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December 14, 2001


The opinion of the court was delivered by: Van Antwerpen, J.


Plaintiff Manfred Zysk ("Plaintiff") sued his employer, FFE Minerals USA, Inc., which has gone by a variety of other names ("Defendant")*fn1, alleging that he was discriminatorily discharged after being harassed, denied promotion and demoted based on his age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et. seq. ("ADEA") and the Pennsylvania Human Relations Act, 43 P.S. § 951 et. seq. ("PHRA"). Plaintiff further alleges that he was subsequently retaliated against with unfavorable referrals in violation of the ADEA and PHRA after he filed an ADEA charge against Defendant with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff also alleges a breach of an implied employment contract in violation of Pennsylvania common law based on his discharge. Though Plaintiff does not dispute that he was an at-will employee of Defendant, he proffers that he gave additional consideration creating an implied contract of employment for "a reasonable period of years" by relocating himself and his family across the country after he was induced to leave another job by Defendant. Defendant moved for summary judgment on all counts.

We now find that Plaintiff has created triable issues of fact under the Third Circuit's lenient standard in discrimination cases regarding some of his ADEA discrimination claims. However, he has failed to present evidence sufficient to overcome summary judgment on the retaliation issue, merely restating his complaint in this regard. Moreover, applying Pennsylvania law, we find that Plaintiff's PHRA claims are time-barred and his breach of contract claim is insufficient as a matter of law, given Pennsylvania's strong presumption in favor of at-will employment and the fact that Plaintiff was employed at Defendant for over two years after his move to Pennsylvania.

To avoid redundancy, rather than setting forth a separate discussion of the facts, we will discuss the relevant details of Plaintiff's case below in connection with our legal determinations.


Our decision takes into account Plaintiff's Complaint and Demand for Jury Trial, filed on November 17, 2000 ("Complaint"), Defendants' Answer to Complaint with Affirmative Defenses, filed on February 7, 2001 ("Answer"), Defendants' Motion for Summary Judgment, Brief and Exhibits, filed on November 5, 2001 ("SJ Mot."), Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment and Appendix, filed on November 20 and 21, 2001, respectively ("Opp. to SJ"), and the parties' appearances with documentation at a hearing and oral argument before us on November 29, 2001 ("Hearing Docs.").


A. Statement of Jurisdiction

We have original, subject matter jurisdiction over ADEA claims under 28 U.S.C. § 1331. We consider Plaintiff's Pennsylvania common law contract claim and his PHRA claims by exercising our supplemental jurisdiction under 28 U.S.C. § 1367(a), since all of his claims arise from the same actions by Defendant.

B. Summary Judgment Standard

The court shall render summary judgment "if 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 that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party._Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202. All inferences must be drawn, and all doubts resolved, in favor of the non-moving party — in this case, Plaintiff. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). On a motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and would support a favorable jury finding. Id. at 321 n. 3, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (quoting Fed.R.Civ.P. 56(e)); Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505; see First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The party opposing summary judgment may not rest upon mere allegations or denials, but must set forth specific facts, presenting affirmative evidence showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202.

In discrimination and retaliation cases, proof at summary judgment follows a well-established "burden-shifting" approach first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). Once a plaintiff has established a prima facie case of discrimination or retaliation, the defendant must rebut an inference of wrongdoing with evidence of a legitimate, non-discriminatory, non-retaliatory reason for the action taken. Delli Santi v. CNA Ins. Co., 88 F.3d 192, 199 (3rd Cir. 1996); Weston v. Commonwealth of Pennsylvania, 251 F.3d 420, 432 (3rd Cir. 2001). If a defendant successfully meets its burden in a discrimination or retaliation case, then in order to avoid summary judgment, Plaintiff must present evidence of pretext, or cover-up, or show that discrimination played a role in the employer's decision-making and had a determinative effect on the outcome. Fuentes v. Perskie, 32 F.3d 759, 764 (3rd Cir. 1994); Weston, 251 F.3d at 432.

Notwithstanding the non-moving party's burden, the Third Circuit urges special caution about granting summary judgment to an employer when its intent is at issue, particularly in discrimination and retaliation cases. Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 321 (3rd Cir. 2000).

