                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-1997

Robinson v. Dalton
Precedential or Non-Precedential:

Docket 96-1212




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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                            No. 96-1212



                          DENNIS ROBINSON,
                                      Appellant

                                  v.

                  JOHN H. DALTON, SECRETARY TO
              UNITED STATES DEPARTMENT OF THE NAVY



         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                      (D.C. No. 95-cv-04043)



         Submitted Pursuant to Third Circuit LAR 34.1(a)
                        November 4, 1996

                 Before: SLOVITER, Chief Judge
                McKEE and ROSENN, Circuit Judges


               (Opinion Filed     February 28, 1997)

Mark S. Scheffer
Larry Pitt & Associates
Philadelphia, PA 19103

          Counsel for Appellant

David R. Hoffman
Office of United States Attorney
Philadelphia, PA 19106

          Counsel for Appellee




                                  1
                         OPINION OF THE COURT



SLOVITER, Chief Judge.

          Plaintiff, who filed a Title VII action alleging that

he was fired from the Navy in retaliation for his previous

charges of racial discrimination, appeals from the district

court's dismissal for lack of subject matter jurisdiction.       On

appeal, we must examine both the procedure for the district

courts to use in deciding whether a plaintiff failed to exhaust

administrative remedies and the type of agency action that

warrants application of equitable tolling.      We also consider when

a previously filed administrative complaint encompasses a charge

based on a subsequent discharge.
                                  I.

                  Facts and Procedural History

          During 1989, Dennis Robinson, an employee at the

Philadelphia Naval Shipyard, filed three separate complaints with

the Navy's Equal Employment Opportunity (“EEO”) Office alleging
racial discrimination and retaliation.    From the information

available to us it appears that at different times during the

year (March 14, March 29, and June 26), Robinson filed complaints

alleging that the Navy 1) denied his sick leave from August 27 -

October 26, 1988 and promoted a white employee to permanent

general foreman; 2) placed him on an unauthorized leave status on

January 25, 27, 30 and, as well as February 1 and 3, 1989; and 3)

issued him an indebtedness letter of $9,800 for disapproved sick

leave and cited him for creating an asbestos hazard.     These



                                  2
complaints were consolidated and, following administrative

proceedings and investigation, resulted in a finding by the EEOC

of no discrimination by the Department of the Navy.    Robinson's

request for reconsideration was denied and the EEO issued a

letter on May 4, 1995 informing him that he had no further rights

of administrative appeal but could file a civil action in federal

district court within 90 days.

            In addition to the absences referred to in his EEO

complaints, Robinson was absent from his job without

authorization for a long period beginning on November 27, 1989.

He was instructed on January 5, 1990 to contact his employee

relation specialist to explain the reasons for his prolonged

absence and was told that his failure to do so by January 12,

1990 would result in his absence being unauthorized and that the

Navy would take action to terminate his employment at the

shipyard.    Robinson failed to comply with the Navy’s directions.

            On January 26, 1990 the Navy wrote to Robinson that it

proposed to remove him from his employment due to excessive

unauthorized absences and creating an asbestos hazard.    Robinson

responded with a letter from his doctor but the Navy determined

that this letter did not adequately justify Robinson's absence

and it requested additional information.    Robinson never provided

any further information.    The Navy then terminated his employment

on April 5, 1990.




                                 3
          Robinson brought this suit in district court claiming

that he was fired in retaliation for the previous charges of

racial discrimination.   He invoked jurisdiction based on Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1

          Although Robinson's complaint alleges that he had filed

a complaint with the Navy's EEO counselor and exhausted all of

his administrative prerequisites, App. at 15, the Navy moved to

dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a

claim or Rule 56 for summary judgment, asserting that Robinson

had failed to exhaust his administrative remedies.   The district

court converted the motion into a Rule 12(b)(1) motion and then

conducted a three-day evidentiary hearing to determine whether it

had jurisdiction over the claim.

