Audrey Barzanty v. Verizon Pennsylvania, Inc; Allen M. Nemetz

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1010
AUDREY BARZANTY,
Appellant
v.
VERIZON PENNSYLVANIA, INC;
ALLEN M. NEMETZ
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Civil Action No. 06-cv-0879
(Honorable David Stewart Cercone)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 11, 2010
Before: SCIRICA, Chief Judge, BARRY and SMITH, Circuit Judges.
Filed: January 20, 2010
OPINION OF THE COURT
SCIRICA, Chief Judge.
Audrey Barzanty brought two claims against her employer, Verizon Pennsylvania,
Inc., under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to

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The Magistrate Judge’s Report and Recommendation stated Barzanty was employed1
by Verizon from 1974 to 1981, and from 1993 to her discharge. We use the dates in
Barzanty’s EEOC Charge of Discrimination Form.
2
2000e-17 (“Title VII”), alleging gender discrimination and a hostile work environment.
The District Court granted Verizon’s motion for summary judgment, dismissing both
claims. Barzanty appeals only the District Court’s dismissal of her hostile work
environment claim for failure to exhaust administrative remedies. We will affirm.
I.
Barzanty was employed by Verizon as a splicing technician from 1986 until her
employment was terminated on December 21, 2004. She was discharged for multiple1
violations of the Verizon Code of Business Conduct, including (1) seeking reimbursement
for hours she did not work; (2) leaving her work site without permission; and (3) using a
company truck for personal shopping.
On September 19, 2005, Barzanty submitted a General Intake Questionnaire to the
Pittsburgh office of the Equal Employment Opportunity Commission (“EEOC”). On the
questionnaire, she checked off “discharge” and “harassment” as the bases of her alleged
discrimination. On November 16, 2005, she filed a Form 5 Charge of Discrimination,
alleging gender discrimination arising only out of Verizon’s decision to terminate her
employment. She claimed she was discriminated against because males who engaged in
similar infractions were not discharged. On March 30, 2006, the EEOC issued a right-to-
sue letter finding no cause.

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She also filed a grievance through her union, claiming her discharge violated the2
parties’ collective bargaining agreement. This issue went to arbitration, and the arbitrator
reduced the discharge to a six-month suspension. Barzanty was reinstated as an employee
of Verizon with back pay in August 2007.
3
Barzanty subsequently filed a two-count complaint under Title VII in the United
States District Court for the Western District of Pennsylvania, alleging Verizon and her
supervisor, Allen Nemetz, subjected her to a hostile work environment, and Verizon
discharged her on the basis of gender. After discovery, Verizon filed a motion for2
summary judgment, contending (1) Barzanty’s claim was time barred because she failed
to file her EEOC charge within 300 days of her termination; (2) she did not exhaust her
administrative remedies because the EEOC charge did not mention a hostile work
environment; and (3) she could not state a prima facie case of gender discrimination with
respect to her discharge.
On November 5, 2007, Magistrate Judge Robert C. Mitchell recommended the
summary judgment motion be granted based on Verizon’s second and third arguments.
The Magistrate Judge provided the following explanation as to why it recommended that
the District Court dismiss Barzanty’s hostile work environment claim:
The Form 5 Charge of Discrimination identified the December 21, 2004
discharge as the only issue Plaintiff wanted to bring to the agency’s
attention. Plaintiff did not check the box indicating that it was a continuing
action and the text makes no mention of a hostile work environment. Since
this is the document that was forwarded to Verizon for a response, it would
be prejudicial to the employer to compel it to respond to claims not
contained therein.

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The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate3
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s
decision granting summary judgment. See Prowel v. Wise Bus. Forms, Inc., 579 F.3d
285, 286 (3d Cir. 2009). Summary judgment should be granted “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). In making this determination, we consider the
evidence in a light most favorable to the non-moving party. Prowel, 579 F.3d at 286.
4
Report and Recommendation at 23 (internal citation omitted). Barzanty then filed an
Objection to the Magistrate Judge’s report, contending Verizon had waived its ability to
object to her hostile work environment claim. The District Court issued a Memorandum
Order on December 6, 2007, adopting in full the Magistrate Judge’s recommendations.
Barzanty filed a timely Notice of Appeal, alleging only that the District Court erred
in dismissing her hostile work environment claim for failure to exhaust administrative
remedies. This appeal follows.3
II.
A.
Barzanty contends she exhausted her administrative remedies before filing this
suit. A plaintiff bringing an employment discrimination claim under Title VII must
comply with the procedural requirements set forth in 42 U.S.C. § 2000e-5. Before filing
a lawsuit, a plaintiff must exhaust her administrative remedies by filing a timely
discrimination charge with the EEOC. Id. §§ 2000e-5(b), (e)(1), (f)(1). The EEOC will
then investigate the charge, and the plaintiff must wait until the EEOC issues a right-to-

