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HOPSON v. DOLLAR BANK

October 14, 1997

SHAWN M. HOPSON, Plaintiff, -vs- DOLLAR BANK, Defendant.


The opinion of the court was delivered by: AMBROSE

 Plaintiff Shawn M. Hopson ("Hopson"), initiated this action charging his former employer, Dollar Bank ("Dollar Bank"), with fifteen counts of racial and sexual discrimination. According to Hopson, Dollar Bank's failure to timely promote him, its constructive discharge of him, and its failure to rehire him, stemmed from sexually and racially discriminatory motives. Hopson seeks recovery under Title VII, 42 U.S.C. § 2000e-3, the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. § 951 et seq. ("the PHRA"), and 42 U.S.C. § 1981.

 Pending is Defendant Dollar Bank's Motion for Summary Judgment (Docket No. 24). Dollar Bank seeks the dismissal of each of the fifteen counts. After careful consideration, and for the reasons set forth below, Defendant's Motion for Summary Judgment is granted in part and denied in part.

 STANDARD

 Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who 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).

 In considering a motion for summary judgment, the court must examine the facts in a light most favorable to the nonmoving party. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987), cert. denied, 483 U.S. 1052, 97 L. Ed. 2d 815, 108 S. Ct. 26 (1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the nonmoving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's-burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies this burden, the burden shifts to the nonmoving party, who must go beyond its pleadings and designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories, showing that there is a genuine issue for trial. Id. at 324.

 FACTUAL BACKGROUND

 Hopson, an African American, commenced his employment at Dollar Bank in 1986, as a Teleprocessing Coordinator in the Teleprocessing Department of the Data Processing Division. Hopson had certain managerial duties relating to analysts, and also had responsibility for certain equipment installations. Within less than two years, Hopson was promoted to Teleprocessing Manager. The promotion secured an increase in salary and a change in title, but did not alter his job responsibilities.

 At both positions, Hopson reported to Vincent Tassone ("Tassone"), an Assistant Vice President of Data Processing. Tassone supervised a total of five departments, including Hopson's. Two men and two women (Joanne Ramsey and Debbie Simonson) managed the remaining four departments. Tassone reported directly to Glen Roos, Vice President, who reported in turn to Jim Pratt, Director/Vice President in charge of the Data Processing Division. Subject to Roos' and Pratt's review, Tassone completed performance reviews, set salary levels and awarded promotions for his department heads.

 In 1989, Simonson, who was employed as a Data Processing Manager for the MIS Department, received a salary of $ 28,947.75. Her position, in which she reported directly to Tassone, was equal in grade to that of Hopson's as Teleprocessing Manager. However Hopson received a salary of $ 25,335.18. In July of 1991, Simonson was promoted to Data Processing Officer, at Tassone's recommendation, and received a salary of $ 37,000.00.

 Prior to Simonson's promotion, Hopson, who was making $ 33,071.98, inquired of Tassone about his likelihood of receiving a promotion to Officer. While Tassone initially told Hopson he was doing well, he later encouraged Hopson to make himself more "visible" to Pratt and Roos. Tassone pledged to take steps to ensure Hopson's increased visibility.

 Hopson renewed his request in early 1991, after learning of Simonson's promotion. Tassone responded that promotion was an issue of "timing," and explained that he had no idea what qualities Pratt and Roos were looking for. Hopson then asked Roos to explain officer selection. Roos reiterated Tassone's earlier statements about increasing visibility. Pratt, however, told Hopson that the decision to promote rested with Tassone, rather than with Pratt or Roos.

 Shortly before his eventual promotion in February of 1993, Roos and Tassone informed Hopson of four areas needing improvement prior to receipt of a promotion. Hopson contends that this was the first time he had learned of these shortcomings, and that criticisms had never been disclosed in earlier performance reviews.

 Approximately five months after receiving the promotion, Hopson tendered his resignation. Hopson claims that he was forced to resign as a result of racial and sexual discrimination. According to Hopson, Tassone had a long history of engaging in affairs with his direct female reports, including Simonson. As a result of the affairs, Tassone focused all of his managerial duties upon the report, and consequently neglected male reports, such as Hopson. Hopson avers that, at the time of his resignation, he believed that Tassone's behavior would continue unabated and that Hopson would never receive the same consideration as his female co-workers.

