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Plaintiffs in employment discrimination cases who fail to cooperate with an investigation by the U.S. Equal Employment Opportunity Commission forfeit their right to pursue a lawsuit in court — even if they receive a “right to sue” letter from the EEOC — a Pennsylvania federal judge has ruled. “The duty of an aggrieved employee to assist the EEOC in its investigation is crafted into both the language of Title VII and the EEOC’s own regulations,” U.S. District Judge Eduardo C. Robreno wrote in his 14-page opinion in Wood v. Central Parking Systems of Pennsylvania Inc. that dismisses a sexual harassment suit. Robreno said plaintiff Alshe Wood “has failed to show, under any set of facts, that she cooperated with the EEOC in its investigation of her charge or that equitable considerations would excuse her failure to so cooperate.” Wood claimed that she always intended to participate in the EEOC’s investigation but was unaware that the EEOC was seeking additional information from her because she never told her lawyer or the EEOC that she had moved and changed her phone number after she filed the charge. Her lawyer, Samuel A. Dion of Dion & Goldberger, confirmed that after he received letters from the EEOC, he tried to contact Wood at her last known phone number and also mailed a letter to her at her last known home address, all to no avail. Dion argued that Wood’s failure to participate in the EEOC investigation should be excused since she has an adequate explanation. But Judge Robreno found that while courts are open to hearing such a plea for equitable leniency, Wood’s excuses fell short. “The court recognizes that there may be equitable circumstances that would pardon plaintiff’s failure to exhaust her administrative remedies because she did not cooperate with the EEOC’s investigation of her charge,” he wrote. “However, even accepting as true the circumstances asserted by plaintiff, i.e., that she was unaware of the EEOC’s request for information because she had moved, the court finds that equitable considerations do not excuse her conduct.” Wood’s failure to cooperate and participate in the EEOC’s investigation “was of her own making,” Robreno found. Under EEOC regulations, he said, the person bringing a charge has a duty to keep the EEOC apprised of any changes of address. Adding his own “reasonable corollary,” Robreno said that claimants also have a duty to keep their lawyers up-to-date as to where they can be reached. “It cannot be the EEOC’s duty to track down ‘AWOL’ claimants — if so, given the EEOC’s heavy workload, the EEOC would be unduly burdened,” Robreno said. As for attorney Dion, the judge found that he never sought an extension of time from the EEOC to respond to the request for additional information even though he was unable to contact Wood. But significantly, Robreno rejected the argument of defense attorney Matthew J. Maguire of Berwyn, Pa.’s Pepper Hamilton, who said the case should be dismissed for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Instead, Robreno found that the alleged failure of a plaintiff to participate in an EEOC investigation should be treated as a failure to exhaust administrative remedies — a matter better suited for a motion to dismiss under Rule 12(b)(6). Robreno said the 3rd U.S. Circuit Court of Appeals’ recent decision in Anjelino v. New York Times Co. instructed the lower courts not to treat exhaustion as a jurisdictional issue. The Anjelino court wrote: “Although it is a ‘basic tenet’ of administrative law that a plaintiff should timely exhaust all administrative remedies before seeking judicial relief, the purpose of this rule is practical, rather than a matter affecting substantive justice in the manner contemplated by the District Court. The rule is meant to provide courts with the benefit of an agency’s expertise, and serve judicial economy by having the administrative agency compile the factual record. “Failure to exhaust is in the nature of statutes of limitation and does not affect the District Court’s subject matter jurisdiction. The characterization either of lack of exhaustion or of untimeliness as a jurisdictional bar is particularly inapt in Title VII cases, where the courts are permitted to equitably toll filing requirements in certain circumstances. “Thus, the District Court should have considered the exhaustion and timeliness defenses presented in this case under Rule 12(b)(6), rather than under Rule 12(b)(1).” Maguire argued that Anjelino applied only when the moving party sought to dismiss a case based on an untimeliness defense as opposed to an alleged failure to exhaust administrative remedies. Robreno disagreed, saying the defendant in Anjelino moved to dismiss several of the plaintiff’s claims based upon, among other grounds, failure to exhaust administrative remedies. Because the 3rd Circuit opined that district courts should not characterize either failure to exhaust or untimeliness defenses as jurisdictional bars, Robreno said he would analyze Maguire’s motion under the Rule 12(b)(6) standard. But while Maguire lost on the precise standard to be employed, he won every other point and ultimately dismissal of the case. Dion argued that Wood’s case cannot be dismissed for failure to exhaust remedies because the EEOC issued her a right-to-sue letter. Such a notice, he said, absolutely authorizes her to bring her claim of employment discrimination in federal court regardless of whether she cooperated with the EEOC in its investigation. Robreno disagreed, saying, “The right-to-sue notice does not constitute a judgment on the part of the EEOC that a claimant is entitled to maintain a suit in the federal courts. Rather, it is merely an administrative mechanism through which the EEOC closes its file and advises the claimant that relief, if any, must now be sought in another forum.” On the ultimate question of whether the case should be tossed out of court due to Wood’s failure to cooperate in the EEOC investigation, Robreno had some strong words of his own and a quote with even stronger language from the late Judge Robert S. Gawthrop III. “Plaintiff’s failure to cooperate effectively barred the EEOC from performing its investigation into her charge — an investigation it was required to make under the plain mandate of the statute,” Robreno wrote. He also quoted Gawthrop’s decision in McLaughlin v. State System of Higher Education which granted the defendants’ motion for summary judgment in a Title VII case and held that the plaintiffs’ failure to cooperate with EEOC constituted a failure to exhaust administrative remedies because “failure to cooperate in an EEOC investigation, no less than failure to file with the administrative agency, serves to thwart the purpose underlying the enactment of Title VII.” Gawthrop went on to say that “to allow plaintiffs to bring their Title VII claims in federal court under such circumstances would be to allow them to emasculate Congressional intent by short circuiting the twin objectives of investigation and conciliation.”

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