          Among the evidence relevant to the district court's

ultimate ruling was Robinson's testimony that he talked to an EEO

counselor over the telephone, who he thought was Shirley Brown,

who told him that he did not have to file a complaint, App. at

89, and his affidavit stating that the counselor told him that

since he had other claims of retaliation pending, he did not have

to file another separate complaint, App. at 50.   In response, the

Navy provided a computer printout from the Navy EEO office which

showed that Robinson had first contacted an EEO officer on

October 3, 1990, six months after he was terminated.   Karl Pusch,

an EEO counselor, testified that he remembered completing an EEO

1.    Robinson's complaint alluded to a claim of disability under
the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., but this
claim was dismissed along with the others without discussion and
Robinson's brief fails to include any argument related thereto.



                                4
intake form on that day.   A mail record shows that the EEO office

sent Robinson a Notice of Final Interview on October 15, 1990.

Furthermore, Brown and Pusch both testified that they would never

have advised a complainant not to file a complaint.

          The district court dismissed Robinson’s complaint

stating that
we need not decide whether Robinson was not telling the
          truth in his affidavit or whether he simply
          misrecollects the events of 1990, since it is
          sufficient merely to conclude that he has not met
          his burden of showing either that he timely
          contacted an EEO counselor within thirty days of
          his termination or that an EEO counselor misled
          him into failing to follow the proper procedures.



App. at 27.   Robinson filed a timely appeal.
                               II.

                            Discussion
                                A.

          We do not reach on this appeal the merits of Robinson’s

Title VII claim.   Rather, we limit our consideration to the

procedure used by the district court in dismissing the action
under Rule 12(b)(1), the sufficiency of Robinson's contention of

equitable estoppel, and the effective scope to be given a pending

EEOC complaint.

          It is a basic tenet of administrative law that a

plaintiff must exhaust all required administrative remedies

before bringing a claim for judicial relief.    McKart v. United

States, 395 U.S. 185, 193 (1969).    We have explained that the

purposes of the exhaustion requirement are to promote

administrative efficiency, "respect[] executive autonomy by


                                5
allowing an agency the opportunity to correct its own errors,”

provide courts with the benefit of an agency's expertise, and

serve judicial economy by having the administrative agency

compile the factual record.     Heywood v. Cruzan Motors, Inc., 792

F.2d 367, 370 (3d Cir. 1986).

            Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000(e)-16, establishes the exclusive remedy for federal

employees who allege discrimination in the workplace.     Under

regulations promulgated by the EEOC in effect in 1990, an

aggrieved federal employee was required to initiate contact with

an agency counselor within 30 days of “the effective date of an

alleged discriminatory personnel action, or the date that the

aggrieved person knew or reasonably should have known of the

discriminatory event or personnel action.” 29 C.F.R. §

1613.214(a)(1)(i) (1990).   A formal EEOC complaint must be filed

“within 15 calendar days after the date of receipt of the notice

of the right to file a complaint.”    29 C.F.R. §

1613.214(a)(1)(ii).   Finally, in order to bring an action in

district court the employee must do so either within 30 days of

receipt of notice of final agency action or within 180 days from

the date of filing the complaint if the agency has not reached a

decision.    29 C.F.R. § 1613.281 (1990).   Thus, exhaustion

requires both consultation with an agency counselor and filing a

formal EEOC complaint within the required times.

            In its motion to dismiss, the Navy argued that Robinson

had waited over six months after he was terminated before seeking

EEO counseling and then failed to file a formal EEOC complaint


                                  6
after his final counseling session.   Robinson's response was

twofold: first, that he did not have to exhaust his

administrative remedies because his termination was fairly

included within the scope of his pending EEOC complaints and

second, that he did contact an EEO Counselor within 30 days of

his termination and was told that he did not have to file an

additional charge of retaliation.   He argued that because he was

misled by the EEO Counselor, the Navy should be estopped from

challenging his failure to exhaust or timely file.    The district

court granted the Navy's motion, and dismissed.

          On appeal, Robinson argues that the district court

erred in failing to treat the Navy's motion to dismiss for lack

of jurisdiction as a motion for summary judgment once the court

looked beyond the face of the pleadings, and that summary

judgment was precluded because there were disputed issues of

material fact.

