basis
of the retaliation claim. It is difficult to see how the retaliation
claim cannot be said to have, at least in part, grown out of the
original charge. Absent the initial charge of discrimination,
there would be no basis for the retaliation.

As is regular practice at the EEOC, and as is explicitly
contemplated by the EEOC guidance, an EEOC investigator
wrote back to Simko and contacted U.S. Steel in November
2015 to inform U.S. Steel that it was expanding its
investigation into retaliation and that a formal retaliation
charge was forthcoming.59 The EEOC investigated the
retaliation claim on-site at U.S. Steel in September 2018.60 And
in February 2019, the EEOC determined that there was
reasonable cause to believe U.S. Steel had retaliated against
Simko.61

Having actually investigated and attempted to conciliate
the retaliation claim, the EEOC fulfilled the purpose of the
exhaustion requirement. We have previously stated that the
“purpose of the filing requirement is to enable the EEOC to
investigate and, if cause is found, to attempt to use informal
means to reach a settlement of the dispute.”62 That happened
here. U.S. Steel was a part of the EEOC’s investigation of the
retaliation claim, including when the EEOC made a site visit.63
U.S. Steel therefore was on notice of the investigation, invited
to conciliate, and understood that it was facing a retaliation
charge before Simko brought suit in District Court.

All of these factors demonstrate the reasonableness of
the investigation here and would do so even absent the
presumption of reasonableness which attaches that

itself recognizes, the agency very likely erred in failing to
construe the correspondence as a formal charge.
59
App. 83.
60
App. 106.
61
A112–14.
62
Maj. Op. at 11 (citing Anjelino v. New York Times Co., 200
F.3d 73, 93 (3d Cir. 1999)).
63
App. 106.
12
investigation.64 Accordingly, “there [is] nothing to be served
by requiring [Simko] to [have] file[d] a second complaint”65
other than allowing U.S. Steel to escape any liability for
conduct that Simko may be able to prove is illegal. Doing so
undermines the statutory purpose and regulatory scheme of the
EEOC. Because Simko’s “current claim falls within the scope
of the prior investigation, and [he] would be entitled to sue on
the complaint that led to that investigation, [Simko] was free
to bring this suit without further exhausting h[is]
administrative remedies.”66

IV.

The Majority concludes that despite the fact that the
EEOC actually investigated and attempted to conciliate the
claim, it does not relate back to the initial disability charge
because it referenced events that were discrete and remote from
the events referenced in the initial charge.67 But we have
previously rejected similar arguments and concluded that
claims may relate back even where they are based on discrete
events, occurring years apart.

In Waiters, 30 months elapsed between the initial
charge and the adverse employment action, but we concluded
that the claims related back. Just as U.S. Steel and the Majority
argue here, the defendant there argued that the original charge
and the retaliation claim were very different—“different
officials are alleged to be responsible for the allegedly
discriminatory acts, more than thirty months passed between
the formal complaint and the discharge, and the alleged
retaliatory acts are of a different nature.”68 The defendant
therefore argued that this “preclude[d] us from holding that the
claim based on the discharge is within the scope of the
investigation that arose from the formal complaint.” 69 We
disagreed. We allowed the claim to proceed because “it [wa]s

64
Hicks, 572 F.2d at 966 (“[C]ourts should presume the
regularity of the EEOC’s investigation.”).
65
Robinson, 107 F.3d at 1024–25.
66
Waiters, 729 F.2d at 235.
67
See Maj. Op. at 18–20.
68
Waiters, 729 F.2d at 238.
69
Id.
13
clear that the allegations of the appellant’s complaint fall
within the scope of the district director’s investigation of the
charges.”70 This was true even where “[t]he investigation
clearly went beyond the specific problem alleged in the formal
complaint.”71 So too here. Through no fault of Simko, the
EEOC delayed investigating his claims—and, to its substantial
credit, the EEOC concedes its error in delaying the
investigation of Simko’s claim. Nevertheless, the retaliation
claim was eventually part of the agency’s investigation and
U.S. Steel participated in the investigation and conciliation
process.

