1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"Robinson v. Dalton" (1997). 1997 Decisions. Paper 49.

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1

 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 
2

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 
3

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. 
4

 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. 
5

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 
6

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 
7

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 
8

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). 
9

 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 
10

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 
11

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 
12

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. ScheringPlough 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 
13

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 
14

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 
15

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 
16

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 
17

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 
18

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 
19

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, 
20

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 
21

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: 
22

 Please file the foregoing opinion. 

 __________________________ 

 Chief Judge 
23