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July 15, 2002


The opinion of the court was delivered by: Anita B. Brody, District Judge.


Plaintiff Thomas I. Kovoor ("plaintiff" or "Kovoor") instituted suit against his employer, the School District of Philadelphia ("defendant" or "district"), alleging that the defendant violated his rights pursuant to 42 U.S.C. § 1981 ("§ 1981") and the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et. seq. ("Title VII"). Kovoor claims these violations began in 1985 and continued through July 2000. Kovoor, who is Indian and works in budget and accounting for the district, claims that during this period of time the defendant subjected him to a hostile work environment and discriminated against him on the basis of his race in denying him several promotions. On February 29, 2000, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). He received a notification of his right to sue on August 28, 2000 and filed this suit against the district on November 17, 2000. Kovoor is seeking compensatory and punitive damages, attorney's fees, and any other relief this court finds appropriate. Additionally, plaintiff requests that the district review and reconstruct his personnel records to reflect the promotions and salary increases he would have received but for the illegal discrimination and to expunge all negative remarks reflecting this discrimination. On January 18, 2002, the district moved for summary judgment. Now before me is that motion.

I. Factual Background*fn1

Thomas Kovoor began working for the School District of Philadelphia in the position of Accounting Clerk on January 7, 1985. (Personnel Transaction Form, # 4733). On July 22, 1985, plaintiff became a Fiscal Clerk. (Employment Action Form, NIP 0093). Less than four months later, on November 1, 1985, the district took plaintiff from the eligibility list and made him a Financial Management Trainee. (Personnel Transaction Form # 3498). After that appointment, Herbert Schectman ("Schectman"), the Manager of the Post Audit section, became Kovoor's supervisor. Almost from the outset of this relationship, plaintiff and Schectman did not get along. Though plaintiff does not pinpoint precise dates, he alleges that on a daily basis, Schectman harassed him, making generally disparaging comments and on at least one occasion referring to Kovoor and Africa-American employees as the "sons of slaves." (Dep. of Kovoor, 101). In December 1985, at the office holiday party, Schectman asked the new employees to introduce themselves. When plaintiff's turn came, he stood up, but before he could finish Schectman demanded that he "shut up and sit down." (Kovoor Aff., ¶ 2).

In addition to these interpersonal difficulties, plaintiff also felt some dissatisfaction in regard to his substantive work. More specifically, Kovoor believed that he regularly received assignments to conduct audits in schools located in "underprivileged neighborhoods." (Complaint, ¶ 21). Regardless of these wrinkles, plaintiff became an Auditor I on November 10, 1986. (Employment Action Form, NIP # 1420). After his promotion, plaintiff sought to expand the scope of his experience and requested an assignment other than a school audit. Kovoor's immediate supervisor, Thomas Doughty, brought this request to Schectman who denied it. (Kovoor Aff., ¶ 4). Shortly after this denial, Schectman approached plaintiff in front of another co-worker and asked, "what kind of race are you anyway?". (Kovoor Aff., ¶ 5; Washington Aff., ¶ 5).*fn2 Later that summer, Schectman again denied Kovoor a new opportunity — the chance to conduct a high school audit on his own. While completing an audit independently is not a requirement for advancement, plaintiff contends it is "almost a right of passage." (Kovoor Aff., ¶ 7). Plaintiff cites other incidents of harassing conduct during the summer of 1987, including Schectman's refusal to excuse him early to go to a doctor's appointment and refusing to give him a new assignment after prompt completion of an audit, leaving plaintiff with no work to do for a three month period. (Kovoor Aff., ¶¶ 8, 9).

In November 1987, Kovoor was due for a routine promotion from the Auditor I to the Auditor II position. While his two colleagues due on the same day received the new title, plaintiff did not. When he met with Schectman about this denial, Schectman indicated that in his personal judgment Kovoor should not receive a promotion. Plaintiff appealed the decision to Sheldon Jahss, Schectman's supervisor who refused to overrule Schectman. (Kovoor Aff., ¶ 10). The following month, plaintiff requested and received a transfer out of Schectman's department and moved to the Pre-Audit section, working under the supervision of Bonnie Rosen ("Rosen"). After several months there, on March 14, 1988, Kovoor received his promotion from Auditor I to Auditor II. (Employment Action Form, NIP # 1643). Though happier with his day to day work in his new position, Kovoor sought a transfer into either the Categorical Finance or Financial Planning and Analysis sections for "career advancement prospects." (Request for Transfer, December 9, 1988). On January 30, 1989, the district transferred plaintiff to the Office of Categorical Finance, moving him to the position of Budget Analyst II. However, in May 1989, plaintiff requested a return to his former position and his manager, William Kozlowski ("Kozlowski"), honored that request, and Kovoor returned to work in the audit department as an Auditor II under Rosen. (Mem. from Kozlowski to George Branch, May 18, 1989). Plaintiff was unhappy as his immediate supervisor had shown little interest in training him and Rosen had indicated she could use his assistance on a major project. (Dep. of Kovoor, 63-65).