The Majority also argues that the claims cannot relate
back because disability discrimination is substantively
different from retaliation. But we have previously concluded
that claims that differ in kind may also relate back so long as
they reasonably would have been included in the investigation
of the initial charge. As described above, in Hicks we
concluded that a charge of sex discrimination could relate back
to a charge of race discrimination because, had the EEOC
properly investigated the claim, the petitioner would have put
the EEOC on notice of sex discrimination as well.72 Simko’s
claims are connected with a much stronger tether than those in
Hicks. Simko did communicate with the EEOC and put the
agency on notice of the retaliation claim—a claim that was
actually investigated. And although the court in Hicks noted
that part of the reason it concluded the claims could relate back
was because both the sex and race discrimination claims arose
out of the same set of facts, here there is more to support the
reasonableness of the investigation than was present in Hicks.
Simko’s retaliation claim was actually investigated by the
EEOC; moreover, the EEOC guidance instructs that
investigations into retaliation arising out of discrimination
claims are a normal part of the process and relate back to the
initial charge of discrimination; and finally, the contemplated
administrative process was fulfilled when Simko and U.S.

70
Id. (emphasis added).
71
Id. See also Ostapowicz, 541 F.2d at 399 (“The additional
charges filed during the pendency of the administrative
proceedings may fairly be considered explanations of the
original charge and growing out of it.”).
72
Hicks, 572 F.2d at 962.
14
Steel were involved in the investigation and conciliation
process. As noted, “[t]he purpose of the filing requirement is
to initiate the statutory scheme for remedying discrimination. .
. . Thus, the effect of the filing requirement is essentially to
permit the EEOC to use informal, non-judicial means of
reconciling the differences between the charging party and an
employer.”73

Additionally, as I have argued above, we must not lose
sight of the fact that claims of retaliation are intrinsically
tethered to claims of discrimination; they rarely arise in a
vacuum or in an environment devoid of claims of
discrimination. Indeed, this is precisely why the EEOC’s
policy of allowing investigations into substantive
discrimination to include allegations of retaliation is so
eminently reasonable. In fact, a contrary policy that would
preclude or discourage inquiries into whether an employee
alleging discrimination had suffered retaliation would be
unreasonable.

The Majority argues that considering the facts of
Simko’s disability discrimination claim in light of the
appropriate test demonstrates that any tether it has to the
retaliation claim is “conclusory” and does not “actually
exist[].”74 But in so arguing, my colleagues appear to ignore
the clear connection between the two claims. Simko’s
allegation that he was fired in retaliation for filing a disability
discrimination claim means that his disability discrimination
claim is both a factual and legal basis for his retaliation claim.
Stated differently, his claim alleges that but for his filing of a
disability discrimination claim, he would not have faced the
allegedly retaliatory discharge. Such a connection between the
claims is hardly “conclusory.”75 As I explain below, I agree

73
Id. at 963 (citing Ostapowicz, 541 F.2d at 398.)
74
Maj. Op. at 21.
75
Curiously, on the one hand, the Majority agrees with the
“general proposition” that “retaliation charges are
intrinsically related to previous charges of discrimination,”
Maj. Op. at 19 n.11, and it notes that a reasonable
“investigation could [] inquire into whether any other adverse
actions were taken against [Simko] relating to his disability or
his having filed a charge,” id. at 19 (emphasis added), but, in
15
with the Majority that, due to our prior rejection of a per se rule
which would have made all retaliation claims automatically
relate back to the earlier claim upon which they were based,76
a petitioner must show more than the simple fact that he or she
filed a subsequent retaliation claim in order to be excused from
having to file a second formal charge with the EEOC. But
Simko has shown much more than that here.

Concluding that Simko’s retaliation claim relates back
here would not run afoul of our prior rejection of such a per se
rule. It is not true that all such cases will evidence the apparent
nexus between a prior discriminatory act and a subsequent
discharge that appears here. Here it is not simply the fact that
Simko alleged retaliation before the District Court that causes
his claim to relate back. He attempted to amend his claim to
include retaliation; he put the EEOC on notice that he
suspected retaliation was the reason for his firing; and, of
course, the EEOC actually investigated the retaliation claim,
issued a right to sue letter, and attempted to conciliate the
claim. All of these are factors which we have previously
concluded support the reasonableness of allowing an
unexhausted claim to proceed.77 The fact that Simko is alleging

