concurring in part and dissenting in part:
Although I concur with the majority as to the federal court’s jurisdiction over plaintiff’s suit to revive her original Title VII claim and as to the timeliness of plaintiff’s ADEA claims, I cannot agree that plaintiff’s subsequent retaliation claim under Title VII was untimely based on this record. As the majority points out, in a Title VII deferral state, such as Pennsylvania, the statute requires that any charge be filed with the EEOC within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e). At the same time, “no charge may be filed ... by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the state or local law, unless such proceedings have been earlier terminated____” 42 U.S.C. § 2000e-5(c). Even if a charge is submitted to the EEOC prior to the 300 day limitation period, it will not *64be deemed to have been “filed” until this deferral requirement has been fulfilled. Mohasco Corporation v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). Thus, in order to be absolutely certain that she will be able to “file” her charge with the EEOC within the 300-day limitation period, a claimant must commence state proceeding within 240 days. If she fails to do so, and if the state agency fails to terminate its proceedings prior to the 300-day cut-off, the claimant is foreclosed from timely filing with the EEOC. Mohasco, supra. A claimant can commence proceedings before the state agency after the 240-day mark and still be able to file a timely charge before the EEOC, however, if the state agency fortuitously happens to terminate its proceedings prior to the expiration of the 300-day outer limit. Id. at 814 n. 16, 100 S.Ct. at 2491 n. 16. The commencement of state proceedings in deferral states is therefore governed by a “240-day maybe” rule: a charge submitted within 240 days will ensure timeliness with the EEOC, but a charge submitted thereafter may be still timely if the state agency resolves the claim prior to the expiration of 300 days. See Smith v. Oral Roberts Evangelistic Ass’n, Inc., 731 F.2d 684, 687 (10th Cir.1984); Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1211 (3d Cir.1984).
Here, plaintiff submitted her charge 280 days after the alleged wrong. Thus, if the state deferral agency had failed to act on her charge by the 300th day, plaintiff would have been foreclosed from timely filing with the EEOC. If the state agency had succeeded in processing plaintiffs charge before the expiration of the 300-day period, that is, within twenty days, however, then the plaintiff could still have timely filed with the EEOC. The ultimate timeliness of plaintiffs charge depended on the action of the state agency.
The rub here is that plaintiffs charge apparently never reached the state agency. In reasonable reliance on EEOC regulations, plaintiff submitted her charge to the EEOC. EEOC regulations provide that the EEOC will forward all charges over which the state deferral agency has subject matter jurisdiction, and as to which the state agency has not waived deferral, to the state agency. 29 CFR § 1601.13(a)(3), 1601.13(a)(5)(ii)(A). Assuming that plaintiffs charge was not one as to which the state agency had waived deferral, as the majority has done, the regulations make clear that plaintiffs charge ought to have been deferred by the EEOC. Yet the facts in the record, construed in the light most favorable to the plaintiff, indicate that plaintiffs charge was not deferred as it should have been. Because it was not so deferred, plaintiff was peremptorily foreclosed from meeting the Title VII deferral requirement for timely filing with the EEOC.
Under these circumstances, the plaintiff should have been given an opportunity to attempt to meet Title VII’s procedural prerequisites to suit by having the district court action stayed, and her charge remanded to the EEOC for deferral to the state agency. Timely filing with the EEOC is not a jurisdictional requirement. Zipes v. Trans World Airways, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). As a mere condition precedent to suit, it is subject to “waiver as well as tolling when equity so requires.” Id. Where, as here, the EEOC has failed, in violation of its own regulations, to defer the plaintiffs charge to the appropriate state agency, and the plaintiff is thus deprived of the opportunity in a timely manner to fulfill the requirement that proceedings be commenced and terminated in the state deferral agency before her charge can be deemed filed with the EEOC, there is ample ground for equitably tolling the limitation period to afford the plaintiff an opportunity to attempt to meet this prerequisite to suit. See Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 752-53 and ns. 4 & 8 (3d Cir.), cert. denied 464 U.S. 852, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983) (suggesting that the EEOC’s failure to comply with its own regulations requiring deferral to state agency would constitute grounds for equitable tolling in Title *65VII action); see also McKee v. McDonnell Douglas Technical Services Co., 700 F.2d 260, 264 (5th Cir.1983) (Title VII claimant should not be penalized for EEOC’s failure to follow its own regulations); Hicks v. ABT Associates, Inc., 572 F.2d 960, 964 (3d Cir.1978) (same). Such equitable tolling is especially warranted in this instance in light of the “sound and established policy that procedural technicalities should not be used to prevent Title VII claims from being decided on the merits.” Gooding v. Warner-Lambert Co., 744 F.2d 354, 358-59 (3d Cir.1984). Given the existence of grounds for tolling the 300-day limitation period, the procedure of staying the district court action and remanding the matter comports with that endorsed by the Supreme Court in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979) (appropriate procedure, where plaintiff has failed to comply with requirement of resort to state remedies in employment discrimination action, is to stay district court proceedings until procedural prerequisite can be fulfilled).
The majority apparently has chosen to assume that plaintiff’s charge was deferred by the EEOC, relying on allegations in plaintiff’s amended complaint. It is true that, in her amended complaint, the plaintiff alleged that
Plaintiff has exhausted all administrative remedies having timely filed complaints of continuing sex and age discrimination and retaliation in employment against the defendant with the United States Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission as required in the individual statutes and having received notices of failure of conciliation by those agencies, with appropriate direction that the individual right to sue is assigned to the plaintiff.
Amended Complaint, U 6. Yet the amended complaint nowhere alleged the date of filing of her charge, or when the state proceedings commenced to process said charge were assertedly terminated. Thus, in ruling on the defendant’s motion for untimeliness, the district court was necessarily required to look beyond the amended complaint and to consider factual materials submitted by the parties; the motion to dismiss was thus properly converted to one for summary judgment. Fed.R.Civ.P. 12(c). As such, it was governed by the rule that “[ijnferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion.” Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.1985), quoting Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). The burden of demonstrating the plaintiff’s untimeliness fell to the defendant. Howze v. Jones & Laughlin Steel Corp., 750 F.2d at 1211.
Here, regardless of the boilerplate allegation in plaintiff’s complaint, the record indicated, if anything, that the plaintiff had filed a charge with the EEOC and that the agency had failed to defer the charge to the PHRC, in violation of its own regulations. Seredinski v. Clifton Precision Products, No. 84-0804, Mem.Op. at 3 n. 4 (E.D.Pa. Sept. 6, 1984). In argument on the motion before the district court, plaintiff took the position that any failure of deferral was the result of the EEOC’s failure to comply with its own regulations. Id. Had the district court viewed the facts in the record in the light most favorable to the plaintiff, as it was required to do under Fed.R.Civ.P. 56, it should have assumed that the EEOC failed to defer plaintiff’s charge. Given that state of facts, summary dismissal on the ground that plaintiff submitted her charge to the EEOC after the 240 day mark was incorrect as a matter of law, and held plaintiff to limitation period stricter than that required in Title VII. I therefore cannot agree with the majority’s affirmance of this ruling, and respectfully dissent.