No

Page(s)

Ashcroft v. Iqbal, 556 U.S. 662 (2009)...................................................... 2, 4, 9

Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984)................... 16

Barber v. City of Chattanooga, No. 08-294, 2011 WL 1321392 (E.D. Tenn. Apr. 1, 2011).......................................................................................................... 10

Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007)..................... 2, 4, 9

Bentley v. Dollar Tree Stores, Inc., No. 11-221, 2011 WL 3678688 (N.D. Fla. 2011) 10

Brooks v. Monroe Sys. for Business, Inc., 873 F.2d 202 (8th Cir. 1989)............ 9

Collins v. Sload, 212 F. App’x 136 (3d Cir. 2007)......................................... 12

EEOC v. Bass Pro Outdoor World, LLC, 884 F. Supp. 2d 499 (S.D. Tex. 2012) 9

EEOC v. Global Horizons, Inc., 860 F. Supp. 2d 1172 (D. Haw. 2012)......... 10

EEOC v. Klingler, 636 F.2d 104 (5th Cir. 1981)............................................. 13

EEOC v. Service Temps, Inc., No. 08-1552, 2010 WL 1644909 (N.D. Tex. Apr. 22, 2010), aff’d on different grounds, 679 F.3d 323 (5th Cir. 2012)................ 10

EEOC v. U.S. Steel Corp., No. 10-1284, 2012 WL 3017869 (W.D. Penn. July 23, 2012)..................................................................................................................... 9

Federal Express v. Holowecki, 552 U.S. 389 (2008).................................... 2, 14

Fowler v. UPMC, 578 F.3d 203 (3d Cir. 2009)................................................. 4

Frazier v. Harris, 266 F. Supp. 2d 853 (N.D. Ill. 2003).................................. 12

Hamilton v. Geithner, 743 F. Supp. 2d 1 (D.D.C. 2010)................................. 10

Holender v. Mut. Indus. N. Inc., 527 F.3d 352 (3d Cir. 2008)......................... 14

TABLE OF AUTHORITIES

Lorah v. Home Helper’s Inc. Delaware Respite, 454 F. App’x 29 (3d Cir. 2011) 12

Money v. Provident Mut. Life Ins. Co., 189 F. App’x 114 (3d Cir. 2006)......... 8

Mosel v. Hills Dep’t Store, Inc., 789 F.2d 251 (3d Cir. 1986).......................... 16

Myers v. Cent. Florida Invs., Inc., 592 F.3d 1201 (11th Cir. 2010)........... 10, 13

Schomburg v. Dow Jones & Co., Inc., No. 12-2415, 2012 WL 5503779 (3d Cir. Nov. 12, 2012).................................................................................................... 11, 19

Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236 (3d Cir. 1999)..... 16, 19

Watson v. Eastman Kodak Co., 235 F.3d 851 (3d Cir. 2000)............................ 8

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982).................................. 8

Statutes

29 U.S.C. § 626(d)................................................................................... passim

29 U.S.C. § 626(e).......................................................................................... 15

42 U.S.C. 2000e-5(e)(1).................................................................................. 11

Rules and Regulations

29 C.F.R. § 1626.6 ........................................................................................ 14

Fed. R. App. P. 29(a)........................................................................................ 1

Fed. R. Civ. P. 6.............................................................................................. 16

Fed. R. Civ. P. 6(d)...................................................................................... 2,17

Fed. R. Civ. P. 8(a)....................................................................................... 1, 9

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

Fed. R. Civ. P. 12(b)(6)............................................................................ passim

TABLE OF AUTHORITIES

Fed. R. Civ. P. 15(a)(2)................................................................................... 11

Other Authorities

5A Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure §1303 (3d ed. 2012).................................................................................................... 11, 13

