Failure to exhaust administrative remedies leads to dismissal of discrimination, injury case

By Nicholas Malfitano | Oct 6, 2016

PHILADELPHIA -- A federal appellate court upheld a lower court’s decision to dismiss a lawsuit versus Amazon’s third-party sales operations department for failure to exhaust administrative remedies with respect to the complaint.

Judges Thomas I. Vanaskie, Anthony J. Scirica and Julio M. Fuentes of the appellate court explained in an Oct. 4 ruling that Gregory Hickman’s complaint for implied discrimination and wrongful termination or negligence related to a workplace injury against Amazon Fulfillment was properly dismissed by the U.S. District Court for the Western District of Pennsylvania.

“In September of 2015, Hickman filed a complaint against defendant Amazon Fulfillment (Amazon). This complaint seemingly alleged discrimination and a workplace injury,” the Third Circuit wrote.

Amazon filed a motion to dismiss the complaint for multiple reasons, which the district court granted without prejudice for failure to exhaust administrative remedies.

“On Jan. 7, 2016, Hickman filed a second, amended complaint which stated that Hickman had an employment contract with Kelly Services, Inc. (Kelly) under which he performed temporary services for Amazon from November 2014 to August 2015,” the Third Circuit explained.

“Additionally, the amended complaint made no statements relating to any claim for discrimination; rather, Hickman merely described his position at Kelly and an injury he had suffered prior to working for that company.”

Further, the complaint “contained no allegations regarding the exhaustion of administrative remedies with the Equal Employment Opportunity Commission (EEOC) or the Pennsylvania Human Relations Commission (PHRC).”

Amazon Fulfillment thereafter filed a motion to dismiss the amended complaint for failure to allege exhaustion of administrative remedies and failure to state a claim. This motion was granted by the trial court on April 5, and Hickman now appeals.

The Third Circuit concluded Hickman had not presented a viable argument.

“We conclude that he has waived consideration of the District Court’s legal analysis by not presenting any cogent argument in response on appeal. Absent waiver, however, we would nonetheless affirm the District Court’s analysis. The District Court correctly dismissed the Amended Complaint for Hickman’s failure to exhaust his administrative remedies,” the Third Circuit wrote.

The federal appellate court explained a plaintiff bringing an employment discrimination suit under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA), the Rehabilitation Act or the Pennsylvania Human Relations Act must first exhaust administrative remedies prior to filing an action in federal court.

“Here, Hickman has never alleged that he exhausted administrative remedies with the EEOC or PHRC. Even after the district judge dismissed the original complaint without prejudice for failure to exhaust administrative remedies, Hickman failed to attach any documents to his amended complaint or plead any facts demonstrating exhaustion,” the Third Circuit wrote, stating the district court properly dismissed the amended complaint.

“Moreover, the District Court did not abuse its discretion in denying further leave to amend. Because Hickman made no attempt to remedy the defects in his complaints, despite notice by the District Court of the exhaustion requirements, granting him a further opportunity to amend his Amended Complaint would have been futile.”

The defendant is represented by Christopher K. Ramsey and Lauren E. Marzullo of Morgan Lewis & Bockius in Pittsburgh.

U.S. Court of Appeals for the Third Circuit case 16-1898

U.S. District Court for the Western District of Pennsylvania case 2:15-cv-01119

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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