PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-1321

_____________

ANTHONY HILDEBRAND,

 Appellant

v.

ALLEGHENY COUNTY, a political entity; ALLEGHENY 

COUNTY DISTRICT ATTORNEY'S OFFICE

___________ 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 2-12-cv-01122)

District Judge: Honorable Arthur J. Schwab

___________ 

Argued November 7, 2013

Before: GREENAWAY, JR., VANASKIE and ROTH, 

Circuit Judges

(Opinion Filed: June 27, 2014)

Marjorie E. Crist (Argued)
2

Crist Law Center, LLC

2500 Lawyers Building

428 Forbes Avenue

Pittsburgh, PA 15219

Counsel for Appellant

Anne N. Occhialino (Argued)

Equal Employment Opportunity Commission

131 M Street NE, 5th Floor

Washington, D.C. 20507

Counsel for Amicus Curiae Equal Employment 

Opportunity Commission

Andrew F. Szefi

Virginia S. Scott (Argued)

Allegheny County Law Department

300 Fort Pitt Commons Building

445 Fort Pitt Boulevard

Pittsburgh, PA 15219

Counsel for Appellee Allegheny County

Bernard M. Schneider (Argued)

Brucker Schneider & Porter

300 Weyman Road, Suite 320

Pittsburgh, PA 15236

Counsel for Appellee Allegheny County District 

Attorney’s Office

___________ 

OPINION OF THE COURT 

___________
3

VANASKIE, Circuit Judge.

This appeal presents three issues on which we have not 

previously ruled in a precedential opinion. First, whether an 

employee terminated from a local government position may 

maintain an action for age discrimination under 42 U.S.C. § 

1983. Second, whether the pleading of exhaustion of 

administrative remedies, a prerequisite to bringing a lawsuit 

under the Age Discrimination in Employment Act (“ADEA”), 

29 U.S.C. §§ 621-634, must satisfy the standards established 

in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and 

Ashcroft v. Iqbal, 556 U.S. 662 (2009). And third, whether a 

complainant’s submission of the Equal Employment 

Opportunity Commission’s revised Intake Questionnaire 

constitutes the filing of a charge of discrimination.

As to the first question, we hold that a state or local 

government employee may not maintain an age 

discrimination claim under 42 U.S.C. § 1983, but must 

instead proceed under the ADEA. As to the second question, 

we hold that a plaintiff is not obligated to plead exhaustion of 

administrative remedies with particularity, but may instead 

allege in general terms that the required administrative 

process has been completed. And finally, we hold that the 

EEOC Intake Questionnaire, revised in the wake of Federal 

Express Corp. v. Holowecki, 552 U.S. 389 (2008), when 

properly completed, constitutes a charge of discrimination.

As a result of our holdings, we will affirm the District 

Court’s dismissal of Appellant Anthony Hildebrand’s § 1983 

claims but we will vacate the District Court’s dismissal of 

Hildebrand’s ADEA claim against the Allegheny County 

District Attorney’s Office as Hildebrand submitted a properly 
4

completed Intake Questionnaire to the EEOC within the 

deadline for filing a charge of discrimination, and Hildebrand 

adequately pled the exhaustion of administrative remedies. 

Finally, we will affirm the dismissal of the ADEA claims 

against Appellee Allegheny County because it was not named 

on the Intake Questionnaire, and was not identified as a 

respondent to an age discrimination charge until after the 

deadline for filing a charge of discrimination against it had 

passed.

I. Background

Anthony Hildebrand was employed as a detective for 

the Allegheny County District Attorney’s Office (“DA’s 

Office”) for five years before he was terminated on February 

18, 2011. Prior to his work at the DA’s Office, Hildebrand 

spent fifteen years as an undercover narcotics detective with 

the Pittsburgh Police Department. 

On February 18, 2011, Hildebrand received a letter 

suspending him without pay for five days pending discharge, 

and announcing his termination effective that day. He filed

an internal grievance, but the termination was ultimately 

upheld. 

Hildebrand maintains that his termination was part of 

“a well-known and established practice to push out older 

workers through termination or forced resignation.” 

(Appellant’s Br. 5.) He contends that he became a victim of 

age-based discrimination beginning in 2009 when he was 

assigned a new supervisor who, he asserts, demoted him 

because of his age despite his satisfactory work performance. 

As part of his demotion, Hildebrand states that he was 
5

insulted on the basis of his age and relocated to an inferior 

workplace. He further alleges that the discrimination he 

faced was part of a hostile work environment that transcended 

the conduct of any one employee. 

On December 1, 2011, Hildebrand completed an 

Intake Questionnaire (“the Intake Questionnaire”) with the 

EEOC, indicating that he was the victim of discrimination on 

the basis of his age. He also checked a box on the Intake 

Questionnaire authorizing the EEOC to investigate his claim 

and indicating that he “want[ed] to file a charge of 

discrimination.” (EEOC Br. 3.) Subsequently, on January 

11, 2012, Hildebrand completed a “Charge of 

Discrimination” with the EEOC, naming the Allegheny 

County District Attorney as the respondent. The EEOC 

issued a right-to-sue letter on May 7, 2012, and Hildebrand 

filed suit on August 7, 2012. 