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is the agency charged by Congress with interpreting, administering, and enforcing various federal laws prohibiting employment discrimination, including the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. This appeal from the district court’s dismissal of the plaintiff’s ADEA complaint raises three significant legal issues. First, whether the Iqbal/Twombly pleading standard applies to pleading conditions precedent, or whether they may be pled generally under Fed. R. Civ. P. 9(c). Second, whether a timely-filed intake questionnaire constitutes a charge of discrimination. Third, whether the three-day mailing rule applies when determining whether a plaintiff timely filed suit within 90 days of receipt of a right-to-sue letter, or whether the date of actual receipt governs. Because resolution of these issues will affect the EEOC’s enforcement of the ADEA as well as other federal anti-discrimination statutes, and because this Court’s decision will also affect the ability of private parties to enforce their federal civil rights, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

1. The Supreme Court held in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), that Fed. R. Civ. P. 8 requires a complaint to contain sufficient facts to state a plausible claim for relief. Did the district court err in applying this standard to the plaintiff’s pleading of conditions precedent, which Fed. R. Civ. P. 9(c) allows to be pled “generally”?

2. In Federal Express v. Holowecki, 552 U.S. 389 (2008), the Supreme Court held that an intake questionnaire constitutes a charge of discrimination when it contains the information required by the EEOC’s regulation and can reasonably be construed as requesting that the EEOC take remedial action. Did the district court err in dismissing the plaintiff’s complaint for failing to plead facts showing he timely filed a charge when he submitted his timely-filed intake questionnaire, which satisfied Holowecki’s requirements?

3. The ADEA requires that a plaintiff file suit within 90 days of receipt of a right-to-sue notice. Would it be error to dismiss the plaintiff’s complaint for failing to plead the date he received the right-to-sue notice, and does the three-day mailing rule of Fed. R. Civ. P. 6(d) apply?

STATEMENT OF THE CASE

A. Statement of the Facts

Plaintiff Anthony Hildebrand worked as a detective for the Allegheny County District Attorney’s Office (“District Attorney”) before receiving a February 18, 2011, letter suspending him without pay for five days pending discharge. A-162 (R.15-3).[2] The letter also stated that “you are terminated . . . effective February 18, 2011.” Id. Hildebrand filed an internal grievance, but the termination was upheld. A-150 (R.15 ¶ 12, NNN). The union eventually opted not to appeal the grievance, and Hildebrand’s termination became effective May 7, 2011. Id.

On December 1, 2011, Hildebrand completed an EEOC intake questionnaire. A-259 (R.21-1). He checked the box for “age” and “retaliation” discrimination. A-260 (R.21-1, p.2). He also checked “Box 2” at the end of the questionnaire, indicating that he “want[ed] to file a charge of discrimination” and authorizing the EEOC to investigate. A-262 (R.21-1, p.4). On January 11, 2012, Hildebrand signed a “Form 5” charge naming the Allegheny County District Attorney (“District Attorney”) as the respondent. A-159 (R.15-1). On May 7, 2012 the EEOC issued a right-to-sue letter. A-161 (R.15-2). On August 7, 2012, Hildebrand filed a lawsuit against the District Attorney and Allegheny County (“County”). His complaint included a count for discrimination under the ADEA and another count for retaliation under Title VII and/or the ADEA. A-22 to A-23 (R.1, p.22-23). As to the satisfaction of conditions precedent, the 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 (R.1, ¶ 3). Both Defendants filed motions to dismiss. A-40, A-57.

B. District Court Decisions

On December 7, 2012, the district court granted the motions to dismiss the Title VII retaliation claim, as Hildebrand conceded that no facts supported it. A-115 (R.13, p.7). The district court also dismissed the ADEA claim for failing to plead sufficient facts to show that Hildebrand had exhausted his administrative remedies. The court stated that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), require plaintiffs to plead sufficient facts to show a “‘plausible claim for relief.’” A-110 (R.13, p.2 (quoting Fowler v. UPMC, 578 F.3d 203, 210 (3d Cir. 2009)). Next, the court found that the complaint failed to meet this standard because it “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.” A-112 (R.13, p.4). The court therefore granted without prejudice the County’s motion to dismiss the ADEA claim. Id.