          Ordinarily, if “matters outside the pleadings are

presented to . . . the court, the motion shall be treated as one

for summary judgment.”   Fed. R. Civ. Pro. 12(c).   On the other

hand, when there is a factual question about whether a court has

jurisdiction, the trial court may examine facts outside the

pleadings and thus “the trial court may proceed as it never could

under 12(b)(6) or Fed. R. Civ. P. 56.   Because at issue in a

factual 12(b)(1) motion is the trial court’s jurisdiction -- its

very power to hear the case.”   Mortensen v. First Federal Sav.
and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).    We have

explained that in such a circumstance, a trial court “is free to



                                7
weigh the evidence and satisfy itself as to the existence of its

power to hear the case.”   Intern. Ass’n of Machinists & Aerospace

Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711 (3d Cir.

1982).   Unlike the procedure governing summary judgment, under a

Rule 12(b)(1) motion to dismiss “no presumptive truthfulness

attaches to plaintiff’s allegations, and the existence of

disputed material facts will not preclude the trial court from

evaluating for itself the merits of jurisdictional claims.”

Mortensen, 549 F.2d at 891.

           Although the district court in this case described its

preliminary evaluation as “jurisdictional,” this court has

previously determined that questions of whether a plaintiff has

timely exhausted the administrative remedies in Title VII actions

“are in the nature of statutes of limitation.   They do not affect

the district court’s subject matter jurisdiction.”   Hornsby v.

United States Postal Service, 787 F.2d 87, 89 (3d Cir.

1986)(citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

392-98)(1982)).   Moreover, in Title VII cases courts are

permitted in certain limited circumstances to equitably toll

filing requirements, even if there has been a complete failure to

file, which necessarily precludes characterizing such

requirements as "jurisdictional."   See Bowen v. City of New York,
476 U.S. 467, 482 (1986)(exhaustion excused for same reasons as

those allowing tolling of the statute of limitations); see also

Waiters v. Parsons, 729 F.2d 233, 236 (3d Cir. 1984)(failure to

file EEOC complaint not jurisdictional and district court should

consider application of waiver, estoppel or tolling).


                                8
           It follows that the Navy's motion to dismiss should

have been treated under Rule 12(b)(6), the Rule invoked by the

Navy, rather than converted into a Rule 12(b)(1) motion for lack

of jurisdiction, as the district court did.      Timeliness of

exhaustion requirements are best resolved under Rule 12(b)(6)

covering motions to dismiss for failure to state a claim.        As we

explained in Hornsby, “[t]he causes of action created by Title

VII do not arise simply by virtue of the events of discrimination

which that title prohibits.    A complaint does not state a claim

upon which relief may be granted unless it asserts the

satisfaction of the precondition to suit specified by Title VII:

prior submission of the claim to the EEOC [] for conciliation or

resolution.”    787 F.2d at 90.   A district court may rule on a

Rule 12(b)(1) motion when on the face of the pleadings it is

clear that administrative remedies have not been exhausted, but

this rule is “inapplicable to the resolution of disputed issues

of material fact with respect to the applicability of statutes of

limitations.”    Id. at 89.

           The Court of Appeals for the Seventh Circuit reached

the same conclusion on facts quite similar to those before this

court.   In Rennie v. Garett III, 896 F.2d 1057 (7th Cir. 1990), a
former Navy employee brought a Title VII action alleging sex

discrimination and retaliation.       The district court dismissed her

complaint under Rule 12(b)(1) for failure to exhaust, after

making a credibility determination that she had not met with an

EEO counselor and discussed her retaliation claims.       Id. at 1058-
59.   The Court of Appeals cited and followed our decision in



                                  9
Hornsby, overturned its own court precedent, and reversed the

dismissal, holding that timely exhaustion of administrative

remedies "should be construed as a statute of limitations and not

as a jurisdictional prerequisite.”   Id. at 1062.   It directed the

district court on remand to make a factual determination about

plaintiff's possible equitable tolling arguments without the Rule

12(b)(1) burdens of “summary dismissals.”   Id. at 1062-63.