Hildebrand’s complaint named Allegheny County 

(“the County”), as well as the DA’s Office, as defendants. 

His complaint asserted violations of the ADEA, Title VII 

(retaliation), 42 U.S.C. § 1983 (asserting violation of the 

Equal Protection Clause due to age-based discrimination, as 

well as violation of his First Amendment free speech rights), 

the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. §§ 

1421-1428, and the Pennsylvania Human Relations Act, 43 

Pa. Cons. Stat §§ 951-963. His complaint also alleged:

All conditions precedent to 

jurisdiction under section 706 of 

Title VII, have occurred or been 

complied with. Plaintiff filed a 

claim of employment 
6

discrimination with the [EEOC]. 

The EEOC issued a Notice of 

Right to Sue. This Complaint is 

filed within 90 days of such 

Notice of Right to Sue.

(A. 2.) 

The County and the DA’s Office (collectively, 

“Appellees”) separately filed motions to dismiss. On 

December 7, 2012, the District Court granted the motions to 

dismiss the Title VII retaliation claim. The District Court 

also applied the pleading standards set forth in Twombly, 550 

U.S. 544, and Iqbal, 556 U.S. 662, to Hildebrand’s assertion

that he satisfied all conditions precedent to filing suit under 

the ADEA. Analyzing Hildebrand’s complaint in light of the 

Iqbal/Twombly standard, the District Court stated:

Because [the complaint] fails to 

provide any facts, i.e. specific 

dates, as to when Plaintiff raised 

his claim with the EEOC and 

when the EEOC issued its right to 

sue letter to Plaintiff, and because 

Plaintiff failed to attach his Right 

to Sue to the Complaint, . . . the 

Complaint falls short of providing 

the facts to establish whether he 

has adequately exhausted his 

administrative remedies.
7

(A. 112.) Accordingly, the Court dismissed the ADEA claim 

without prejudice. The District Court also dismissed 

Hildebrand’s section 1983 claims without prejudice. 

Hildebrand filed an amended complaint, alleging with 

greater particularity that he satisfied all conditions precedent 

to filing suit under the ADEA. Specifically, he averred that 

he had filed a timely charge of discrimination, the EEOC had 

issued a right-to-sue letter, and he had filed the complaint 

within 90 days of notice of the right-to-sue. He attached his 

charge of discrimination and the EEOC right-to-sue letter to 

the amended complaint. 

Appellees each filed motions to dismiss the Amended 

Complaint under Federal Rule of Civil Procedure 12(b)(6), 

arguing, inter alia, that Hildebrand’s charge was untimely 

because it was filed more than 300 days after the last date of 

discrimination. Allegheny County also urged the District 

Court to dismiss Hildebrand’s ADEA claim against the 

County on the additional ground that the charge of 

discrimination named only the DA’s Office as a defendant. 

Hildebrand attached to his responses to the motions

his completed EEOC Intake Questionnaire. He contended

that the completed Intake Questionnaire constitutes a charge 

and was filed within 300 days of the last date of 

discrimination. 

On January 4, 2013, the District Court dismissed 

Hildebrand’s amended complaint. The District Court first 

dismissed the ADEA claim, concluding that Hildebrand did 

not file a “charge of discrimination” with the EEOC within 

the requisite 300 days of the last date of discrimination. 
8

Specifically, the District Court found that the last date of 

alleged discrimination was Hildebrand’s February 18, 2011

termination, and that the charge of discrimination filed on 

January 11, 2012 was therefore untimely. Thus, the District 

Court concluded that Hildebrand failed to sufficiently plead 

that he timely filed his claim with the EEOC “in light of the 

Iqbal/Twombly standard.” (A. 307.) Finding that further 

amendment would be futile, the District Court dismissed the 

ADEA claim with prejudice. 

As to his § 1983 claims, the District Court held that 

Hildebrand failed to state a plausible claim against Allegheny 

County under a theory of municipal liability, because he did 

not plead sufficient facts to support a plausible inference that 

the County had adopted a custom or practice of age 

discrimination. The District Court also dismissed the § 1983 

claims against the DA’s Office based on Hildebrand’s 

concession that it was not a separate entity from the County 

for purposes of § 1983. Finally, having dismissed with 

prejudice all claims arising under federal law, the District 

Court declined to exercise supplemental jurisdiction over the 

remaining claims asserted under the Pennsylvania 

Whistleblower Law and the Pennsylvania Human Relations 

Act.

II. Discussion

The District Court had jurisdiction pursuant to 28 

U.S.C. §§ 1331, 1343(a)(3), and 1367. We have jurisdiction 

under 28 U.S.C. § 1291. We exercise plenary review over a 

decision granting a motion to dismiss. Santiago v. 

Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010). 

Accordingly, “[w]e may affirm the district court on any 
9

ground supported by the record.” Tourscher v. McCullough, 

184 F.3d 236, 240 (3d Cir. 1999). 

A. Hildebrand’s § 1983 Age Discrimination Claim

We turn first to Hildebrand’s claim brought under § 

1983 that Appellees discriminated against him on the basis of 

his age, in violation of the Equal Protection Clause of the 

Fourteenth Amendment. Allegheny County argues that the 

District Court properly dismissed this § 1983 cause of action, 

contending that “[t]he ADEA ‘is the exclusive remedy for 

claims of age discrimination in employment.’” (Allegheny 

Cnty. Br. 19 (quoting Ahlmeyer v. Nev. Sys. of Higher Educ., 

555 F.3d 1051, 1060-61 (9th Cir. 2009)). For the reasons that 

follow, we agree.

