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GHARZOUZI v. NORTHWESTERN HUMAN SERVICES OF PENNSYLVANIA

May 6, 2002

NICHOLAS G. GHARZOUZI, PLAINTIFF
V.
NORTHWESTERN HUMAN SERVICES OF PENNSYLVANIA, RICHARD THOMAS, JOHN CEVERDOM, JON C. FOGLE, SALLY SHEAFFER, ALAN TEZAK AND JOANNE EDWARDS, DEFENDANTS.



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

  OPINION AND ORDER

I. INTRODUCTION

Plaintiff Nicholas Gharzouzi ("Gharzouzi") has brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII") and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA"), alleging that Defendants Northwestern Human Services of Pennsylvania ("NHS"), Richard Thomas ("Thomas"), John Ciavardone ("Ciavardone")*fn1, Jon C. Fogle ("Fogle"), Sally Sheaffer ("Sheaffer"), Alan Tezak ("Tezak") and Joanne Edwards ("Edwards") discriminated against him on the basis of his Lebanese national origin. Defendants have moved for summary judgment as to all counts of Plaintiff's Amended Complaint, including Plaintiff's disparate treatment, hostile work environment and retaliation claims brought under Title VII and the PHRA and Plaintiff's claim for emotional distress damages.

This Opinion considers Defendants' Motion for Summary Judgment, filed on March 19, 2002; Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment, filed on April 12, 2002; and Defendants' Reply Brief in Support of Motion for Summary Judgment, filed on April 17, 2002. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 1334 and 1367.

II. STANDARD OF REVIEW

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, 106 S.Ct. 2505. All inferences must be drawn, and all doubts resolved, in favor of the non-moving 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 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 may not rest on mere denials. Id. at 321 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2505.

In discrimination and retaliation cases, proof at summary judgment follows a well-established "burden-shifting" approach first set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this burden-shifting approach, 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 or non-retaliatory reason for the action taken. Delli Santi v. CNA Ins. Co., 88 F.3d 192, 199 (3d Cir. 1996); Weston v. Commonwealth of Pennsylvania, 251 F.3d 420, 432 (3d Cir. 2001). If a defendant successfully meets its burden in a discrimination or retaliation case, then in order to avoid summary judgment, the 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 (3d Cir. 1994); Weston, 251 F.3d at 432. The ultimate burden to prove discrimination on the basis of the claimed protected class — the burden of production — remains with the plaintiff at all times. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir. 1995).

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

III. FACTUAL BACKGROUND

On September 27, 1996, the Commonwealth of Pennsylvania Department of Public Welfare contracted with a corporation now known as Northwestern Human Services of Pennsylvania ("NHS") (then called Northwestern Human Services, Inc.) to manage, administer and operate the Allentown Secure Treatment Unit ("ASTU"), a treatment center for delinquent juveniles. Defendant Thomas was selected to be the director of the ASTU; his responsibilities included hiring the personnel necessary to fulfill NHS's obligations under the contract. His direct supervisor was Defendant Tezak, the Juvenile Justice Director for NHS. In the fall of 1996, Thomas hired Gharzouzi as a Unit Life Coordinator on behalf of NHS; Gharzouzi was responsible for, among other things, safety and security concerns within the ASTU.

