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FLAGG v. CONTROL DATA

November 23, 1992

LEROY FLAGG
v.
CONTROL DATA/e.t. agents SUPERVISOR, KELLY GUINAN, and MANAGER, JERRY WOODS, HUMAN RESOURCE, KATHY LAYER.



The opinion of the court was delivered by: BY THE COURT; MARVIN KATZ

 This case involves a pro se plaintiff who has alleged that his former employer terminated him based solely on plaintiff's race. Plaintiff has brought suit against his former employer and three of the employer's agents asserting violations of Plaintiff's rights under the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq.; Title VII, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 1985; the Labor-Management Relations Act, 29 U.S.C. § 185; the first amendment; and the Civil Rights Act of 1991. This court makes the following findings of fact and conclusions of law following a bench trial on all eight of Plaintiff's allegations.

 Plaintiff, Leroy Flagg ("Plaintiff" or "Flagg"), a black male, was hired as a field technician by Defendant Control Data Corporation ("Control Data") in June 1990. Control Data, now a division of Automated Wagering International, Inc., supplies computerized lottery terminals to various vendors in Pennsylvania. As a field technician, Flagg was required to travel to various vender locations to service and maintain the lottery terminals. Control Data provided Flagg with a vehicle, the tools and the necessary equipment to maintain and/or service the vehicles. In addition, one qualifications required by all field technicians by Control Data was a valid driver's license. On August 23, 1990 at the beginning of his employment, Flagg signed a "Safe Driver Requirements" agreement; his signature indicated he had read, understood and would abide by the agreement. This agreement established that continued employment with the company depended upon having a valid driver's license, notifying a supervisor or the company if there was any problem with the driver's license, and abiding by all other the terms of the agreement. In the summer of 1991, however, a black male part-time technician had his licensed suspended and the supervisor, "Dave," apparently gave him a bench technician job. At the time Flagg was hired, his immediate supervisor was Dave, a white male. The unit in which Flagg worked employed three part-time technicians and six full-time technicians. Of the full-time technicians, three including Plaintiff were black.

 Later in the summer of 1991, Dave was terminated and Defendant Kelly Guinan, a white male, became Flagg's immediate supervisor. On December 10, 1991, Guinan approached the Plaintiff and presented him with a copy of Flagg's Driver Status Report and asked Flagg if his license had been suspended. The Report indicated that Flagg's license had been suspended twice since August 13, 1991: first on August 13, 1991 for failure to pay a fine, which apparently was paid; and second on November 27, 1991, for a year for failure to submit to a chemical analysis test. Flagg alleges that he told Guinan that there must have been a mistake because this was the first time Flagg had knowledge of that his license was currently under suspension, even though the Report noted that Flagg had been sent an official notice of the second suspension on November 27, 1991. That same day, Guinan told Flagg that Flagg would be placed on an indefinite suspension until matters regarding his license were rectified. The next day, Flagg alleges that he brought in verification papers and showed them to Defendant Jerry Woods, a white male Manager. Woods responded by telling Flagg the matter was out of his hands. Flagg then met with Defendant Kathy Layer, he personnel supervisor. Layer spoke with Flagg's legal counselor, William Borrebach, and explained to Borrebach what would be necessary to justify the Flagg's reinstatement. Flagg alleges that these requirements were firmly agreed to and a facsimile of the requirements was to be transmitted to the Personnel Base Office in New York on New Year's Eve. Flagg alleges this agreement was later not honored since on December 15, 1991, Flagg received a letter from Celeste Oaks, a human resource technician, stating that Flagg was terminated as of that date due to a discrepancy concerning his driving privileges in that Flagg had failed to maintain a valid driver's license and failed to advise his supervisor that his license was suspended. On December 20, 1991, Flagg's license was reinstated pending the appeal of Flagg's November 27, 1991, suspension.

 Plaintiff alleges that the above named Defendants violated the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (count 1); violated Title VII, 42 U.S.C. § 2000e et seq. (count 2); violated 42 U.S.C. § 1981 (count 3); violated 42 U.S.C. § 1983 (count 4); violated 42 U.S.C. § 1985 (count 5); violated Plaintiff's collective bargaining rights under 29 U.S.C. § 185 (count 6); violated Plaintiff's first amendment rights (count 7); violated Plaintiff's civil rights under the Civil Rights Act of 1991 (count 8).

 Count I. Violation of Pennsylvania Human Relations Act

 To present a cognizable Pennsylvania Human Relations Act ("PHRA") claim, a plaintiff must exhaust all remedies under the statute. See Price v. Philadelphia Elec. Co., 790 F.Supp. 97, 98-99 (E.D.Pa. 1992) (citing Pennsylvania cases). The plaintiff must comply with the procedures of the PHRA. One such requirement is that the individual file an administrative complaint with the Pennsylvania Human Relations Commission ("Commission") within 180 days of the last discriminatory act. See 43 P.S. § 959. Another requirement is that the Commission be given a time period of within one year of filing to act upon a complaint; if the Commission does not act upon a complaint within one year of its filing, exhaustion has occurred. *fn1" See 43 P.S. § 962(c); see also Price, supra. Based upon these requirements, it follows that until exhaustion has occurred, pendent claims may not be pled in a federal civil rights act action.

 Here, Flagg has not exhausted his remedies with the Commission. There is no evidence that Flagg filed a complaint with the Commission so as to have complied with the requirements necessary to seek protection under the provisions of the PHRA. Furthermore, there is no evidence that Flagg allowed the Commission the time period required to serve as exhaustion of his remedies before filing his federal civil rights claim. Since Flagg failed to exhaust his PHRA remedies, this court lacks pendent jurisdiction over his state law claim. Based upon these findings, this court finds in favor of Defendants Control Data, Guinan, Woods, and Layer on count I.

 Count II. Violation of Title VII

 The broad claim Flagg asserts under Title VII seems best characterized as an allegation of disparate treatment since when Flagg was fired he was treated less favorably than his peers based upon his race.

 In a disparate treatment case, a plaintiff must prove the defendant had discriminatory animus and this animus manifested itself in some action, such as dismissal or failure to promote. See Lewis v. University of Pittsburgh, 725 F.2d 910. 914. To establish discriminatory animus, a plaintiff needs to show an intent to discriminate. The courts have broadened the plaintiff's ability to bring cases by allowing a plaintiff to establish a prima facie case of discrimination without requiring actual proof of intent, this case then shifts the burden of persuasion to the defendant.

 The Third Circuit has summarized the framework necessary to establish a prima facie disparate treatment case based upon the United States Supreme Court's opinions in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). See Weldon v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990).

 The plaintiff has the initial burden of proving a prima facie case by a preponderance of the evidence, which if successful, raises the inference of unlawful discrimination. Burdine, 450 U.S. at 250-52. . . . This burden is not onerous. The plaintiff must show that he is [1] a member of a racial minority, [2] qualified for the job from which he was discharged, and [3] that others not in the protected class were treated more favorably. See Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir. 1987).

 If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to clearly set forth a legitimate, non-discriminatory reason for the discharge. Burdine, 450 U.S. at 255 . . . A satisfactory explanation dispels the inference of discrimination arising from the plaintiff's initial evidence. Id. The ultimate burden of persuasion remains with the plaintiff, who then must prove by a preponderance of the evidence that the reasons asserted by the defendant were a pretext for discrimination. Id. at 253 . . . This may be accomplished either directly, by showing that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the ...


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