1.

42 U.S.C. § 1983 provides, in pertinent part:

Every person who, under color of 

any statute, ordinance, regulation, 

custom, or usage, of any State or 

Territory or the District of 

Columbia, subjects, or causes to 

be subjected, any citizen of the 

United States or other person 

within the jurisdiction thereof to 

the deprivation of any rights, 

privileges, or immunities secured 

by the Constitution and laws, shall 

be liable to the party injured in an 

action at law, suit in equity, or 
10

other proper proceeding for 

redress . . . .

Rather than conferring any substantive rights, section 

1983 “provides a method for vindicating federal rights 

elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 

(1994) (internal quotation marks and citations omitted). 

“Nevertheless, § 1983 is a statutory remedy and Congress 

retains the authority to repeal it or replace it with an 

alternative remedy.” Smith v. Robinson, 468 U.S. 992, 1012 

(1984), superseded by statute, Education of the Handicapped 

Act, § 615(e)(4) as amended, 20 U.S.C. § 1415(e)(4). Thus, 

“[s]ection 1983 claims are not available . . . where Congress 

has evinced an intent to preclude such claims through other 

legislation.” Ahlmeyer, 555 F.3d at 1055. 

In determining whether a statutory enactment 

precludes suit under § 1983, “[t]he crucial consideration is 

what Congress intended.” Smith, 468 U.S. at 1012. 

Congressional intent to preclude § 1983 claims may be 

inferred “[w]hen the remedial devices provided in a particular 

Act are sufficiently comprehensive.” Middlesex Cnty. 

Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20-

21 (1981). In Sea Clammers, the Supreme Court held that a 

plaintiff was precluded from bringing a § 1983 suit for 

damages under the Federal Water Pollution Control Act

Amendments of 1972, 33 U.S.C. § 1251 et seq. (1976), and 

the Marine Protection, Research, and Sanctuaries Act of 

1972, 33 U.S.C. § 1401 et seq. (1976). 453 U.S. at 20-21.

Emphasizing the “unusually elaborate enforcement 

provisions” of the statutory framework, id. at 13, the Court 

concluded that “[a]llowing parallel § 1983 claims to proceed 

. . . would have thwarted Congress’ intent in formulating and 
11

detailing these provisions.” Fitzgerald v. Barnstable Sch. 

Comm., 555 U.S. 246, 253 (2009).

The Supreme Court has also held that § 1983 suits 

were precluded by statute in a case where a plaintiff sought 

vindication of a constitutional – rather than a statutory – right. 

See Smith, 468 U.S. 992. In Smith, plaintiffs alleged 

violations of the Due Process and Equal Protection Clauses of 

the Fourteenth Amendment, asserting a deprivation of the 

right to “a free appropriate public education” for their 

handicapped child. Id. at 1009. Focusing once again on the 

“comprehensive nature of the procedures and guarantees” set 

forth in the statute’s remedial scheme, the Court concluded

that Congress did not intend to “leave undisturbed the ability 

of a handicapped child to go directly to court with an equal 

protection claim to a free appropriate public education.” Id.

at 1011. Permitting such suits, the Court observed, would 

“[a]llow[] a plaintiff to circumvent” congressional intent. Id.

at 1012.

Subsequently, in Rancho Palos Verdes v. Abrams, 544 

U.S. 113 (2005), the Court again found that a comprehensive 

remedial statutory framework precluded suit under § 1983. 

The plaintiff in Rancho Palos Verdes filed suit under the 

Telecommunications Act of 1996 and for damages under § 

1983. Id. at 115. Applying its prior decisions in Sea 

Clammers and Smith, the Court ruled that the 

Telecommunications Act’s remedial scheme would be 

“distort[ed]” by direct enforcement through § 1983. Id. at 

127.

Most recently, the Court considered whether Title IX 

of the Education Amendments of 1972, 20 U.S.C. § 1681(a), 
12

precludes § 1983 claims of sex discrimination in violation of 

the Equal Protection Clause. See Fitzgerald, 555 U.S. at 249. 

In Fitzgerald, the plaintiffs alleged that their daughter, then 

an elementary school student, suffered several incidents of 

sexual harassment by another student while on the school bus, 

and that the school’s response to their allegations had been 

inadequate. Id. at 250. The plaintiffs brought suit, asserting 

that their daughter had suffered sex discrimination in 

violation of Title IX and the Equal Protection Clause of the 

Fourteenth Amendment. Id. The Court of Appeals for the 

First Circuit dismissed plaintiffs’ constitutional claims, 

holding that Title IX provided the sole remedy for sex 

discrimination in the education context. Id. at 251. The 

Supreme Court reversed. Id. Reiterating that “the crucial 

consideration is what Congress intended,” id. (citation 

omitted), the Court signaled that its analysis of congressional 

intent might differ depending upon whether the right asserted 

under § 1983 arises from a statute or the Constitution:

In those cases in which the § 1983 

claim is based on a statutory right, 

evidence of such congressional 

intent may be found directly in the 

statute creating the right, or 

inferred from the statute’s 

creation of a comprehensive 

enforcement scheme that is 

incompatible with individual 

enforcement under § 1983. In 

cases in which the § 1983 claim 

alleges a constitutional violation, 

lack of congressional intent may 

be inferred from a comparison of 
13

the rights and protections of the 

statute and those existing under 

the Constitution. Where the 

contours of such rights and 

protections diverge in significant 

ways, it is not likely that Congress 

intended to displace § 1983 suits 

enforcing constitutional rights.

