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February 8, 1988

Nancy L. Miller, Plaintiff,
Aluminum Company of America, Defendant

The opinion of the court was delivered by: DIAMOND

 Before us is defendant's motion for summary judgment. For the following reasons, we will grant defendant's motion.


 Plaintiff, Nancy Miller, is a former employee of defendant, Aluminum Company of America ("Alcoa"). Miller sued Alcoa for several alleged violations of federal and Pennsylvania law arising out of their employment relationship. Since both parties reside in Pennsylvania, our jurisdiction over the state claims is pendent.

 From the pretrial stipulation, we cull the following undisputed outline of the relevant actors and relevant events.

 In 1980, the plaintiff, Nancy L. Miller, was employed as a unit supervisor at Alcoa's Logans Ferry facility in Pennsylvania. From December, 1981, through November, 1983, Thomas Plantin was the manager of this plant. In December of 1981 or January of 1982, Miller was demoted from unit supervisor to product technician. She took a $ 200 per month pay cut. Nearly a year later, on December 1, 1982, Joseph Crognali was promoted to the position of unit supervisor. Miller never filed charges with the EEOC regarding her demotion.

 When Miller became a product technician, there was only one other, Mary Hollihan. Hollihan and Plantin began dating around November, 1981, and began to live together sometime in early 1983. Joseph Caylor, the lab supervisor, was the direct supervisor for Miller and Hollihan. Caylor reported to Phillip Helsley, the manager of the quality assurance department. Helsley reported to Plantin.

 Early in 1983, as part of its cost-cutting measures, Alcoa's Logans Ferry management decided to reduce its salaried work force by one product technician. On or around September 8, 1983, Miller was informed that she would be terminated on December 31, 1983, due to her poor performance. Consequently, Miller filed a charge of sexual discrimination on October 12, 1983. On November 7, 1983, her supervisors told her no longer to report to work. Nonetheless, she received her full salary until December 31, 1983. On November 8, 1983, Miller filed an additional EEOC charge of unlawful retaliation.

 Joseph Crognali, who had been a unit supervisor, filled the product technician position from November 7, 1983, through December 12, 1983. His pay remained the same as it was when he was a unit supervisor - higher than Miller's as a product technician. On December 12, 1983, Crognali returned to a unit supervisor position.

 In her amended complaint, Miller alleges violations of Title VII, 42 U.S.C. § 2000e-2. Miller claims that sex discrimination motivated her January 1, 1982, demotion from unit supervisor to product technician and the placement of a male, Joseph Crognali in that position on December 1, 1982. According to Miller, during her subsequent term as a product technician, her supervisors discriminated against her on the basis of sex by showing favoritism toward the other product technician, Mary Hollihan, because Hollihan was having an affair with the plant manager, Thomas Plantin.

 Miller's Title VII claim also includes a retaliation aspect. 42 U.S.C. § 2000e-3. On September 8, 1983, Miller was told that she would be terminated in December, 1983, for poor performance. Miller alleges that because of her filing of a charge of sex discrimination with the EEOC on October 12, 1983, Alcoa discharged her early, on November 7, 1980.

 During the time from November 7, 1983, until the end of December, Joseph Crognali received higher pay as a product technician than Miller had. Miller asserts that this pay discrepancy violates the Equal Pay Act, 29 U.S.C. § 206.

 As to her state law claims, Miller founds her breach of contract claim on an employee handbook, the "Performance Appraisal System." Miller argues that this handbook modified her employment contract so that she could not be discharged absent proper appraisals of her performance. Miller also alleges that the harassment and favoritism she experienced while a product technician constitutes negligent and intentional infliction of emotional distress.

 We will discuss the arguments and evidence bearing on summary judgment as to each claim separately.


 We may enter summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether there exists a genuine issue of material fact, we must resolve all conflicts in the evidence and draw all reasonable inferences in the non-movant's favor. Baker v. Lukens Steel Co., 793 F.2d 509, 511 (3d Cir. 1986). However, the non-movant may not rest on the allegations of her complaint. Once the movant indicates the absence of genuine issues of material fact, the non-movant, if she bears the burden of proof, is obligated to come forward with evidentiary materials of record sufficient to survive a motion for directed verdict. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987) (en banc).

 I. The 1982 Demotion.

 Miller claims that her demotion on January 1, 1982, from unit supervisor violated Title VII, because its motive was sexual animus. As evidence of this, Miller relies upon the placement of Joseph Crognali, a less experienced male, in the unit supervisor position on December 1, 1982.

