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,
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
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.
The timeline of the case is largely undisputed. On July 24, 1997,
Defendant notified Plaintiff of its decision to discharge him, and on
July 31, 1997, he was discharged. Plaintiff, through his original
counsel, Robert Trotner, began corresponding with Defendant's in-house
counsel on about August 15, 1997. On September 4, 1997, Trotner alleged
to Defendant that Plaintiff was discharged discriminatorily, requesting a
meeting to discuss the matter. On September 12, 1997, Defendant responded
to the September 4 letter, urging Plaintiff through counsel to proceed as
he saw fit with his discrimination charges. Similar correspondence
continued through October 1997.
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
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.
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.
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
their rights when they ...