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MILLER v. STATE CHEM. MFG. CO.

December 7, 1988

RONALD A. MILLER, Plaintiff,
v.
STATE CHEMICAL MANUFACTURING COMPANY, a corporation, Defendant



The opinion of the court was delivered by: BLOCH

 ALAN N. BLOCH, UNITED STATES DISTRICT JUDGE

 Plaintiff Ronald A. Miller brought this action against his former employer, State Chemical Manufacturing Company, alleging that he was discharged from his territorial manager position in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et seq. Defendant moves for summary judgment on the following grounds: plaintiff failed to satisfy the ADEA's requirement that he first file a claim with the appropriate state agency before bringing a civil action in federal court, plaintiff failed to file claims with the Equal Employment Opportunity Commission (EEOC) and this Court on a timely basis, plaintiff has not made a prima facie showing of age discrimination, plaintiff's termination was based on a reasonable factor other than age, the Pennsylvania Human Relations Act (PHRA), 43 Pa.C.S.A. § 951, et seq., precludes plaintiff's state common law tort claim, and plaintiff has failed to state a cause of action for negligent and intentional infliction of emotional distress. Defendant also seeks attorney's fees. For the reasons stated below, the Court grants defendant's motion for summary judgment with respect to the negligent and intentional infliction of emotional distress claims, but denies the motion as to the remaining claims. Defendant's request for attorney's fees is denied.

 Plaintiff began working for the State Chemical Manufacturing Company on November 30, 1981, when he was 48 years old. He was injured during an on-the-job automobile accident on April 30, 1984. On July 27, 1984, while home recuperating from his accident, plaintiff received written notice of termination, allegedly due to his inability to work. At the time of discharge, he was advised that he was "too old for the job" and "could not do the work." Plaintiff applied for and did receive worker's compensation benefits.

 Plaintiff alleges that in May, 1986, Edsel Burkholder, his former supervisor, advised him that he had been discharged because of his age. In June, 1986, plaintiff filed an age discrimination claim with the Equal Employment Opportunity Commission (EEOC). He filed the present civil action on October 30, 1986.

 I. Summary judgment

 A trial court may enter summary judgment "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 substantive law will determine which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact regardless of which party would have the burden of proof at trial. Chipolloni v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). If, however, the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the non-moving party has failed to provide evidence sufficient to establish the existence of an element essential to that party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The Court must view the facts and the evidence in the light most favorable to the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

 II. ADEA's filing requirements

 The ADEA has two filing requirements which a private litigant must satisfy before bringing a civil action in federal court. The first one mandates that in states such as Pennsylvania, which have laws prohibiting age discrimination and have established an agency to enforce those laws, the individual first file an age discrimination claim with the appropriate state agency. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 753, 60 L. Ed. 2d 609, 99 S. Ct. 2066 (1979). In Pennsylvania, the Pennsylvania Human Relations Commission (PHRC) is the appropriate state agency. The second requirement is that in "deferral states" such as Pennsylvania, an individual must file an age discrimination claim with the EEOC within 300 days of the alleged unlawful practice. 29 U.S.C. § 626(d)(2). See 29 U.S.C. § 633(b). The PHRC and EEOC claims may be filed simultaneously as long as they are filed not less than 60 days before commencing suit in federal court. 29 U.S.C. § 626.

 Defendant State Chemical Manufacturing Company contends that plaintiff Miller has failed to satisfy either of the two filing requirements. Specifically, defendant alleges that plaintiff never filed an age discrimination claim with the PHRC and filed a claim with the EEOC substantially beyond 300 days after the alleged unlawful conduct occurred.

 A. Failure to file a claim with the PHRC

 Plaintiff Miller admits that he did not personally file an age discrimination claim with the PHRC. He argues, however, that he should not be penalized for the EEOC's failure to refer his claim to the PHRC as it was required to do by its own regulation, 29 C.F.R. § 1601.13. It is true that when a claimant files initially with the EEOC rather than ...


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