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5
sue letter before she can initiate a private action. Burgh v. Borough Council, 251 F.3d
465, 470 (3d Cir. 2001). The ensuing suit is limited to claims that are within the scope of
the initial administrative charge. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996). “The
purpose of requiring exhaustion is to afford the EEOC the opportunity to settle disputes
through conference, conciliation, and persuasion, avoiding unnecessary action in court.”
Id.
After a charge is filed, “the scope of a resulting private civil action in the district
court is ‘defined by the scope of the EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination . . . .’” Hicks v. ABT Assoc., Inc.,
572 F.2d 960, 966 (3d Cir. 1978) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d
394, 398-99 (3d Cir. 1976)); see also Antol, 82 F.3d at 1295; Waiters v. Parsons, 729
F.2d 233, 237 (3d Cir. 1984). Although this standard does not necessarily preclude a
plaintiff from asserting a claim for the mere failure to check a box on an EEOC Charge
Form, it does prevent a plaintiff from “greatly expand[ing] an investigation simply by
alleging new and different facts when [s]he [is] contacted by the Commission following
[her] charge.” Hicks, 572 F.2d at 967. Because the EEOC is required to serve notice on
the employer against whom the charges are made, this standard also allows an employer
to be put on notice of the claims likely to be filed against it. See 42 U.S.C. §§ 2000e-5(b),
(e)(1).

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6
Interpreting Barzanty’s EEOC charge liberally, her hostile work environment
claim was still not within the scope of the charge. In Anjelino v. New York Times Co.,
200 F.3d 73, 94-95 (3d Cir. 1999), we held a hostile work environment claim was within
the scope of an initial EEOC charge because it alleged the plaintiff was subjected to an
“abusive atmosphere,” a phrase which is interchangeable with “hostile work
environment.” But there is no analogous language in Barzanty’s EEOC charge which
could give rise to a hostile work environment claim. The Form 5 Charge of
Discrimination identified only an allegation of gender discrimination relating to
Barzanty’s discharge on December 21, 2004. Barzanty provided no facts that suggest a
hostile work environment, and she did not check the box indicating her charge was a
“continuing action.”
Barzanty cites Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208 (3d Cir.
1984), to support her argument. In Howze, we held that the plaintiff could amend her
complaint to include a retaliation claim. Id. at 1212. Her initial EEOC charge alleged
only race discrimination based on her employer’s failure to promote her to a position for
which she was qualified. Id. at 1210. Because a reasonable investigation by the EEOC
would have encompassed a retaliation charge, we allowed the plaintiff leave to amend.
Id. at 1212. The discrimination and retaliation claims were alternative allegations
regarding the employer’s failure to promote the plaintiff, and the facts supporting the
former allegation were the same as those supporting the latter. Id. Here, however,