Hildebrand amended his complaint. A-128 (R.15). Although he had already agreed to the dismissal of his Title VII claim, he again averred that “all conditions precedent to jurisdiction under section 706 of Title VII[] have occurred or been complied with.” A-128 (R.15, ¶ 3). He also averred that he had filed a charge, which he attached, and that on May 7, 2012, the EEOC had issued a right-to-sue notice, which he also attached. Id. He further averred that “[t]he complaint was filed within 90 days of such Notice of Right to Sue.” Id. In other paragraphs, he alleged that his termination occurred on both February 18, 2011, and in May 2011. Hildebrand also attached his February 18, 2011, letter of suspension and discharge.

The Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6). They both argued that the ADEA claim should be dismissed for failing to plead facts showing exhaustion of administrative remedies. Specifically, the Defendants argued that Hildebrand’s January 11, 2012, charge was more than 300 days after his February 18, 2011, notice of termination. A-217 to A-218 (R.18, pp.2-3); A-232 (R.19, p.4). Defendants additionally argued that Hildebrand’s ADEA claim should be dismissed because he did not file his lawsuit until August 7, 2012, which was 92 days after the May 7, 2012, right-to-sue notice was issued. A-218 (R.18, p.3); A-232 (R.19, p.4). The Defendants acknowledged that the 90-day period to file suit begins to run from the date a plaintiff receives the notice, but they argued that Hildebrand had failed to plead that date. “This deliberate omission clearly establishes that Hildebrand received the Notice more tha[n] 90 days before he filed the complaint,” the District Attorney argued, requiring dismissal. A-218 (R.18, p.3).

In response to the motions to dismiss, Hildebrand submitted his December 1, 2011, intake questionnaire. A-259 (R.21-1, Ex.1); A-288 (R.23-1, Ex.1). He asserted that it was filed within 300 days of the February 18, 2011, letter of discharge and that “said filing satisfactorily met the 300 day limitation period.” A-249 (R.21, p.4); A-277 (R.23, p.3). Hildebrand also argued that the district court could consider the intake questionnaire on a Rule 12(b)(6) motion to dismiss because it was a matter of public record. Id. Hildebrand additionally argued that his complaint was timely filed because the three-day mailing rule allowed him to file within 93 days of the issuance of the right-to-sue letter, which he had done. A-249 (R.21, p.4); A-277 (R.23, p.5). He added that he received the right-to-sue notice two days after its issuance. Id. In any event, Hildebrand contended, the issue was “not ripe to be determined through a motion to dismiss.” A-250 (R.21, p.5); A-279 (R.23, p.5).

On January 4, 2013, the district court dismissed Hildebrand’s amended complaint. A-300 (R.24). The court concluded that the amended complaint and the attached exhibits showed that Hildebrand was terminated on February 18, 2011—not in May 2011, as Hildebrand had alleged in some paragraphs of his complaint—which was more than 300 days before his January 11, 2012 charge. A-302 to 308 (R.24, pp. 4-8). “Thus, in light of the Iqbal/Twombly standard,” the court stated, “Plaintiff’s amended complaint and attached documentation failed to adequately plead that a timely ADEA claim was filed within 300 days of the date of the last act of the alleged discrimination—Plaintiff’s February 18, 2011, termination.” A-307 (R.24, p.8). The court failed to acknowledge the intake questionnaire. The court also concluded that in light of Hildebrand’s factual assertions, permitting a second amendment would be futile. Id. Therefore, the court granted the Defendants’ motion to dismiss the ADEA claim with prejudice.

ARGUMENT

The district court erred in dismissing Hildebrand’s ADEA claim for failing to plead specific facts showing that he exhausted his administrative remedies.

