Finally, Defendants submit that Shaver never requested that his charge be cross-filed. They are correct. However, this failure can be excused. His charge was actually transmitted to the PHRC. The EEOC both had clear discretion to do so and followed a policy of acting to "assure that the prerequisites for private law suits [under ADEA] are met." 29 C.F.R. § 1626.9(a). Therefore, this Court concludes that Shaver's charge was presented to the PHRC in a manner adequate to preserve his right to sue under the PHRA.
Accordingly, this motion will be denied.
B. Motion for Partial Summary Judgment as to Count I
On this motion, Defendants argue that this Court should grant summary judgment with respect to Shaver's allegation that, due to his age, he was not rehired or transferred to another CorryHiebert facility. See FAC at PP 36-41. They submit that no allegation of failure to transfer or failure to rehire was presented in Shaver's EEOC charge. They conclude that summary judgment is appropriate as to those allegations because Shaver cannot raise such allegations in the first instance before this Court.
Shaver offers two responses, neither of which is persuasive. First, he states that his EEOC charge actually included an allegation of improper failure to rehire or transfer. He cites his assertion to the EEOC that "I was willing and able to do the jobs of younger employees who were retained." This Court agrees with the Defendants, however, that, by its terms, the charge addresses no more than whether Shaver should have been transferred to another position within the Corry plant at the time of his dismissal. There is no express allegation of an improper failure to rehire or an improper failure to transfer to another facility.
Second, he alleges that, even if not specifically included in his charge, this allegation was within the fair scope of the resulting EEOC investigation. Generally, "the parameters of the civil action in the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976), cert. denied, 429 U.S. 1041, 50 L. Ed. 2d 753, 97 S. Ct. 741 (1977) (discussing standard in Title VII action); see also Hicks v. ABT Associates, Inc., 572 F.2d 960, 966 (3d Cir. 1977) (to same effect). To be allowed in a district court action, claims not presented to the EEOC must usually allege not only discrimination on the same basis, but the same type of discriminatory activity. See, e.g., Parsons v. Philadelphia Coordinating Office of Drug and Abuse Programs, 822 F. Supp. 1181, 1184 (E.D. Pa. 1993) (claim of failure to promote on basis of race not preserved by EEOC charges alleging unequal pay on basis of race and retaliation); Sandom v. Travelers Mortgage Services, Inc., 752 F. Supp. 1240, 1247 (D.N.J. 1990) (claim of sexual harassment not preserved by EEOC charge alleging other forms of gender-based discrimination); Zalewski v. M.A.R.S. Enterprises, Ltd., 561 F. Supp. 601, 603-04 (D.Del. 1982) (claim of quid-pro-quo harassment not preserved by EEOC charge alleging termination on basis of gender). Claims not included in an EEOC charge but permitted by district courts typically "arise during the pendency of the EEOC investigation, or [are] closely related to conduct alleged in the charge (such as a claim of retaliation for filing the charge) or [are] considered explanations of the charge." Sandom, 752 F. Supp. at 1247.
Shaver's charge could not reasonably have been expected to lead to an investigation of whether he should have been rehired subsequent to his termination or whether he should have been transferred to another facility. An allegation of wrongful termination does not necessarily include an allegation that an employer has also improperly failed to rehire an employee. Lawson v. Burlington Industries, 683 F.2d 862, 863-64 (4th Cir.) cert. denied, 459 U.S. 944, 74 L. Ed. 2d 201, 103 S. Ct. 257 (1982). An investigation of a failure to rehire or to transfer would not ordinarily be included in an investigation solely of a decision to terminate. The former investigation would be much broader in both temporal and geographic scope, particularly where, as here, a plaintiff's allegations include other facilities maintained by the same employer.
Such an investigation also would not reasonably follow from Shaver's charge in particular. Again, the charge said nothing about a failure to rehire or transfer. Shaver identified February 26, 1993 as both the earliest and latest dates on which he was discriminated against. See Miller v. International Telephone & Telegraph Corp., 755 F.2d 20, 23-25 (2d Cir.) cert. denied, 474 U.S. 851, 88 L. Ed. 2d 122, 106 S. Ct. 148 (1985) (single date on form is probative of absence of failure-to-rehire claim). His affidavit stated that he was the most qualified person to act as the maintenance supervisor and that he knew "more about the shop than anybody else." Nothing in the record of the EEOC investigation that actually occurred as a result of the charge contradicts this conclusion. Finally, Shaver did not name HON Industries as a respondent in its EEOC charge. As Defendants note, CorryHiebert could not have transferred Shaver or rehired him following the closing of the Corry facility in December 1993.
Under these circumstances, this Court has no jurisdiction over this portion of Shaver's claims.
An appropriate order will follow.
MC LAUGHLIN, J.
AND NOW, this 2 day of April, 1996, for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED:
1) that Defendants' Motion to Dismiss, or, in the Alternative, for Summary Judgment [Doc. 21] is DENIED and
2) that Defendants' Motion for Partial Summary Judgment [Doc. 32] is GRANTED and judgment is hereby entered in favor of the Defendants, Corry Hiebert Corporation and HON Industries, and against the Plaintiff, James C. Shaver, as to the Plaintiff's allegations that Defendants improperly failed to rehire him or transfer him to another facility.
Sean J. McLaughlin
United States District Judge