PS4-179                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                               Nos. 13-3332 & 13-3539
                                    ___________

                     HOWARD LEE WASHINGTON, ET AL,
              INDIVIDUALLY AND AS CLASS REPRESENTATIVES,
                                                   Appellant

                                           v.

                CLIENT NETWORK SERVICES INC. (CNSI);
        NATIONAL RAILROAD PASSENGER CORPORATION, (AMTRAK)
                 ____________________________________

                   On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-11-cv-01331)
                   District Judge: Honorable Thomas N. O’Neill, Jr.
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 2, 2014

            Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges

                          (Opinion filed: November 4, 2014)
                                    ___________

                                       OPINION
                                      ___________

PER CURIAM

      Howard Lee Washington appeals pro se from the District Court’s orders that, inter

alia, dismissed his Second Amended Complaint. We will affirm in part, vacate in part,

and remand for further proceedings.
                                             I.

       Washington is an African-American male over 50 years of age who alleges that he

suffers from a mental disability. He was employed as a help desk data analyst by

Computer Network Services, Inc. (“CNSI”) to provide services for the National Railroad

Passenger Corporation, popularly known as Amtrak, at 30th Street Station in

Philadelphia. He claims that Amtrak was his employer as well. Washington resigned

from his job on May 5, 2008, following an incident with a co-worker, and he

characterizes his resignation as a constructive termination.

       Washington filed suit pro se against CNSI alleging various forms of

discrimination and later filed an amended complaint as of right naming both CNSI and

Amtrak as defendants.1 The District Court stayed the case pending Washington’s

attempts to obtain counsel and reopen matters allegedly pending before the Equal

Employment Opportunity Commission (“EEOC”). When Washington failed to file a

certain status report as directed, both CNSI and Amtrak filed motions to dismiss for

failure to prosecute. Neither mentioned the merits of Washington’s claims. The District

Court, also without mentioning the merits of Washington’s claims, granted him leave to

file a Second Amended Complaint and denied defendants’ motions as moot.


1
  Howard purported to file suit both individually and as “class representatives [sic],” but
he has not requested class certification and pro se litigants generally are not adequate
class representatives. See Hagan v. Rogers, 

, 158-59 (3d Cir. 2009).



                                             2
       Washington later filed a Second Amended Complaint alleging that CNSI and

Amtrak discriminated against him on the basis of his race, age, mental disability and his

Christian religion, and he asserted claims under Title VII of the Civil Rights Act of 1964

(“Title VII”), the Age Discrimination in Employment Act (“ADEA”), the Americans

With Disabilities Act, the Rehabilitation Act, the Equal Pay Act, the Pennsylvania

Human Relations Act, and 42 U.S.C. § 1981(a). Amtrak and CNSI filed motions to

dismiss the complaint on the grounds, inter alia, that it fails to state a plausible claim for

relief and that Washington failed to exhaust his administrative remedies. Washington

responded by requesting leave to amend and then filing a brief, which also requested

leave to amend and which (as far as the record shows) constituted his first opportunity to

respond to any suggestion by defendants or the District Court that his claims might be

legally insufficient.

       By order entered June 27, 2013, the District Court dismissed Washington’s claims

against Amtrak on the sole ground that Amtrak was not his “employer” for purposes of

these claims. Then, by order entered July 24, 2013, the District Court dismissed his

claims against CNSI. With the exception of Washington’s claim under the Equal Pay

Act, which the District Court concluded was both untimely and failed to state a claim, the

District Court dismissed Washington’s claims against CNSI on the sole ground that he

failed to file a timely charge with the EEOC. In both orders, the District Court denied




                                               3
Washington leave to further amend. Washington appeals. 2

                                           II.

      Washington’s primary challenge on appeal is to the District Court’s dismissal of

his claims on the grounds just summarized. We agree that these issues and the merits of

Washington’s claims warrant further consideration by the District Court.3

                            A.     Administrative Exhaustion

      We begin with this threshold issue that potentially applies to both defendants.

Before filing suit under many of the statutes on which Washington relies, a Pennsylvania

resident like Washington generally must file a charge with the EEOC within 300 days of

the discriminatory conduct alleged. See, e.g., Mandel v. M & Q Packaging Corp., 

, 165 (3d Cir. 2013) (citing Title VII, 42 U.S.C. § 2000e-5(e)(1)). We recently

held in the ADEA context that exhaustion of administrative remedies is a condition


2
 We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the
dismissal of a complaint under Rule 12(b)(6), see Connelly v. Steel Valley Sch. Dist.,

, 212 (3d Cir. 2013), and we review dismissals without leave to amend for
abuse of discretion, see 

3
  Washington also challenges a number of the District Court’s other rulings, but those
challenges lack merit. For example, Washington challenges the District Court’s order
denying him leave to file certain documents under seal, but it was not necessary for him
to file evidentiary support for his claims because the District Court did not convert
defendants’ motions into ones for summary judgment. We further reject Washington’s
arguments that the District Court should have entered a default judgment against the
defendants, remanded this matter to the EEOC, and permitted him to file a claim under
the Racketeer Influenced and Corrupt Organizations Act.



