On November 11, 1990, Ms. Parsons received a letter from the EEOC explaining that they had accepted the recommendation of the Philadelphia Commission and informed Ms. Parsons of her "right to sue" the defendant. On February 7, 1992 Ms. Parsons initiated this action alleging that the CODAAP discriminated against her on the basis of her race by failing to pay her "out-of-class" for duties performed and for failing to promote her to the position of Director of AHSP/NEXUS.
Summary Judgment Standard
In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This court is required to determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the nonmoving party. Anderson, 477 U.S. at 256, 106 S. Ct. at 2512 . While the movant bears the initial burden of demonstrating an absence of genuine issues of material fact, the nonmovant must then establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990) citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).
As a prerequisite to a suit under Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. § 2000e, the plaintiff must first file a claim with the EEOC and receive a "right-to-sue" letter from the Commission. Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1210 (3d Cir. 1984). These preliminary steps are necessary to effectuate the statutory purpose of promoting case resolution through "administrative conciliation and persuasion if possible, rather than by formal court action." Ostapowicz v. Johnson Bronze Company, 541 F.2d 394, 398 (3d Cir. 1976); see Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984). However, the EEOC filing requirement is not jurisdictional in nature. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S. Ct. 1127, 1132-33, 71 L. Ed. 2d 234 (1982). Rather, the requirement is similar to a statute of limitations and therefore subject to waiver, estoppel and equitable tolling. Id.; Molthan v. Temple University, 778 F.2d 955, 960 (3d Cir. 1985); Waiters, 729 F.2d at 236.
The parties do not question the timeliness of plaintiff's filings. However, defendant contends that because plaintiff neglected to present her failure to promote claim to the EEOC, she is precluded from pursuing the issue in federal court.
Plaintiff filed two administrative complaints. The allegations in her first complaint are as follows:
[The respondent] discriminated against the black Complainant with regard to terms, conditions and privileges of employment including but not limited to paying a white/female for doing work out of her job specification while refusing same to the Complainant; all because of her race and/or color.