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LESKO v. CLARK PUBLR. SERVS.

September 21, 1995

TAMARA L. LESKO, Plaintiff
v.
CLARK PUBLISHER SERVICES, CLARK WORLDWIDE TRANSPORTATION, THE CLARK GROUP, and CLARK DISTRIBUTION SYSTEMS, Defendants



The opinion of the court was delivered by: RAMBO

 Before the court is Defendants' motion for partial summary judgment. Briefs have been filed on both sides and the motion is ripe for disposition.

 I. Background

 On November 8, 1989, Plaintiff Tamara Lesko filed a complaint with the Pennsylvania Human Relations Commission ("PHRC") against Clark Publisher Services ("Clark"). She alleged that she was discriminated against by Clark on the basis of gender when she was: (1) denied equal pay while employed as Terminal Manager in 1988 and 1989; (2) demoted from Terminal Manager to Ancillary Services Manager on April 3, 1989; and (3) laid off by Clark on September 19, 1989. She also alleged that she was sexually harassed by Richard Foster, a Clark employee, in 1987. (See Plaintiff's PHRC complaint, Lesko affidavit at exhibit 10.) The complaint was simultaneously filed with the Equal Employment Opportunity Commission ("EEOC"). On November 10, 1993, Plaintiff filed an amended complaint with PHRC in which she added a claim that her layoff was in retaliation for her sexual harassment complaint. (See Plaintiff's amended PHRC complaint, Lesko affidavit at exhibit 11.)

 In the instant action Plaintiff alleges numerous employment discrimination claims under 42 U.S.C. ┬ž 2000(e) ("Title VII") and the Pennsylvania Human Relations Act ("PHRA") against the four Defendant employers. Plaintiff's amended complaint in this action sets out three claims which were not asserted in her PHRC complaint or amended complaint. First, Plaintiff alleges that she applied for a position as Safety Director in 1986, prior to being hired as a document processor, and was rejected in favor of a less qualified male. (Amended complaint at P 15.) Second, she claims that in 1987 she sought a promotion to Terminal Manager and was rejected in favor of a less qualified male. (Amended complaint at P 24.) Finally, Plaintiff asserts that in 1989 she was sexually harassed in the workplace by James Lachman and Joseph Andrel. (Amended complaint at P 30.)

 Defendants have moved for summary judgment with respect to three issues, the first two of which pertain to numerous of the claims asserted by Plaintiff. First, Defendants argue that the three claims raised for the first time before this court must be dismissed for failure to exhaust administrative remedies. Second, they claim that these three claims and several others are time barred under Title VII and the PHRA. Third, Defendants maintain that their backpay liability is tolled as of the date they allegedly offered to reinstatement Plaintiff to a comparable position with Clark. The court will address each of these issues in turn.

 II. Discussion

 A. Summary Judgment Standard

 Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) when the moving party establishes that there is no genuine issue of material fact that can be resolved at trial and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Materiality is determined by the substantive law that governs the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In this inquiry, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. A dispute is genuine only if a reasonable jury could return a verdict for the nonmoving party. Id. Following a determination that no genuine dispute of material facts exists, the moving party must demonstrate that it is entitled to judgment as a matter of law. Once the moving party has made and supported its motion, the "adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial. Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

 B. Exhaustion

 Defendants seek summary judgment with respect to Plaintiff's 1986 failure to hire claim, her 1987 failure to promote claim, and her 1989 sexual harassment claims on the ground of failure to exhaust. Plaintiff maintains that these three claims are in fact properly before this court.

 It is settled that a Title VII claimant must exhaust administrative remedies before filing a suit in federal court. See, e.g., Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990) (per curiam). Once a charge is filed with the PHRC and/or the EEOC, "the scope of a resulting private civil action in the district court is 'defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination . . .'" Hicks v. ABT Associates, Inc., 572 F.2d 960, 966 (1978) (citing Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3rd Cir. 1976)). The court in Hicks indicated that one relevant consideration when applying this rule is whether there is evidence suggesting that the plaintiff would have told the administrative investigator about the allegations in question if interviewed about her complaint. Hicks, 572 F.2d at 966. An affirmative answer to this question suggests that a reasonable investigation would have uncovered the claim or claims, regardless of whether such an investigation actually occurred. Id. at 966-67.

 Plaintiff alleges that when she met with the PHRC employee conducting intake, Benjamin Simmons, she described all of the events which now appear in her amended complaint in this action. (Lesko affidavit at P 3.) She maintains that Mr. Simmons, who drafted the complaint, advised her that "he was primarily interested in . . . [her] termination and that he was not interested in the other events described." (Lesko affidavit at PP 4-5.) Plaintiff further states that at the PHRC fact-finding conference held on February 9, 1990, at which PHRC investigator Carolee Kpakiwa was present, there were detailed discussions of: (1) Clark's failure to promote Plaintiff to Terminal Manager in 1987; (2) Plaintiff's sexual harassment claims against Joseph Andrel and James Lachman; and (3) Plaintiff's retaliation claim. (Lesko affidavit at P 10.) Plaintiff does not contend that her 1986 failure to hire claim was discussed at the fact-finding conference.

 Defendants have submitted no evidence in opposition to Plaintiff's contentions that she told the PHRC intake employee of her 1986 failure to hire claim, her 1987 failure to promote claim, and her 1989 sexual harassment claims. Nor have they offered evidence contradicting her statement that at the PHRC fact-finding conference the 1987 failure to promote claim, the 1989 sexual harassment claims, and the 1989 retaliation claim were discussed in detail. Indeed, Defendants do not contest Plaintiff's allegations regarding the intake ...


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