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April 11, 1991


The opinion of the court was delivered by: McCLURE, District Judge.



Plaintiff Sheila Garvey alleges in this Title VII action*fn1 that she was sexually harassed and subjected to gender-based discrimination from 1985 to 1987 while she was employed as a professor of drama at Dickinson College ("Dickinson") in Carlisle, Pennsylvania. In addition to Dickinson, Garvey names as defendants George Allan, Ph.D., Dean of the College, and David Peck, M.F.A., formerly an Associate Professor of Drama at Dickinson and Garvey's immediate supervisor from 1985 to 1987.*fn2

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
      undisputed facts

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 accordingly.

Based on plaintiff's failure to oppose this motion, as well as our view that defendants' interpretation of Local Rule 401.4 is correct, we will grant defendants' motion to strike.

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 itself."

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

1. Standard of review

  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 (3d Cir.1990).

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. 128-29.)

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

A. Acting classes.

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. Such as?

  Q. You say shoving me on the side in a number
    of my work area. What ...

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