 Alcoa argues that this claim is time-barred. Miller never filed an administrative complaint with the EEOC regarding this claim, as required by 42 U.S.C. § 2000e-5(e). In response, Miller contends that her demotion was part of a continuing violation of Title VII which culminated in her termination on December 31, 1983. Since Miller filed a timely EEOC complaint for her termination, that filing would encompass her 1982 demotion claim. The continuing violation consisted of a pattern and practice of discriminating against women and favoring women who proffered sexual favors to Thomas Plantin, the plant manager. To support this claim, Miller presents evidence that Plantin had an affair with another co-worker besides Mary Hollihan several years before November, 1981, see Pretrial Stip., III. 28, 29; Miller Aff., para. 27, and of the percentage of the employees at Alcoa's Logans Ferry Works that were women. Plaintiff's Exhibit K.

 Miller also seeks to invoke the doctrine of equitable tolling. Alcoa informed her that her demotion was due to poor performance, thus, according to Miller, actively misleading her as to the accrual of her cause of action. Miller did not become aware that Alcoa's actions were discriminatory until her final termination and replacement by Crognali. Plaintiff's Brief in Response to Defendant's Motion for Summary Judgment, p. 4.

 Timely filing with the EEOC is a prerequisite to maintenance of a Title VII action. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). The continuing violation theory measures the start of Title VII's limitations period from the time of the last of a series of related discriminatory acts. See Bronze Shields, Inc. v. New Jersey Dep't. of Civil Service, 667 F.2d 1074, 1081 (3d Cir. 1981). The courts have emphasized that only a policy of discrimination can constitute a continuing violation:

To prevail on a continuing violation theory, however, the plaintiff must show more than the occurrence of isolated or sporadic acts of intentional discrimination. The preponderance of the evidence must establish that some form of intentional discrimination against the class of which plaintiff was a member was the company's "standard operating procedure."

 Jewett v. International Telephone and Telegraph Corp., 653 F.2d 89, 91-92 (3d Cir. 1981). To prove this "standard operating procedure," plaintiff must show "a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period." Milton v. Weinberger, 207 U.S. App. D.C. 145, 645 F.2d 1070, 1075 (D.C.Cir. 1981), quoting Schlei & Grossman, EMPLOYMENT DISCRIMINATION LAW 232 (Supp. 1979). The persistent effects of an isolated discriminatory act do not constitute a continuing violation. United Air Lines v. Evans, 431 U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977).

 Resolving all inferences and doubts in Miller's favor, we still do not find a triable issue of a continuing violation. Miller's raw numbers showing the percentage of women in Alcoa's workforce are meaningless without comparison to "the community from which employees are hired." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339 n.20, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977); Mazus v. Department of Transportation, 629 F.2d 870, 875 (3d Cir. 1980). In Mazus, the Court of Appeals found that data showing that only .41 % to .68 % of highway maintenance workers were women did not make out a prima facie case of sex discrimination. The failure of plaintiff's proof lay in the absence of any data on the number of women applicants to this position. Similarly, Miller has not offered any data on the number of female applicants for employment at Alcoa's Logans Ferry Works.

 Miller's 1982 demotion and her 1983 firing were two isolated and unrelated acts. Plantin was somehow involved in each firing and Plantin had twice, according to Miller, had affairs with female Alcoa employees. But two transgressions do not a pattern make. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n.14, 87 L. Ed. 2d 346, 105 S. Ct. 3275 (1985). Plantin's first affair took place in Lafayette, Indiana. Plantin Depo. 61. Neither that affair nor his later affair with Mary Hollihan bore any relation to Miller's 1982 demotion. Both affairs were consensual; there is no evidence that Plantin had a practice of extracting sexual favors from female workers in exchange for employment benefits. At best, Miller alleges two separate discriminatory acts against the same employee with the same general discriminatory motive. This does not make out a continuing violation. Stoller v. Marsh, 221 U.S. App. D.C. 22, 682 F.2d 971, 975 (D.C.Cir. 1982).

 Title VII's time limits are subject to equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). "Plaintiffs have the burden of establishing the facts necessary to justify equitable tolling." Byers v. Follmer Trucking Co., 763 F.2d 599, 600-601 (3d Cir. 1985). The United States Court of Appeals for the Third Circuit has recognized equitable tolling where the defendant "has actively misled the plaintiff regarding the cause of action." Meyer v. Riegel Products Corp., 720 F.2d 303, 307 (3d Cir. 1983). The ...

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