The district court granted the Defendants’ Fed. R. Civ. P. 12(b)(6) motions to dismiss Hildebrand’s amended complaint on the ground that he failed to exhaust his administrative remedies. Specifically, the court found that “in light of the Iqbal/Twombly standard,” the amended complaint “fail[s] to adequately plead that a timely ADEA claim was filed within” 300 days of his termination. A-307 (R.24, p.8). This was plain legal error. As discussed below, the Iqbal/Twombly plausibility standard does not apply to pleading the satisfaction of conditions precedent, which may be pled generally under Fed. R. Civ. P. 9(c). Moreover, Hildebrand’s intake questionnaire, which he submitted with his responses to the motions to dismiss, constituted a charge and was timely filed. Accordingly, the court erred in dismissing the complaint for failing to plead a timely charge was filed. Although the court did not address the issue, it would also be error to dismiss the complaint for failing to adequately plead that the lawsuit was filed within 90 days of receipt of the right-to-sue notice.

A. Iqbal/Twombly’s pleading standard does not apply to Fed. R. Civ. P. 9(c), which permits “conditions precedent” to be alleged “generally.”

As the district court observed, “[a] party seeking relief under the ADEA must exhaust his . . . administrative remedies as required by 29 U.S.C. § 626(d).” Money v. Provident Mut. Life Ins. Co., 189 F. App’x 114, 117 (3d Cir. 2006). Section 626(d) requires that a charge be filed in a deferral state within 300 days of an unlawful employment practice. 29 U.S.C. § 626(d)(2); see Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000) (in ADEA case, recognizing that because Pennsylvania is a deferral state, plaintiffs have 300 days to file a charge). The timely filing of charge of discrimination is a condition precedent to filing suit, not a jurisdictional requirement. See generally Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (timely filed charge is not a jurisdictional prerequisite to suit).

Here, the district court held that Hildebrand’s complaint failed to adequately plead satisfaction of this condition precedent, as required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). The court made a plain legal error. In Twombly and Iqbal the Supreme Court held that Fed. R. Civ. P. 8(a)—which governs the standard for pleading a claim for relief—requires “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Iqbal, 556 U.S. at 678. But Fed. R. Civ. P. 8(a) does not govern the pleading of the satisfaction of conditions precedent. Rather, Fed. R. Civ. P. 9(c) addresses the standard for pleading conditions precedent. See, e.g., Brooks v. Monroe Sys. for Bus., Inc., 873 F.2d 202, 205 (8th Cir. 1989) (ADEA charge is a “condition precedent to suit subject to the pleading requirements of Rule 9(c).”). Specifically, Rule 9(c) provides:

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 performed, a party must do

so with particularity.

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

Numerous courts have held that the Iqbal/Twombly plausibility standard does not override the general standard of Fed. R. Civ. P. 9(c) for pleading conditions precedent. See, e.g., EEOC v. U.S. Steel Corp., No. 10-1284, 2012 WL 3017869, at *8 (W.D. Penn. July 23, 2012) (Iqbal/Twombly standard inapplicable to pleading conditions precedent under Rule 9(c)); EEOC v. Bass Pro Outdoor World, LLC, 884 F. Supp. 2d 499, 522 (S.D. Tex. 2012) (same); Hamilton v. Geithner, 743 F. Supp. 2d 1, 8 (D.D.C. 2010) (same). Other courts have held implicitly that the Iqbal/Twombly standard does not apply by reiterating, after those rulings, that Rule 9(c) permits conditions precedent to be pled generally. See Myers v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1224 (11th Cir. 2010) (plaintiff’s allegation that she received her right-to-sue notice and filed suit within 90 days and “otherwise fulfilled all conditions precedent” satisfied Rule 9); EEOC v. Global Horizons, Inc., 860 F. Supp. 2d 1172, 1180 (D. Haw. 2012) (stating that “EEOC need not specifically plead that conciliation efforts have failed” and citing Rule 9(c)); Bentley v. Dollar Tree Stores, Inc., No. 11-221, 2011 WL 3678688, at *1 (N.D. Fla. 2011) (in age case, stating that averment that “all conditions precedent” were met satisfied Rule 9(c)); Barber v. City of Chattanooga, No. 08-294, 2011 WL 1321392, at *6 (E.D. Tenn. Apr. 1, 2011) (plaintiff’s general allegation that he had requested right-to-sue notice and satisfied all conditions precedent to filing suit sufficed under Rule 9(c)); EEOC v. Service Temps, Inc., No. 08-1552, 2010 WL 1644909, at *5 (N.D. Tex. Apr. 22, 2010) (“The EEOC complied with rule 9(c) by” averring “that all conditions precedent have been satisfied.”), aff’d on other grounds, 679 F.3d 323 (5th Cir. 2012).