          We therefore agree with Robinson that the district

court's inquiry should have been made pursuant to a Rule 12(b)(6)

motion for failure to state a claim.   Once Robinson pled the

applicability of the equitable tolling doctrine which went beyond

the face of the pleadings, the district court should have treated

the issue of equitable tolling in a manner consistent with Rule

56 for summary judgment.   See Hornsby, 787 F.2d at 89; Oshiver v.

Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391-92 (3d Cir.

1994).
                                B.

          Under the summary judgment standard we view the

evidence in the light most favorable to Robinson and take all of

his allegations as true.    However, we will not reverse the

district court’s dismissal if, “apply[ing] the same test the

district court should have utilized initially,” plaintiff is not

entitled as a matter of law to equitable tolling.   Colgan v.
Fisher Scientific Co., 935 F.2d 1407, 1413 (3d Cir.), cert.

denied, 502 U.S. 941 (1991).

          In Oshiver, this court explained that equitable tolling
of statutes of limitation “may be appropriate: (1) where the



                                10
defendant has actively misled the plaintiff respecting the

plaintiff’s cause of action; (2) where the plaintiff in some

extraordinary way has been prevented from asserting his or her

rights; or (3) where the plaintiff has timely asserted his or her

rights mistakenly in the wrong forum.”   38 F.3d at 1387.

           Robinson neither claims that the Navy actively misled

him nor that he filed this action in the wrong forum.   Thus, he

would be entitled to equitable tolling only if his allegation

that he was misled by an EEO counselor fit within the second

category where a plaintiff “in some extraordinary way has been

prevented from asserting his or her rights.”

           The applicable EEOC regulation provides that the agency

"shall extend the time limits [for filing a complaint] when the

complainant shows that he/she was not notified of the time limits

and was not otherwise aware of them, was prevented by

circumstances beyond the complainant’s control from submitting

the matter within the time limits; or for other reasons

considered sufficient by the agency.”    29 C.F.R. § 1613.214(a)(4)

(1990).

           Robinson does not contend that he was unaware of the

procedural requirements and the need to file a complaint within

30 days.   At most he alleges that he contacted an EEO counselor

by telephone within the 30 day requirement and was advised that

in light of his pending complaints he did not have to file an

additional complaint for retaliatory discharge.   Accepting as

true Robinson's version of the events, and disregarding the EEOC

records offered by the Navy which show that Robinson appeared for


                                11
his initial counseling session six months after he was

discharged, we hold that one phone conversation with an EEO

counselor does not rise to the level of being prevented in an

"extraordinary way" by the EEOC from asserting his rights.    Nor,

using the language of the EEOC regulation, was he "prevented" by

circumstances beyond his control from timely submitting the

matter.

          These facts are unlike those in Albano v. Schering-

Plough Corp., 912 F.2d 384 (9th Cir. 1990), cert. denied, 498

U.S. 1085 (1991), where the EEOC refused to amend plaintiff's

timely complaint to include an allegation of discriminatory

discharge.   In that case, the court held that equitable tolling

was justified where in refusing the amendment the EEOC failed to

follow its own rules, the plaintiff had at least 14 conversations

with the EEOC attempting to amend, and on at least three

occasions the agency's employee assured plaintiff that his new

claim was encompassed within the claim being investigated.

          Nor is Robinson in the position of the plaintiff in

Steffen v. Meridian Life Ins. Co., 859 F.2d 534 (7th Cir. 1988),

who had filled out an intake questionnaire and was advised by an

EEOC officer that this was sufficient to preserve his ADEA claim.

 Indeed, in Steffen the EEOC appeared as amicus curiae arguing
that filling out an intake questionnaire should be enough to

satisfy the filing requirement, thereby further justifying

equitable estoppel.