the same sentence, concludes that “a reasonable investigation
in this case would not have included an inquiry into Simko’s
post-charge firing.” Id. But if a reasonable inquiry could
inquire into “[Simko] having filed a charge,” and Simko
alleges that his having filed a charge is what caused his firing,
then a reasonable inquiry would necessarily include “an
inquiry into his post-charge firing.” That is what our
precedent says. See, e.g., Ostapowicz, 541 F.2d at 398-99
(Reasonable investigations may “includ[e] new acts which
occurred during the pendency of proceedings before the
Commission.”). And that is what the EEOC concluded when
it investigated the post-charge firing and found that Simko
was likely retaliated against.
76
See Maj. Op. at 13, 21 (citing Robinson, 107 F.3d at 1024,
and Waiters, 729 F.2d at 237 n.10).
77
Indeed, as the following two examples demonstrate, there
are other reasons why allowing Simko’s claim to relate back
here would not create a per se rule. For example, consider the
situation of a petitioner who files a timely race discrimination
claim with the EEOC, but later brings a retaliation claim
16
a retaliation claim (as opposed to another type of
discrimination claim) before the District Court only provides
one added benefit—because EEOC investigators are
specifically instructed to be alert to retaliation claims, the fact
that he alleges retaliation makes it more reasonable to conclude
that the investigation the agency conducted into the retaliation
was proper. But, of course, not every litigant claiming

before the District Court that was not brought before the
EEOC. If, prior to filing in District Court, the petitioner (i)
made no attempt to amend her claim to include retaliation; (ii)
did not notify the EEOC that she suspected she was retaliated
against for filing the race discrimination claim; and (iii) the
EEOC did not actually investigate retaliation; the only tie to
the prior race discrimination claim would be the fact that the
new claim before the District Court was a retaliation claim.
Although, as described above, there is some inherent
connection between a retaliation claim and the substantive
discrimination claim on which it is based, consonant with our
rejection of a per se rule, this, on its own, would not be
sufficient to show that the claim was “within the scope of a
prior EEOC complaint or the investigation which arose out of
it,” Waiters, 729 F.2d at 235, and therefore, petitioner’s claim
would fail.

Additionally, consider the situation in which an
employee alleges that she was retaliated against for
supporting her colleague’s disability discrimination claim.
This retaliation claim would not relate back to, for example, a
prior sex discrimination claim that the employee herself filed.
It would not relate back because the retaliation claim would
not have “grown out of the subject matter” of her earlier sex
discrimination claim. That retaliation claim would not depend
at all on the employee having first filed her sex discrimination
claim. Rather, the basis from which this retaliation claim
flowed would have been her support of her colleague’s
disability discrimination claim. By contrast, here, because the
retaliation is based on Simko’s own filing of a disability
discrimination claim in his case, it does arise, at least in part,
out of the subject matter of the initial charge. This, coupled
with Simko’s case specific circumstances outlined above, is
enough to show that the retaliation claim is properly within
the scope of the investigation of Simko’s initial charge.
17
retaliation will be able to point to all of these additional factors
in support.78

Nevertheless, my colleagues press even further in
rejecting the argument raised by Simko and joined by the
EEOC that the retaliation claims relate back. My colleagues
conclude that “[e]ven if our exhaustion inquiry turned on the
actual—rather than reasonable—scope of investigation arising
from a charge, Simko’s retaliation claim should still be
dismissed[.]”79 They argue that result must follow because the
investigation did not actually arise from the disability
discrimination charge. Rather, my colleagues conclude that the
investigation arose from Simko’s November 2014 letter to the
EEOC.80 However, based on our precedent and the actual
workings of EEOC investigations, that is a distinction without
difference. I have already explained that EEOC investigators
are instructed to look for retaliation in their investigations of
substantive discrimination claims and also explained why that
is so very reasonable. Communication with the petitioner
during the course of the investigation is a routine and necessary
part of such investigations. In fact, we held that the EEOC
erred when it failed to communicate with the petitioner during
the investigation in Hicks.81 We concluded that had the
investigation been reasonable and proper, the EEOC would
have communicated with Hicks, and that it was likely that
communication would have put the EEOC on notice of his
additional claim of sex discrimination.82 That is exactly what
occurred here.