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Multiple cases applying Howze have made this distinction. See, e.g., Valdes v. New4
Jersey, No. Civ. 05-3510(GEB), 2005 WL 3447618, at *4 (D.N.J. Dec. 15, 2005)
(dismissing a hostile work environment claim because the EEOC charge alleged only
retaliation and the claims were not “reasonably related”); Smith-Cook v. Nat’l R.R.
Passenger Corp. (Amtrak), No. 05-00880, 2005 WL 3021101, at *4 (E.D. Pa. Nov. 10,
2005) (dismissing claims of retaliation and an ongoing policy of discrimination because
plaintiff’s charge referred only to “discrete, isolated incidents of discrimination . . . as
opposed to allegations of a company wide practice of discrimination”); Paci v. Rollins
Leasing Corp., No. 96-295-SLR, 1997 WL 811553, at *6 (D. Del. Dec. 18, 1997)
(allowing the plaintiff’s gender discrimination claim to proceed because the facts
supporting his “charge of retaliation are the same as those supporting the complaint’s
claim of gender discrimination”).
Although the questionnaire in Holowecki was different from Barzanty’s5
questionnaire, the general purpose for using each one was the same.
7
Barzanty’s two claims related to separate occurrences. Although her former supervisor,
Mr. Nemetz, was allegedly involved in both incidents, the gender discrimination claim
involved the discrete act of Verizon’s termination of Barzanty’s employment, while the
hostile work environment allegation involved continuing occurrences unrelated to her
discharge. Accordingly, Howze does not support Barzanty’s appeal.4
As additional support for Barzanty’s argument that she exhausted her
administrative remedies, she attempts to use her answers to the EEOC Intake
Questionnaire in which she alleged a “hostile work situation.” This she cannot do. The
EEOC Charge Form and the Intake Questionnaire serve different purposes. An Intake
Questionnaire facilitates “pre-charge filing counseling” and allows the Commission to
determine whether it has jurisdiction to pursue a charge. Federal Express Corp. v.
Holowecki, 128 S. Ct. 1147, 1159 (2008). Moreover, the Intake Questionnaire is not5

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Barzanty argues that because Verizon requested her EEOC file, including the Intake6
Questionnaire, denied the allegations of a hostile work environment in its answer, and
questioned her during her deposition on the allegations of a hostile work environment,
Verizon would not be prejudiced by allowing her to proceed on this claim. Although
Verizon may not be unduly prejudiced in this case, Barzanty still cannot circumvent the
aforementioned administrative exhaustion requirements. See Anjelino, 200 F.3d at 93
(“The preliminary step of the filing of the EEOC charge and the receipt of the right to sue
notification are ‘essential parts of the statutory plan . . . .’” (quoting Ostapowicz, 541 F.2d
at 398)).
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shared with the employer during the pendency of the EEOC investigation. On the other
hand, an EEOC Charge Form serves to define the scope of the Commission’s
investigation and to notify the defendant of the charges against it. See 42 U.S.C. § 2000e-
5(b) (requiring the Commission to serve notice of the charge on the employer against
whom it is made within ten days, and to conduct an investigation); Occidental Life Ins.
Co. of Cal. v. EEOC, 432 U.S. 355, 359-60 (1977) (stating the same). A plaintiff cannot
be allowed to transfer the allegations mentioned only in the questionnaire to the charge
itself. Not only would this be circumventing the role of the Commission, but it would be
prejudicial to the employer. See, e.g., Park v. Howard Univ., 71 F.3d 904, 909 (D.C. Cir.6
1995) (“To treat Intake Questionnaires willy-nilly as charges would be to dispense with
the requirement of notification of the prospective defendant . . . .” (quoting Early v.
Bankers Life and Cas. Co., 959 F.2d 75, 80 (7th Cir. 1992))); Binder v. PPL Servs. Corp.,
No. 06-CV-2977, 2009 WL 3738569, at *6 (E.D. Pa. Nov. 5, 2009); Rajoppe v. GMAC
Corp. Holding Corp., No. 05-2097, 2007 WL 846671, at *7 (E.D. Pa. Mar. 19, 2007);
Johnson v. Chase Home Fin., 309 F. Supp. 2d 667, 672 (E.D. Pa. 2004).

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For these reasons, Barzanty’s hostile work environment claim is outside the scope
of her charge of discrimination.
B.
Barzanty also argues Verizon waived its administrative exhaustion defense to her
hostile work environment claim because it failed to file a motion to dismiss under Federal
Rule of Civil Procedure 12(b). A party waives a defense only if it fails to raise it by
motion and does not include it in a responsive pleading. Fed. R. Civ. P. 12(h). Verizon
properly asserted an affirmative defense for Barzanty’s failure to comply with the
statutory prerequisites of her action. Following the close of discovery, Verizon moved for
summary judgment on this basis, which the District Court subsequently granted.
Accordingly, Verizon did not waive its objection for failure to exhaust administrative
remedies.
III.
For the foregoing reasons, we will affirm the judgment of the District Court.

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