In January of 1999, Gharzouzi was promoted to the position of Assistant Director; he remained in this position until his termination in September of 1999. Gharzouzi complains that beginning in 1997 Thomas discriminated against him and harassed him because of his Lebanese national origin. Plaintiff complains that Thomas mocked Plaintiff's manner of communication, including his accent and his hand gestures, and also told Plaintiff that he had to change his way of thinking. Plaintiff recalls at least ten incidents of alleged discrimination. Plaintiff first alleges that on July 17, 1997, he and Thomas discussed several issues and, during this conversation when Gharzouzi asked Thomas to explain something, Thomas told him that Gharzouzi did not understand due to the language barrier. The next allegedly discriminatory incident alleged occurred in October of 1997. In his notes for a meeting held on October 30, 1997, Gharzouzi indicated that the office of two employees "will" become another employee's office and another room "will" be converted into the clinical office for the first two employees. Thomas commented to Gharzouzi that the word "will" was not appropriate and the use of the word showed "poor management skills." Gharzouzi changed the wording of the memorandum, but at that time indicated to Thomas that he was simply informing the supervisors of the change and did not mean the word to be derogatory. Gharzouzi alleges next that in February of 1998, Thomas confronted Gharzouzi during a meeting in front of co-workers; after the meeting, Thomas asked Gharzouzi why he did not agree with Thomas and stated that Gharzouzi was not a team player. Gharzouzi alleges that several times throughout that day, Thomas mocked the way that Gharzouzi talks and the gestures that Gharzouzi makes with his body. Gharzouzi then claims that on June 3, 1999, he and Thomas disagreed over whether particular students should be required to do community service work and that in the course of the disagreement, Thomas used an expletive, stating that he was the Director. Gharzouzi also asserts that on June 11, 1999 after a group meeting where Thomas was present and where Gharzouzi got into a disagreement with a staff nurse, Thomas reprimanded him for the way that he talked to the nurse; according to Plaintiff, Thomas told him that he was reprimanding him because Thomas thought that the way that he said things to the nurse and used his hands hurt her feelings. Plaintiff next alleges that on June 17, 1999, Thomas admonished Gharzouzi for planning the day and time of a party for one of their co-workers without seeking Thomas's approval; according to Gharzouzi, Thomas stated that Gharzouzi needed to start learning "our way" of doing things and added that "the buck will stop here." Plaintiff claims that on June 26, 1999 and July 15, 1999, Thomas directed Gharzouzi three times to rewrite a memorandum that Gharzouzi had prepared and stated that he did not know how to write a memorandum because of his "English language barrier." Gharzouzi states that he has a Master's Degree and is enrolled in post-graduate courses and has never before received any criticism regarding his use of the English language; he felt that he was being discriminated against and that these criticisms were making it impossible for him to do his job.

Towards the end of August or beginning of September, a decision was made to place two ASTU residents in a room together; one of the residents assigned to the room had a history of committing sex offenses and was older and physically larger than the other resident assigned to the room. According to Plaintiff, the entire team on duty that day discussed and made the decision to assign the two residents to the room. Defendants, on the other hand, contend that several staff members objected to the idea, but that Gharzouzi refused to accept their recommendations and, as the person in charge that morning, implemented the room change.

On or about September 9, 1999, Gharzouzi called the corporate complaint hotline, which was part of the corporate compliance program. He spoke with Defendant Ciavardone, a Senior Vice-President of NHS. According to Plaintiff's deposition, his complaint concerned "what Rick Thomas was telling me and threatening me." (N. Gharzouzi Dep. at 104.) According to Plaintiff, he stated that "Mr. Thomas said to me, if you go above me I'm going to fire you. They're going to believe me, not you." (Id.) Ciavardone told Gharzouzi to call Defendant Fogle, the Corporate Director of Human Resources for NHS; Plaintiff left a message for Fogle.

On the morning of September 10, 1999, Plaintiff called Thomas at home to tell him that he would not be able to make it to work that day because his knee was causing him discomfort and he did not believe that he could drive to work safely. At that time, Plaintiff had an ongoing knee condition for which he eventually had an arthroscopy. According to Plaintiff, Thomas ordered Gharzouzi to come to work and also directed him to get a doctor's excuse. Plaintiff did see his doctor that day and obtained an excuse from the doctor's office. Thomas claims that he had previously requested that Gharzouzi be at work at 7 a.m. that morning in order to help transport some of the residents to the dentist's office; according to Thomas, Gharzouzi knew that he was to tell Thomas sooner than that morning if he could not be at work that morning so that Thomas could arrange for other staff members to be present.

Also on September 10, 1999, Thomas called Defendant Sheaffer, an Employee Relations Specialist employed by NHS. According to Sheaffer, Thomas reported (1) that staff members had alleged that Gharzouzi was engaging in union activity and (2) that Gharzouzi had inappropriately directed the placement of two residents to a room. Sheaffer then called Fogle to decide how to proceed with Thomas's charges. She and Fogle decided that Fogle would inform Gharzouzi that he was being placed on administrative leave with pay while the allegations were investigated. According to Sheaffer, the seriousness of the two charges warranted placing Gharzouzi on administrative leave. First, any involvement by Gharzouzi with union organization would undermine the management's position to remain union-free. Second, the room assignment appeared to have compromised the residents' safety. According to Sheaffer, she and Fogle decided that she would conduct her investigation by interviewing staff members. They planned that the investigation would focus on the union allegations.

