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May 18, 1999


The opinion of the court was delivered by: Joyner, District Judge.


Defendant moves for dismissal of the Plaintiff's Amended Complaint or, in the alternative, for summary judgment in its favor on all counts. For the reasons which follow, Defendant's motion shall be granted.

Factual Background

The plaintiff, Obeiro Galvis, is a fifty-four (54) year old, Columbian native and naturalized citizen who has resided in the United States since 1980. From 1990 until his termination on August 16, 1997, Mr. Galvis, who is also an Evangelical Baptist, was employed as a housekeeper by HGO Services. (Pl's Am. Compl. ¶ s15-18, 21, 24). Plaintiff contends that while the defendant gave insubordination as its reason for his termination, in reality he was terminated because of his age, his religion and his national origin. Plaintiff seeks an award of back pay, front pay, interest and benefits under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et. seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq. and the Pennsylvania Human Relations Act, 43 P.S. § 951, et. seq.

By this motion, Defendant submits that Plaintiff's amended complaint should be dismissed for failure to state a claim against it upon which relief may be granted or, alternatively that it is entitled to the entry of judgment in its favor as a matter of law because Plaintiff failed to exhaust his administrative remedies under the ADEA, Title VII and the PHRA.

Standards Governing Motions Under Rules 12(b)(6) and 56

In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6), the Court must accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn after construing them in the light most favorable to the non-movant. Pearson v. Miller, 988 F. Supp. 848, 852 (M.D.Pa. 1997) (citing Jordan v. Fox, Rothschild, O'Brien, and Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994)). Dismissal is limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Alexander v. Whitman, 114 F.3d 1392, 1398 (3d Cir. 1997).

Under Fed.R.Civ.P. 12(b), "[i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." In general on a motion to dismiss, a Court may not consider materials outside the pleadings and the briefs without converting a motion to dismiss into a motion for summary judgment. Woods Corporate Associates v. Signet Star Holdings, Inc., 910 F. Supp. 1019, 1032 (D.N.J. 1995); Gurfein v. Sovereign Group, 826 F. Supp. 890, 898 (E.D.Pa. 1993). Once converted into a motion for summary judgment, the motion must be evaluated under the summary judgment standards and thus, the court must construe the facts and inferences in the light most favorable to the non-moving party, granting judgment only where the moving party establishes that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Amboy National Bank v. Generali-U.S. Branch, 930 F. Supp. 1053, 1056 (D.N.J. 1996); Fed.R.Civ.P. 56(c). Once the moving party has carried its burden under Rule 56, its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question but must come forward with specific facts to show that there is a genuine issue of material fact for trial. Id., citing Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See Also: Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).


In this case*fn1, it appears that in August, 1996, plaintiff filed a charge of discrimination against HGO with the Philadelphia Commission on Human Relations ("PCHR") alleging that he was being harassed and insulted by HGO Assistant Manager Luis Padilla, that Padilla had called him a "demon" and a "crazy pastor" and accused him of stealing and that he was being treated differently than his non-hispanic, non-evangelist co-workers in that only he had been reprimanded for lateness. This charge was settled on September 30, 1996 when Defendant agreed to give Plaintiff a supply room key and provide him with an Hispanic interpreter when needed. In so settling that charge, Mr. Galvis agreed to forego his right to institute suit against HGO for any claims "arising out of the specific set of facts and circumstances which formed the basis of these cases." (sic) (Exhibits "B" and "C" to Defendant's Motion to Dismiss).

Some six months later, Mr. Galvis filed a second discrimination charge with the PCHR in which he alleged that HGO was discriminating against him on the basis of his national origin in giving him a five-day suspension and warning for defaming and verbally attacking a co-worker, and in not supplying him with the proper supply room key. The plaintiff further averred that the defendant was retaliating against him for filing his earlier charge of discrimination. (Exhibit "D" to Defendant's Motion to Dismiss). On June 12, 1997, the PCHR closed its file on this claim, having found that the charge was not substantiated. The EEOC adopted the PCHR's findings and also closed its file on this charge on September 30, 1997.

Since that time, Mr. Galvis has not filed any further discrimination charges or claims with either the EEOC, the PCHR or the PHRC, despite having been terminated on August 16, 1997. (Exhibits "E" and "F" to Defendant's Motion to Dismiss). Thus, while he does not deny that he has failed to exhaust his administrative remedies, he now asks this Court to waive or equitably toll the limitations period. In support of this request, Plaintiff has attached his affidavit averring that he tried but was denied the opportunity to file a third complaint with the Human Relations Commission and to expand the scope of the EEOC's investigation into his second complaint.

It is now settled law in this circuit that equitable tolling of a statute of limitations may be appropriate where: (1) the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) the plaintiff has timely asserted his or her rights mistakenly in the wrong forum. Robinson v. Dalton, supra, at 1022; Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387, 1392 (3rd Cir. 1994). Should these elements be shown, the equitable tolling doctrine tolls the initial running of the ...

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