          Running throughout the equitable estoppel cases is the




                                12
obligation of the plaintiff to exercise due diligence to preserve

his or her claim.   The Supreme Court has explained that

“[f]ederal courts have typically extended equitable relief only

sparingly . . . .   We have generally been much less forgiving in

receiving late filings where the claimant failed to exercise due

diligence in preserving his legal rights.”   Irwin v. Department

of Veterans Affairs, 498 U.S. 89, 96 (1990).   While a plaintiff

may justifiably rely on written communications from the EEOC,

which was held to be enough to warrant equitable estoppel in

Jennings v. American Postal Workers Union, 672 F.2d 712, 714-15

(8th Cir. 1982) (letter from EEOC that the Civil Service

Commission, not it, had jurisdiction), Robinson offers nothing

more than one alleged phone conversation.    Cf. Dartt v. Shell Oil

Co., 539 F.2d 1256, 1261 (10th Cir. 1976)(holding that equitable

tolling should be allowed where agency neglected to inform

plaintiff of filing deadlines despite numerous phone

conversations, at least once a month, to check on the progress of

the investigation), aff'd by an equally divided Court, 434 U.S.

99 (1977) (per curiam).

          Robinson was not inexperienced in the procedures

required to maintain a discrimination complaint, having already

filed three such complaints.   See Kocian v. Getty Refining &
Marketing Co., 707 F.2d 748, 755 (3d Cir.), cert. denied 464 U.S.

852 (1983).   His failure to confirm the advice allegedly received

on the telephone by written communication or even by another

telephone communication shows an absence of the due diligence




                                13
which the Supreme Court has regarded as a condition for equitable

tolling.   See Irwin, 448 U.S. at 96.

           Furthermore, should a plaintiff in Robinson's position

be able to circumvent exhaustion requirements by simply asserting

s/he was given erroneous telephone advice from an agency

employee, equitable tolling would be converted from a remedy

available only sparingly and in extraordinary situations into one

that can be readily invoked by those who have missed carefully

drawn deadlines.   We cannot extend the doctrine that far.   Thus

we agree with the district court that Robinson “ha[d] not met his

burden of showing . . . that an EEO counselor had misled him into

failing to follow the proper procedures.”   App. at 27.
                                C.

           Finally, we consider Robinson's alternative argument

that he did not have to file a separate EEOC complaint alleging

retaliatory discharge in light of his already pending EEOC

complaints.   Robinson relied for this argument on our decision in

Waiters v. Parsons, 729 F.2d 233 (3d Cir. 1984)(per curiam), a

case in which we held it was not necessary for the plaintiff to

have filed an additional complaint when she was discharged.

Because such a holding is fact specific, we review that decision

in some detail.

           In Waiters we held that the mere fact that a
complainant has pending a complaint of discrimination does not

mean that the requirements of administrative exhaustion are

necessarily excused.   Such a rule, whether express or applied in

practice, would eviscerate the remedial purposes of the


                                14
exhaustion requirement.   This court expressly declined to adopt

the per se rule it attributed to the Fifth Circuit.   We described

the ruling that we rejected as one that "held that all claims of

'retaliation' against a discrimination victim based on the filing

of an EEOC complaint are 'ancillary' to the original complaint,

and that therefore no further EEOC complaint need be filed.

Gupta [v. East Texas State University, 654 F.2d 411, 413-14 (5th

Cir. l981]."   Waiters, 729 F.2d at 237 n.10.

          Although other courts of appeals seem to have adopted a

broad per se rule, stating that any complaint of retaliation

occurring during the time when prior EEOC complaints are pending

necessarily falls within the scope of those complaints, see,

e.g., Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994),

Gupta, 654 F.2d at 413-14, Kirkland v. Buffalo Bd. of Educ., 622

F.2d 1066, 1066-68 (2d Cir. 1980) (per curiam), Nealon v. Stone,

958 F.2d 584, 584-90 (4th Cir. 1992), Baker v. Buckeye Cellulose

Corp., 856 F.2d 167, 167-69 (11th Cir. 1988), while some others

have limited this per se rule to require that the prior EEOC

complaint specifically allege retaliatory conduct, see McKenzie
v. Illinois Dep't. of Transp., 92 F.3d 473, 483 (7th Cir. 1996),

Ang v. Procter & Gamble Co., 932 F.2d 540, 547 (6th Cir. 1991),

our court in Waiters rejected any per se rule.

