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PARSONS v. CITY OF PHILADELPHIA COORDINATING OFFIC

October 7, 1993

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



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

 Joyner, J.

 October 7, 1993

 Presently before the Court is the motion for summary judgment of defendant, City of Philadelphia Coordinating Office of Drug and Alcohol Abuse Programs ("Codaap"), brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. This case revolves around the allegations of plaintiff, Ms. Blondell Parsons, who was employed by defendant as a DUI Case Manager before she resigned on July 20, 1992. Plaintiff, a black woman, filed a five count complaint with this Court on February 7, 1992, alleging that she had been discriminated against on the basis of her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3); the Civil Rights Act of 1991, 42 U.S.C. § 1981; and the Pennsylvania Human Relations Act, 43 P.S. § 951 et. seq. ("PHRA"). She also alleged violations of state law for wrongful discharge with specific intent to harm, and intentional infliction of emotional distress. We previously granted partial summary judgment with respect to plaintiff's claim that defendant discriminated against her in violation of Title VII by failing to promote her to the position of Director of the Philadelphia Alcohol Safety Program/NEXUS ("AHSP/NEXUS"). *fn1" See Parsons v. City of Philadelphia Coordinating Office of Drug and Abuse Programs, 822 F. Supp. 1181 (E.D. Pa. 1993).

 We have previously discussed the facts giving rise to this lawsuit, see Parsons v. City of Philadelphia Coordinating Office of Drug and Abuse Programs, 822 F. Supp. 1181 (E.D. Pa. 1993), and as such, will only discuss any additional facts as are necessary to determine each issue.

 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 a judgment as a matter of law. Fed.R.Civ.P. 56(c). The 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 (3rd Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986)).

 Discussion

 I. Lack of jurisdiction over plaintiff's PHRA claims

 Defendant argues that this Court does not have jurisdiction over plaintiff's claims which arise under the PHRA, because she has not filed a complaint with the Pennsylvania Human Relations Commission ("PHRC"), and therefore she has failed to exhaust her administrative remedies.

 Under the PHRA, a person must file a complaint (or charge) of discrimination with the PHRC within 180 days after the alleged discriminatory act occurred. 43 P.S. § 959 (a), (h) (Supp. 1993). A person has a right to resort to judicial remedies if "within one (1) year after the filing of a complaint with the [PHRC], the [PHRC] dismisses the complaint or has not entered into a conciliation agreement...." 43 P.S. § 962 (c) (1) (Supp. 1993). Failure to exhaust one's remedies under the PHRA precludes a court from exercising jurisdiction over the party's claim under the PHRA in subsequent litigation. Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917 (1989); Schweitzer v. Rockwell Int'l, 402 Pa. Super. 34, 586 A.2d 383 (1990), allocatur denied, 529 Pa. 635, 600 A.2d 954 (1991).

 While a person must usually file an initial complaint with the PHRC, there are circumstances where a complaint initially filed with the Equal Employment Opportunity Commission ("E.E.O.C.") will suffice for purposes of satisfying the requirements of the PHRA. Under these circumstances, when the E.E.O.C. transmits the complaint to the PHRC for further processing, then the person has complied with the PHRA and needs not file a complaint with the PHRC. Vincent v. Fuller Co., 532 Pa. 547, 616 A.2d 969, 971 (1992); Lukus v. Westinghouse Elec. Corp., 276 Pa. Super. 232, 272, 419 A.2d 431, 452 (1980). It is the E.E.O.C.'s transmittal of the charge that constitutes filing under the PHRA. Lukus, 276 Pa. Super. 232, 272, 419 A.2d 431, 451 (1980).

 In the present case, plaintiff initially filed a charge with the Pennsylvania Commission on Human Relations ("PCHR") on June 11, 1990 regarding defendant's failure to pay her for the out of class work she allegedly performed. *fn2" On October 15, 1990, plaintiff filed a second charge with the PCHR regarding defendant's alleged retaliation against plaintiff for having filed the first charge. Both of these charges were also submitted to the E.E.O.C. pursuant to a worksharing agreement between the two agencies. The PCHR investigated both charges and determined that they had not been substantiated. It then recommended that the cases be closed, and the E.E.O.C. accepted that recommendation. Thereafter, on November 11, 1990, plaintiff received a "right to sue" letter from the E.E.O.C., explaining that it had accepted the recommendations of the PCHR.

 Plaintiff claims that this Court has jurisdiction over this matter. She does not attempt to argue that she ever filed a charge with the PHRC, rather, she bases her argument on the existence of two worksharing agreements. Plaintiff argues that essentially she filed a charge with the PHRC because the PCHR and the E.E.O.C. have a worksharing agreement, whereby charges filed with one agency can be considered by both agencies if the complainant indicates such a desire. When she filed with the PCHR, those charges were also considered by the E.E.O.C. Further, the E.E.O.C. and the PHRC also have a worksharing agreement. Plaintiff contends that based on these two agreements, her charge was dually filed with both the E.E.O.C. and the PHRC when she originally filed with the PCHR.

 Plaintiff is correct in her assertion that both of these worksharing agreements exist. However, there is no indication from the record that a charge was ever filed with the PHRC. In support of her contentions, plaintiff submits copies of the charges filed with PCHR, which in turn were filed with the E.E.O.C. She also submits a worksharing agreement between PHRC and the E.E.O.C. Further, the record contains plaintiff's right to sue letters from the E.E.O.C. These alone, however, do not demonstrate that the PHRC ever considered plaintiff's charge, or ever received it for that matter.

 In the worksharing agreement between the E.E.O.C. and the PHRC, plaintiff underlined the following paragraph:

 "A charge filed on the PHRC Complaint Form which meets EEOC's jurisdictional and procedural requirements and which is referred to EEOC by PHRC for dual-filing will be considered as a charge filed with EEOC." Worksharing Agreement, para. II. c. However, this does not demonstrate that a charge was filed with PHRC. First, the charge was filed on an E.E.O.C. complaint form, and not a PHRC complaint form as this paragraph indicates. Further, there is no paragraph which suggests the opposite meaning, ie., that a charge filed with E.E.O.C. will be considered by the PHRC for dual-filing. Instead, the worksharing agreement states:

 
Where EEOC defers a charge for which PHRC is to be the initial processor, EEOC will notify the Charging Party of the deferral and of the address and telephone number of the appropriate PHRC Regional Office. If a PHRC Complaint form has not been completed by EEOC, EEOC will encourage the Charging Party to contact the appropriate PHRC Regional Office immediately to file the complaint with PHRC.

 Worksharing Agreement, para. II. g.

 Plaintiff does not submit any letter that she received from the E.E.O.C., urging her to file a complaint with PHRC, or indicating that her charge would be dually filed or deferred to PHRC. Moreover, she does not testify to any notification by the E.E.O.C. regarding such actions in her deposition. In fact, her deposition testimony indicates that the only basis for her contention is the existence of the worksharing agreement between the E.E.O.C. and PHRC. When asked by defense counsel when and if she filed a charge with PHRC, she stated she did not remember in response to both questions. At this ...


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