Before the court is Defendants' motion for partial summary judgment. Briefs have been filed on both sides and the motion is ripe for disposition.
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. § 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.
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.
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 interview and the fact-finding conference, but rather appear to believe that such claims do not contravene their exhaustion argument.
The court believes that raising claims before the PHRC's intake representative and again before its investigator at the fact-finding conference is sufficient to require the conclusion that a reasonable investigation on the part of the agency would have disclosed such claims. However, solely on the basis of Plaintiff's allegation that she raised a claim before the PHRC intake representative, and where such claim was not raised at the fact-finding conference at which Plaintiff was represented by counsel, the court cannot conclude that the agency investigation could reasonably be expected to discover the claim. Accordingly, the court finds that Plaintiff's 1987 failure to promote claim, her 1989 sexual harassment claims, and her 1989 retaliation claim are within the legitimate scope of this law suit, while her 1986 failure to hire claim is not.
C. Timeliness Of Plaintiff's Claims
Defendants contend that the following claims asserted by Plaintiff are time barred: (1) the 1986 failure to hire claim; (2) the 1987 sexual harassment claim against Richard Foster; (3) the 1987 failure to promote claim; (4) the 1988 and 1989 unequal pay claim; (5) the 1989 demotion claim; and (6) the 1989 retaliation claim. Plaintiff responds that all of the above claims are excepted from the timely filing requirement under a "continuing violation" theory, and because Defendant failed to post required notices.
Title VII provides that in any state with a fair employment practice agency, such as PHRC, charges must be filed with the EEOC within 300 days of the alleged unlawful conduct. 42 U.S.C. § 2000e-5(e)(1). Under the PHRA, charges must be filed within 180 days of the alleged discrimination. 43 P.S.C.A. § 959(h). In West v. Philadelphia Electric Company, 45 F.3d 744 (3rd Cir. 1995), the Third Circuit recently addressed the proper application of these limitations periods in the "continuing violation" context. The West court stated that a plaintiff "may pursue a Title VII claim for discriminatory conduct that began prior to the filing period if he can demonstrate that the act is part of an ongoing practice or pattern of discrimination . . . ." Id. at 754. To satisfy the continuing violation doctrine, a plaintiff must demonstrate (1) that at least one act occurred within the controlling filing period; and (2) that the acts in question are part of an "on-going pattern" rather than being "isolated or sporadic." Id. at 754-55. The West court indicated that making the later determination requires considering such factors as the following:
(i) subject matter--whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence--whether the nature of the violations should trigger the employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.