Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
GARVEY v. DICKINSON COLLEGE
April 11, 1991
SHEILA HICKEY GARVEY, PLAINTIFF,
DICKINSON COLLEGE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: McCLURE, District Judge.
In her amended complaint,*fn3 Garvey alleges, in addition to
the federal cause of action under Title VII (Count I), pendent
state claims for (1) intentional and negligent infliction of
emotional distress (Count III) and (2) defamation (Count
IV).*fn4 She seeks both compensatory and punitive damages.
(Plaintiff's amended complaint, filed January 11, 1989)
Trial is scheduled to commence the week of May 28, 1991, and
several motions are currently before the court. In addition to
a motion for summary judgment*fn5 filed by defendants
Dickinson College, Allan, and Peck on November 5, 1990, there
are two related motions: (1) a motion filed January 30, 1991 by
plaintiff seeking court approval to supplement the record;*fn6
and (2) a motion filed December 31, 1990 by defendants to
strike plaintiff's statement of undisputed facts.*fn7
After reviewing the evidence of record*fn8 and considering
the arguments advanced by the parties, we will enter an order
(1) granting defendants' motion to strike plaintiff's statement
of undisputed facts; (2) granting plaintiff's motion to
supplement the record with an affidavit by Kenneth Wise, Esq.;
and (3) granting, in part, defendants' motion for summary
judgment. Defendants' motion for summary judgment is granted
with respect to plaintiff's claims for defamation, negligent
and intentional infliction of emotional distress, and her Title
VII claims based on the letter of reference written by Allan
for Peck ("Peck letter of reference"). Defendants' summary
judgment motion is denied in all other respects.
A. Defendants' motion to strike plaintiff's statement of
Plaintiff filed a statement of undisputed facts on December
17, 1990.*fn9 She has not countered defendants' motion for
summary judgment with a like motion, and defendants argue that
the Local Rules make no provision for, and do not allow, the
nonmoving party to file his or her own statement of undisputed
facts. Defendants argue that Local Rule 401.4 provides only
that the moving party may file such a statement, to which the
non-moving party is obliged to respond, and point out that
there is no comparable provision authorizing the non-moving
party to file his or her own statement. For that reason,
defendants ask the court to strike plaintiff's statement.
Plaintiff has not filed a response to defendants' motion to
strike, the filing deadline has passed, and the court has not
granted any filing extensions. Local Rule 401.6 requires that
opposing briefs be filed within fifteen days after service of
the movant's brief. Rule 401.6 states that if no opposing
briefs are timely filed, the court may deem the motion
unopposed. Pursuant to Local Rule 401.6, we deem defendants'
motion to strike unopposed and will issue our ruling
B. Plaintiff's motion to supplement the record
Plaintiff seeks leave from the court to supplement the record
with an affidavit by plaintiff's counsel, Kenneth A. Wise, Esq.
Wise's affidavit is offered to counter defendants' contentions
that (1) plaintiff's Title VII claims against Allan should be
dismissed because he was not named as a respondent in the
charges which she filed before the Pennsylvania Human Relations
Commission ("PHRC"),*fn10 and (2) portions of her Title VII
claim should be dismissed as untimely filed.
Plaintiff offers the affidavit to show that Allan was, in
fact, aware of the nature of the charges she had filed, equally
aware that some of the allegations were against him, and that
he had personally participated in proceedings before the PHRC.
Wise states in his affidavit that: (1) Allan was present at a
fact-finding conference held before the PHRC in March, 1988,
which was also attended by defense counsel J. Thomas Menaker,
Esq.; and (2) "the question of timeliness of plaintiff's filing
of the charges with the . . . [PHRC] was never raised before
the agency neither [sic] at the pre fact [sic] finding
conference proceedings or at the fact finding conference
Defendants oppose plaintiff's motion on several grounds, none
of which we find compelling. Allowing Garvey to supplement the
record with Wise's affidavit will not result in any delays, nor
will it unfairly surprise defendants with new evidence which
they have no means to counter or dispute. For those reasons, we
will grant plaintiff's motion and will consider Wise's
affidavit in ruling on defendants' motion for summary judgment.
C. Defendants' motion for summary judgment
Summary judgment is appropriate 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 judgment as a matter of law." Fed.R.Civ.P.
56(c) (Emphasis supplied).
