                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-3-2008

Holender v. Mutl Ind N Inc
Precedential or Non-Precedential: Precedential

Docket No. 06-4632




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                                         PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 06-4632


                MORRIS HOLENDER,

                                      Appellant

                           v.

        MUTUAL INDUSTRIES NORTH INC.

                      _________

      Appeal from the United States District Court
        for the Eastern District of Pennsylvania
          (D.C. Civil Action No. 05-cv-05956)
      District Judge: Honorable R. Barclay Surrick


               Argued February 8, 2008

Before: MCKEE, AMBRO and ALDISERT, Circuit Judges


              (Opinion filed June 3, 2008)
Ari R. Karpf, Esquire (Argued)
Karpf, Karpf & Virant
3070 Bristol Pike
Building 1, Suite 102
Bensalem, PA 19020

      Counsel for Appellant

Cary L. Flitter, Esquire (Argued)
Theodore E. Lorenz, Esquire
Lundy, Flitter, Beldecos & Berger
450 North Narberth Avenue
Narberth, PA 19072-1898

      Counsel for Appellee

Ronald S. Cooper
  General Counsel
Lorraine C. Davis
  Acting Associate General Counsel
Vincent J. Blackwood
  Assistant General Counsel
Susan L.P. Starr, Esquire (Argued)
Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, D.C. 20507

      Counsel for Amicus-Appellant




                              2
                  OPINION OF THE COURT


AMBRO, Circuit Judge

        The Age Discrimination in Employment Act (“ADEA”)
prohibits an individual from bringing suit under that statute until
60 days have passed since he or she filed a “charge alleging
unlawful discrimination” with the Equal Employment
Opportunity Commission (“EEOC”). See 29 U.S.C. § 626(d).
During the pendency of this appeal, the Supreme Court
considered what qualifies as a “charge” in Federal Express
Corp. v. Holowecki, 552 U.S. __ , 128 S.Ct. 1147 (2008). It
explained that, in addition to the information required by
relevant regulations (an allegation and the name of the charged
party), “if a filing is to be deemed a charge it must be reasonably
construed as a request for the agency to take remedial action to
protect the employee’s rights or otherwise settle a dispute
between the employer and the employee.” Id. at 1158. We
apply that standard in this case, and after doing so conclude that
the document submitted to the EEOC by Appellant Morris
Holender is a charge within the meaning of the ADEA. This
suit, brought more than 60 days after Holender filed his charge
with the EEOC, is thus allowed under the ADEA. That the
EEOC, near the end of the 60-day period, asked for further,
unnecessary information does not, as it commendably concedes
in an amicus brief, change this result. We thus vacate and

                                3
remand.

I.     Factual Background and Procedural History

        On August 26, 2005, Holender submitted a two-page
document to the EEOC. The first page was an EEOC Form 5.
It bore the title “CHARGE OF DISCRIMINATION.” The top-
right corner included an assigned “CHARGE NUMBER.” It
provided Holender’s date of birth and contact information, and
the name and contact information of Mutual Industries North,
Inc. (“Mutual”). Holender checked the box indicating “AGE”
under the heading “CAUSE OF DISCRIMINATION BASED
ON.” The space left for the particulars of the alleged
discrimination referred to an attached sheet. Holender signed
the form in two places: in the box for the “Charging Party” and
in the box for the “SIGNATURE OF COMPLAINANT.”
Holender did not check the box next to the statement that “I
want this charge filed with both the EEOC and the State or local
Agency, if any. I will advise the agencies if I change my
address or telephone number and cooperate fully with them in
the processing of my charge in accordance with their
procedures.” The form was not notarized.

       The second page, also signed by Holender, was an
affidavit entitled “EEOC COMPLAINT OF MORRIS
HOLENDER.” It read in full as follows:

              I, Morris Holender, do hereby bring this

                               4
EEOC Complaint against Mutual Industries,
located at 707 W. Grange Avenue, Philadelphia,
PA 19120. I am bringing the instant complaint
for age discrimination.

       On or about Wednesday, July 10, 2005, I
interviewed for a position as a customer service
representative. I interviewed with one Edmund
Dunn. During the course of the interview, he
expressly stated, “I am not allowed to ask these
questions under law, but if I were to ask you these
questions, but remember that I am not allowed to
ask you, . . . what year did you graduate from high
school”? I knew that Mr. Dunn was specifically
seeking information about my current age.
Feeling uncomfortable and attempting to obtain
the job, I reluctantly informed Mr. Dunn that I
graduated high school in 1965.