Thus, the district court made a plain legal error in requiring Hildebrand’s complaint to meet the Iqbal/Twombly standard as to pleading the satisfaction of conditions precedent. Viewed under the proper standard, which is the general pleading requirement of Fed. R. Civ. P. 9(c), Hildebrand’s amended complaint was sufficient. He averred that “[a]ll conditions precedent to jurisdiction under section 706 of Title VII[] have occurred or been complied with.” A-128 (R.15, ¶ 3). He also averred that he filed a charge with the EEOC, the EEOC issued a notice of right to sue on May 7, 2012, and the “complaint was filed within 90 days of such notice of right to sue.” Id. Hildebrand also attached a copy of his charge and right-to-sue letter to the complaint. To be sure, the complaint refers to only Title VII, not the ADEA. However, the timely filing of a charge is a condition precedent for private plaintiffs under both Title VII and the ADEA. Compare 42 U.S.C. 2000e-5(e)(1) with 29 U.S.C. § 626(d). Accordingly, Hildebrand’s averment sufficed under the general pleading requirements of Fed. R. Civ. P. 9(c), notwithstanding the failure to mention specifically the ADEA.[3]

Nor was Hildebrand required to attach a right-to-sue notice to his amended complaint, as the district court suggested in its first order. See A-112 (R.13, p.4). Rule 9(c) does not require attaching any documents to show that conditions precedent were satisfied. See Frazier v. Harris, 266 F. Supp. 2d 853, 874 (N.D. Ill. 2003) (“A party is not required to attach documents such as the charge of discrimination; she needs only to plead generally that she has complied with EEOC procedures.”) (citing Fed. R. Civ. P. 9(c)).[4] Rather, Fed. R. Civ. P. 9(c) requires merely that the satisfaction of conditions precedent be pled “generally.” Accordingly, Hildebrand’s original complaint—like her amended complaint—sufficed under Fed. R. Civ. P. 9(c).

B. Hildebrand’s intake questionnaire constituted a charge and was timely filed.

As discussed supra, Hildebrand’s amended complaint satisfied Fed. R. Civ. P. 9(c)’s general standard for pleading conditions precedent. Defendants argued in their motions to dismiss the amended complaint, however, that Hildebrand failed to plead sufficient facts to show exhaustion of his administrative remedies. Specifically, Defendants argued that Hildebrand filed his January 11, 2012, charge more than 300 days after his February 18, 2011, notice of termination. Defendants’ motions appear to satisfy Fed. R. Civ. P. 9(c)’s requirement that “when denying that a condition precedent has occurred or been performed, a party must do so with particularity.” See Myers, 592 F.3d at 1224-25 (defendants’ answer that “plaintiff did not exercise her right to sue or to file her EEOC complaint within the time prescribed” constituted a sufficiently particular denial); EEOC v. Klingler, 636 F.2d 104, 107 (5th Cir. 1981) (defendant’s motion to dismiss and affidavit disputing that the EEOC adequately conciliated sufficed as a Rule 9(c) denial).