Fogle left a phone message for Gharzouzi on his home answering machine. When Gharzouzi returned Fogle's phone call, Fogle informed him that he should stay at home until further notice. Gharzouzi remained on administrative leave until his termination. While Gharzouzi was on administrative leave, Sheaffer interviewed various staff members. In the course of her investigation, Sheaffer also met with Gharzouzi twice, once with Gharzouzi alone and another time with Gharzouzi, Defendant Edwards, the Director of Human Resources for NHS, and Tezak. Based upon the interviews with NHS staff members and with Gharzouzi, Sheaffer, Edwards, Tezak and Michael Breslin ("Breslin"), a Senior Vice President for NHS, decided to offer Gharzouzi the option of resigning. On September 22, 1999, they presented him with this choice and allowed him until September 24, 1999 to make his decision; when he refused to resign, NHS terminated his employment. A letter dated September 27, 1999 and signed by Edwards confirms that effective September 24, 1999, he was terminated from his position as Assistant Director.

On January 5, 2000, Gharzouzi's attorney submitted a charge of discrimination, which Gharzouzi had signed and dated December 15, 1999, to the Equal Employment Opportunity Commission ("EEOC"). This charge of discrimination indicated Plaintiff's belief that he had been discriminated against and subjected to a hostile work environment because of his Lebanese origin and retaliated against; it mentioned only Defendants NHS and Thomas by name. On this form, Plaintiff indicated that he would also like to file the charge with the Pennsylvania Human Relations Commission ("PHRC"); the cover letter dated January 5, 2000 that accompanied the charge also indicated that Plaintiff was making a request for cross-filing with the PHRC. The cover letter and charge were each stamped as received by the EEOC on January 5, 2000.

On February 11, 2000, the EEOC advised Plaintiff's counsel by letter that the charge had been received. The later stated that "before we can actually docket your client's charge and begin the EEOC investigation, we must first complete other intake processing for which we will require assistance from you and your client." The letter further stated that "you will be informed as to the decision in this matter, and, if appropriate, what additional steps must be taken in order for EEOC to complete this process." The letter assigned EEOC Investigator Genevieve Delaney ("Delaney") to the matter.

On April 14, 2000, Delaney sent a perfected draft charge to Gharzouzi; the letter indicated that he must send a signed copy of the revised charge within thirty-three days or his charge would be dismissed without an investigation or a mediation by the EEOC. This perfected draft charge included not only Defendant Thomas but also Defendants Ciavardone, Fogle, Sheaffer, Tezak and Edwards by name. The EEOC files contain two copies of this perfected charge, one signed by Gharzouzi on April 18, 2000 and date-stamped by the EEOC on April 21, 2000, and another signed by Gharzouzi on April 26, 2000 with a May 5, 2000 cover letter from Plaintiff's counsel, both of which were date-stamped May 5, 2000. The EEOC forwarded the charge to the PHRC on May 9, 2000. The EEOC issued a Notice of Right to Sue on October 16, 2000 and Plaintiff filed his complaint in federal court within 90 days of that notice.

IV. DISCUSSION

Timeliness Issues

As a preliminary matter, we address the timeliness issues raised by Defendants in their Motion for Summary Judgment.

Time Limits on Plaintiff's Title VII Claims

Filing Requirements Under Title VII

In order to bring suit under Title VII, a plaintiff must have exhausted his/her administrative remedies by filing a timely charge of discrimination with the EEOC. For a charge to be timely, a plaintiff must normally file his/her charge of discrimination with the EEOC within 180 days after the alleged unlawful employment practice occurred. However, in a "deferral state" like Pennsylvania, that is, a state which has a state or local law prohibiting the practice alleged and establishing or authorizing the state or local authority to grant or seek relief from practices prohibited under Title VII, the plaintiff has not 180 but 300 days from the date of the alleged unlawful employment practice to file his/her charge of discrimination with the EEOC. See Seredinski v. Clifton Precision Prods. Co., 776 F.2d 56 (3d Cir. 1985). The extension of the filing time to 300 days holds regardless of whether the plaintiff ever files a charge with the state agency. See Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1414-15 (3d Cir. 1991). Gharzouzi thus had 300 days from the date of the alleged unlawful practice to file his EEOC claim.