Id. at 252-53 (internal citations and quotation marks omitted). 

Notwithstanding the distinction between statutorilycreated rights and constitutionally-conferred rights, the Court 

emphasized that, “[i]n determining whether a subsequent 

statute precludes enforcement of a federal right under § 1983 

. . . primary emphasis [is placed] on the nature and extent of 

that statute’s remedial scheme.” Id. This was true even 

where plaintiffs, such as those in Smith, “relied on § 1983 to 

assert independent constitutional rights,” rather than statutory 

rights. Id. Indeed, the Court observed that in each of the 

cases where it found a statute to be the exclusive remedy for 

an asserted right, “the statutes at issue required plaintiffs to 

comply with particular procedures and/or to exhaust 

particular administrative remedies prior to filing suit,” and 

“‘[a]llowing a plaintiff to circumvent’ the statutes’ provisions 

[by suing directly under § 1983] would have been 

‘inconsistent with Congress’ carefully tailored scheme.’” Id. 

at 254-55 (quoting Smith, 468 U.S. at 1012).

Turning to the question of whether Title IX precludes

suit under § 1983 for sex discrimination, the Court first found 

that Title IX does not provide a comprehensive enforcement

scheme, emphasizing that Title IX’s “remedies – withdrawal 
14

of federal funds and an implied cause of action – stand in 

stark contrast to the ‘unusually elaborate,’ ‘carefully tailored,’ 

and ‘restrictive’ enforcement schemes of the statutes at issue 

in Sea Clammers, Smith, and Rancho Palos Verdes.” Id. at 

255. The Court observed that Title IX does not contain an 

administrative exhaustion requirement or a notice provision.

Id. Affording particular weight to Title IX’s lack of an 

express private right of action, the Court noted that it “has

never held that an implied right of action had the effect of 

precluding suit under § 1983.” Id. Given the absence in Title 

IX of a detailed remedial scheme, the Court concluded that 

“parallel and concurrent § 1983 claims will neither 

circumvent required procedures, nor allow access to new 

remedies.” Id. at 255-56. The Court found further support 

for its conclusion that gender discrimination covered by Title 

IX could be pursued by way of a § 1983 suit by analyzing 

“the substantive rights and protections guaranteed under Title 

IX and under the Equal Protection Clause.” Id. at 256. The 

Court found that “Title IX’s protections are narrower in some 

respects and broader in others.” Id. For instance, Title IX 

exempts several activities that can be challenged under the 

Equal Protection Clause, such as discrimination in admissions 

decisions of elementary and secondary schools, and all 

activities of military service schools, as well as traditionally 

single-sex public colleges. Id. at 257. Additionally, the 

Court cited incongruous standards for establishing liability 

under Title IX and the Equal Protection Clause, explaining 

that, while “a Title IX plaintiff can establish school district 

liability by showing that a single school administrator with 

authority to take corrective action responded . . . with 

deliberate indifference,” the same plaintiff would be required 

to show a municipal policy, custom, or practice under § 1983. 

Id. at 257-58. Because of this disparity in coverage, as well 
15

as Title IX’s lack of a comprehensive enforcement 

framework, the Fitzgerald Court concluded that, in passing 

Title IX, Congress did not intend to preclude sex 

discrimination claims in the context of education under § 

1983. Id. at 258. 

2.

Prior to Fitzgerald, a number of our sister Courts of

Appeals had held that the ADEA precludes § 1983 claims of 

age discrimination. See Ahlmeyer, 555 F.3d at 1057; TapiaTapia v. Potter, 322 F.3d 742 (1st Cir. 2003); Migneault v. 

Peck, 158 F.3d 1131 (10th Cir. 1998), vacated on other 

grounds by Bd. of Regents of Univ. of N.M. v. Migneault, 528 

U.S. 1110 (2000); Lafleur v. Tex. Dep’t of Health, 126 F.3d 

758 (5th Cir. 1997); Chennareddy v. Bowsher, 935 F.2d 315 

(D.C. Cir. 1991); Zombro v. Baltimore City Police Dept., 868 

F.2d 1364 (4th Cir. 1989). The Seventh Circuit – the only 

Court of Appeals to consider this question after Fitzgerald – , 

however, reached the opposite conclusion. See Levin v. 

Madigan, 692 F.3d 607, 622 (2012). 

The leading case concluding that the ADEA precludes 

§ 1983 claims of age discrimination is Zombro v. Baltimore 

City Police Department, 868 F.2d 1364. See Ahlmeyer, 555 

F.3d at 1056. In Zombro, the Fourth Circuit held that 

Congress intended the ADEA to be the exclusive remedy for 

claims of age discrimination, reasoning that private causes of 

action brought directly under § 1983 “would severely 

undermine, if not debilitate, the enforcement mechanism 

created by Congress under the ADEA.” 868 F.2d at 1369. 