But the Defendants’ satisfaction of their burden under Fed. R. Civ. P. 9(c) to deny with particularity that Hildebrand timely filed a charge did not justify dismissal of the complaint.[5] Hildebrand responded to the Defendants’ motions by submitting his intake questionnaire. He asserted that he filed his intake questionnaire within 300 days of his February 18, 2001 notice of termination and that “said filing satisfactorily met the 300 day limitation period.” A-249 (R.21, p.4); A-277 (R.23, p.3). Hildebrand was correct. The intake questionnaire indisputably constituted a charge under Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008). In that case, the Supreme Court agreed with the EEOC that an intake questionnaire, or other document, constitutes a charge when it satisfies the requirements of 29 C.F.R. § 1626.6 and can “reasonably [be] construed as a request for the agency to take remedial action to protect the employee’s rights.” 552 U.S. at 402; see also Holender v. Mut. Indus. N. Inc., 527 F.3d 352 (3d Cir. 2008) (applying Holowecki standard). Here, there is no question but that Hildebrand’s intake questionnaire satisfied this standard. The questionnaire clearly complies with the minimal requirements of 29 C.F.R. § 1626.6, and Hildebrand checked “Box 2,” stating he wanted to file a charge and authorizing the EEOC “to look into the discrimination [he] described above.” Because the intake questionnaire was filed December 1, 2011, which was within 300 days of the February 18, 2011 letter of suspension and notice of termination, it was timely filed. And because Fed. R. Civ. P. 9(c) does not require that conditions precedent be alleged with particularity, it is of no moment that Hildebrand did not plead in his complaint that he had filed an intake questionnaire and that it constituted a charge.

Thus, the district court erred in dismissing Hildebrand’s ADEA complaint on the ground that he failed to timely file a charge of discrimination. [6]

C. Plaintiffs have 90 days to file suit from receipt of a right-to-sue notice and need not plead the specific date they received notice.

The district court’s final order did not address the issue of whether Hildebrand adequately pled that he filed suit within 90 days of receipt of his right-to-sue notice, which is a condition precedent.[7] The Commission nevertheless addresses this issue because the district court raised it in its first order and the Defendants raised it in their motions to dismiss the amended complaint. Additionally, Hildebrand recited an incorrect standard below in arguing that he timely filed suit.

The ADEA states that “[a] civil action may be brought under this section . . . within 90 days after the date of the receipt of such notice” of right to sue. 29 U.S.C. § 626(e) (emphasis added). This Court has held that the 90 days begins to run when the claimant, or his or her attorney, actually receives the notice. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 238-39 (3d Cir. 1999); Mosel v. Hills Dep’t Store, Inc., 789 F.2d 251, 253 (3d Cir. 1986). If there is an absence of evidence as to the actual date of receipt, “courts will presume that a plaintiff received her right-to-sue letter three days after the EEOC mailed it.” Seitzinger, 165 F.3d at 239 (citing Fed. R. Civ. P. 6); see Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (citing Fed. R. Civ. P. 6 and stating that the presumed date of receipt of right-to-sue notice was three days after its issuance).

Here, Hildebrand’s amended complaint averred that “on May 7, 2012, the EEOC issued” a right-to-sue letter, and that “the complaint was filed within 90 days of such Notice of Right to Sue.” A-128 (R.15, ¶ 3).[8] Defendants argued in their motions to dismiss the amended complaint that Hildebrand’s failure to plead the specific date on which he received his right-to-sue notice required dismissal. According to the District Attorney, “[t]his deliberate omission clearly establishes that Hildebrand received the Notice more than 90 days before he filed the complaint.” A-218 (R.18, p.3). Hildebrand responded that his complaint was timely filed under the three-day mailing rule of Fed. R. Civ. P. 6(d) because he filed suit 92 days after the May 7, 2012, issuance of the right-to-sue notice. A-249 (R.21, p.4); A-277 (R.23, pp.4-5).

