U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. NORFOLK SOUTHERN CORPORATION et al
MEMORANDUM OPINION & ORDER that the 20 Partial MOTION to Dismiss Amended Complaint filed by NORFOLK SOUTHERN RAILWAY COMPANY, NORFOLK SOUTHERN CORPORATION is hereby DENIED. Signed by Magistrate Judge Cynthia Reed Eddy on 9/11/18. (kld)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
U.S. EQUAL EMPLOYMENT
CORPORATION AND NORFOLK
SOUTHERN RAILWAY COMPANY,
MEMORANDUM OPINION AND ORDER
Cynthia Reed Eddy, United States Magistrate Judge.
Pending before the Court is a partial motion to dismiss filed by defendants Norfolk
Southern Corporation and its wholly-owned subsidiary Norfolk Southern Railway Company
(collectively, “Norfolk”). (ECF No. 20). Norfolk seeks dismissal of certain claims brought by
plaintiff U.S. Equal Employment Opportunity Commission (“the EEOC”) on the grounds of
timeliness and failure to exhaust administrative remedies. For the reasons stated herein, the
motion will be denied.
The EEOC brings the amended complaint against Norfolk pursuant to Section 107(a) of
the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12117(a), which incorporates
by reference Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e-5(f)(1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991,
42 U.S.C. § 1981a, both to correct unlawful employment practices on the basis of disability and
to provide appropriate relief to individuals identified and presently unidentified. (ECF No. 17 at
¶ 1). The EEOC alleges that Norfolk “failed to hire job applicants or medically disqualified
employees from further employment because of their actual disabilities, records of disability, or
because they were regarded as disabled; denied reasonable accommodations to individuals with
disabilities; engaged in unlawful disability-related inquiries/examinations; and used qualification
standards that screened out or tended to screen out individuals with disabilities accommodations
to individuals with disabilities; and used qualification standards that screened out or tended to
screen out individuals with disabilities.” (Id. at ¶ 20).
The EEOC filed its original complaint against Norfolk on September 27, 2017. (ECF No.
1). On November 17, 2017, Norfolk filed a partial motion to dismiss the complaint, (ECF No.
10), rendered moot and dismissed (ECF No.19) when on December 17, 2017, the EEOC filed an
amended complaint. (ECF No. 17). On January 2, 2018, Norfolk filed their partial motion to
dismiss the amended complaint. (ECF No. 20). Norfolk also filed a brief in support of the partial
motion to dismiss. (ECF No. 21, errata 23, 27, 28). On January 24, 2018, the EEOC filed a brief
in opposition to the partial motion to dismiss. (ECF No. 33), and on January 31, 2018 Norfolk
filed a reply brief. (ECF No. 35). Accordingly, the partial motion to dismiss is ripe for
STATEMENT OF FACTS
Relevant to Norfolk’s partial motion to dismiss are the following allegations.
Norfolk discriminated against four of their employees due to their disabilities. The first of
these employees to file a charge of discrimination with the EEOC was Jesse Blankenship (“Mr.
Blankenship”). Mr. Blankenship was employed by Norfolk as a machinist at their Roanoke,
Virginia locomotive shop beginning in 2004. (ECF No. 17 at ¶ 137). After working on
locomotives for several years, Mr. Blankenship later was assigned to Norfolk’s “diesel shop,”
where he worked on engines. (Id.).
Mr. Blankenship has a physical impairment, coronary artery disease with ischemia, that
substantially limits one or more life activities and Norfolk, acting through their internal medical
department (“NSMD”), which gathers medical information about Norfolk personnel and
evaluates that information to determine if an employee is to be medically disqualified from the
position they held, regarded Mr. Blankenship as having a disability by medically disqualifying
him from his job, and placing him on unpaid, indefinite medical suspension, because of his nontransitory and non-minor impairment. (Id. at ¶¶ 13, 136). In September 2008, while assigned to
Norfolk’s diesel shop, Mr. Blankenship underwent emergency cardiac surgery, and was on a
medical leave of absence until March 23, 2009, when his cardiologist released him to return to
work without restrictions. (Id. at ¶ 138). Despite this clearance by his cardiologist, Norfolk
refused to return Mr. Blankenship to work; by letter from NMSD dated August 4, 2009, Norfolk
medically disqualified Mr. Blankenship from his job, and suspended him indefinitely without
pay, because of his physical impairment. (Id. at ¶ 139).
It is further alleged that at all relevant times, Norfolk maintained and applied a medical
standard that employees in certain positions, including but not limited to machinists such as Mr.
