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SHAVER v. CORRY HIEBERT CORP.

April 2, 1996

JAMES C. SHAVER, Plaintiff,
v.
CORRY HIEBERT CORPORATION, a division of Hon Industries, and HON INDUSTRIES, Defendants.



The opinion of the court was delivered by: MCLAUGHLIN

 MC LAUGHLIN, J.

 This action arises out of the termination of the Plaintiff, James C. Shaver, as an employee of Corry Hiebert Corporation (or CorryHiebert Corporation) in April 1993. Pending before this Court are Shaver's claims for damages under both the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. §§ 951 et seq. Defendants have filed both a "Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment" and a "Motion for Partial Summary Judgment." For the reasons that follow, the former motion will be denied and the latter motion will be granted.

 I. BACKGROUND

 Shaver was born on April 9, 1936. He was informed on February 25, 1993 that he would be permanently laid off from his position as a Maintenance Supervisor at CorryHiebert's facility in Corry, Pennsylvania. The effective date of this layoff was April 30, 1993. Shaver filed a charge with the EEOC on October 29, 1993, alleging that both the earliest and the latest date he had been discriminated against was February 26, 1993. Ex. A to CorryHiebert's Brief in Support of Motion to Dismiss. Corry Hiebert was the only respondent named in this charge. In the section of the "Charge of Discrimination" form labelled "The Particulars Are:," Shaver wrote

 
I. I have been employed by Respondent since December of 1955 and my most recent position was Maintenance Supervisor; however, I have varied experience in many jobs with the company. I was permanently laid-off on April 30, 1993.
 
II. David J. Tanner, Director of Human Resources, gave me a termination letter which stated that Respondent must make permanent layoffs due to projected market conditions.
 
III. I believe that Respondent has discriminated against me in violation of the Age Discrimination in Employment Act of 1967, as amended, by permanently laying me off at the age of 57 in that I was willing and able to do the jobs of younger employees who were retained.

 Id. Shaver did not check the box that would have indicated that he wished to have his charge filed with both the EEOC and the appropriate state agency. Nor did he identify the Pennsylvania Human Relations Commission ("PHRC") -- the state administrative body authorized to investigate charges made under the PHRA see 43 Pa. Stat. § 959 -- in the area provided for "State or local Agency, if any." Id. On November 9, 1993, the EEOC transmitted to the PHRC a copy of Shaver's charge and a notice that the charge would be investigated initially by the EEOC. Ex. B to Defendants' Brief in Support of Motion to Dismiss.

 
I was replaced by Clark McCray (early 40's). He was laid-off in September of 1993. However, there are other younger employees still working and who have less experience and qualifications than I have. For example, Tom Puluhl (mid-30's), Paint Shop Supervisor, was kept and I could have performed his job. I was in charge of the paint department for over a year. During that time I handled maintenance and paint duties at the simultaneously [sic]. This was around 1981.
 
I knew more about the shop than anybody else. I was the most qualified person to be the Maintenance Supervisor. I have no idea who is doing the Maintenance job at this point.
 
About 15 people were laid-off effective April 30. Nine of these people were over 40 years of age.

 Ex. 3 to Defendants' Brief in Support of Motion for Summary Judgment, at 2. In a July 1994 letter to an EEOC investigator, Shaver stated that he was qualified to work as the maintenance supervisor, in a plant safety position, or as supervisor of the paint shop. Ex. 5 to Defendants' Brief in Support of Motion for Summary Judgment, at 1.

 Shaver received a determination and a right-to-sue letter from the EEOC on September 8, 1994. First Amended Complaint ("FAC") at P 25; see Ex. 2 to Defendants' Brief in Support of Motion for Partial Summary Judgment. The EEOC determination stated in part, "Charging Party alleged that Respondent discriminated against him in violation of the ADEA by laying him off on April 30, 1993 because of his age (57) after approximately 38 years of employment with Respondent." Ex. 2, at 1. The EEOC's investigator concluded "that there is no reasonable cause to believe that there has been a violation of the statute under which the charge has been filed." Id. at 2.

 Shaver commenced this action on November 21, 1994. In his Complaint, he alleged three sources of liability. In Count I, he alleged that Defendants had violated ADEA. In Count II, Shaver alleged that Defendants had violated the PHRA, also by discriminating against him on the basis of his age. In Count III, Shaver alleged that the Defendants were liable to him for negligent infliction of emotional distress.

 On July 25, 1995, this Court entered an order granting in part and denying in part Defendants' motion to dismiss. This Court struck the prayer in Count I for compensatory and punitive damages under ADEA. It directed Shaver to replead that count to clarify his argument that his PHRA claim was timely because the running of the period in which he was ...


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