Defendants' Postion

Defendants argue that Gharzouzi's EEOC filing was not effected until May 1, 2000 when the EEOC formally docketed his charge and, thus, that Gharzouzi's charge is timely only as to events occurring 300 days before May 1, 2000 — that is, after July 14, 1999. Defendants accordingly argue that Plaintiff's allegations of harassment in 1997, 1998 and through July 14, 1999 are time-barred and that he should only be able to seek relief for the harassment that he alleges occurred on August 30, 1999 and September 9, 1999.*fn2 (Defs.' Mot. for Sum. Judg. at 17-18.)

Analysis of Timeliness of Plaintiff's Title VII Claims

We reject Defendants' argument that the charge need have been formally docketed and assigned a charge number for the filing to have been effective. We find that Plaintiff's January 5, 2000 letter and charge of discrimination constitute an effective filing with the EEOC.

i. Filing Requirements Under Title VII

The Third Circuit recognizes "the prevailing jurisprudence that a charge [of discrimination filed with the EEOC] need not comply with a plethora of particular requirements." Bihler v. The Singer Co., 710 F.2d 96, 99-100 (3d Cir. 1983). The Code of Federal Regulations provides that "a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the practices complained of." Edelman v. Lynchburg College, 122 S.Ct. 1145, 1148 (2002) (quoting and citing 29 C.F.R. § 1601.12(b) (1997)). A communication to the EEOC in, or reduced to, writing may constitute a charge if it provides notice to the EEOC "of a kind that would convince a reasonable person that the grievant has manifested an intent to activate the Act's machinery." Bihler, 710 F.2d at 99. The charge "must sufficiently inform the EEOC whether it is to investigate immediately or to await further communication from the [potential] plaintiff before investigation." Bihler, 710 F.2d at 100. In determining whether a particular communication evinces the requisite intent, courts consider the content and effect of the communication, including what the EEOC does upon receiving the communication. See Gulezian v. Drexel Univ., No. CIV.A. 98-3004, 1999 WL 153720, at *3 (E.D.Pa. March 19, 1999). In distilled form, the case law requires that an EEOC charge contain two components: (1) a written statement precise enough to identify the parties and to describe generally the practices complained of and (2) the manifestation of an intent to activate the EEOC's mechanisms.

ii. Application of Law to Plaintiff's Proposed Charge

We find that the charge submitted by Plaintiff's counsel on January 5, 2000 sufficiently describes the practices complained of and effectively evinces Plaintiff's intent to activate the EEOC's investigatory mechanisms. Plaintiff completed a "Charge of Discrimination" form and added a typewritten attachment describing the allegedly discriminatory conduct. The attachment alleges that Plaintiff was discriminated against and harassed by his supervisor on the basis of his national origin, Thomas, and that he was retaliated against for complaining about Thomas's conduct and names his employer NHS. These communications provide enough information as to the parties and as to the nature of his complaint to constitute an effective charge.

Plaintiff also has evinced his intent to activate the EEOC's involvement. He signed, dated and had notarized a form entitled "Charge of Discrimination," added an attachment detailing the basis of his complaint against NHS and Thomas, and included a cover letter entitled "RE: Gharzouzi v. Northwestern Human Services" that referenced the attached charge of discrimination. The unambiguous nature of the communications distinguishes this case from cases like Bihler, where the court declined to hold that the communications at issue constituted a charge of discrimination because it was not clear that the plaintiff intended to activate the EEOC. In Bihler, the court concluded that the plaintiff's forwarding of a carbon copy of a letter that he had mailed to his employer indicating that he intended to institute legal proceedings if the employer-company did not rehire him did not constitute a charge of discrimination for administrative EEOC purposes. Unlike in Bihler, here, the content of the charge form itself, the cover letter and the attachment show Plaintiff's intent to file a charge with the EEOC and to begin EEOC proceedings.

Additionally, the EEOC's response to Gharzouzi's January 5, 2000 correspondence supports our finding that the letter, charge form and attachment constitute a charge of discrimination. On February 11, 2000, the EEOC wrote to Plaintiff, indicating that before it could docket the charge and begin the EEOC investigation, the EEOC needed to complete intake processing which might require Plaintiff to provide additional information. Although the letter stated that Plaintiff might be required to redraft the charge, the letter did not in any way indicate that the EEOC considered Plaintiff's January 5, 2000 communications to be anything other than a charge of discrimination.*fn3 Indeed, the letter did not state that Plaintiff was to do anything further in order to effect a charge; rather, it stated that next an EEOC investigator would contact Gharzouzi.