Blankenship, be free of cardiac ischemia. (Id. at ¶ 140). Norfolk removed Mr. Blankenship from
his position as a machinist because Mr. Blankenship could not demonstrate that he was or would
be free of cardiac ischemia. (Id. at ¶ 141). Norfolk placed Mr. Blankenship on unpaid medical
suspension because of his cardiac ischemia pursuant to their policy of not hiring job applicants
and medically disqualifying employees from further employment because of their actual
disabilities, records of disability, or because they were regarded as disabled; denying reasonable
accommodations to individuals with disabilities; engaging in unlawful disability-related
inquiries/examinations; and using qualification standards that screened out or tended to screen
out individuals with disabilities. (Id. at ¶¶ 20, 142). Norfolk failed to provide reasonable
accommodation to Mr. Blankenship for his disability, in the form of an exemption from their
blanket policy, based upon an individualized assessment of Mr. Blankenship’s actual experience
with the effects (or lack thereof) of his coronary artery disease with ischemia. (Id. at ¶ 142).
Norfolk placed Mr. Blankenship on unpaid medical suspension because of his actual disability
and because he was regarded as disabled by Norfolk. (Id. at
The three other employees discriminated against by Norfolk based upon their disabilities
were Terry Vogel, Robert Workman, and Rashad Robinson. (Id. at ¶¶ 35-49, 25, 130, 133-134,
151, 154, 157-159).
It is further alleged that thirteen individuals also applied to Norfolk for a variety of jobs
but were not hired by Norfolk because of their disabilities: (1) Jason Phipps; (2) Jonathan Ryan;
(3) Anthony Wooten; (4) Robert Garrity; (5) Matthew Kelley; (6) Christopher Kososki; (7)
Robert Lee; (8) Zenas Dowdell; (9) Randy Nosal; (10) Noah Wright); (11) Phillip Tyson; (12)
Michael Davis; and (13) Adam Worthing. (Id. at ¶¶ 21-34, 56-67, 72-120, 145-150, and 167182).
Unidentified Employees and Applicants
In addition to the seventeen named employees and applicants whom Norfolk
discriminated against due to their disabilities, since at least December 13, 2008, Norfolk has
barred presently unidentified employees from employment in certain positions because those
persons were receiving chemotherapy for cancer, had non-paralytic orthopedic impairments, and
arthritis, without consideration of whether, or to what extent, those impairments actually affected
their ability to safely perform the essential functions of the positions they held with Norfolk. (Id.
at ¶¶ 29, 69, 122). It is further alleged that since at least December 13, 2008, Norfolk also has
maintained and applied a medical standard that barred presently unidentified job applicants and
presently unidentified employees from employment in certain positions from working in those
positions at Norfolk if they were currently taking prescribed medications for drug addiction
treatment, such as suboxone or methadone, or if, at the time of their medical evaluation by
Norfolk, it had been less than one year since they last took such medications, regardless of the
actual effect of such medications or time period being off such medications had on the individual
job applicants’ or employees’ ability to safely perform the essential functions of the jobs at issue.
(Id. at ¶ 50).
More than thirty days prior to the institution of this lawsuit, Mr. Blankenship, Randy
Nosal, Jason Phipps, Rashad Robinson, Jonathan Ryan, Philip Tyson, Terry Vogel, and Robert
Workman filed charges with the EEOC alleging violations of the ADA by Norfolk. (Id. at ¶ 14).
Thereafter, on various dates between October 2011 and July 2015, the EEOC issued to Norfolk
Letters of Determination finding reasonable cause to believe that Norfolk was violating the ADA
and inviting Norfolk to join with the EEOC in informal methods of conciliation to endeavor to
eliminate the unlawful employment practices and provide appropriate relief. (Id. at ¶ 15). The
EEOC and Norfolk were unable to conciliate and the EEOC filed this enforcement action. (Id. at
Broadly speaking the EEOC seeks entry of a permanent injunction enjoining Norfolk
from engaging in discrimination and an order to make whole the individuals involved through
the awarding of backpay, job search expenses, medical expenses, compensation for past and
future nonpecuniary losses, punitive damages, and costs.
A. Motion to Dismiss – Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide “more
than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). “Factual allegations must be
enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. (citation omitted). While a
complaint need not include detailed facts, it must provide “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 555).
Twombly and Iqbal require the Court to take three steps to determine whether the
Amended Complaint will survive the Defendants’ motion to dismiss. See Connelly v. Lane
Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, it must “take note of the elements the
plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Next, it must identify
the allegations that are no more than legal conclusions and thus “not entitled to the assumption of
truth.” Id. (quoting Iqbal, 556 U.S. at 679). Finally, where a complaint includes well-pleaded
factual allegations, the Court “should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. (quoting Iqbal, 556 U.S. at 679).
