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.
The reason for the first filing requirement is to give the state agency an opportunity to address the discrimination and to avoid federal intervention unless necessary. See Mohasco Corp. v. Silver, 447 U.S. 807, 821, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980) (referring to the parallel and similarly interpreted deferral provision in Title VII). Congress intended, by the second filing requirement, to have the EEOC first attempt to resolve allegations of discrimination by informal methods. 29 U.S.C. § 626(d)(2); Seredinski v. Clifton Precision Products Co., 776 F.2d 56, 63 (3d Cir. 1985).
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 the state agency, § 1601.13 requires the EEOC to refer the charges to the state agency.
The EEOC's failure to refer plaintiff Miller's claim to the PHRC is not necessarily fatal to his civil action.
If the case were to go to trial, plaintiff would have the opportunity to cure any failure on the part of the EEOC by first forwarding a copy of the complaint to the PHRC. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 765, 60 L. Ed. 2d 609, 99 S. Ct. 2066 (1979) (civil action held in abeyance until plaintiff filed a claim with the state agency and gave that agency 60 days to act or terminate the claim); Sharpe v. Philadelphia Housing Authority, 693 F.2d 24, 26 n. 3 (3d Cir. 1982); Smith v. Jos. Schlitz Brewing Co., 604 F.2d 220, 221 (3d Cir. 1979).
B. Failure to file a timely claim with the EEOC
Plaintiff Miller also admits that his filing with the EEOC exceeded the 300-day period. He argues, however, that this Court should apply the doctrine of equitable tolling because the defendant failed to post notice of plaintiff's rights under the ADEA as required under 29 U.S.C. § 627 and because plaintiff only learned in May, 1986 that his age had been a factor in his discharge. It is true that the EEOC filing requirement may be subject to equitable tolling. Bonham v. Dresser Industries, Inc., 569 F.2d 187, 192 (3d Cir. 1977), cert. denied, 439 U.S. 821, 58 L. Ed. 2d 113, 99 S. Ct. 87 (1978); Butz v. Hertz Corp., 554 F. Supp. 1178, 1180-81 (W.D. Pa. 1983). Plaintiff has the burden of establishing the facts necessary to justify equitable tolling. Byers v. Follmer Trucking Co., 763 F.2d 599, 600 (3d Cir. 1985).
Plaintiff asserts that posters notifying employees of their rights under the ADEA were not posted in the three locations that salesmen frequented and were likely to see the notices. Plaintiff also asserts that defendant did not inform him of his rights upon termination. Defendant asserts that a notice has been posted in the entrance lobby to its corporate headquarters since 1980.
Title 29 U.S.C. § 627 provides:
Every employer . . . shall post and keep posted in conspicuous places upon its premises a notice to be prepared by the Equal Employment Opportunity Commission setting forth information as the Commission deems appropriate to effectuate the purposes of this chapter.