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VERNEY v. PENNSYLVANIA TURNPIKE COMMN.

March 27, 1995

JACQUELINE M. VERNEY, Plaintiff
v.
PENNSYLVANIA TURNPIKE COMMISSION, JAMES J. DODARO, HOWARD YERUSALIM, ROBERT A. BRADY, JAMES F. MALONE, III, JOHN L. SOKOL, JR., S. MICHAEL PALERMO, JOSEPH L. DIRIENZO, SAMUEL L. CARNABUCCI, MELVIN M. SHELTON, WALTER J. LAWSON, LOUIS R. MARTIN, KEVIN F. LONGENBACH, Defendants



The opinion of the court was delivered by: CALDWELL

 We are considering the Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

 I. BACKGROUND

 This action arises from the Plaintiff's employment with the Pennsylvania Turnpike Commission ("Commission"). Beginning in August, 1978, Plaintiff was employed by the Commission as Assistant Chief Counsel. On September 14, 1992, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), charging the Commission with unlawful sexual discrimination. She was terminated from her position on July 1, 1994.

 Plaintiff instituted this action against the Commission (Count I) and various of its present and former employees (Count II) *fn1" In Count I, she alleges that the Commission discharged her in retaliation for filing her EEOC complaint, in violation Title VII of the Civil Rights Act of 1964. In Count II, Plaintiff contends that the individual Defendants violated her due process rights under the Fourteenth Amendment.

 II. LAW AND DISCUSSION

 A. Standard of Review

 When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6) "all facts alleged in the complaint and all reasonable inferences that can be drawn from them must be accepted as true." Malia v. General Electric Co., 23 F.3d 828, 830 (3d Cir.), cert. denied, U.S. , 115 S. Ct. 377, 130 L. Ed. 2d 328 (1994). The motion must be denied unless plaintiff cannot prove any facts in support of the claim which would entitle her to relief. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).

 B. Title VII Claim

 In Count I, the Plaintiff contends that she was fired because she filed a complaint with the EEOC charging the Commission with sexual discrimination. The Commission contends that Plaintiff failed to plead a prima facie case of retaliatory discharge, which requires Plaintiff to allege that: 1) she engaged in a protected activity; 2) she was subsequently or contemporaneously discharged; and 3) there was a causal link between the protected activity and her discharge. Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir.), cert. denied, U.S. , 115 S. Ct. 590, 130 L. Ed. 2d 503 (1994)(citations omitted). If there is no direct evidence of a causal link, the Plaintiff "may use circumstantial evidence, including the length of time between when the employer received noticed of the protected activities and the employee's termination." Walker v. IMS America, Ltd., No. 94-8084, 1994 WL 719611, *8 (E.D.Pa. Dec. 22, 1994)(citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 110 S. Ct. 725, 107 L. Ed. 2d 745 (1990)).

 It is undisputed that Plaintiff properly pled elements one and two of her prima facie case since she filed an EEOC complaint on September 14, 1992, [Pl.'s Compl. P 20], and was terminated on July 1, 1994. [Pl.'s Compl. P 25]. The dispute concerns whether she has alleged that there was a causal link between the filing of her EEOC complaint and the Commission's decision to terminate her. The Defendants advance the novel argument that, as a matter of law, there is no causal link between a protected activity and an adverse employment decision that occur 214 months apart.

 In support of this contention, the Commission cites a surfeit of cases which held that, absent other compelling evidence, there was no causal link between actions which occurred within time periods much shorter than 21 1/2 months. See, e.g., Rivadeneira v. City of Philadelphia, No. 90-4979, 1994 WL 594122, at *10 (E.D.Pa. Oct. 31, 1994)(lapse of four months is too long for causal link absent other evidence); Nixon v. Runyon, 856 F. Supp. 977, 988 (E.D.Pa. 1994)(same). Walker, 1994 WL 719611, at *8 (nine months). However, there is a crucial distinction between the cases cited by the Commission and the present action: those cases were decided on a motion for summary judgment, after a bench trial, or on a post-trial motion for judgment. *fn2" In each case, the plaintiff failed to introduce sufficient circumstantial evidence to establish a causal link between the protected activity and adverse employment decision.

 In the present case, the Commission's argument relating to the lapse in time would, undoubtedly, be relevant on a motion for summary judgment. To withstand such a motion, Plaintiff would be required to establish a causal link between the EEOC filing and her termination with direct or circumstantial evidence. However, because of the procedural posture of this case, Plaintiff need only allege a causal connection between the protected activity and adverse decision. Her complaint asserts that she was terminated "because she made, and was prosecuting, a charge of unlawful employment practice against the Commission." [Pl.'s Compl. P 26]. This ...


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