C. Timeliness Issues

Defendant argues that Plaintiff's discrimination and retaliation claims under the ADEA and the PHRA are untimely. Defendant is correct as to Plaintiff's PHRA claims, but we find Plaintiff's ADEA claims timely for the reasons set forth below.

1. Undisputed Facts

On April 6, 1998, 256 days after Plaintiff was notified of his discharge,*fn2 the EEOC received a nine-page "Complaint" of discrimination from Mr. Trotner, with a verification signed by Plaintiff. On April 29, 1998, the EEOC informed Plaintiff that his charge had been received and docketed (i.e., assigned a Charge Number). On May 7, 1998, the EEOC advised Plaintiff (then Charging Party) through Mr. Trotner that before proceeding with an investigation, the agency required additional documentation from Plaintiff within 33 days. The May 7 letter also stated,

Please note additionally that if the Respondent named in the charge [i.e., Defendant] is located within the Commonwealth of Pennsylvania and the most recent violation is within 180 days of the date the charge was received by EEOC, the Charging Party must complete the enclosed form from the Pennsylvania Human Relations Commission ("PHRC") to indicate his/her interest in preserving Pennsylvania state rights.

On August 4, 1998, the EEOC advised Mr. Trotner that he had ten days to submit information or the EEOC would dismiss Plaintiff's charge for failure to cooperate. The August 4 letter referred to correspondence with Mr. Trotner on May 13, 1998 in which Mr. Trotner notified the EEOC of his intention to file a private discrimination suit. On August 20, 1998, Mr. Trotner FAX'ed extensive documentation to the EEOC, on the basis of which, the EEOC sent Plantiff draft charges on September 17 and September 25, 1998. On October 28, 1998, the Plaintiff FAX'ed the EEOC investigator handling his case a letter complaining about his attorney's (i.e., Mr. Trotner's) unresponsiveness. Plaintiff had been unsuccessfully attempting to contact his attorney to amend and submit a signed EEOC Charge before the October 28 "deadline" evidently set by the EEOC investigator. Plaintiff requested additional time to perfect the EEOC Charge and suggested that he would likely seek new counsel.

Plaintiff finally signed and dated the official EEOC Charge of Discrimination on November 7, 1998. The EEOC Charge was date-stamped November 10, 1998. The EEOC mailed Defendant its Charge of Discrimination on December 7, 1998. On December 9, 1998, Defendant responded to the EEOC charge, saying it was untimely on its face, observing that the EEOC Charge was date-stamped November 10, approximately 400 days after Plaintiff was discharged.

On January 20, 1999, the EEOC cross-filed the Charge with the PHRC. On March 30, 1999, Defendant argued in a letter to PHRC that Plaintiff's claims were untimely filed based on the PHRA's 180-day Statute of Limitations. On March 31, 1999, the PHRC notified Plaintiff that it was terminating its investigation because Plaintiff's discrimination charge was untimely.

On June 1, 1999, Plaintiff was hired by the Lehigh Portland Cement Company. On June 8, 1999, Plaintiff was discharged by this company, allegedly after it received word from Defendant that Plaintiff had filed an EEOC Charge against it. On February 1, 2000, Donald Russo notified the EEOC that he was Plaintiff's new attorney. Mr. Russo submitted a new EEOC Charge for retaliation by Defendant concerning Plaintiff's discharge from Lehigh Portland Cement Co., 238 days earlier.

On August 4, 2000, Defendant responded substantively to Plaintiff's two EEOC Charges, "without prejudice to [their] position that the initial charge[s were] time barred and should be dismissed on that basis alone." On September 1, 2000, the EEOC dismissed Plaintiff's discrimination and retaliation charges and issued 90-day Right to Sue notices. Following the EEOC's dismissals, on September 22, 2000, the PHRC notified Plaintiff that it was closing its file regarding Plaintiff's retaliation claim. On November 17, 2000, Plaintiff filed his Complaint alleging discrimination and retaliation, inter alia, within the 90-day period allotted by the Right to Sue letters. On February 7, 2001, Defendant answered Plaintiff's complaint, alleging among its affirmative defenses that Plaintiff did not exhaust administrative remedies in that he filed with the EEOC and PHRC outside the ADEA's and PHRA's respective statutes of limitations. Defendant's summary judgment motion again raised the timeliness problem, which Defendant reasserted in a November 29, 2001 hearing before us.