 Hopson also charges Tassone with racial discrimination. According to Hopson, five or six years prior to his resignation, Tassone made a racial remark. During Hopson's interview of an African American prospective employee, Tassone made a remark that "we don't want it to get too dark [in Hopson's department]." Hopson's department employed, at that time, three African Americans - more than any other department under Tassone's supervision.

 Prior to resigning, Hopson encouraged one of his reports, Bonnie Kozak, to inform Human Resources that she had observed Tassone and Simonson engaged in a sexually compromising act, while at Dollar Bank. Upon Hopson's recommendation, Kozak reported the incident.

 Tassone left Dollar Bank's employ shortly after Hopson's resignation. Upon learning of this, Hopson contacted Roos and stated that he wanted to return. Hopson indicated a willingness to return to his former job at the same salary. Hopson never premised his return upon being awarded Tassone's position. Roos told Hopson that he would "get back to him."

 In mid-September, Hopson repeated his interest in returning to Dollar Bank. Roos advised Hopson to look elsewhere because Hopson's old position was being eliminated and Dollar Bank was looking to hire somebody with more skill in a particular area than Hopson had. Roos did not ask Hopson about his skill in this area. Finally, in January of 1994, Dollar Bank hired Jim Noel, a Caucasian, at a salary of $ 55,000, as a Telecommunications Manager, grade 34.

 Dollar Bank seeks the dismissal of each of Hopson's fifteen claims. The fifteen counts stem from three incidents: (1) a delayed promotion; (2) a constructive discharge; and (3) a failure to rehire. Hopson charges that Dollar Bank's sexually and racially discriminatory conduct was the impetus for each of the three events. I will address Dollar Bank's contentions with respect to each of the events, and the claims relating to each event, seriatim.

 I. Counts I - V - Failure to Promote Claims

 Hopson asserts various claims based upon Dollar Bank's failure to timely promote him. In Counts I, II and III, Hopson alleges that Dollar Bank delayed his promotion for three years, based upon race discrimination, in violation of Title VII, 42 U.S.C. § 2000e, 42 U.S.C. § 1981, and § 955(a) of the PHRA. In Counts IV and V, Hopson claims that the delay in promotion was also occasioned due to sex discrimination, in violation of Title VII and the PHRA. I will refer to Counts I through V collectively as the "failure to promote" claims.

 Dollar Bank contends that the claims set forth in Counts I through V are barred under either of two theories: (1) they are untimely; and (2) pleading deficiencies in both the administrative proceeding and in the Complaint preclude recovery.

 (A) Statutes of Limitations

 Title VII requires that a claimant file a charge with the EEOC within 300 days of the allegedly discriminatory act. 42 U.S.C. § 2000e-5(e)(1). The PHRA provides for filing of charge of discrimination within 180 days of the discriminatory act. 43 Pa. Cons. Stat. Ann. § 959(h). Finally, under § 1981, a claim must be filed within two years of the discriminatory conduct. See Al-Khazraji v. St. Francis College, 784 F.2d 505, 511 (3d Cir. 1986), aff'd, 481 U.S. 604, 95 L. Ed. 2d 582, 107 S. Ct. 2022 (1987); see also 42 Pa. Cons. Stat. Ann. § 5524.

 The parties do not dispute that Hopson was ultimately promoted to Officer on February 1, 1993. Accordingly, any discrimination, be it sexually or racially based, must necessarily have occurred prior to February 1, 1993. Neither do the parties dispute that Hopson filed a Complaint with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC") on April 29, 1994 - more than one year after the allegedly discriminatory conduct could have occurred. Hopson did not commence this litigation until April 1, 1996 -- more than 3 years after his promotion. Given these undisputed facts, Dollar Bank contends that Hopson's failure to promote claims are barred by the applicable statutes of limitations. Construing the facts in a light most favorable to Hopson, it appears that he failed to timely file his failure to promote claims under a strict reading of any of the statutes.

 While Hopson does not dispute this conclusion, he contends that his claims under the PHRA and Title VII for race and sex discrimination survive on the basis of the "continuing violation" doctrine. This theory allows a "plaintiff [to] 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 of the defendant." West v. Philadelphia Electric Co., 45 F.3d 744, 754 (3d Cir. 1995) (citations omitted).

 The United States Court of Appeals for the Third Circuit has cautioned that, "a court must be circumspect in relating discrete incidents to each other," and that "a district court must scrutinize the claims to establish that they are related." Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 484-85 (3d Cir. 1997). "To allow a stale claim to proceed," the Third Circuit court explained, "would be inconsistent with the administrative procedure established by Title VII ...


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