Zombro focused on the ADEA’s comprehensive statutory 

scheme, which “was structured to facilitate and encourage 
16

compliance through an informal process of conciliation and 

mediation.” Id. at 1366. Providing a plaintiff with “direct 

and immediate access to the federal courts” via § 1983 could 

result in “the comprehensive administrative process . . . . 

be[ing] bypassed, and the goal of compliance through 

mediation . . . . be[ing] discarded.” Id. Given these concerns, 

the Zombro court reached what it deemed “[t]he inescapable 

conclusion” that the ADEA precludes suits under § 1983 for 

age discrimination. Id. at 1366-67. 

After Zombro, the Courts of Appeals for the First, 

Fifth, Ninth, Tenth, and District of Columbia Circuits agreed. 

See Tapia-Tapia, 322 F.3d at 745; Lafleur, 126 F.3d at 760; 

Ahlmeyer, 555 F.3d at 1057; Migneault, 158 F.3d at 1140; 

Chennareddy, 935 F.2d at 318. In light of the Supreme 

Court’s decision in Fitzgerald, however, the Seventh Circuit 

diverged from this consensus view, concluding instead that 

the ADEA does not preclude constitutional claims of age 

discrimination asserted under § 1983. Levin, 692 F.3d at 617.

While recognizing that “the ADEA sets forth a rather 

comprehensive remedial scheme,” id. at 618, Levin 

interpreted Fitzgerald as setting a higher bar for inferring 

preclusive intent in cases where a plaintiff alleges a 

constitutional violation. Id. To imply congressional intent to 

preclude constitutional claims, the Levin court held that 

“some additional indication of congressional intent” is 

required. Id. at 619. Emphasizing that the ADEA lacks 

express language evincing congressional intent to preclude § 

1983 suits, Levin considered the statute’s purpose. The court 

reasoned that “the ADEA does not purport to provide a 

remedy for violation of constitutional rights,” but rather, “it 

provides a mechanism to enforce only the substantive rights 
17

created by the ADEA itself.” Id. at 619 (citing Zombro, 868 

F.2d at 1373 (Murnaghan, J., concurring in part and 

dissenting in part)) (internal quotation marks omitted). Levin

then distinguished the Supreme Court’s decision in Smith, 

which found that the Individuals with Disabilities Education 

Act (“IDEA”), Pub. L. 94-142, precluded suit under § 1983 

for a Constitutional violation, explaining that the IDEA was 

passed to address the constitutional requirement to provide a 

public education for handicapped children. Id. at 619. 

Without express language addressing preclusion, and “absent 

any additional indication from Congress,” the Levin Court 

declined to infer an intent to preclude constitutional claims of 

discrimination. Id. at 620. The court in Levin then compared 

the rights and protections offered by the ADEA and the Equal 

Protection Clause, and found several significant differences: 

first, an ADEA plaintiff may sue only an employer, 

employment agency, or labor organization, whereas a § 1983 

plaintiff is free to sue any individual who “caused or 

participated in the alleged deprivation of the plaintiff’s 

constitutional rights”; second, the ADEA limits claims by 

certain individuals, such as elected officials, who are not 

exempted from bringing suit under § 1983; and third, unlike 

under § 1983, state employees are effectively barred from 

bringing suit under the ADEA because their employers are 

shielded by Eleventh Amendment immunity. Id. at 621. In 

light of these differences, and in the absence of express 

congressional intent to the contrary, the Levin court 

concluded that the ADEA is not the exclusive remedy for age 

discrimination claims. Id. at 621-22.

3.
18

We agree with the Levin court that the issue of whether 

the ADEA precludes a § 1983 cause of action for age 

discrimination in employment presents a “close call.” Id. at 

617. Contrary to Levin, however, we conclude that, on 

balance, the relevant considerations weigh in favor of finding 

that the ADEA does indeed bar such § 1983 claims. 