                                            4
precedent to filing suit that may be alleged generally under Federal Rule of Civil

Procedure 9(c) and that is not subject to the Rule 8 pleading standard set forth in, inter

alia, Bell Atlantic Corp. v. Twombly, 

(2007). See Hildebrand v. Allegheny

Cnty., — F.3d. —, No. 13-1321, 

, at *11 (3d Cir. June 27, 2014).

Washington alleges that he properly exhausted his claims by filing timely charges with

the EEOC, and that allegation ordinarily would suffice. See 

case, however, Washington attached to his First Amended Complaint an

“affidavit” that he submitted to the EEOC on August 6, 2008 (ECF No. 6 at 5), and CNSI

attached to its brief in support of its motion to dismiss an EEOC charge that Washington

submitted on October 30, 2010 (ECF No. 41-10 at 3). The District Court dismissed the

majority of Washington’s claims against CNSI because it concluded that the 2008

affidavit is not a valid EEOC charge for Title VII purposes and that the 2010 EEOC

charge was untimely. We will vacate that ruling for three reasons.

       First, in assessing the validity of Washington’s 2008 affidavit, the District Court

relied—as CNSI asked it to do, and as it asks us to do on appeal—solely on the standard

applicable to EEOC charges for purposes of Title VII. See 29 C.F.R. § 1601.12(b). That

standard may apply to other anti-discrimination statutes as well, but neither the District

Court nor CNSI addressed that issue and, at least in the ADEA context, the validity of

EEOC charges is governed by a differently worded regulation. See Hildebrand, 

, at *12 (applying 29 C.F.R. § 1626.6). As the Supreme Court cautioned in


                                              5
elucidating the standard in the ADEA context, “[w]hile there may be areas of common

definition [among the anti-discrimination statutes],” litigants and their counsel “must be

careful not to apply rules applicable under one statute to a different statute without

careful and critical examination.” Fed. Express Corp. v. Holowecki, 

, 393

(2008). Neither the District Court nor CNSI have undertaken that examination, and we

are not inclined to do so in the first instance sua sponte.

       Second, and even if we were, the record is not sufficiently developed to resolve

the validity of Washington’s EEOC filings. Washington was not required to submit

every document supporting his position at this stage, particularly because the District

Court did not convert defendants’ motions into ones for summary judgment.

Washington’s 2008 affidavit appears to incorporate “attachments” that he did not also

attach to his complaint (ECF No. 6 at 5), and his First Amended Complaint refers to a

294-page document he claims to have submitted to the EEOC (ECF No. 6 at 2) that

apparently is not of record in the District Court. Washington’s Second Amended

Complaint also appears to reproduce e-mail correspondence with the EEOC dating back

to September of 2008. (ECF No. 37 at 20-21.) Given these submissions, it would be

premature to resolve the timeliness and adequacy of Washington’s submission to the

EEOC at this stage.4


4
 One of the reasons the District Court gave for rejecting Washington’s 2008 affidavit
was that he did not allege that the EEOC received it. Washington’s initial brief in
opposition to defendants’ motions to dismiss, however, attaches a letter from the EEOC

                                               6
       Finally, the requirement of timely exhaustion is not jurisdictional and thus is

subject to equitable tolling. See, e.g., Ruehl v. Viacom, Inc., 

, 384 (3d Cir.

2007) (ADEA); Oshiver v. Levin, Fishbein, Sedran & Berman, 

, 1387 (3d

Cir. 1994) (Title VII). In his complaints and other filings, Washington argued expressly

and at length that he is entitled to equitable tolling because, inter alia, the EEOC

mishandled certain of his alleged charges in various respects. Once again, neither the

District Court nor CNSI addressed that issue. We leave it to the District Court to do so in

the first instance if and when appropriate on remand.

                  B.    Whether Amtrak Was Washington’s “Employer”

       As the District Court explained, Washington must show that Amtrak was his

“employer” in order to prevail on his claims against it under most of the statutes at issue.