Contrary to Defendants' suggestions, this case differs from Gulezian v. Drexel Univ., No. CIV.A. 98-3004, 1999 WL 153720 (E.D.Pa. March 19, 1999). In Gulezian, the plaintiff argued that his completion of an intake questionnaire at the office of the EEOC constituted a charge of discrimination. The court rejected this argument. Because "[t]he EEOC clearly alerted plaintiff that further information and follow-up on his part were required to initiate a charge and gave plaintiff a written notice of a future appointment for an interview concerning the possible filing of a charge of discrimination" (emphasis added) and then indicated that he needed to provide the agency with a written statement describing the basis for his discrimination claim, the court reasoned that the EEOC clearly did not consider the intake questionnaire to be a charge of discrimination and also concluded that no reasonable complainant could have believed it to be. Gulezian, 1999 WL 153720 at *3. Unlike in Gulezian, here, from the start, the EEOC unequivocally and consistently referred to Plaintiff's communications as a "charge" without qualifying the initiation of a charge of discrimination as a possible future event.

Defendants point to our recent decision in Zysk v. FFE Minerals USA. Inc., No. 00-5874, 2001 WL 1736453 (E.D.Pa. Dec. 14, 2001) in arguing that the EEOC's failure to docket Plaintiff's January 5, 2000 correspondence and to assign it a charge number establishes that it does not constitute an effective charge of discrimination. Defendants misinterpret our opinion. Contrary to Defendants' assertions, Zysk does not stand for the proposition that a charge of discrimination is effective only once docketed. In fact, in Zysk, we considered the plaintiff to have filed an effective charge as of the date on which the EEOC received the plaintiff's complaint, not on the later date when it was assigned a charge number and formally docketed. We concluded that where the plaintiff had submitted a nine-page, detailed, sworn complaint to the EEOC, the EEOC had more than enough information to begin its proceedings based on the complaint. See Zysk, 2001 WL 1736453 at *4. We reasoned that "common sense dictates that Plaintiff would believe his charge was filed with the EEOC on the date the agency received his sworn, detailed complaint," id., 2001 WL 1736453 at *6, and were careful there to note that the failure to fill out an official EEOC form would not render the charge ineffective. See id., 2001 WL 1736453 at *5.

With respect to the docketing of the charge and the assigning of a charge number, we remarked that "[h]aving assigned Plaintiff's claims against Defendant an official Charge number . . ., the EEOC gave plaintiff every reason to believe that he had complied with the requirement to file with that agency within 300 days." Id., 2001 WL 1736453 at *5. We further reasoned that "Plaintiff would know that he was protected from exceeding the 300-day statutory period as of the date he learned that a charge number had been assigned to his case." Id., 2001 WL 1736453 at *6. In Zysk, then, we spoke of the docketing of the charge not as that which rendered the complaint effective, but rather as an indicator to the plaintiff that the charge had in fact been timely filed.

Although the assigning of a charge number within the limitations period is a fairly good indicator that an effective charge has been received on time, but see Michelson v. Exxon Research and Eng. Co., 808 F.2d 1005, 1010-11 (3d Cir, 1987) (holding that where the writings on file were insufficient to constitute an effective charge, a charge had not been effectively filed, despite the fact that the EEOC had assigned the case a charge number)*fn4, it is not, and Zysk does not stand for the proposition that it is, necessary for the EEOC to assign a charge number to a complaint before it is considered an effective charge of discrimination. Rather, as discussed supra at Section IV.A.1.c.i., what is required is that the EEOC receive a written communication from the plaintiff detailing the bases of the discrimination in a fashion sufficient to indicate his intent to activate the EEOC's investigatory mechanisms.*fn5

We deny Defendants' Motion for Summary Judgment with respect to Plaintiff's Title VII claims on the grounds that they were not timely filed.