The Supreme Court has consistently indicated that the

comprehensiveness of a statute’s remedial scheme is the 

primary factor in determining congressional intent. See 

Fitzgerald, 555 U.S. at 253 (“[W]e have placed primary 

emphasis on the nature and extent of [a] statute’s remedial 

scheme.”) (emphasis added). Fitzgerald reaffirms the 

Court’s jurisprudence on this issue as articulated in Sea 

Clammers, Smith, and Rancho Palos Verdes. Id. at 254 

(observing that, in each of prior cases, “[o]ffering plaintiffs a 

direct route to court via § 1983 would have circumvented [the 

relevant statute’s comprehensive] procedures.”). Indeed, 

Fitzgerald cited with approval the Court’s statement in Sea 

Clammers that, “[w]hen the remedial devices provided in a 

particular Act are sufficiently comprehensive, they may 

suffice to demonstrate congressional intent to preclude the 

remedy of suits under § 1983.” Id. at 253 (quoting Sea 

Clammers, 453 U.S. at 20) (emphasis added). To be sure,

Fitzgerald’s analysis of the different substantive protections 

afforded by Title IX and the Equal Protection Clause provides 

an additional framework for determining whether a section 

1983 cause of action is foreclosed. Nevertheless, we do not 

believe it disturbed the basic principle that, absent indications 

to the contrary, we may infer that Congress intended to

preclude § 1983 claims when it provides a sufficiently 

comprehensive remedial scheme for the vindication of a 

federal constitutional right.
19

Thus, we cannot agree with Levin that Congress must 

provide some “additional indication” of its intent. Levin, 692 

F.3d at 619. Fitzgerald does not suggest the need for a 

statement of “clear or manifest congressional intent in either 

the language of the statute or the legislative history,” as Levin

requires. See Levin, 692 F.3d at 621. Rather, Fitzgerald

reaffirmed the principle that, where a statute imposes 

procedural requirements or provides for administrative 

remedies, permitting a plaintiff to proceed directly to court 

via § 1983 would be “inconsistent with Congress’ carefully

tailored scheme.” Fitzgerald, 555 U.S. at 255 (quoting Smith, 

468 U.S. at 1012).

Here, there can be no debate that the ADEA provides a 

comprehensive remedial scheme. Under the ADEA, it is 

unlawful for an employer to, among other things, “fail or 

refuse to hire or to discharge any individual or otherwise 

discriminate against any individual . . . because of such 

individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA 

expressly provides a private right of action to employees. Id.

§ 626(c). Before an employee may file suit under the ADEA, 

however, a plaintiff is required to exhaust administrative 

remedies by filing a charge of discrimination with the EEOC. 

Id. § 626(d)(1). The EEOC is then directed to notify all 

respondents named in the employee’s charge of 

discrimination and to “promptly seek to eliminate any alleged 

unlawful practice by informal methods of conciliation, 

conference, and persuasion.” Id. § 626(d)(2). Unless the 

EEOC elects to file suit to enforce the employee’s claim, an 

employee may commence suit sixty days after filing a charge. 

Id. §§ 626(c)(1), (d)(1). In light of these requirements, we 

agree with the majority of our sister Courts of Appeals that
20

this scheme would be undermined if plaintiffs could sue 

directly under § 1983. See, e.g., Zombro, 868 F.2d at 1366 

(“[Under § 1983, the] plaintiff would have direct and 

immediate access to the federal courts, the comprehensive 

administrative process would be bypassed, and the goal of 

compliance through mediation would be discarded.”).

Moreover, we do not believe that the rights and 

protections of the ADEA and the Equal Protection Clause 

differ in such significant ways as to demonstrate 

congressional intent to allow parallel § 1983 claims alleging 

age discrimination. The ADEA is intended to “promote 

employment of older persons based on their ability rather than 

age; to prohibit arbitrary age discrimination in employment; 

[and] to help employers and workers find ways of meeting 

problems arising from the impact of age on employment.” 29 

U.S.C. § 621(b). Under the Equal Protection Clause, age 

classifications receive only rational basis review. Kimel v. 

Florida Bd. of Regents, 528 U.S. 62, 83 (2000) (“States may 

discriminate on the basis of age without offending the 

Fourteenth Amendment if the age classification in question is 

rationally related to a legitimate state interest.”). By 

prohibiting “arbitrary age discrimination,” the ADEA 

encompasses the protections afforded by the Fourteenth 

Amendment, while significantly expanding prohibitions on

age discrimination elsewhere. 

Although, as the Levin court emphasizes, the potential 

defendants are different under the ADEA and § 1983,

1 we do 

 1

 Under the ADEA, a plaintiff may sue his employer, 

an employment agency, or a labor organization. 29 U.S.C. § 

623. In contrast, a § 1983 plaintiff can sue an individual 
21

not believe this distinction significant enough to demonstrate 

congressional intent to permit both claims. Additionally, we 

think the fact that certain government employees are either 

exempted from the ADEA, or limited to certain remedies, see 

29 U.S.C. §§ 623(j), 630(f), demonstrates congressional 

intent to specifically define the rights of those employees 

rather than to permit such employees to circumvent these 

limitations by filing directly under § 1983. See Sea 

Clammers, 453 U.S. at 15 (“In the absence of strong indicia 

of a contrary congressional intent, we are compelled to 

conclude that Congress provided precisely the remedies it 

considered appropriate.”).

“We do not lightly conclude that Congress intended to 

preclude reliance on § 1983 as a remedy for a substantial 

equal protection claim.” Smith, 468 U.S. at 1012. Because 

we believe, however, that § 1983 suits are “inconsistent with 

Congress’ carefully tailored scheme,” id., we join the 

majority of Courts of Appeals in concluding that Congress 

intended the ADEA to be the exclusive remedy for claims of 

age discrimination in employment. Accordingly, we will

affirm the District Court’s dismissal of Hildebrand’s § 1983 

claim of age discrimination.

B. Hildebrand’s § 1983 Retaliation Claims

Hildebrand seeks vindication for two additional 

alleged violations under § 1983, contending that he was 

retaliated against for his use of the internal grievance process 

 

whose actions caused a deprivation of his constitutional 

rights. Kuhn v. Goodlow, 678 F.3d 552, 555-56 (7th Cir. 