In the Commission’s view, Hildebrand’s amended complaint satisfied the general pleading requirement of Fed. R. Civ. P. 9(c) as to the requirement that he file suit within 90 days of the right-to-sue notice. As discussed, Fed. R. Civ. P. 9(c) permits conditions precedent to be alleged “generally,” and the Iqbal/Twombly pleading standard of Fed. R. Civ. P. 8(a) does not apply. Hildebrand’s averment that “all conditions precedent have occurred or been complied with” sufficed. A-128 (R.15, ¶ 3). [9] But he even went beyond that, pleading the specific date on which the right-to-sue notice issued—May 7, 2012—and attaching the right-to-sue notice. He also specifically averred that the “complaint was filed within 90 days of such notice.” Id. To be sure, Hildebrand did not specifically plead that he filed suit within 90 days of receipt of the right-to-sue notice, but Fed. R. Civ. P. 9(c) does not require this level of specificity. Rather, it requires merely that Hildebrand allege “generally” that all conditions precedent were met.

Because the amended complaint satisfied Fed. R. Civ. P. 9(c), it was incumbent upon the Defendants to deny with “particularity” that the condition precedent of filing suit within 90 days of receipt of the right-to-sue was satisfied. Defendants’ motions to dismiss failed to satisfy this requirement. The sum total of the Defendants’ argument was that Hildebrand had failed to plead the date on which he received the right-to sue-notice; the Defendants did not even go so far as to deny that Hildebrand had filed his lawsuit within 90 days of receipt of the right-to-sue notice. Thus, rather than denying with particularity that the condition was not met, the Defendants argued merely that Hildebrand did not plead a specific fact, i.e., the date he received the letter. But since Fed. R. Civ. P. 9(c) does not require that conditions precedent be pled specifically, the Defendants’ argument would seem to do an end-run around the rule’s liberal pleading standard.

But even if the Defendants’ denial satisfied Rule Fed. R. Civ. P. 9(c) such that this dispute was properly raised, the record suggests that Hildebrand’s complaint was almost surely timely. Hildebrand asserted in his responses that he “received the Notice [of right-to-sue] two (2) . . . days from the date” of its May 7, 2012 issuance, which would be May 9, 2012. A-249 (R.21, p.4); A-279 (R.23, p.4-5). Presuming that Hildebrand offered evidence at summary judgment to show that he received the notice on May 9, 2012 (such as an affidavit),[10] then the filing of his lawsuit 90 days later on August 7, 2012, would be proved timely. But even if Hildebrand failed to produce any evidence on summary judgment about when he received his right-to-sue letter, his lawsuit would still be timely unless the Defendants could prove otherwise. That is because when a plaintiff “has failed to” “introduce[] sufficient evidence to identify the date on which . . . [he] received the EEOC’s right-to-sue letter,” the three-day mailing presumption of Fed. R. Civ. P. 6(d) applies. Seitzinger, 165 F.3d at 238-39. Thus, in the absence of any evidence, Hildebrand would be presumed to have received the notice on May 10, 2012 (3 days after its May 7, 2012 issuance), making timely the filing of his lawsuit 89 days later on August 7, 2012. Accordingly, the only conceivable way in which the Defendants could win at summary judgment would be if they could offer evidence proving that the right-to-sue notice traveled through the mail from the EEOC’s Pittsburgh office to Hildebrand’s home in Coraopolis, Pennsylvania on the very same day it issued (May 8, 2012) or by the next day (May 9, 2012).

Thus, dismissal of the ADEA complaint on the ground that Hildebrand failed to plead facts showing that he filed suit within 90 days of receipt of his right-to-sue notice would be inappropriate.

CONCLUSION

For the reasons discussed above, this Court should reverse the district court’s dismissal of Hildebrand’s ADEA complaint and should remand this case for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ General Counsel

LORRAINE C. DAVIS

Acting Associate General Counsel

________________________

/s/ ANNE NOEL OCCHIALINO Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, 5^th Fl.

Washington, D.C. 20507

(202) 663-4724

Annenoel.Occhialino@EEOC.gov

[1] The Commission expresses no opinion on any other issues presented in this appeal.