        I was told the company was looking to fill
the position immediately and that I would be
contacted as soon as my reference was checked.
Mr. Dunn never contacted my specified reference,
and moreover, never contacted me following my
interview. Mr. Dunn also specifically told me that
I meet all of the position qualifications, yet I was
still not contacted. I am currently 59 years old
and believe that I was not hired specifically

                         5
       because of my age.

              It is my further opinion that Mr. Dunn has
       made similar age inquiries and selectively not
       hired other prospective job applicants solely
       because of their age. I am therefore filing the
       instant charge on behalf of all persons similarly situated.

       Nearly two months later, the EEOC sent a letter dated
October 19, 2005, to counsel for Holender. It stated: “[B]efore
the EEOC can formally docket this matter as a charge and begin
its investigatory and/or mediation process, certain
additional/supporting information from you/your client is
required.”     It enclosed questionnaires entitled: Charge
Information, Selection, Discipline, Witness and Remedy. It
advised Holender that, “[o]n receipt of the completed
questionnaires (or equivalent information), the EEOC will
review your response to determine whether or not this inquiry
should be formalized as a charge.” It asked Holender to provide
the documents within 33 days. Holender did not do so. He
instead filed suit in the United States District Court for the
Eastern District of Pennsylvania on November 14, 2005 (80
days after submitting the two-page document to the EEOC). He
asserted a single claim for violation of the ADEA.

       Mutual moved to dismiss the complaint for lack of
subject matter jurisdiction. It argued that Holender had failed to
exhaust his administrative remedies prior to bringing suit; he

                                6
had not provided the EEOC with the information it had
requested and thus had not permitted it to finish its inquiry into
this charge. The District Court treated the motion to dismiss as
a motion for summary judgment. It concluded that Holender
had failed to satisfy the relevant administrative exhaustion
requirements and entered summary judgment in favor of Mutual.

        Holender timely appealed. He argues that he satisfied the
administrative exhaustion requirements by submitting the two-
page document that he describes as a charge. The EEOC has
filed an amicus brief in support of his claim. It states that, even
though it did not treat Holender’s submission as a charge, it
should have done so.1

II.    Analysis

       A.     Standard Announced in Federal Express Corp.
              v. Holowecki

       The ADEA provides that “[n]o civil action may be
commenced by an individual . . . until 60 days after a charge
alleging unlawful discrimination has been filed with the
[EEOC].” 29 U.S.C. § 626(d). As the Supreme Court explained


       1
       The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291. We
review the grant of summary judgment de novo. Dilworth v.
Metro. Life Ins. Co., 418 F.3d 345, 349 (3d Cir. 2005).

                                7
in Holowecki, the ADEA does not define the term “charge” and
EEOC regulations “give some content to the term, [but] fall
short of a comprehensive definition.” Holowecki, 128 S.Ct. at
1154.

       [29 C.F.R. § 1626.3] says: “charge shall mean a
       statement filed with the Commission by or on
       behalf of an aggrieved person which alleges that
       the named prospective defendant has engaged in
       or is about to engage in actions in violation of the
       Act.” Section 1626.8(a) identifies five pieces of
       information a “charge should contain”: (1)-(2) the
       names, addresses, and telephone numbers of the
       person making the charge and the charged entity;
       (3) a statement of facts describing the alleged
       discriminatory act; (4) the number of employees
       of the charged employer; and (5) a statement
       indicating whether the charging party has initiated
       state proceedings.         The next subsection,
       § 1626.8(b), however, seems to qualify these
       requirements by stating that a charge is
       “sufficient” if it meets the requirements of
       § 1626.6—i.e., if it is “in writing and . . . name[s]
       the prospective respondent and . . . generally
       allege[s] the discriminatory act(s).”

Id. (emphasis in original).



                                8
        The Supreme Court deferred under Auer v. Robbins, 519
U.S. 452 (1997), to the EEOC’s position “that the regulations
identify the procedures for filing a charge but do not state the
full contents a charge document must contain.” Holowecki, 128
S.Ct. at 1155 (citing Auer, 519 U.S. at 461, for the rule that it
accepts an agency’s position unless it is plainly erroneous or
inconsistent with the interpreted regulation).