2011). 
22

in violation of the First and Fourteenth Amendments, and that 

he was retaliated against on the basis of his political 

patronage in violation of the First Amendment. The District 

Court dismissed these allegations along with Hildebrand’s § 

1983 age discrimination claim, finding that he had failed to 

adequately plead that the County adopted a custom or practice 

of such discrimination. The District Court also found, albeit 

in a footnote, that Hildebrand’s amended complaint “fail[ed] 

to pinpoint with any clarity which of his Constitutional rights 

were negatively impacted by [Allegheny County],” that the 

allegations of First and Fourteenth Amendment violations 

were conclusory in nature, and that they therefore “fail[ed] to 

meet the Iqbal/Twombly standard.” (A. 313 n.5.) As to the 

claims of retaliation, we agree with the District Court’s 

analysis.

Hildebrand brought each of these claims against 

Allegheny County under a theory of municipal liability, 

which requires him to demonstrate either that the County 

officially adopted a “policy,” or unofficially adopted a

“custom,” of unconstitutional discrimination. See Monell v. 

Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 690-

91 (1978). Hildebrand concededly proceeded on all § 1983 

claims under a “custom” theory. “A plaintiff may establish a 

custom . . . by showing that a given course of conduct, 

although not specifically endorsed or authorized by law, is so 

well-settled and permanent as virtually to constitute law.” 

Watson v. Abington Twp., 478 F.3d 144, 155-56 (3d Cir. 

2007) (citing Andrews v. City of Philadelphia, 895 F.2d 1469,

1480 (3d Cir. 1990) (internal quotation marks omitted)).

In his amended complaint, Hildebrand made the 

following averments of retaliation: he alleged that he was 
23

retaliated against by the Chief Detective and the Assistant 

Chief Detective at the DA’s Office after he made a good faith 

report expressing concerns about a fellow detective (A. 136 

¶¶ S-T); that he was similarly retaliated against by the same 

individuals after reporting a concern about the Office’s 

procedure for charging drug crimes (Id. 138 ¶ X); that he was 

retaliated against by the Assistant Chief Detective after he 

filed an internal grievance against him alleging age-based 

harassment (Id. 139-40 ¶¶ BB – DD); that he was 

subsequently demoted in retaliation for his complaints about 

the drug charging procedures (Id. 142 ¶ JJ); and that he was 

harassed after members of the DA’s Office learned that he 

had previously made political contributions to Joan Orie 

Melvin in her candidacy for the Pennsylvania Supreme Court

(Id. 145-46 ¶ WW). Notwithstanding these allegations of 

retaliation and harassment on the part of certain high-ranking 

officials at the DA’s Office, Hildebrand does not allege that 

Allegheny County established a custom of retaliating against 

supporters of Ms. Melvin, or against Hildebrand or other 

employees who utilized the internal grievance process. 

While Hildebrand’s brief on appeal reasserts his claim 

of retaliation, it does not point to any facts demonstrating that 

there existed a custom in Allegheny County to retaliate 

against employees on these bases. Rather, the portion of 

Hildebrand’s brief dedicated to discussing his allegations in 

support of municipal liability relate solely to his claims of age 

discrimination. We therefore agree with the District Court 

that Hildebrand failed to set forth a plausible claim for relief 

against Allegheny County for retaliation, and we will affirm 

their dismissal on that basis.

C. Hildebrand’s ADEA Claims
24

Having determined that Hildebrand’s § 1983 claims

were properly dismissed, we now turn to the District Court’s 

dismissal of Hildebrand’s ADEA claim.

1. Whether the Iqbal/Twombly Pleading Standards Apply to 

Fed. R. Civ. P. 9(c)

A plaintiff seeking relief under the ADEA must 

exhaust his or her administrative remedies as mandated by 29 

U.S.C. § 626(d). Section 626(d) requires plaintiffs in 

“deferral states” such as Pennsylvania, which have a state 

agency with authority to investigate claims of employment 

discrimination, to file charges with the EEOC within 300 

days of the last date of alleged discrimination. 29 U.S.C. §§ 

626(d)(2) & 633(b); Watson v. Eastman Kodak Co., 235 F.3d 

851, 854 (3d Cir. 2000). A plaintiff’s obligation to timely file 

with the EEOC is a condition precedent to filing suit under 

the ADEA. Seredinski v. Clifton Precision Prods. Co., Div. 

of Litton Sys., Inc., 776 F.2d 56, 64 (3d Cir. 1985) (Sarokin, 

J., concurring in part and dissenting in part). 

The pleading of a condition precedent is governed by 

Federal Rule of Civil Procedure 9(c), which provides:

Conditions Precedent. In 

pleading conditions precedent, it 

suffices to allege generally that all 

conditions precedent have 

occurred or been performed. But 

when denying that a condition 

precedent has occurred or been 
25

performed, a party must do so 

with particularity.

Fed. R. Civ. P. 9(c).

Here, Hildebrand’s original complaint alleged:

All conditions precedent to 

jurisdiction under section 706 of 

Title VII, have occurred or been 

complied with. Plaintiff filed a 

claim of employment 

discrimination with the [EEOC]. 

The EEOC issued a Notice of 

Right to Sue. This complaint is 

filed within 90 days of such 

Notice of Right to Sue.

(A. 2.) 