This “presumption of truth attaches only to those allegations for which there is sufficient
factual matter to render them plausible on their face.” Schuchardt v. President of the U.S., 839
F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). “Conclusory assertions of
fact and legal conclusions are not entitled to the same presumption.” Id. This plausibility
determination is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. (quoting Connelly, 809 F.3d at 786–87). This plausibility
standard, however, “does not impose a heightened pleading requirement.” Id. In other words,
“courts cannot inject evidentiary issues into the plausibility determination.” Id. The Third Circuit
has also made it clear that “at least for purposes of pleading sufficiency, a complaint need not
establish a prima facie case in order to survive a motion to dismiss” because a “prima facie case
is an evidentiary standard, not a pleading requirement and hence is not proper measure of
whether a complaint fails to state a claim.” Connelly, 809 F.3d at 789 (internal quotations and
citations omitted). Instead, a plaintiff should plead “enough facts to raise a reasonable
expectation that discovery will reveal evidence of the necessary elements.” Id. (quoting Phillips
v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).
B. Matters outside the pleadings
In support of their motion to dismiss, Norfolk relies upon, and attached to their motion to
partially dismiss the EEOC’s amended complaint: (1) the EEOC’s October 15, 2009 Notice of
Mr. Blankenship’s Charge of Discrimination against Norfolk; (2) Mr. Blankenship’s March 5,
2010 Charge of Discrimination against Norfolk; (3) Robert Workman September 22, 2010
Charge of Discrimination against Norfolk; (4) Rashad Robinson’s January 18, 2011 Charge of
Discrimination against Norfolk; (5) Terry Vogel’s May 17, 2012 Charge of Discrimination
against Norfolk; (6) Randy Nosal’s August 4, 2011 Charge of Discrimination against Norfolk;
(7) Jason Phipps’s December 5, 2011 Charge of Discrimination against Norfolk: (8) Jason
Ryan’s June 5, 2012 Charge of Discrimination against Norfolk; (9) Phillip Tyson’s February 4,
2015 Charge of Discrimination against Norfolk; and (10) a November 14, 2012 letter from the
EEOC to Norfolk. (ECF Nos. 28-1, 28-2, 28-3, 28-4).
Likewise, the EEOC has provided for our consideration matters outside the pleadings.
Specifically, the EEOC relies upon and attached to its brief, Mr. Blankenship’s October 9, 2009
EEOC Intake Questionnaire. (ECF No. 33-1). The questionnaire predates the EEOC’s October
15, 2009 Notice of Charge of Discrimination.
As a general rule, a district court may not consider matters outside of the complaint when
ruling on a Rule 12(b)(6) motion to dismiss. “If, on a motion under Rule 12(b)(6) ... matters
outside the pleadings are presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). However, for Rule
12(b)(6) purposes, courts may consider: (1) exhibits that are attached to the complaint; (2)
matters of public record; and (3) any undisputedly authentic document that a defendant attaches
as an exhibit to a motion to dismiss if the document is integral to or explicitly relied upon in the
complaint. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997);
Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (“A
court may consider an undisputedly authentic document that a defendant attaches as an exhibit to
a motion to dismiss if the plaintiff's claims are based on the document.”).
All of the EEOC documents submitted by the parties are public records. See Stull v.
Leedsworld, Civ. No. 17-378, 2018 WL 576241, at *3 n. 2 (W.D. Pa. Jan. 26, 2018) (“the
decisions of district courts within this circuit that have held an EEOC charge of discrimination
and other related documents (e.g., right to sue letter, intake questionnaire) are public records, and
therefore, a court may consider these documents without converting a motion to dismiss into a
motion for summary judgment”) (citations omitted); Miller v. Downtown Bid Services Corp., 281
F. Supp. 3d 15, 18 n. 5 (D. D.C. 2017); Thomas v. Lowe's Home Centers, Inc., Civ. No. 13-0779,
2014 WL 545862, at *2 (W.D. La. Feb. 10, 2014); Larkins v. Regional Elite Airline Servs., LLC,
Civ. No. 12-139, 2013 WL 1818528, at *3 n. 1 (S.D. Ohio Apr. 29, 2013); Davis v. Solid Waste
Servs., Inc., Civ. Nos. 12-5628, 12-5629, 12-5630, 2013 WL 1234727, at *2 n. 2 (E.D. Pa. Mar.
Additionally, the documents submitted by Norfolk are integral to the EEOC’s amended
complaint. See Rogan v. Giant Eagle, Inc., 113 F. Supp. 2d 777, 782 (W.D. Pa. 2000), aff'd, 276
F.3d 579 (3d Cir. 2001) (“it is clear to us that under the applicable legal standard we may
consider the EEOC charge and related EEOC documents including the letter from the EEOC
summarizing its investigation, . . . either as undisputed documents referenced in the complaint or
central to the plaintiff's claim, or as information which is a matter of public record, without
converting this motion [to dismiss] to one summary judgment”).