       The Supreme Court then addressed the question of what
elements must be included in a charge beyond those listed in the
regulations. Id. It deferred under Skidmore v. Swift & Co., 323
U.S. 134 (1944), to the EEOC’s view that,

       [i]n addition to the information required by the
       regulations, i.e., an allegation and the name of the
       charged party, if a filing is to be deemed a charge
       it must be reasonably construed as a request for
       the agency to take remedial action to protect the
       employee’s rights or otherwise settle a dispute
       between the employer and the employee.

Holowecki, 128 S.Ct. at 1157–58.

       The Supreme Court acknowledged that, “under [the]
permissive standard” it announced, “a wide range of documents
might be classified as charges.” Id. at 1158. It described this
result as “consistent with the design and purposes of the
ADEA,” and noted that most ADEA filings appear to be pro se.

                                9
Id. The Court rejected the contention that a filing does not
become a charge until acted upon by the EEOC, reasoning that
it would be “illogical and impractical to make the definition of
charge dependent upon a condition subsequent over which the
parties have no control.” Id. at 1159. The Court thus passed to
the question whether the filing before it satisfied the test it had
articulated.

       The plaintiff in Holowecki had filed an intake
questionnaire and a six-page affidavit detailing the allegations
of discrimination. The Supreme Court noted that “[u]nlike
EEOC Form 5,” an intake questionnaire “is not labeled a
‘Charge of Discrimination.’” Id. “In fact the wording of the
questionnaire suggests the opposite: that the form’s purpose is
to facilitate pre-charge filing counseling and to enable the
agency to determine whether it has jurisdiction over potential
charges.” Id. (internal quotation marks omitted).

       The Court nonetheless concluded that the documents
submitted by the Holowecki plaintiff were a charge within the
meaning of the ADEA. Id. Those documents included the
request that the EEOC “force Federal Express to end their age-
discrimination plan.” Id. at 1159–60. The Court explained that
“[d]ocuments filed by an employee with the EEOC should be
construed, to the extent consistent with permissible rules of
interpretation, to protect the employee’s rights and statutory
remedies.” Id. at 1160.



                                10
        The Court also recognized that “because the agency
failed to treat [Holowecki’s] filing as a charge in the first
instance, both sides lost the benefits of the ADEA’s informal
dispute resolution process.” Id. at 16. The Court observed that
“[t]he court that hears the merits of this litigation can attempt to
remedy this [deficiency] by staying the proceedings to allow an
opportunity for conciliation and settlement.” Id. It recognized
the imperfect quality of this remedy by considering that the
chances of conciliation likely had been reduced by the beginning
of the adversary process, but ultimately found that imperfection
unavoidable. Id.

        The Supreme Court also addressed our decision in Bihler
v. Singer Co., 710 F.2d 96, 99 (3d Cir. 1983) (holding that, to
constitute a charge under the ADEA, “notice to the EEOC must
be of a kind that would convince a reasonable person that the
grievant has manifested an intent to activate the Act’s
machinery”). It rejected the “manifest intent” standard to the
extent it “suggests that the filer’s state of mind is somehow
determinative.” Holowecki, 128 S.Ct. at 1158. The Court found
that test to be appropriate, however, if “it means the filing must
be examined from the standpoint of an objective observer to
determine whether, by a reasonable construction of its terms, the
filer requests the agency to activate its machinery and remedial
processes.” Id. In other words, the Court thought our “manifest
intent” standard subject to both correct (objective) and incorrect
(subjective) applications. Since the Court now has set a
standard for the analysis of what is a charge, we have no need

                                11
for the label “manifest intent” and put it aside in order to
eliminate the risk of its erroneous application in the future.
Accordingly, we turn to our case.

       B.     Application of the Holowecki Standard

        Under Holowecki, the document submitted to the EEOC
“must be reasonably construed as a request for the agency to
take remedial action to protect the employee’s rights or
otherwise settle a dispute between the employer and the
employee.” Id. There is no question that the document
submitted by Holender meets the limited requirements stated in
governing regulations. He used an EEOC Form 5, which, as the
Supreme Court observed in Holowecki (involving an intake
questionnaire), is entitled “CHARGE OF DISCRIMINATION.”
Id. at 1159. That form contains multiple references to itself as
a charge and the affidavit attached by Holender referred to the
“instant charge [filed] on behalf of all persons similarly
situated.” The latter portion of that statement makes clear that
Holender seeks legal relief. Thus, the EEOC should have
realized that Holender wished to begin the process of seeking
ADEA relief. Per the teachings of Holowecki, this is a charge
for ADEA purposes. As noted, the EEOC itself agrees,2 and the


