"any action which already has impaired or which might impair the employee in future employment situations." Nelson v. Upsala, 1995 WL 124625 at *3 (3d Cir. 1995). Under this definition I find that the actions set out by Clark amount to adverse action by her employer.
Next it must be determined whether there is a causal relationship between Clark's PHRC and EEOC filings and the adverse actions taken against her by her employer. Although a causal relationship may be shown by proximity in time between the protected conduct and the adverse action, Burrus v. United Tele. Co., 683 F.2d 339, 343 (10th Cir.), cert. denied, 459 U.S. 1071, 74 L. Ed. 2d 633, 103 S. Ct. 491 (1982), a lapse in time between the two does not require a finding that there is no causal relationship. Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir. 1993) ("the mere passage of time is not legally conclusive proof against retaliation"); see Cuffy v. Texaco Refining & Marketing Co., 684 F. Supp. 87 (D.Del. 1988) (finding retaliation where adverse action occurred almost 2 years after the protected conduct, but during pendency of EEOC investigation). I find that this case is similar to Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892 (3d Cir. 1993), in that Clark has alleged a pattern of harassment that comprises the adverse action taken by her employer. This pattern of harassment began when she filed her first complaints with the PHRC and the EEOC. Therefore, I find that Clark has met the requirements for a prima facie case of retaliation.
The shifting burdens of proof established by McDonnell Douglas regarding intentional discrimination, also apply to a claim of retaliation. Miller v. Fairchild Industries, Inc., 797 F.2d 727 (9th Cir. 1986); Cuffy v. Texaco Refining & Marketing Co., 684 F. Supp. 87 (D. Del. 1988). Therefore, once Clark has established a prima facie case of retaliation the burden of production shifts to defendants to articulate a legitimate nondiscriminatory reason for these actions. Although defendants can articulate legitimate nondiscriminatory reasons for some of their actions Clark survives summary judgment by showing that the legitimate reasons offered by defendants were merely a pretext for retaliation. I find that Clark's evidence, such as Sherman's changing of Gilliam's interview scores without reason, is sufficient to discredit defendants' proffered reasons and to survive summary judgment. Fuentes, 32 F.3d 759 (3d Cir. 1994).
Defendants, however, assert that two of Clark's claims of retaliation are untimely, and are, therefore, barred by the statute of limitations. "Section 2000e-5(f)(1) provides that if the EEOC dismisses a charge or takes no action within a specified period of time that it shall notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge." Robinson v. American International Adjustment Co., Inc., 1990 WL 100309, *3 (D.N.J. 1990) (internal quotation marks omitted). This ninety day filing period after the receipt of a right to sue letter from the EEOC is a statute of limitations for filing Title VII claims in federal court, and is not a jurisdictional requirement. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S. Ct. 2392, 76 L. Ed. 2d 628 (1983); Way v. Mueller Brass Co., 840 F.2d 303 (5th Cir. 1988); Anderson v. UNISYS Corp., 47 F.3d 302 (8th Cir. 1995); Gooding v. Warner-Lambert Co., 744 F.2d 354 (3d Cir. 1984).
Clark received a right to sue letter from the EEOC on January 4, 1990 for the complaint based on the OIG investigation, and on November 14, 1990 on her claim regarding Sherman's delay in implementing her promotion. She filed suit in federal court on March 16, 1993, after ninety days had passed on either right to sue letter.
The only applicable opinion I could find that addresses this precise issue is Brown v. Continental Can Co., 765 F.2d 810 (9th Cir. 1985); I will follow its holding. In Brown, plaintiff, a black male employee, brought suit against his former employer. Plaintiff had first filed a complaint with the EEOC in July of 1977 ("first charge") while he was still employed by defendant alleging that he had been removed from a training program because of his race. He filed a second charge against defendant in November of 1978 ("second charge") after he was terminated, alleging discrimination in his termination. Plaintiff was issued a right to sue letter on January 26, 1983, on his second charge. He did not file a complaint in federal court within ninety days of the receipt of this letter. On November 13, 1983, plaintiff was issued a right to sue letter on his first charge, and he timely filed suit in federal court. Defendant moved to dismiss plaintiff's claim based on his termination for untimeliness. The Ninth Circuit held that plaintiff could pursue both claims, despite his failure to file within ninety days of receipt of the right to sue letter on his second charge, because the second charge was "like or reasonably related to the allegations of the [first] EEOC charge, including new acts occurring during pendency of the charge before the EEOC." Brown, 765 F.2d at 813, quoting Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973). Therefore, plaintiff's second charge was timely because his discriminatory termination was reasonably related to the earlier discrimination which formed the basis of his first charge, and it occurred during the pendency of his first charge before the EEOC. Brown, 765 F.2d at 813.
Similarly under Third Circuit law when a discriminatory act is reasonably related to earlier discrimination which formed the basis of an initial complaint, the subsequent discriminatory action is encompassed within the original complaint. Waiters v. J.L.G. Parsons II, 729 F.2d 233 (3d Cir. 1984); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394 (3d Cir. 1976). Clark's action is timely because the perpetration of the OIG investigation and the delay in promoting her to supervisor constitute new acts of retaliation which are reasonably related to and which occurred during the pendency of her earlier charges before the EEOC. Brown, 765 F.2d at 813; See also Babcock v. Frank, 729 F. Supp. 279 (S.D.N.Y. 1990). Therefore, the issuance of the two earlier right to sue letters by the EEOC in January and November of 1990 does not preclude Clark from alleging the incidents of retaliation which formed the basis of those two complaints in this action.
Generally, if a plaintiff receives a right to sue letter from the EEOC and does not file suit in federal court based upon those claims within ninety days the claims are then time barred. See Ford v. Temple Hospital, 790 F.2d 342 (3d Cir. 1986); Scholar v. Pacific Bell, 963 F.2d 264 (9th Cir. 1992). However, Clark did file suit within ninety days of receipt of the February 2, 1993 right to sue letter issued on her earlier complaints.
A number of courts have ruled that if a claimant receives a right to sue letter on a first filed complaint with the EEOC and does not file within ninety days, a right to sue letter on a second EEOC complaint will not revive the first complaint. See Ivy v. Meridian Coca-Cola Bottling Co., 108 F.R.D. 118 (S.D. Miss. 1985); Brown v. Walt Disney World Co., 805 F. Supp. 1554 (M.D. Fla. 1992). Other courts have held that a plaintiff cannot evade the ninety day statute of limitations by filing subsequent EEOC complaints based on the same facts and then timely filing after receiving a second right to sue letter. Soso Liang Lo v. Pan American World Airways, Inc., 787 F.2d 827 (2d Cir. 1986). However, neither of those principles, based upon a bootstrapping attempt, are applicable here and I will deny defendants' motion for summary judgment regarding all of Clark's claims for retaliation.
4. Hostile Environment
Title VII of the Civil Rights Act of 1964 protects against requiring people to work in a discriminatorily hostile or abusive environment. This is violated when "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 126 L. Ed. 2d 295, 114 S. Ct. 367, 370 (1993). In order to determine whether a work environment is hostile one must look at all of the circumstances. Id., at 371.
To bring an actionable claim under Title VII because of a hostile work environment a plaintiff must show by the totality of the circumstances a hostile environment which is severe enough to affect the psychological stability of a minority employee. Andrews v. City of Philadelphia, et al., 895 F.2d 1469 (3d Cir. 1990), citing Vance v. Southern Bell Tel. and Tel. Co., 863 F.2d 1503, 1510 (11th Cir. 1989). The Third Circuit has set forth the five elements needed to establish a hostile environment claim as follows:
1) the employees suffered intentional discrimination because of their race;