[2] “A-*” refers to the page in the Plaintiff’s Appendix while “R.*” refers to the district court’s docket entry.

[3] Even if it did not, Hildebrand should have been allowed to amend the complaint to correct this defect. See generally 5A Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1303 (3d ed. 2012) (“A failure to allege the performance or occurrence of conditions precedent can be challenged by a motion to dismiss but normally should be curable by amendment under Rule 15.”); Schomburg v. Dow Jones & Co., Inc., No. 12-2415, 2012 WL 5503779, at *2 (3d Cir. Nov. 12, 2012) (“District courts ‘should freely give leave [to amend] when justice so requires.’ Fed. R. Civ. P. 15(a)(2).”).

[4] Two of this Court’s unpublished decisions in pro se cases have suggested otherwise, but both seem distinguishable. In Collins v. Sload, 212 F. App’x 136, 139 (3d Cir. 2007), this Court affirmed the dismissal of some Title VII claims that the plaintiff evidently raised in three complaints filed with the EEOC or a state agency because the plaintiff “never came forward with such notices [of right to sue] to demonstrate that he exhausted his administrative remedies.” Id. But the decision suggests that the plaintiff never alleged that he had satisfied all conditions precedent or had ever received any right-to-sue notices, id. at 138-40, as Hildebrand did. Similarly, in Lorah v. Home Helper’s Inc. Delaware Respite, 454 F. App’x 29, 30 (3d Cir. 2011), this Court stated that the “District Court appropriately dismissed Lorah’s claims as unexhausted under Title VII, as she failed to attach a right-to-sue letter to her amended complaint and provided no indication that she filed a charge” with the EEOC. It therefore appears that, unlike in this case, Lorah failed to plead that she satisfied the conditions precedent or, more specifically, that she had filed a charge, much less that she had received a right-to-sue notice.

[5] As a general matter, once a defendant denies with particularity under Fed. R. Civ. P. 9(c) the satisfaction of a condition precedent, that dispute should be resolved on summary judgment or at trial. See generally 5A Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1303 (3d ed. 2012) (“Of course, if the defendant challenges the” plaintiff’s Fed. R. Civ. P. 9(c) averment, “a disputed issue will have been raised that may be resolved only on a summary judgment motion or at trial.”).

[6] Hildebrand argued below, with citation to authority, that the district court should have considered the intake questionnaire on the Defendants’ motions to dismiss. The Commission takes no position on this issue. Even assuming, arguendo, that the intake questionnaire could not be considered on the Defendants’ motions to dismiss, the district court should have converted the motions to summary judgment and considered the intake questionnaire then. See supra at p.13 n.5.

[7] Unlike Title VII, the ADEA does not require that a plaintiff receive a right-to-sue notice before filing suit. Instead, the ADEA permits an individual to file suit sixty days after filing a charge. 29 U.S.C. § 626(d). But if an individual receives a right-to-sue notice, he or she must file suit within 90 days. 29 U.S.C. § 626(e).

[8] In its first order, the district court stated that Hildebrand’s original complaint was deficient because he failed to plead “specific dates[] as to when . . . the EEOC issued its right to sue letter” and failed to attach the right-to-sue notice. A-112 (R.13, p.4). The Commission disagrees. As discussed supra at pp. 11-12, plaintiffs are not required to attach right-to-sue notices to their complaints.

[9] As stated above, although both complaints referenced only Title VII, the 90-day filing requirement is the same under the ADEA, and, if required, Hildebrand should have been allowed to amend the complaint to reference the ADEA.

[10] As noted, supra p.13 n.5, once a defendant has denied with particularity the satisfaction of conditions precedent, the dispute should usually be addressed at summary judgment or at trial. See also Schomburg v. Dow Jones & Co., Inc., No.12-2415, 2012 WL 5503779, at *3 (3d Cir. Nov. 14, 2012) (recognizing that disputes as to the actual date of receipt of a right-to-sue notice should be addressed on summary judgment).