See, e.g., Covington v. Int’l Ass’n of Approved Basketball Officials, 

, 119

(3d Cir. 2013) (Title VII). The District Court concluded that Washington did not allege

that Amtrak was his employer and, in so doing, it noted several places in Washington’s



dated December 9, 2008, in which the EEOC acknowledged receiving correspondence
from Washington regarding discrimination by both CNSI and Amtrak and in which the
EEOC requested additional information. (ECF No. 58 at 10.) We further note that the
validity of an initial charge, and whether the EEOC treats it as a charge, are not
necessarily determinative. See Holender v. Mut. Indus. N. Inc., 

, 357 (3d
Cir. 2008); Anjelino v. N.Y. Times Co., 

, 94 (3d Cir. 2000).




                                              7
various filings where he alleged that he was employed by CNSI. Washington argues, as

he did before the District Court, that Amtrak should be deemed his employer for these

purposes as well. This issue too warrants further consideration.

       Neither the District Court nor Amtrak addressed the standard for determining

whether a defendant is an employer for purposes of the anti-discrimination laws, and that

standard embraces the concept of joint employment. See 

Graves v.

Lowery, 

, 727-29 (3d Cir. 1997) (citing NLRB v. Browning-Ferris Indus. of

Pa., Inc., 

, 1122-23 (3d Cir. 1982)). Whether Washington was employed

by Amtrak as well as CNSI for these purposes turns on a number of factors, including

Amtrak’s level of control over Washington, which entity hired and paid him, and which

entity generally controlled his day-to-day activities. See 

(citing Nationwide Mut. Ins. Co. v. Darden, 

(1992)). Under this standard,

“the precise contours of an employment relationship can only be established by a careful

factual inquiry,” 

, and the issue thus “may generally require

resolution at the summary judgment stage, rather than at the motion to dismiss stage,”

Mariotti v. Mariotti Bldg. Prods., Inc., 

, 768 n.5 (3d Cir. 2013), cert. denied,

(2013).

       Washington has alleged facts arguably suggesting that Amtrak could be deemed

his employer under this standard. For example, in his original complaint, he alleged that

his claimed workplace mistreatment occurred at “Amtrak” and that “Amtrak managers”


                                             8
were involved in it. (ECF No. 3 at 3.) In his First Amended Complaint, he alleged that

he worked in “the Amtrak engineering department.” (ECF No. 6 at 1.) In the resignation

e-mail attached thereto, he states that he communicated with John Zachmann regarding

when to return to work and other employment-related matters. (Id. at 6.) The e-mail

reveals that, although Washington copied someone with an e-mail address “@cns-

inc.com,” both he and Zachmann used e-mail addresses “@amtrak.com.” (Id.) The e-

mail also refers to Washington having been issued “Amtrak equipment.” (Id.) See

(identifying as a relevant factor “the source of the

instrumentalities and tools”) (quotation marks omitted). Washington’s Second Amended

Complaint too states that he was “employed by the defendant(s)” at “Amtrak’s 30th

Street facility” (ECF No. 37 at 12), refers to his “employment with CNSI and Amtrak”

(id. at 15), and attaches an e-mail from Washington to the EEOC in which Washington

states that “Amtrak Manager Michael Calderone, was my direct supervisor” (id. at 23).

       Neither the District Court nor Amtrak acknowledged these allegations, let alone

applied the applicable standard to them, and we once again decline to do so in the first

instance sua sponte because further consideration is warranted in the District Court.

Washington made certain assertions relevant to this issue in his brief in opposition to

defendants’ motions to dismiss,5 but the District Court denied leave to amend on this


5
 For example, Washington referred to a conflict over who controlled his day-to-day
activities, stated that his direct supervisor’s “boss” was an “Amtrak Technologies
Regional Manager—Systems Engineering,” and asserted that he “expressed his concern

                                             9
issue without explanation. Thus, we will vacate the District Court’s ruling in this regard.

If the District Court concludes on remand that Washington has not adequately alleged

that Amtrak was an “employer,” then it should exercise its discretion in the first instance

in determining whether leave to further amend is appropriate. 6

             C.    Whether Washington Otherwise Stated a Claim for Relief

       Both CNSI and Amtrak argued below that Washington’s Second Amended

Complaint otherwise fails to state a plausible claim for relief, but the District Court did

not reach that issue. CNSI (though not Amtrak) repeats that alternative argument on

appeal. We acknowledge that Washington’s voluminous filings are not models of clarity

and that his allegations of discrimination are largely conclusory. If we viewed his



about working in an environment where instructions were not clear.” (ECF No. 58 at 2.)
6
  In the District Court, Amtrak submitted a copy of a contract between it and CNSI and
argued that the contract shows that CNSI’s employees are independent contractors and
not employees of Amtrak. (ECF No. 45-2 at 2-21.) Amtrak also argued that the District
Court should consider the contract under Rule 12(b)(1) because whether Amtrak was
Washington’s employer is not merely an element of Washington’s claims but goes to the
District Court’s subject matter jurisdiction. The District Court did not rely on the
contract but, citing Kahn v. American Heritage Life Insurance Co., 

