with subordinates and independent contractors of the company. It is important to note that the attorney for defendant was the first person to actually outline these specific qualifications for the position of assistant building supervisor. There is no credible evidence that plaintiff did not possess these qualifications.
This Court, sitting as fact-finder, finds the testimony of defendant's witnesses suspect. The ultimate decision regarding the assistant building supervisor promotion was left with Eugene Shoosmith, general superintendent of building operations. Although defendant's witness testified that several other candidates with less seniority and experience were considered for the position, it is curious that only those with the greatest seniority, McLeod, plaintiff, and the person who eventually received the promotion, Daniel Nelson, were subjectively evaluated by Shoosmith to select the "best qualified."
Eugene Shoosmith testified that written subjective candidate evaluations were not required by policy or practice. Shoosmith testified that he, alone, determined when and if seniority or a written subjective evaluation of candidates was the appropriate criteria for promotion. Eugene Shoosmith testified that he subjectively selected the "best qualified" person for the job. The testimony of Shoosmith clearly establishes that the process employed was not in the normal course of business since the defendant had no established procedure for promotion of non-entry level employees. Therefore, this Court rejects defendant's contention that the promotion of Daniel Nelson was purely a business decision. This Court finds that the legitimate non-discriminatory business reason proffered by defendant for the promotion of Nelson instead of plaintiff to be mere pretext for intentional race discrimination.
In Jackson v. University of Pittsburgh, 826 F.2d 230, 236 (3rd Cir. 1987), Judge Higginbotham very ably noted that "in today's climate of public opinion, blatant acts of discrimination - the true "smoking guns" - can easily be identified, quickly condemned and often rectified in the particular settings where they occur. Much of the discrimination that remains resists legal attack exactly because it is so difficult to prove. Discrimination victims often come to the legal process without witnesses and with little direct evidence indicating the precise nature of the wrongs they have suffered. That is one of the reasons why our legal system permits discrimination plaintiffs to "prove [their] case[s] by direct or circumstantial evidence." See also United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714, 103 S. Ct. 1478, 1481, 75 L. Ed. 2d 403 (1983) (emphasis added); Maxfield v. Sinclair International, 766 F.2d 788, 791 (3rd Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986); Lewis v. University of Pittsburgh, 725 F.2d 910, 919 (3rd Cir. 1983), cert. denied, 469 U.S. 892, 105 S. Ct. 266, 83 L. Ed. 2d 202 (1984).
This Court finds that plaintiff has proven that but for his race, plaintiff would have received the Nelson promotion to the position of assistant building supervisor.
Plaintiff argues that he was also discriminated against because of race with regard to the March 1985 promotion of Frank Felix, a white male. However, plaintiff did not file a complaint with the Pennsylvania Human Relations Commission until June 5, 1986. Consequently, plaintiff's claim is not timely. Further, plaintiff's § 1981 action was not filed with this Court until January 7, 1988. In Pennsylvania the statute of limitations for such an action is two years. See, 42 Pa. C.S.A. § 5524. Therefore, plaintiff's claim is dismissed, with prejudice.
Plaintiff argues that he was discriminated against in the April 1986 promotion of James Chichester at the Peach Bottom Nuclear Generating Station. However, plaintiff failed to present evidence sufficient to establish a case of race discrimination. Therefore, plaintiff's claim is dismissed, with prejudice.
III. CONCLUSIONS OF LAW
1. Plaintiff filed this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981, alleging racial discrimination by defendant, Philadelphia Electric Company, in its failure to promote plaintiff to the position of assistant building supervisor.
2. This Court has jurisdiction and venue pursuant to 28 U.S.C.A. §§ 1331 and 1343.
3. Plaintiff followed all administrative remedies and complied with all conditions required to bring an action in this Court.
4. Plaintiff has established a prima facie case of race discrimination regarding the promotion of Daniel Nelson, in that:
(i) plaintiff is black.
(ii) plaintiff is qualified for the position of assistant building supervisor.