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JOHNSON v. PROVIDENT NATL. BANK

September 26, 1988

TAMARA R. JOHNSON
v.
PROVIDENT NATIONAL BANK


James McGirr Kelly, United States District Judge.


The opinion of the court was delivered by: KELLY

JAMES McGIRR KELLY, UNITED STATES DISTRICT JUDGE.

 Presently before this court is defendant Provident National Bank's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or in the alternative for partial summary judgment pursuant to Fed.R.Civ.P. 56(c). Because Provident has presented on its motion to this court matters outside the pleadings, the motion will be treated as a motion for summary judgment. See Fed.R.Civ.P. 12(b). *fn1"

 Plaintiff Johnson was employed by defendant Provident National Bank for approximately five years as a systems coordinator, but after Johnson left Provident on maternity leave, Provident failed to reinstate Johnson to her former position or any position with Provident. Johnson is suing her former employer on the grounds of sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, and on pendent state law claims. *fn2" Provident has moved for partial summary judgment against Johnson on Counts I, IV, V, VI and VII of Johnson's complaint. For the reasons discussed below, Provident's motion for partial summary judgment will be granted in part and denied in part.

 Rule 56(c) sets out the standard this court must follow in resolving Provident's motion for partial summary judgment. Summary judgment "shall be rendered forthwith 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). The inquiry regarding whether a genuine issue of material fact exists has been defined by the United States Supreme Court as requiring a determination whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The Supreme Court explained the allocation of burdens between the moving and nonmoving parties on a motion for summary judgment in Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The court stated that "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. Furthermore, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

 In Count I of her complaint, Johnson alleges that Provident denied her access to training opportunities while granting similarly situated male employees access to such training opportunities, and that this conduct constitutes sex discrimination under Title VII of the Civil Rights Act. *fn3" Provident has moved to dismiss this count, contending that Johnson has failed to exhaust administrative remedies. Generally, an aggrieved person must file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") or a proper state or local agency within a specified period of time. See 42 U.S.C. § 2000e-5(e) (1982). The aggrieved person may bring a civil action against the respondent named in the charge, when notified of the right to sue by the EEOC. 42 U.S.C. § 2000e-5(f)(1) (1982). Provident does not contest Johnson's compliance with these administrative prerequisites regarding the discrimination claims contained in Counts II and III, relating to discrimination based on Johnson's pregnancy and maternity leave. Provident, however argues that the charge Johnson filed with the Philadelphia Commission on Human Relations ("PCHR"), which was subsequently referred to the EEOC, contained no allegation of discrimination in training opportunities. Provident's contends, therefore, that this court has no jurisdiction over the training discrimination claim embodied in Count I.

 The United States Court of Appeals for the Third Circuit has stated that "the relevant test in determining whether [a plaintiff] was required to exhaust her administrative remedies . . . is whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984).

 Upon consideration of the initial charge Johnson filed with the PCHR, alleging discrimination in failing to reinstate her after her maternity leave, *fn4" and the subsequent allegations in her Title VII action of discrimination in access to training, I cannot conclude that the "acts are so unrelated that the EEO agency investigators would not have reasonably been expected to investigate these . . . incidents in the course of the investigation." Gemmell v. Meese, No. 85-5711, slip op. at 4 (E.D. Pa. May 29, 1986). Therefore, I find that a genuine issue of material fact does exist regarding Johnson's failure to exhaust her administrative remedies for her training discrimination claim, and Provident's motion for summary judgment on Count I will be denied.

 Johnson alleges in Count IV of her complaint that Provident discriminated against her by failing to reinstate her after her maternity leave, while allowing similarly situated male employees to return to their jobs after leaves of similar length. Johnson claims that this conduct was a violation of 43 Pa. Stat. Ann. tit. 43, § 955(a) (Purdon Supp. 1988).

 Provident contends that Johnson has failed to allege an essential element of a prima facie case of sex discrimination under section 955(a), in that Johnson was not replaced by a male, but rather by another female. An alternative standard for establishing a prima facie case of sex discrimination under Pennsylvania law was set forth in Reed v. Miller Printing Equip., 75 Pa. Commw. 360, 365, 462 A.2d 292, 294 (1983). In Reed, the court stated that a flexible inquiry may focus "on whether the employer retained employees in similar circumstances as those of the complainant other than being a member of the complainant's class." Id.; see also Dallastown Area School Dist. v. Pennsylvania Human Relations Comm., 74 Pa. Commw. 560, 563, 460 A.2d 878, 880 (1983) ("disability from pregnancy must be treated the same as any other disability").

 In Count V of her complaint, Johnson alleges that Provident's failure to reinstate her after her maternity leave was a breach of a written agreement and a breach of policy books, handbooks, and other procedures generally applied in termination of employees. Provident has moved for summary judgment on these claims, pointing to a complete failure of proof of the existence of such agreements, handbooks or procedures.

 Under Pennsylvania law, the employment relationship is at-will, meaning that an employee can be fired at any time for any or no reason, and this rule may only be overcome by the existence of an employee handbook where "it contains evidence of the employer's intention to be legally bound and to convert an at-will employee into an employee who cannot be fired without objective just cause." See Martin v. Capital Cities Media, Inc., 354 Pa. Super. 199, 511 A.2d 830, 841 (1986); see also Engstrom v. John Nuveen & Co., Inc., 668 F. Supp. 953, 957 (E.D. Pa. 1987). Because Johnson has failed to point to any facts showing the existence of any employment agreement, written or oral, express or implied, and has relied only on the allegations in her complaint, she has failed ...


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