,
657 (E.D. Pa. 2004), it agreed that Amtrak’s status as an employer is a jurisdictional
issue. We need not resolve whether that is so because the District Court did not rely on
the contract, but we question that conclusion. Cf. Arbaugh v. Y & H Corp., 

, 516 (2006) (holding that “the threshold number of employees for application of Title
VII is an element of a plaintiff’s claim for relief, not a jurisdictional issue”); Nesbit v.
Gears Unlimited, Inc., 

, 83 (3d Cir. 2003) (same). We decline to rely on the
contract at this stage as well, and we note that the existence of an independent contractor
agreement may be “strong evidence” but is “not dispositive of the plaintiff’s employment
status[.]” Brown v. J. Kaz, Inc., 

, 181 (3d Cir. 2009) (quotation marks
omitted).

                                             10
Second Amended Complaint in isolation, and if it represented an opportunity to remedy

deficiencies previously raised by the defendants or the District Court, then we might

agree that dismissal without leave to further amend was appropriate. After reviewing

Washington’s filings in context, however, we believe that this issue warrants

consideration by the District Court.

       Washington’s First Amended Complaint alleges in conclusory fashion that “I may

have been passed over for . . . positions, promotions, training, subject to discriminatory

treatment and conditions and a hostile work environment, harassment, reprisal and/or

retaliation including the threat of physical violence which led to my involuntary

resignation.” (ECF No. 6 at 1.) The First Amended Complaint also attached the above-

referenced 2008 affidavit, in which Washington referred to his CNSI manager making

comments about “Negros” and “casting me in the role of a coloured [sic] buffoon.” (Id.

at 5.) In addition, the First Amended Complaint appears to reproduce e-mails that

Washington sent to the EEOC in which he claimed that an unspecified “mental handicap”

made it difficult for him “to write a narrative document to show specific acts of

discrimination” but in which he referred to pages in a 294-page document that he believes

support his claims. (Id. at 2.)

       Washington’s Second Amended Complaint largely repeats the conclusory

allegations from his First Amended Complaint (ECF No. 37 at 12-13), and again refers to

his “mental handicap” and resultant difficulty in “writ[ing] a narrative document to show


                                             11
specific acts of discrimination” (id. at 16). When Amtrak and CNSI moved to dismiss

this complaint and argued for the first time that Washington failed to plead a plausible

claim, however, he sought leave to amend and made several specific factual assertions in

his supporting brief.

       For example, Washington referred to specific conversations he had with specific

individuals notifying them of his mental disability and requesting accommodations that

he asserts they did not provide. (ECF No. 58 at 2-4.) He also refers to specific instances

in which his supervisor expressed skepticism that “someone who looks like you went to

Princeton” (id. at 2) and in which others called him “boy” (id. at 3-4), and he asserts that

his supervisor “Stevenson and others repeatedly made negative comments about [my]

age, religion, race, handicaps and nationality” (id. at 8). In addition, he asserts that he

was not provided with various office equipment that other employees received, including

a laptop computer that was necessary to complete tasks required for promotional

opportunities. (Id. at 3-5.) Washington further asserts that, when he complained that he

thought these and other actions were discriminatory, his supervisor told him to “stop

complaining if he wanted to keep his job.” (Id. at 3.)

       The sole reason the District Court gave for dismissing Washington’s claims

against CNSI without leave to amend was that amendment would be futile in light of its

ruling on exhaustion. The District Court did not reach the merits of Washington’s claims,

and thus did not consider whether they warranted leave to amend on the merits in light of


                                              12
the assertions contained in his brief or otherwise. We believe it best for the District

Court, which is more familiar with the parties and this litigation, to exercise its discretion

in that regard in the first instance.

                                             III.

       For the foregoing reasons, we will vacate the District Court’s order entered June

27, 2013, vacate in part the District Court’s order entered July 24, 2013, and remand for

further proceedings consistent with this opinion. We express no opinion on the merits of

Washington’s claims and are remanding solely because they warrant further

consideration in light of the issues discussed above. Washington’s motions pending in

this Court are denied.




                                              13