Accordingly, under these circumstances the Court can review the documents attached as
exhibits by the parties without converting Norfolk’s partial motion to dismiss into a motion for
In its amended complaint the EEOC alleges Norfolk engaged in unlawful employment
practices against a class of aggrieved individuals. There is no dispute that the EEOC may not seek
relief for any individual who was subjected to discriminatory action(s) more than 300 days before the
earliest charge of discrimination was filed. The dispute here arises from disagreements concerning
which date is the relevant date. Based on our review of uncontroverted, public documents provided,
we note the following:
Mr. Blankenship filled out an Intake Questionnaire on October 9, 2009. Three
hundred days before October 9, 2009 is December 13, 2008.
The Notice of Charge of Discrimination for individual plaintiff Blankenship was
dated October 15, 2009. Three hundred days before October 15, 2009 is December
The EEOC Charge signed by Blankenship was dated March 5, 2010. Three hundred
days before March 5, 2010 is May 9, 2009.
The EEOC notified Norfolk it was consolidating its investigation of 17 individual
ADA charges and that it was expanding the scope of its investigation to include
Norfolk’s compliance with the ADA in connection with other “possible aggrieved
persons” on November 14, 2012 via a letter. Three hundred days before November
14, 2012 is January 19, 2012.
Norfolk argues that claims by individuals alleging discrimination by Norfolk in violation of
the ADA prior to January 19, 2012 are time-barred. Norfolk avers that it first became aware that the
EEOC proposed to investigate Norfolk’s compliance with the ADA on behalf of persons other than
the charging parties, whose claims were then under investigation, when it received the November 14,
2012 letter from the EEOC. Norfolk’s initial basis for its partial motion to dismiss is that the
EEOC’s amended complaint should be dismissed to the extent that it alleges “claims of
discrimination of any members of the alleged classes that arose before January 19, 2012, as these
claims arose more than 300 days before the EEOC notified Norfolk for the first time that it
would be conducting an investigation” of Norfolk’s alleged discriminatory conduct. (ECF No. 21
Alternatively, Norfolk contends that the EEOC’s amended complaint should be dismissed
to the extent that it alleges claims of discrimination that arose before May 9, 2009, as these
claims arose more than 300 days before Jesse Blankenship filed his charge of discrimination
against Norfolk with the EEOC on March 5, 2010. (Id.).
The EEOC responds that it only seeks to bring claims of discrimination against Norfolk
to the extent that the claims arose on or after December 13, 2008, 300 days before Jesse
Blankenship filed his Intake Questionnaire with the EEOC on October 9, 2009, and that this is
the applicable date that should be used to determine who are the claimants for which the EEOC
can seek relief. (ECF No. 33 at 4-5).
We are guided by the statutory framework. This enforcement action is brought pursuant
to § 706 of Title VII. Section 706 of Title VII, 42 U.S.C.A. § 2000e-5, incorporated into the
ADA, contains the “Enforcement provisions of Title VII. It empowers “[t]he Commission” . . .
“to prevent any person from engaging in any unlawful employment practice as set forth in
section 2000e-2 or 2000e-3 of this title.” 42 U.S.C.A. § 2000e-5(a) (West). Section 706(e)(1) of
Title VII sets forth administrative charge procedures, and makes specific reference to the filing
of a “charge”:
. . . [I]n a case of an unlawful employment practice with respect to which the person
aggrieved has initially instituted proceedings with a State or local agency with
authority to grant or seek relief from such practice or to institute criminal
proceedings with respect thereto upon receiving notice thereof, such charge shall
be filed by or on behalf of the person aggrieved within three hundred days
after the alleged unlawful employment practice occurred, or within thirty days
after receiving notice that the State or local agency has terminated the proceedings
under the State or local law, whichever is earlier, and a copy of such charge shall
be filed by the Commission with the State or local agency.
42 U.S.C.A. § 2000e-5(e)(1) (West) (emphasis added). Thereafter:
(1) If within thirty days after a charge is filed with the Commission or within thirty
days after expiration of any period of reference under subsection (c) or (d), the
Commission has been unable to secure from the respondent a conciliation
agreement acceptable to the Commission, the Commission may bring a civil
action against any respondent not a government, governmental agency, or
political subdivision named in the charge.
(2) Whenever a charge is filed with the Commission and the Commission
concludes on the basis of a preliminary investigation that prompt judicial action is
necessary to carry out the purposes of this Act, the Commission, or the Attorney
General in a case involving a government, governmental agency, or political
subdivision, may bring an action for appropriate temporary or preliminary relief
pending final disposition of such charge. . . .
42 U.S.C.A. § 2000e-5(f)(1) and (2) (emphasis added) (West).
Upon review of the plain language of Section 706, supra, the Court concludes that claims
brought by the EEOC, like claims brought by private litigants, shall be limited to those claims
alleged to have been based upon events that occurred within 300 days of the earliest charge that
gave rise to the EEOC’s instant enforcement action, rather than as Norfolk argues, it received
actual notice of the scope of the investigation. In this case, the earliest charge date is
indisputably Mr. Blankenship’s charge of discrimination, all other identified litigants having
filed their charges thereafter. The statutory language reflects Congressional intent that the
charge date is intended to be the benchmark for the limitation period.
