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BERKOSKI v. ASHLAND REGIONAL MED. CTR.

January 16, 1997

FRANK S. BERKOSKI, Plaintiff,
v.
ASHLAND REGIONAL MEDICAL CENTER, Defendant.



The opinion of the court was delivered by: VANASKIE

 The plaintiff, Frank S. Berkoski (Berkoski), instituted this employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 623, alleging that the defendant, Ashland Regional Medical Center (Ashland), discriminated against him on the basis of his gender and age. Ashland has moved to dismiss the complaint, claiming that Berkoski failed to file a charge of employment discrimination with the EEOC within the 300-day filing period.

 Specifically, Ashland contends that Berkoski's filing of a complaint with the Pennsylvania Human Relations Commission (PHRC) 272 days after the last alleged discriminatory act did not eliminate the need to make a separate filing with the EEOC within 300 days. Contrary to Ashland's assertion, pertinent terms of a "Worksharing Agreement" between the PHRC and the EEOC effectuated a filing of discrimination charges with the EEOC on the same date he filed his complaint with the PHRC. Therefore, Berkoski's charge was filed in a timely manner, and Ashland's motion to dismiss will be denied.

 Berkoski was employed by Ashland as a chemical supervisor until December 21, 1992. At that time, Berkoski was demoted to the position of a lab technician. Berkoski alleges that Ashland demoted him because his credentials were insufficient under the Clinical Laboratory Improvement Act of 1988. Berkoski also alleges that his supervisor provided preferential treatment and promotions to female coworkers and discriminated against Berkoski on the basis of his gender. On June 3, 1993, Berkoski alleges that he was constructively discharged by Ashland.

 Ashland's motion to dismiss does not deal with the factual allegations of Berkoski's complaint. Instead, Ashland contends that Berkoski failed to file a timely complaint with the EEOC, a prerequisite for an action in federal court.

 Berkoski's counsel telefaxed an administrative charge to the PHRC on March 2, 1994, the 272nd day after Berkoski's alleged constructive discharge. (Def's Stat. of Facts (Dkt. Entry 12) P 2.) This document provided that: "This charge will be referred to the EEOC for the purpose of dual filing." (Plf's Opp. Brf. (Dkt. Entry 11) P 27.) Despite this statement, the PHRC did not refer the charge to the EEOC until June 24, 1994, more than 300 days after Berkoski's alleged constructive discharge. (Def's Stat. of Facts (Dkt. Entry 12) P 3.) Ashland contends that Berkoski failed to file an administrative charge with the EEOC within 300 days of his alleged constructive discharge as required under 42 U.S.C. § 2000e-5(c).

 II. DISCUSSION

 Ashland's motion to dismiss is supported by several documents outside the pleadings. (Def's Supp. Memo (Dkt. Entry 9); Def's Supp. Exhibits (Dkt. Entry 13)). Further, Berkoski has also included various documents in his opposition papers. (Plf's Opp. Brf. (Dkt. Entry 11); Plf's Stat. of Facts (Dkt. Entry 20)). When matters outside the pleadings are presented to the court, a motion to dismiss is treated as a motion for summary judgment. Fed. R. Civ. P. 12(b).

 Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022, 130 L. Ed. 2d 503, 115 S. Ct. 590 (1994).

 "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. There is no issue for trial unless sufficient evidence favors the nonmoving party so that a jury could return a verdict for that party. Id. at 249. Rule 56 requires the entry of summary judgment, after adequate time for discovery, where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex, 477 U.S. at 329. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir. 1982). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57. The affirmative evidence must consist of verified or documented materials. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988).

 The facts relevant to Ashland's motion are not in dispute. Berkoski alleges that he was continuously discriminated against on the basis of his age and sex until his constructive discharge of June 3, 1993. (Plf's Stat. of Facts (Dkt. Entry 20) P 1.) On March 2, 1994, 272 days after the alleged constructive discharge, Berkoski filed a verified complaint with the PHRC, contending that Ashland discriminated against him on the basis of his age and sex. (Plf's Opp. Brf. (Dkt. Entry 11) Exhibit 4.) In a prepared agency form, Berkoski checked the following statement: "This charge will be referred to EEOC for the purpose of dual filing." (Id. P 27.) On June 24, 1994, more than 300 days after the alleged constructive discharge, the PHRC referred Berkoski's complaint to the EEOC. (Def's Stat. of Facts (Dkt. Entry 12) P 12.)

 Under 42 U.S.C. § 2000e-5(c), a claim of unlawful discrimination must be filed with the EEOC within 180 days of the unlawful act. Trevino-Barton v. Pittsburgh Nat'l Bank, 919 F.2d 874, 878 (3d Or. 1990). Where a state has established agencies to monitor and correct employment discrimination, the claim must be filed with the EEOC within 300 days of the impermissible employment practice. Once state proceedings have been instituted, however, a claim cannot be filed with the EEOC until the earlier of either (1) sixty days from the filing date of the charge with the state agency; or (2) the date the state agency terminates its proceedings. Id. at 879. These rules created a pitfall for the unwary -- namely, if a plaintiff filed in the state agency after the 240th day, then he or she was often prohibited from filing with the EEOC within the 300-day limit provided under 42 U.S.C. § 2000e-5(c). That is, because the plaintiff could not file before 60 days had elapsed from the state filing, a ...


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