The District Court dismissed Hildebrand’s ADEA 

claim, holding that he failed to sufficiently plead the 

satisfaction of this condition precedent. Specifically, the 

District Court applied the pleading standards set forth in 

Twombly and Iqbal, which held that Federal Rule of Civil 

Procedure 8(a) requires a plaintiff to allege “enough facts to 

state a claim to relief that is plausible on its face.” Twombly, 

550 U.S. at 570; see also Iqbal, 556 U.S. at 678. 

The District Court erred by applying Iqbal and 

Twombly to Hildebrand’s pleading of the conditions 

precedent to filing suit under the ADEA. Iqbal and Twombly

interpreted Federal Rule of Civil Procedure 8(a), which 
26

governs the standard for pleading a claim for relief. The 

pleading of conditions precedent is governed by Rule 9(c), 

not Rule 8(a). Neither Iqbal nor Twombly purport to alter 

Rule 9. We see no indication that those cases sought to 

override the plain language of Rule 9(c), and we therefore 

conclude that the pleading of conditions precedent falls 

outside the strictures of Iqbal and Twombly.

2. The Intake Questionnaire

Our conclusion that the District Court erred in 

applying Iqbal and Twombly to the pleading of conditions 

precedent does not end our inquiry. Following the dismissal 

of his first complaint, Hildebrand filed an amended 

complaint, which alleged his satisfaction of the ADEA’s 

conditions precedent in greater detail. Specifically, 

Hildebrand alleged that he had filed a charge with the EEOC 

within 300 days of the last date of discrimination. He 

attached his charge of discrimination to his amended 

complaint.

In their motions to dismiss the amended complaint, 

Appellees contested Hildebrand’s asserted final date of 

discrimination, contending that the last date of discrimination 

was his February 18, 2011 termination. Under this reasoning, 

Hildebrand’s charge of discrimination, which he filed on 

January 11, 2012, would be untimely. In response to the 

motions to dismiss, Hildebrand argued that the EEOC Intake 

Questionnaire, which he filed on December 1, 2011, 

constituted a timely-filed charge of discrimination.

The District Court dismissed Hildebrand’s ADEA 

claims with prejudice, concluding that the last date of 
27

discrimination was February 18, 2011, and that the January 

11, 2012 charge was therefore untimely. The District Court 

did not consider the Intake Questionnaire.2 We agree that

Hildebrand’s Intake Questionnaire constitutes a timely filed 

charge.

An EEOC filing constitutes a charge of discrimination 

if it satisfies the requirements of 29 C.F.R. § 1626.6, and can 

“reasonably [be] construed as a request for [the EEOC] to 

take remedial action to protect the employee’s rights.” Fed.

Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). In 

Holowecki, the Supreme Court adopted a “permissive” 

interpretation of the charge requirement, explaining that a 

“wide range of documents,” including an intake 

questionnaire, “may be classified as charges.” Id. at 402.

 2

 Hildebrand concedes that the Intake Questionnaire 

was not attached to his amended complaint. He did, however, 

submit the questionnaire as an exhibit to his response to 

Allegheny County’s motion to dismiss. While a court is 

limited to considering the pleadings in deciding a Rule 

12(b)(6) motion, we are satisfied that the Intake 

Questionnaire was properly before the District Court. There 

was no dispute as to its authenticity, and it directly 

corroborated Hildebrand’s claim that he had satisfied the 

conditions precedent to filing suit under the ADEA. See 

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (“In 

deciding a Rule 12(b)(6) motion, a court must consider only 

the complaint, exhibits attached to the complaint, matters of 

public record, as well as undisputedly authentic documents if 

the complainant’s claims are based upon these documents.”). 
28

Following Holowecki, the EEOC revised its Intake 

Questionnaire to require claimants to check a box to request 

that the EEOC take remedial action. This box, commonly 

referred to as “Box 2,” states: 

I want to file a charge of 

discrimination, and I authorize the 

EEOC to look into the 

discrimination I described above. 

I understand that the EEOC must 

give the employer, union, or 

employment agency that I accuse 

of discrimination information 

about the charge, including my 

name. . . . 

(A. 262, 291). Under the revised form, an employee who 

completes the Intake Questionnaire and checks Box 2 

unquestionably files a charge of discrimination. Hildebrand 

did precisely this. Additionally, Hildebrand’s questionnaire is 

dated December 1, 2011, which is within 300 days of the 

February 18, 2011 letter of suspension and notice of 

termination. Thus, it was timely filed.

The Intake Questionnaire did not, however, preserve 

Hildebrand’s claim against Allegheny County. As the County 

observes, Hildebrand’s EEOC Intake Questionnaire names 

“Allegheny County District Attorney’s Office” as the only 

respondent. Thus, it fails to allege any discrimination on the 

part of the County. We will therefore vacate the District 

Court’s dismissal of Hildebrand’s ADEA claim as to the 

DA’s Office because the Intake Questionnaire was a timely 

filed charge of discrimination, but we will affirm dismissal of 
29

the ADEA claim against Allegheny County, because the 

Intake Questionnaire demonstrates that Hildebrand failed to 

timely exhaust his administrative remedies as to the County.

III.

For the foregoing reasons, we will affirm in part, 

vacate in part, and remand for further proceedings consistent 

with this opinion.