The case law supports this holding. In Arizona ex rel. Horne v. Geo Group, Inc., 816
F.3d 1189, 1203 (9th Cir. 2016) the court held that the district court erred in requiring that
aggrieved employees allege an act that occurred within the 300 days before the Reasonable
Cause Determination. Rather, “[t]he proper starting date of the EEOC and Division’s class
action is 300 days prior to Hancock’s charge, not the Reasonable Charge Determination.” Id.
The court cited the plain language of Title VII that requires a “charge” be filed “within three
hundred days after the alleged unlawful employment practice occurred . . . . the statute’s timing
requirement refers exclusively to the ‘charge’”; see also EEOC v. Discovering Hidden Hawaii
Tours, Inc., Civ. No. 17-67, 2017 WL 4202156, at *6 (D. Haw. Sept. 21, 2017) (“[r]ecent district
court decisions agree that Section 706 limits the class of employees on whose behalf the EEOC
may seek relief to those individuals who were allegedly subjected to unlawful employment
practices during the 300 days before the date of the initial Charge”) (listing cases); EEOC v.
FAPS, Inc., Civ. No. 10-3095, 2014 WL 4798802, at *24 (D. N.J. Sept. 26, 2014) (“The plain
language of Section 706(e)(1) clearly precludes the EEOC from seeking relief for individuals
who could not have filed an EEOC charge during the filing period”); EEOC v. Global Horizons,
Inc., Civ. No. 11-257, 2014 WL 800597, at *11 (D. Haw. Feb. 28, 2014) (300-day charge-filing
limitation applied to EEOC’s § 706 and § 707 claims); EEOC v. Bass Pro Outdoor World, LLC,
884 F.Supp.2d 499, 509 (S.D. Tex. 2012) (concluding that the 300-day limitations period set
§ 2000e-5(e) applies to EEOC pattern or practice claims brought pursuant to § 706 and §
707); EEOC v. Bloomberg L.P., 751 F. Supp. 2d 628, 646 (S.D. N.Y. 2010), decision clarified on
reconsideration (Dec. 2, 2010) (“[t]he EEOC may not, at least in a case alleging discrete
unlawful acts, seek relief for individuals who were not subject to an unlawful employment
practice some time during the 300 days preceding the filing of the triggering charge”) (footnote
In support of its position, Norfolk cites to two unpublished opinions, EEOC v. Princeton
Healthcare System, Civ. No. 10-4126, 2012 WL 5185030, at *5 (D. N.J. Oct. 18, 2012) (court
granting partial motion to dismiss based upon its agreement with those courts “that have held
that the [“triggering”] filing dates were the dates on which the EEOC notified defendants that it
was expanding its investigation to encompass the additional charges”); EEOC v. Freeman, Civ.
No. 09-2573, 2011 WL 337339, at *1 (D. Md. Jan. 31, 2011) (where EEOC had filed a
discrimination complaint seeking § 706 relief on behalf of individuals, court concluded that for
claims of discrimination that were not included in the original charge, the “filing” date was the
date on which the EEOC notified the defendant that it was expanding its investigation to
encompass the new charges and not the date of the filing of the original charge). These are not
binding precedents. Any equitable exception to the charge filing date would not apply here, as
the charge specifies a category of discrimination identical to that in the EEOC’s complaint, i.e.
disability discrimination by NSMD.
The next query is whether, for the purposes of starting the 300-day “clock,” Mr.
Blankenship filed his charge of discrimination with the EEOC when he filed his Intake
Questionnaire with the EEOC on October 9, 2009, or when he filed his Charge of Discrimination
with the EEOC on March 5, 2010.1 With respect to whether Mr. Blankenship’s Intake
Questionnaire constitutes a charge of discrimination, in Devine v. Trumbull Corporation, Civ.
No. 16-1547, 2017 WL 321498 (W.D. Pa. Jan. 23, 2017)(Conti, C.J.), this court explained:
[a]n Intake Questionnaire may be considered as a “Charge.” In Hildebrand v.
Allegheny Cty., 757 F.3d 99, 112–13 (3d Cir. 2014), the court of appeals explained:
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, 128 S.Ct. 1147,
170 L.Ed.2d 10 (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, 128 S.Ct. 1147.
Norfolk contends that the EEOC cannot amend the amended complaint by attaching the Intake Questionnaire to its
opposition to Norfolk’s partial motion to dismiss. (ECF No. 35 at 4-5). As already stated, Mr. Blankenship’s Intake
Questionnaire is a public record which this Court can consider without converting the motion to dismiss into a
motion for summary judgment. Further, once Norfolk raised the limitations issue, and introduced documentation in
support of its position, certainly the EEOC had the right to respond in kind, including attaching Mr. Blankenship’s
Intake Questionnaire to its opposition brief. See Hildebrand v. Allegheny County, 757 F.3d 99, 112 n. 2 (3d Cir.