          Notwithstanding the array of seemingly contrary

authority, as a panel we are not free to diverge from our court's

written precedent.   See Third Circuit's Internal Operating

Procedures, Ch. 9.1.   We thus follow the approach of our own case

law, which has been to examine carefully the prior pending EEOC


                                15
complaint and the unexhausted claim on a case-by-case basis

before determining that a second complaint need not have been

filed.

           In Waiters, the plaintiff, a female social worker at

the Veterans Administration Medical Center in Coatesville,

Pennsylvania (VAMC), had filed an informal complaint with the

EEOC alleging sex discrimination in the promotion of a male

employee but withdrew that complaint after mediation resulted in

her being given a position in a new program.   The next year,

however, she filed a formal complaint with the EEOC alleging

continuing discrimination in retaliation for having made the

earlier informal complaint.

           After an EEOC investigation, the district director

found that Waiters was subjected to harassment following the

informal EEOC complaint and concluded that Waiters was

discriminated against because she opposed practices unlawful

under Title VII.    Waiters, 729 F.2d at 235 n.2.   Waiters was

discharged the following year for a number of miscellaneous

reasons.   On Waiters' appeal, the Merit Systems Protection Board

reduced the sanction to a 60-day suspension, but Waiters,

continuing to press her claim to 60 days' back pay and counsel

fees, filed suit.

           The district court dismissed her complaint for failure

to exhaust her administrative remedies.   On appeal, this court

reversed, explaining that "[a] victim of discrimination is not

required to exhaust administrative remedies with respect to a

claim concerning an incident which falls within the scope of a


                                 16
prior EEOC complaint or the investigation which arose out of it,

provided that the victim can still bring suit on the earlier

complaint."   Waiters, 729 F.2d at 235.   We held that a separate

EEOC filing alleging retaliatory discharge was not necessary

because the EEOC investigation went beyond the specific

allegations in the formal complaint and looked at the employer's

entire conduct.   Id.   The EEOC district director had concluded

that “a pattern of events that occurred after the filing of the

informal complaint demonstrated that officials at VAMC

‘retaliated’ against appellant for filing the informal

complaint.”   Id. at 238.   Because Waiters alleged "that her

discharge was the product of this same retaliatory intent," we

concluded that although the officials and acts were different,

"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 district director's

investigation of the charges contained in the 1979 formal

complaint."   Id. at 238.

          Thus, in Waiters we identified two circumstances in

which events subsequent to a filed complaint may be considered as

fairly encompassed within that complaint, either where the

incident (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."   Id. at 235.   We decided that the EEOC investigation,

which apparently had been broadened by the EEOC, encompassed the

underlying conduct leading to the ultimate discharge, and that




                                 17
there was nothing to be served by requiring Waiters to file a

second complaint.   Id.

          We compare Waiters' situation with Robinson's

administrative claims and investigation.   We base our analysis on

the proceedings described in the EEOC's Final Decision dated June

2, 1993 and its earlier denial of his request to reopen, dated

March 18, 1991, as we have little else of relevance before us.

It appears that in each of Robinson's three complaints, one

complaining of the disapproval of his sick leave from August 27

through October 26, 1988, and the promotion of a white employee

to the new permanent position of Insulator General Foreman,

another complaining that he had been carried in an unauthorized

leave status in late January and early February 1989, and the

third complaining of the issuance of an indebtedness letter for

disapproved sick leave and for creating an asbestos hazard,

Robinson also complained of retaliation.

          Following a finding of no discrimination, Robinson

filed a Request to Reopen with the EEOC.   Although the EEOC

denied the request to reopen because it did not contain any new

and material evidence, the EEOC did vacate the decision and

remand for a supplemental investigation of Robinson's formal

complaint of race, color, and reprisal discrimination.    At the

same time, the EEOC noted "that the complaint and appellant's

prior complaints are interrelated in that they all raise issues

related to sick leave usage during a particular period and they

all appear to involve the same agency decision-makers."    It

concluded that "it would appear to be in the interest of


                               18
efficient and prompt complaint processing to investigate all

three complaints concurrently."    It continued: "Finally, we note

that none of appellant's three complaints challenge his demotion

or termination or any other action appealable to the MSPB."    The

EEOC refused to investigate the charge of retaliatory discharge

because a complaint had not been timely filed.

