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PARSONS v. CITY OF PHILADELPHIA COORDINATING OFFIC

May 12, 1993

BLONDELL PARSONS, Plaintiff
v.
CITY OF PHILADELPHIA COORDINATING OFFICE OF DRUG AND ABUSE PROGRAMS, Defendant



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 Joyner, J.

 Plaintiff, Blondell Parsons, commenced this action alleging civil rights violations by defendant, City of Phila-delphia Coordinating Office of Drug and Abuse Programs ("CODAAP"), on the grounds that she was discriminated against on the basis of her race. Presently before the Court is the defendant's Motion For Summary Judgment. Although the defendant argues dismissal of only one of plaintiff's multiple claims, the motion disingenuously seeks dismissal of the entire action. Following plaintiff's response, defendant filed a reply brief which urged dismissal of a few more of plaintiff's claims. In addition to requiring the court to speculate as to what relief defendant is requesting, this piecemeal motion practice threatens the parties' rights of having a full and fair opportunity to present their positions to the court. *fn1" We premise this decision with the advisory statement that such inartful pleading runs contrary to the interests of judicial economy and is strongly discouraged. In an attempt to avoid ruling on issues not properly before the court, we will treat defendant's motion as a motion for partial summary judgment and decide only that issue presented in defendant's motion.

 Factual Background

 The plaintiff is a black female who, sometime prior to November 26, 1989, was hired by the City of Philadelphia Coordinating Drug and Alcohol Abuse Programs (hereinafter CODAAP) to perform the duties of Driving Under the Influence ("DUI") Case Manager. Subsequent to the resignation of the Director of the Philadelphia Alcohol Safety Program/NEXUS ("AHSP/NEXUS") on November 26, 1989, the plaintiff states that she began performing duties of the Director of AHSP/NEXUS which were outside the scope of those of a DUI Case Manager *fn2" and that she was entitled to "out-of-class" compensation for such services.

 On June 11, 1990, the plaintiff filed charges of discrimination against the defendant with the Philadelphia Commission on Human Relations (the "Philadelphia Commission") and the Equal Employment Opportunities Commission ("EEOC"), alleging that she had been discriminated against on account of her race and/or color with regard to the terms, conditions and privileges of employment based the fact that she had assumed duties of director of AHSP/NEXUS in November 1989 and had not been compensated for this additional work. In support of her argument that this failure to pay out-of-class constituted discrimination, plaintiff states that a white secretary, allegedly performing duties nonsecretarial in nature, was compensated "out-of-class" for the performance of these additional duties.

 Subsequently, on October 15, 1990 the plaintiff filed a second complaint with the Philadelphia Commission alleging that the defendant retaliated against her for filing the original complaint by refusing to allow her to attend a work related conference.

 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).

 Discussion

 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 ...


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