2014) (appellate court considered intake questionnaire that plaintiff did not attach to his amended complaint but did
attach as an exhibit to his response to defendant’s motion to dismiss).
In Hildenbrand, the court of appeals stated that “an employee who completes the
Intake Questionnaire and checks [the box that requests the EEOC to take action]
unquestionably files a charge of discrimination.” Id. at 113.
Devine, 2017 WL 321498, at *2–3. (footnote omitted). The applicable regulation therein, 29
C.F.R. § 1626.6 requires a charge to be “in writing,” that it “name the prospective respondent,”
and “generally allege the discriminatory act(s).” Id.
Mr. Blankenship’s Intake Questionnaire (ECF No. 33-1) satisfied the requirements of 29
C.F.R. §1601.122 for Title VII charges. He checked Box 1 on page 4 of the Questionnaire,
which states “I want to file a charge of discrimination and I authorize the EEOC to look into the
discrimination I described above,” can “reasonably [be] construed as a request for [the EEOC] to
take remedial action to protect the employee's rights.” Devine, 2017 WL 321498, at *3; id.
(“[h]ere, the Intake Questionnaire faxed January 2, 2013 constitutes a ‘charge’ because Devine
checked the box that requested the EEOC to take remedial action”). Accordingly, the Court
finds that Mr. Blankenship’s Intake Questionnaire constitutes a charge of discrimination and the
EEOC’s disability discrimination claims in this case shall be limited to those claims of disability
discrimination that allegedly arose on or after December 13, 2008, 300 days prior to October 9,
2009, the date Mr. Blankenship filled out the questionnaire.
29 U.S.C. §1601.12(a) provides:
(a) Each charge should contain the following:
(1) The full name, address and telephone number of the person making the charge except as provided in § 1601.7;
(2) The full name and address of the person against whom the charge is made, if known (hereinafter referred to as
(3) A clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful
employment practices: See § 1601.15(b);
(4) If known, the approximate number of employees of the respondent employer or the approximate number of
members of the respondent labor organization, as the case may be; and
(5) A statement disclosing whether proceedings involving the alleged unlawful employment practice have been
commenced before a State or local agency charged with the enforcement of fair employment practice laws and, if so,
the date of such commencement and the name of the agency.
For the above stated reasons, to the extent that Norfolk’s partial motion to dismiss seeks
dismissal of all claims of discrimination contained in the EEOC’s amended complaint that
allegedly arose before January 19, 2012, or before May 9, 2009, except those claims where an
Aggrieved Individual filed a timely Charge of Discrimination, Norfolk’s partial motion to
dismiss shall be denied.
2. Failure to Exhaust
In sum, amended complaint includes claims for classes of unidentified claimants, some
who are unidentified applicants and some who are unidentified employees. Two of these classes
concern drug addiction. Norfolk moves to dismiss the EEOC’s disability discrimination claims
filed on behalf of presently unidentified applicants and presently unidentified employees with
disabilities arising from past drug addiction, drug addiction recovery, and treatment for drug
addiction. (ECF No. 20 at ¶ 11). Norfolk argues that because not one of these presently
unidentified applicants or employees filed a charge of discrimination with the EEOC against
Norfolk asserting such a claim, the EEOC’s claims brought on their behalf must be dismissed for
failure to exhaust administrative remedies. (ECF No. 21 at 13). Similarly, Norfolk moves to
dismiss the discrimination claims filed on behalf of presently unidentified employees who allege
disabilities arising from: 1) chemotherapy, 2) arthritis, and 3) non-paralytic orthopedic
impairments. (ECF No. 20 at ¶ 12). Norfolk asserts that because not one of these presently
unidentified Norfolk employees filed a charge of discrimination with the EEOC against Norfolk
asserting such a claim, the EEOC’s claims brought on their behalf must be dismissed for failure
to exhaust administrative remedies. (ECF No. 21 at 16).
The EEOC responds that it is not required to exhaust administrative remedies prior to
bringing an enforcement action. (ECF No. 33 at 12-16). With respect to its claims concerning the
presently unidentified applicants and employees whom the EEOC alleges were discriminated
against by Norfolk related to their disabilities of past drug addiction, drug addiction recovery,
and treatment for drug addiction, it asserts that it does not have to identify each discrimination
victim and that it has adequately alleged a practice of Norfolk discriminating against applicants
and employees in their employment practices related to their disabilities of past drug addiction,
drug addiction recovery, and treatment for drug addiction. (ECF No. 33 at 16-19).
