One of the single biggest issues that we employment lawyers must confront is ensuring that our clients have properly administratively exhausted his or her claims. The path to a successful employment claim is riddled with obstacles and roadblocks, none more significant than being able to file a civil lawsuit in the first place. Experience has shown that if there is even so much as the slightest slip-up when filing an administrative charge, savvy employers will pounce like a famished lion on a hapless gazelle. Look no further than a recent decision from the U.S. Court of Appeals for the Third Circuit where a majority panel threw out a retaliation suit because the claim was not included within the four corners of the original Equal Employment Opportunity Commission (EEOC) charge.

In Simko v. United States Steel, No. 20-1091 (3d Cir. Mar. 29, 2021) (U.S. Steel), a split panel of the Third Circuit upheld the dismissal of Simko’s retaliation suit under the ADA. Michael Simko alleged that he was discharged in August 2014 in retaliation for filing an EEOC charge approximately 15 months earlier. The original charge, filed in a timely manner, alleged that U.S. Steel disqualified him for another position on the basis of his hearing disability. Simko was subsequently terminated by U.S. Steel. The retaliation charge, which was filed with the EEOC 521 days after the termination of his employment, was beyond the agency’s 300-day jurisdictional threshold. The district court determined that the later claim of retaliation was not encompassed within the earlier charge, thus resulting in Simko’s failure to file a timely retaliation charge.

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