       2
        The Supreme Court noted in Holowecki that the EEOC
believed that the submission in question met the standard it had
articulated. Holowecki, 128 S.Ct. at 1159. The Court appeared
to give deference to that belief: “The agency’s determination is

                              12
purported ambiguities identified by Mutual do not persuade us
to the contrary.3

       Mutual argues, however, that Holender must do more


a reasonable exercise of its authority to apply its own regulations
and procedures in the course of the routine administration of the
statute it enforces.” Id. We need not decide whether to defer to
the EEOC’s view because we reach the same conclusion
considering the question de novo.
       3
        Mutual argues that the document submitted by Holender
should be construed as a complaint rather than a charge. It
points to the title of the affidavit attached to Holender’s Form 5.
That affidavit bears the title “EEOC Complaint.” 29 C.F.R.
§ 1626.3 defines “complaint” as “information received from any
source, that is not a charge, which alleges that a named
prospective defendant has engaged or is about to engage in
actions in violation of the Act.” Mutual argues that, unlike a
charge, Holender’s “complaint” did not request remedial action
by the EEOC.
        We give little weight to Holender’s misuse of the word
“Complaint” in his affidavit. Although he has counsel, we will
not deprive him of access to the ADEA’s procedures because of
his counsel’s imprecise word choice. That is particularly true
because the EEOC’s own form ignores the difference between
the two terms: its Form 5 is called a charge and refers to itself
with that term, but it also includes a box for the “SIGNATURE
OF COMPLAINANT.”


                                13
than satisfy the standard stated in Holowecki. It asserts that a
counseled filing with the EEOC should be considered under a
higher standard than the pro se filing considered in that case. It
also contends that this case is unlike Holowecki because
Holender failed to respond to the EEOC’s request for further
information. We reject these arguments.

        Mutual is correct that the Supreme Court adopted its
more flexible standard in Holowecki at least in part to protect
alleged victims of age discrimination who proceed pro se. See
id. at 1158. It specifically avoided adopting a rule that would
“encourage individuals to avoid filing errors by retaining
counsel, increasing both the cost and the likelihood of
litigation.” Id. at 1160. However, it did not indicate that an
entirely different analysis applies to counseled submissions to
the EEOC.

       Regardless, we have no doubt that the EEOC should have
construed Holender’s submission as a charge. We will not fault
Holender for failing to include a specific request for a remedy.
There is no need to require that counseled submissions to the
EEOC contain some magic combination of words explicitly
seeking agency action. A charge, submitted by counsel or not,
may imply such a request.

       That the EEOC initially did not treat Holender’s filing as
a charge is of no consequence. The statutory language grants
the right to bring a civil action after 60 days have passed since

                               14
filing a charge. A path otherwise needs to be laid by Congress.

        Ultimately, this case shares a core similarity with
Holowecki: the problems here arose from the EEOC’s action (or,
perhaps more precisely, delay in acting), not from any fault of
the alleged victim of age discrimination. We recognize that
Mutual has done nothing to frustrate Holender’s ability to seek
relief from the EEOC. Mutual justifiably may think that the
EEOC has deprived it of a meaningful opportunity to avoid
litigation.4 However, the lesson of Holowecki is that both
parties must bear the consequences of the EEOC’s acts. This
result is “unfortunate” but “unavoidable.” Id. at 1161. As noted
above, Congress may wish to revisit this regulatory regime if it
proves unworkable.

III.   Conclusion

       Holender submitted a document to the EEOC that it
should have construed as a charge. He thus acted within his
rights when he filed a civil action 80 days later. The EEOC
failed to follow through on the informal dispute resolution
processes provided by the ADEA before 60 days had passed.


       4
        Mutual misdirects its apparent frustration with the
EEOC by criticizing the positions the agency takes in its amicus
brief. The EEOC may have delayed in handling Holender’s
charge, but it should not be criticized now for acknowledging
and attempting to rectify that delay.

                              15
Mutual and Holender both suffered from this delay. We may
not be able to erase the consequences of that inaction, but we
may not close our eyes to the real cause of this problem and
punish Holender in its place. Accordingly, we vacate the
decision granting summary judgment in favor of Mutual and
remand for further proceedings.5




      5
       On remand, the District Court may entertain a motion
under Holowecki to stay the proceedings while the parties
attempt to settle this matter. See Holowecki, 128 S.Ct. at
1160–61.

                             16