With respect to its claims concerning the presently unidentified employees whom the
EEOC alleges were discriminated against by Norfolk related to their disabilities of undergoing
chemotherapy for cancer, arthritis and non-paralytic orthopedic impairments, the EEOC argues
again that it does not have to identify each discrimination victim and that it has alleged
applicants who Norfolk discriminated against related to their disabilities of undergoing
chemotherapy for cancer, arthritis and non-paralytic orthopedic impairments and it is immaterial
whether those individuals were applicants or employees. (Id. at 20). “The focus of EEOC’s claim
is the common discriminatory practice affecting workers in both sets of circumstances, i.e., the
employers’ illegal conduct.” (Id.).
In E.E.O.C. v. United Parcel Serv., 860 F.2d 372 (10th Cir. 1988), the court explained:
The 1972 amendments to Title VII were designed to increase the EEOC's arsenal
of available weapons to challenge discriminatory practices. The EEOC's mandate
is to protect the public generally from ongoing discriminatory practices. In General
Telephone Co. v. EEOC, 446 U.S. 318, 323, 100 S.Ct. 1698, 1702, 64 L.Ed.2d 319
(1980), the Supreme Court held that “Rule 23 is not applicable to an enforcement
action brought by the EEOC in its own name and pursuant to its authority under
§ 706 to prevent unlawful employment practices.” Id. Additionally, the Supreme
Court held that “the EEOC is not merely a proxy for the victims of discrimination,”
id. at 326, 100 S.Ct. at 1704, and that the EEOC may proceed with a suit in its own
name without seeking class certification on behalf of a class of individuals in order
to protect the public interest in ending discriminatory employment practices. “Title
VII protects all employees of and applicants for employment with a covered
employer....” Id. at 323, 100 S.Ct. at 1702.
United Parcel Serv., 860 F.2d at 374. The EEOC does not, as suggested by Norfolk, “‘stand in
the [Norfolk applicants and employees’] shoes’.” E.E.O.C. v. United Parcel Serv., Civ. No. 095291, 2013 WL140604, at *6 (N.D. Ill. Jan. 11, 2013) (quoting EEOC v. Waffle House, Inc., 534
U.S. 279, 297 (2002)). Actions brought by the EEOC are not class actions, but enforcement
actions, a distinction that is critical to understanding the case sub judice because it is well
established that “EEOC enforcement actions are not limited to the claims presented by the
charging parties. Any violations that the EEOC ascertains in the course of a reasonable
investigation of the charging party's complaint are actionable.” Gen. Tel. Co., 446 U.S. at 331.
Nor does the EEOC have to identify a claimant in order to bring a claim of discrimination
against a private employer. See United Parcel Serv., 860 F.2d at 374 (“[u]nder Title VII, the
EEOC need not produce an injured party when seeking to challenge an allegedly discriminatory
policy that may affect unidentifiable members of a known class”); E.E.O.C. v. United Air Lines,
Inc., 132 F.R.D. 198, 199 (N.D. Ill. 1990) (“[w]e agree with the EEOC's contention that its
authority to bring suit should not be dependent upon the identification of specific individuals
who have suffered past injury, so long as the EEOC has a reasonable basis for concluding that a
given policy is likely to have a discriminatory effect. ‘[T]he EEOC does not exist simply as a
vehicle for conducting litigation on behalf of private parties....’”) (quoting Gen. Tele. Co. of the
Northwest, 446 U.S. at 326) (quoting Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368
The November 14, 2012 EEOC letter to Norfolk gave the defendants notice of the
EEOC’s intent to investigate Norfolk from January 1, 2008 to the present in all of Norfolk’s
facilities and operations throughout the United States and its territories for broadly described
disqualifying applicants or employees for employment because of disability as
defined by the ADA and its amendments, subjecting employees to medical
examinations and inquiries that are not job-related or consistent with business
necessity, or subjecting them to medical examinations or inquiries that under the
circumstances go beyond the scope permissible under the job-related and business
necessity standard; failed to engage in the interactive process; and medical holds,
medical qualification, or discharge that relate to improper assessment of direct
threat for applicants and employees, all in violation of the ADA.
(ECF 28-4 at 1-2).
We are mindful that the EEOC must meet statutory pre-suit obligations before it can file
suit against an employer for violations that have been discovered by the EEOC while
investigating a charge of discrimination. See 42 U.S.C. § 2000e-5(b).3 These are:
a charge filed with the EEOC, a notice of charge served on the employer, an
investigation by the EEOC which results in a determination of reasonable cause,
and an attempt at conciliation. In the event that the EEOC's efforts to conciliate
fail, it may then file a civil action in federal court. These preliminary steps are
integral to the statutory plan, which encourages resolution of claims, when
possible, through informal channels such as conciliation and persuasion.