iii. Consideration of Events Falling Outside of Limitations Period

The only allegedly unlawful employment practices that fall outside of this time period are the three incidents that occurred on July 17, 1997, October 30, 1997 and in February of 1998. We consider whether there is any basis upon which these three events may nevertheless be considered with respect to either Plaintiff's retaliation claim or hostile work environment claim. Taking Plaintiff's retaliation claim first, although the 1997 and 1998 events relate to retaliation claim insofar as plaintiff might want to refer to them in order to provide a context for this claim, Plaintiff does not appear to allege that the 1997 and 1998 incidents form part of the basis for his retaliation claim.*fn6 Rather, the actual discriminatory acts complained of are NHS's suspension and termination of him. Each of these events relating to his retaliation claim occurred in September of 1999, well within the limitations period. Thus we need not consider whether the 1997 and 1998 occurrences may be considered for purposes of Plaintiff's retaliation claim.*fn7

On the other hand, with respect to Plaintiff's hostile work environment claim, we presume that Plaintiff's position is that all of the events, including the 1997 and the 1998 incidents, form the basis for the claim. We will consider whether the 1997 and 1998 events may be considered even though they fall outside of the limitations period. We expect that Plaintiff would argue that the 1997 and 1998 events are part of an overall pattern of discrimination that worked to create a hostile work environment such that they should be considered, despite the fact that they fall outside of the limitations period.

Under the "continuing violation theory," a plaintiff "may 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 Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). A plaintiff must meet two requirements in order to establish that a claim falls within the continuing violations theory. "First, he must demonstrate that at least one act occurred within the filing period: The crucial question is whether any present violation exists." Id. (internal quotations and citations omitted). "Next, the plaintiff must establish that the harassment is more than the occurrence of isolated or sporadic acts of intentional discrimination. The relevant distinction is between the occurrence of isolated, intermittent acts of discrimination and an on-going pattern." Id. at 755 (internal quotations and citations omitted). "Once the plaintiff has alleged sufficient facts to support use of the continuing violation theory, . . . the 300-day filing period becomes irrelevant — as long as at least one violation has occurred within that 300 days. Plaintiff may then offer evidence of, and recover for, the entire continuing violation." Id.

We find that Plaintiff has shown the existence of a present violation and meets the first prong of the continuing violation test. Indeed, Plaintiff alleges that several events occurred in June, July, August and September of 1999 that created a hostile work environment — all of which fall within the limitations period. However, we find that Plaintiff fails to establish the second prong of the continuing violation doctrine, that the events that occurred in 1997 and 1998 were part of a persistent and an ongoing pattern of discrimination. The next allegedly discriminatory act occurred in June of 1999, nearly two years from the July 17, 1997 event, more than a year-and-a-half from the time of the October 1997 event and over a year from the time of the February 1998 incident. The lapse of time between the 1997 and 1998 events and the events that occurred within the limitations period in the summer of 1999 is too great to support the application of the continuing violation theory with respect to the events in 1997 and 1998 falling outside the 300-day filing period.

The 1997 and 1998 events are outside of the limitations period. We hold that any consideration of these events is barred.

Timeliness of Plaintiff's PHRA Claims

Filing Requirements Under PHRA

To bring suit under the PHRA, a plaintiff must have first filed an administrative complaint with the PHRC within 180 days of the date of the alleged act of discrimination. 43 PA. CONS. STAT. §§ 959(h).*fn8 Absent circumstances justifying equitable tolling, if no complaint is filed with the PHRC within this time, then the plaintiff is precluded from seeking judicial relief. See Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997). In such a case, the court is deprived of jurisdiction over the PHRA claim. See Parsons v. Philadelphia Office of Drug and Alcohol Abuse, 833 F. Supp. 1108, 1112 (E.D.Pa. 1993). This filing requirement is strictly interpreted and enforced. See Woodson, 109 F.3d at 925.

b. Defendants' Postion

Defendants argue that because the PHRC did not receive Plaintiff's charge of discrimination until May 9, 2000, more than 180 days after the date of Plaintiff's termination, Plaintiff's PHRA claims are thus time-barred and may not be considered by this court. (Defs.' Mot. for Sum. Judg. at 19-21.) Plaintiff responds that his January 5, 2000 filing with the EEOC constitutes a contemporaneous filing with the PHRC pursuant to the work sharing agreement between the EEOC and the PHRC; he argues that having filed on January 5, 2000 — within 180 days of the date of ...


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