During the course of the EEOC’s investigation of the
discrimination claim, Simko put the EEOC on notice of an
additional claim of retaliation that arose after he filed, and as a

78
Nor, however, are all of these additional factors necessarily
required. As we held in rejecting the per se rule in Robinson,
we must “examine carefully the prior pending EEOC
complaint and the unexhausted claim on a case-by-case basis”
to determine whether the unexhausted claim is reasonably
within the scope of the prior complaint. 107 F.3d at 1024.
79
Maj. Op. at 21.
80
Id.
81
Hicks, 572 F.2d at 966.
82
Id.
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result of, his initial claim. Such communication is not only
contemplated by our caselaw; it is encouraged by it and it is
required by the EEOC’s guidance. Thus, I fail to see how it
was unreasonable for the EEOC to inquire into any acts of
retaliation. Indeed, the EEOC would have been derelict if it had
not done so. The very fact that the investigation arose from
Simko’s November 2014 letter is actually evidence of its
reasonableness. I do not think we can so easily dismiss the
EEOC’s assessment of what is a reasonable investigation in
such cases.

The Majority next takes issue with the length of time
that the investigation took. And while the EEOC has
commendably and forthrightly admitted that the prolonged
delay was a mistake, that should not defeat Simko’s claim; he
did not cause the delay. I do not dispute my colleagues’ claim
that the length of time that the investigation took is out of the
ordinary.83 However, there is nothing in the statute or
precedent that allows us to find that unreasonably delaying an
investigation is sufficient to overturn our presumption that the
investigation that was conducted was reasonable. In fact, if
anything, our caselaw points to the opposite conclusion. We
have consistently maintained that where the EEOC errs, we do
not to allow the errors to adversely impact a claim. For
example, in Hicks we noted, “[t]he failure of the EEOC to
accept [an] amendment is . . . [a] failure of the agency to follow
the statute and its own regulations,” but we concluded that
“[t]he individual employee should not be penalized by the
improper conduct of the Commission.”84 I cannot understand
why we now penalize Simko for the agency’s laxity.

And we have concluded that much more egregious
failures by the EEOC than simple delay do not preclude a
petitioner’s suit. For example, “failure of the EEOC to give
notice of a charge to the employer involved or its failure to
attempt reconciliation, both of which are required by section
706(b) of Title VII, 42 U.S.C. s 2000e-5(b), does not bar a civil

83
See Maj. Op. at 24 n.12.
84
Hicks, 572 F.2d at 964–65. See also id. at 966 (“We reject
such a limitation . . . [that would] ask[] the court to penalize a
plaintiff for the possible misconduct of the EEOC.”).
19
suit by the charging party.”85 This is because an “individual’s
right to bring a civil action . . . should not be defeated by the
EEOC’s failure to comply with its statutory obligations.”86 Our
holding today is to the contrary.87

Finally, the Majority is concerned that failing to dismiss
Simko’s claim could encourage gamesmanship in the claim
filing process by allowing a claimant to “greatly expand an
investigation simply by alleging new and different facts when
he was contacted by the [EEOC] following his charge.”88 But
that alleged risk is not at issue here. An individual who alleges
retaliation for the filing of a previous charge is not “gaming the
system,” because s/he is not complaining of discriminatory
conduct that arose before the initial claim of discrimination.
The retaliation must necessarily come after the charge is filed.
Here, in the face of new alleged acts of discrimination, Simko
appropriately “include[ed] [in his charge] new acts which
occurred during the pendency of proceedings before the
Commission.”89

V.

In sum, I believe that our precedent requires the
conclusion that it was quite reasonable for the EEOC, during
the course of its investigation of Simko’s claim of disability
discrimination, after being alerted by Simko about retaliation
for the filing of the initial charge, to also investigate the alleged
retaliation. That conclusion is reinforced here where the EEOC
guidance tells us that such retaliation investigations are routine,
and where the EEOC actually investigated the discrimination,
concluded that there was evidence of retaliation, and attempted

85
Id. at 964 (emphasis added).
86
Id.
87
The Majority recognizes that it is “unfortunate” that “the
EEOC did not promptly react to his November 2014
correspondence,” Maj. Op. at 36, but then proceeds to do
what our caselaw warns against and punishes Simko for the
EEOC’s failure.
88
Maj. Op. at 23 (quoting Hicks, 572 F.2d at 967.).
89
Ostapowicz, 541 F.2d at 399.

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to conciliate the dispute. Accordingly, I must respectfully
dissent from my colleagues’ analysis.

21