2. Legal Issues

Because there is no factual dispute regarding timeliness, we may resolve the remaining, purely legal question on summary judgment: namely, whether Defendant asserts correctly that Plaintiff filed administrative charges beyond the appropriate statutes of limitations, requiring our dismissal of the ADEA and PHRC complaints.


The ADEA provides that a plaintiff must exhaust his administrative remedies at least 60 days before filing a lawsuit under the statute. 29 U.S.C. § 626(d). A plaintiff exhausts his administrative remedies by filing an EEOC charge alleging age discrimination. Id. Pennsylvania is considered a "deferral state" because there is a cooperating state agency, the PHRC. Thus, the federal charge must be filed within 300 days of the last date of alleged discrimination. 29 U.S.C. § 626(d)(2); Colgan v. Fisher Scientific Company, 935 F.2d 1407, 1414-1415 (3rd Cir. 1991), cert. denied 502 U.S. 941, 112 S.Ct. 379 (1991).

Plaintiff's discrimination and retaliation claims were both lodged with the EEOC well within the 300 time limit — 256 and 238 days, respectively. In the former instance, Plaintiff (then Charging Party) was assigned a charge number after his original attorney, Mr. Trotner, submitted a complaint, and the EEOC spent approximately seven months communicating with Plaintiff to perfect the formal Charge of Discrimination. Thereafter, the EEOC delayed an additional month before serving the Charge upon the Defendant (then Respondent), and another six weeks before cross-filing the charge with the PHRC.

The EEOC's correspondence with Plaintiff's attorney suggested that the agency might drop the investigation of his charge based on his failure to pursue the matter, thereupon issuing a right to sue enabling Plaintiff to pursue the matter privately within 90 days. At no point did the EEOC indicate that Plaintiff was in jeopardy of violating the statute of limitations. Having assigned Plaintiff's claims against Defendant an official Charge number on April 29, 1997, the EEOC gave Plaintiff every reason to believe that he had complied with the requirement to file with that agency within 300 days.

We consider the EEOC's extraordinary delay in notifying Defendant and the PHRC of the Charge a failing on the agency's part. Though Plaintiff's original attorney, Mr. Trotner, can also be faulted for his lackadaisical pursuit of the matter with the EEOC, the agency is obliged to receive discrimination charges, have them perfected, notify respondents of them and investigate them and/or dismiss them in a timely manner, issuing a right to sue. These duties exist irrespective of an attorney's lack of diligence — indeed, they exist in many cases where parties are unrepresented by counsel.*fn3

When a plaintiff files charges with the agency, the EEOC immediately assigns a charge number and should thereupon notify the defendant of the action pending against it. In this case, it is apparent that the EEOC investigator was waiting for the Plaintiff's attorney to request a Right to Sue notice, as Mr. Trotner had insinuated he would. This might have saved the EEOC investigator the work required in perfecting a charge and commencing investigation. When Mr. Trotner did not immediately request dismissal and a Right to Sue, the investigator should have pursued the matter according to EEOC regulations — whether it required greater effort on the investigator's part or not.

The EEOC carries a public trust based on its mission to eradicate discrimination. Certainly, it may dismiss actions by uncooperative charging parties, but in this case, the EEOC had more than enough information to begin its proceedings based on the nine-page, verified "Complaint" which it received from Mr. Trotner on Plaintiff's behalf on April 6, 1998. The Code of Federal Regulations concerning EEOC official procedures simply states that "[a] charge shall be in writing and signed and shall be verified" (29 C.F.R. § 1601.9); it does not state that the EEOC's official form must be submitted within 300 days in order to protect the statute of limitations. While we encourage all charging parties to follow internal practices that the EEOC has instituted to enable efficient and effective charge filing, we are unwilling to deny would-be plaintiffs their rights when they ...

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