          The district court determined that Robinson’s three

timely filed complaints, which the court viewed as concerning

whether the specific absences were authorized or not, were not

"related" to the subsequent discharge because of Robinson's

intervening prolonged absence.    The court treated the termination

as in response to this later absence and therefore unrelated to

the earlier events.   From the meager record before us, we are

unable to determine whether that was a permissible conclusion at

this preliminary stage.   It is apparent, however, that the

district court failed to discuss the ground which was the basis

of our decision in Waiters that the complainant's subsequent

discharge fell within the earlier complaints - i.e. the scope of

the EEOC's investigation.

          Robinson is at a disadvantage here because the EEOC

expressly declined to include his later discharge in its

investigation.   In Ostapowicz v. Johnson Bronze Co., we explained
that “the parameters of the civil action in the district court

are defined by the scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of

discrimination, including new acts which occurred during the

pendency of proceedings before the Commission.”   541 F.2d 394,


                                  19
398-99 (3d Cir. 1976) (citations omitted).      Thereafter, we held

in Hicks v. ABT Associates, Inc., 572 F.2d 960, 965 (3d Cir.

1978), that if the EEOC investigation is too narrow, a plaintiff

should not be barred from raising additional claims in district

court.

           In Hicks, the plaintiff alleged racial discrimination

in his termination and filed a timely charge with the EEOC.      Id.

at 962.   The EEOC found that there was no reasonable cause to

believe that Hicks was discriminated against based on race.      Id.

at 963.   Hicks then filed suit in district court alleging race

and sex discrimination.      Id.   The district court dismissed the

charge of sex discrimination because that charge had not been

filed with the EEOC.   Id.     On appeal we remanded, explaining that

even though the EEOC had limited its investigation to the charge

of race discrimination, the district court must evaluate the

reasonableness of that investigation.      Id. at 965.

           We are in a similar position in this case in that the

EEOC declined to investigate Robinson’s allegations of

retaliatory discharge because a separate complaint had not been

filed with the EEOC, and the district court did not evaluate the

reasonableness of the decision not to investigate.       Thus we find

it appropriate to remand this case to the district court.

           In the first place, we are hampered by the absence in

the record of the actual complaints and have been obliged to rely

on the summaries of those complaints in the EEOC's rulings.      In

the second place, we note with some puzzlement that the reasons

given by the Navy for its discharge appear to include some of the


                                    20
same incidents referred to by Robinson in his three timely

complaints, i.e. excessive leave and creating an asbestos hazard.

 Therefore, we are unable to understand why the EEOC declined to

investigate Robinson's discharge.      We believe that the district

court will be in a better position to collect the relevant

material, question the parties on the implications, and decide in

the first instance whether the EEOC’s limited investigation was

reasonable under the circumstances.

           Factors the district court may consider in making this

determination include 1) whether the previous three complaints

alleged the same retaliatory intent inherent in the retaliatory

discharge claim, Waiters, 729 F.2d at 238; 2) whether the subject

of these previous complaints were used as a basis for the Navy’s

decision to terminate Robinson; and 3) whether the EEOC should

have been put on notice of Robinson’s claim of retaliatory

discharge and therefore investigated that claim, Hicks, 572 F.2d

at 966.   In light of our precedent, the court may also want to

reexamine whether there is enough overlapping in Robinson's

subsequent allegations with the earlier complaints that this

discharge complaint fairly falls within the scope of the earlier

complaints.
                                III.

           For the reasons set forth, we will vacate the order

dismissing this action and remand for further proceedings

consistent with this opinion.

_____________________________

TO THE CLERK:


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Please file the foregoing opinion.

          __________________________
          Chief Judge




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