42 U.S.C. § 2000e-5(b) states in relevant part:
Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of
the Commission, alleging that an employer, employment agency, labor organization, or joint labormanagement committee controlling apprenticeship or other training or retraining, including on-thejob training programs, has engaged in an unlawful employment practice, the Commission shall serve
a notice of the charge (including the date, place and circumstances of the alleged unlawful
employment practice) on such employer, employment agency, labor organization, or joint labormanagement committee (hereinafter referred to as the “respondent”) within ten days, and shall make
an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such
information and be in such form as the Commission requires. Charges shall not be made public by
the Commission. If the Commission determines after such investigation that there is not reasonable
cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person
claiming to be aggrieved and the respondent of its action. In determining whether reasonable cause
exists, the Commission shall accord substantial weight to final findings and orders made by State or
local authorities in proceedings commenced under State or local law pursuant to the requirements
of subsections (c) and (d). If the Commission determines after such investigation that there is
reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any
such alleged unlawful employment practice by informal methods of conference, conciliation, and
42 U.S.C.A. § 2000e-5(b) (West.)
EEOC v. Equicredit Am., Civ. No. 02-844, 2002 WL 31371968, at *2 (E.D. Pa. Oct. 8, 2002)
(citations and footnote omitted); E.E.O.C. v. U.S. Steel Corp., Civ. No. 10–1284, 2013 WL
625315, at *7 (W.D. Pa. Feb. 20, 2013) (“When EEOC sues in its own name, it may litigate only
those claims which have been subjected to the complete administrative processing required by
Title VII”) (quoting EEOC v. E. Hills Ford Sales, Inc., 445 F. Supp. 985, 987 (W.D. Pa. 1978));
see also EEOC v. United Parcel Serv., Civ. No. 15-4141, 2017 WL 2829513, at *15 (E.D. N.Y.
Jun. 29, 2017) (court explained that where EEOC sought to assert claims on behalf of unnamed
claimants who had not filed charges of discrimination with the EEOC, “[t]o the extent that the
claims of unnamed claimants arise from discrimination not ‘stated in the charge itself” or
“developed in the course of a reasonable investigation of that charge”—or, stated differently, to
the extent that the unnamed claimants do not fall broadly within the class defined in the Letter of
Determination—the EEOC may not retroactively include such claimants in the suit.”); FAPS,
2014 WL 4798795, at *5.
Thus, the EEOC can only bring an enforcement action against Norfolk on behalf of
presently unidentified applicants and employees (here, claiming Norfolk discriminated against
them based upon their past drug addiction, drug addiction recovery, and treatment for drug
addiction), and on behalf of presently unidentified employees (here, claiming Norfolk
discriminated against them based upon their receiving chemotherapy for cancer, having arthritis,
and having non-paralytic orthopedic impairments), if the EEOC has alleged, or otherwise
established, that it met the requisite statutory pre-suit obligations required by 42 U.S.C. § 2000e5(b) with respect to the claims of these presently unidentified applicants and employees.
Reviewing the amended complaint, and the charge itself the Court finds that with respect to the
categories of unidentified applicants and employees at issue in the partial motion to dismiss, the
EEOC has satisfied the statutory prerequisites set forth in 42 U.S.C. § 2000e-5(b) prior to filing
the claims of these presently unidentified applicants and employees. Clearly, the presently
unidentified applicants and employees who Norfolk allegedly discriminated against (due to their
disabilities of past drug addiction, drug addiction recovery, and treatment for drug addiction), as
well as unidentified employees who Norfolk allegedly discriminated against (based upon their
disabilities of receiving chemotherapy for cancer, having arthritis, and having non-paralytic
orthopedic impairments) fall within the broad class of individuals covered by this expanded
investigation, and these classes of claimants would have been part of the same 42 U.S.C. §
2000e-5(b) pre-suit process as the other claims covered by the investigation described in the
November 14, 2012 letter. The EEOC has alleged it made efforts at conciliation to endeavor to
eliminate the alleged unlawful employment practices and provide appropriate relief and that it
provided notices of failure of conciliation. (ECF No. 17 at ¶¶ 15-18).
Norfolk’s motion to dismiss these claims for failure to exhaust administrative remedies
shall be denied.
For all of the above stated reasons, Norfolk Southern Corporation’s and Norfolk Southern
Railway Company’s partial motion to dismiss the amended complaint filed against them by the
U.S. Equal Employment Opportunity Commission (ECF No. 20) is denied. An appropriate Order
AND NOW, this 11th day of September, 2018, it is hereby ORDERED, ADJUDGED,
AND DECREED that the defendants Norfolk Southern Corporation’s and Norfolk Southern
Railway Company’s partial motion to dismiss the amended complaint filed against them by the
U.S. Equal Employment Opportunity Commission (ECF No. 20) is DENIED.
/s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
cc: record counsel via CM-ECF
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