. . [T]he 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, an on which that party will bear the
burden of proof at trial. In such a situation,
there can be 'no genuine issue as to any material
fact,' since a complete failure of proof
concerning an essential element of the nonmoving
party's case necessarily renders all other facts
immaterial. The moving party is 'entitled to
judgment as a matter of law' because the nonmoving
party has failed to make a sufficient showing on
an essential element of her case with respect to
which she has the burden of proof.
Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552,
91 L.Ed.2d 265 (1986).
The moving party bears the initial responsibility of stating
the basis for its motions and identifying those portions of the
record which demonstrate the absence of a genuine issue of
material fact. He or she can discharge that burden by "showing
. . . that there is an absence of evidence to support the
nonmoving party's case." Celotex, supra, 477 U.S. at 323 and
325, 106 S.Ct. at 2552 and 2554.
Issues of fact are "genuine only if a reasonable jury,
considering the evidence presented, could find for the
non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d
Cir.1988), citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Material
facts are those which will affect the outcome of the trial
under governing law. Anderson, supra, 477 U.S. at 248, 106
S.Ct. at 2510. In determining whether an issue of material fact
exists, the court must consider all evidence in the light most
favorable to the non-moving party. White v. Westinghouse
Electric Company, 862 F.2d 56, 59 (3d Cir.1988).
2. Timely filing of Title VII charges
Garvey bases her Title VII claim on four alleged incidents:
(1) sexual harassment by Peck; (2) Dickinson's inadequate
response to that situation; (3) Dickinson's decision not to
renew her teaching contract — i.e. retaliatory discharge; and
(4) defamatory remarks*fn11 in the Peck letter of reference.
(Plaintiff's amended complaint, filed January 11, 1989, paras.
18 and 41)
Defendants contend that the first two of these claims are
time-barred because Garvey did not file charges with the
PHRC*fn12 within 180 days of the alleged occurrences, as is
required by 42 U.S.C. § 2000e-5(e) and 43 P.S. § 959(g).*fn13
Trevino-Barton v. Pittsburgh National Bank, 919 F.2d 874, 878
Preliminarily, we address Garvey's challenge to defendants'
right to raise this issue at this stage of the case. She argues
that the statutory filing requirements are in the nature of a
statute of limitations defense and are, therefore, waivable.
She contends that defendants waived this issue by failing to
raise it before the PHRC.
The Third Circuit has held that plaintiff's non-compliance
with the statutory filing deadlines is a waivable defense akin
to a statute of limitations defense. Schafer v. Board of Public
Education, 903 F.2d 243, 251 (3d Cir.1990). However, the courts
of this district have also held that the defendant's failure to
raise the late-filing defense in agency proceedings does not
require that it be deemed waived, since administrative
proceedings are not adversarial by nature and do not give the
defendant an appropriate forum to object to the timeliness of
plaintiff's charges. Byrnes v. Herion, 757 F. Supp. 648, 651
(W.D.Pa.1990). Under the circumstances, we find that
defendants' failure to raise this issue before the PHRC does
not operate as a waiver.
We turn, then, to the merits of defendants' argument. The
following relevant dates are not in dispute: Garvey filed
charges with the PHRC on August 18, 1987, and with the Equal
Employment Opportunity Commission ("EEOC") on November 16,
1987. January, 1986 was the last time that Peck made suggestive
or inappropriate remarks directed to Garvey, although his
harassment of other women at the college allegedly continued
after that date.*fn14 (Garvey deposition, April 22, 1990, pp.
Although Garvey concedes that Peck did not make any
suggestive remarks to her, personally, after January, 1986, she
alleges that he continued a campaign of harassment against her
throughout the 1986-87 school year. She attributes this
campaign to hostility generated by her role in exposing his
inappropriate behavior towards her and other female staff
members and students. Specifically, she alleges that Peck
interfered with her courses, excluded her from the departmental
decision-making process, and used divisive tactics to curry
favor for himself among other members of the department and to
alienate her from colleagues. (Garvey deposition, May 22, 1990,
pp. 267-71 and 273.)
Garvey testified in depositions:
A. He [Peck] was — my major contribution I
think to the department was in performance and
he was shifting me aside out of performance and
he was shifting me aside out of performance
courses. So I had to actually make up new
Q. What courses was it that he was taking over of
Q. What courses did you then move to teach?
A. Directing. I'm trying to remember the specific
courses. It seems to me I invented a few.
Q. You say shoving me on the side in a number
of my work area. What ...