In 1989, Kovoor applied for an Auditor III position. The district required that all applicants sit for both a written and oral examination. Schectman refused to allow plaintiff to take the tests because he did not have twenty-four credits in accounting.*fn3 (Kovoor Aff., ¶ 11). Though plaintiff does not dispute that the job required such experience, he claims that in the past Schectman had promoted others who lacked the requisite number of credits, but in a discriminatory manner refused to ignore or waive the requirement for him. He claims that defendant promoted at least one similarly situated non-Indian to Auditor III, even though she lacked a CPA degree. (Amended Complaint, ¶ 28). In 1990, Kovoor applied for an Administrative Analyst III position in the Transportation Department. Plaintiff finished second in the examination process but did not receive the job, which the district awarded to the applicant finishing first, a non-Indian female. (Eligible List, Position # 1577; Amended Complaint, ¶ 30). The following year, Kovoor submitted his application for the job of manager of the Transportation Department. Though he finished first on the written exam, his final rank was second after the subjectively evaluated oral portion of the test was factored into his score. (Eligible List, Position # 7523). Once again, the individual ranked first received the position, this time a non-Indian male. In 1992, Kovoor applied a third time for a position in the transportation department. According to plaintiff he finished first in the written examination, but yet again lost the promotion based on the subjective oral examination administered by a "biased interview panel." (Kovoor Aff., ¶ 33). In 1994, plaintiff applied yet again for a promotion in the Transportation Department. This time, Kovoor failed the written portion of the exam, rendering him ineligible for promotion. Plaintiff contends that during this examination Kozlowski, accompanied by another employee, pointed to his test and stated, "Hey Swami, don't you get this?!" (Amended Complaint, ¶ 35). Plaintiff subsequently approached Rotan Lee, the president of the school board, by leaving a note at his office, expressing concerns with the validity of his test scores. However, he never formally requested an inquiry into the matter or filed a grievance because he believed such actions would be futile. (Kovoor Dep., 36-40).

In January 1995, plaintiff requested another transfer, this time looking for "better prospects." (Request for Transfer, January 25, 1995). In the fall of that year, defendant upgraded a Financial Management Trainee position to a Budget Analyst II position and returned Kovoor to the Categorical Finance Department and the supervision of Kozlowski. (Employment Action, October 23, 1995). Kozlowski regularly referred to Kovoor as "Gungadin," threatened to "nuke India," and made generally disparaging comments related to his ethnicity. (Amended Complaint, ¶ 48(b)).*fn4 In March 1996, plaintiff submitted an application for the apprentice teacher program. (App. for Apprentice Teacher Program, March 10, 1996). In relation to that application, defendant indicated that it needed to have Kovoor's undergraduate degree from India evaluated. While uncertain of the precise dates, sometime between the submission of his teaching application and the end of 1998, the evaluator informed the district, who then informed plaintiff, that his Indian degree was fifteen or sixteen credits short of an equivalent United States degree. (Kovoor Dep., 2729). Defendant never hired Kovoor as a teacher.

Due to budget constraints, the district laid off plaintiff effective July 1, 1996. (Letter from Mark Spector to Kovoor, June 14, 1996). On November 8, 1996 defendant rehired plaintiff in the position of School Operations Officer, which involved a pay cut of approximately $12,000 from his salary as Budget Analyst II. (Employment Action, November 8, 1996). In this new position, plaintiff works from a specific school site, rather than the district's administrative offices. From October 1999 through June 2000, Kovoor worked at the Jay Cooke Middle School. Plaintiff claims that while there, he suffered unfair treatment at the hands of the principal, Dr. JoAnn Caplan ("Caplan"). At several points she has embarrassed plaintiff by telling him at a luncheon that "That food is not meant for you, put it down," and falsely alleged he acted insubordinately. The school cut Kovoor's position for the 2000-2001 school year, but permitted a similarly situated non-Indian employee to remain at the school and work overtime. (Kovoor Aff., ¶ 18).

In addition to his difficulties in his job as a School Operations Officer, plaintiff alleges that defendant hired others into the Office of the Internal Controller, which precluded his opportunity for reinstatement into a position equivalent to the one he held prior to the lay off. (Amended Complaint, ¶ 40). When Kovoor confronted Sheldon Jahss ("Jahss"), the Internal Controller, about why the district would not rehire him to a similar job, plaintiff claims that Jahss told him, "your degree is in question." In 1998, the district hired several non-Indians for the Budget Analyst II and III positions. Prior to that hiring, both Jahss and Kozlowski, Director of Categorical Finance, told Kovoor they would not consider him for the position. Kovoor claims he had forwarded records showing twenty-four credits in accounting from community colleges in the United States, attempting to compensate for those credits lacking in his undergraduate degree, but the district failed to consider them, insisting on a degree from an American institution. (Kovoor Aff., ¶ 16). In December 1999, defendant hired two other non-Indian individuals for Budget Analyst II and III positions. The district neither notified nor considered plaintiff for these positions. When plaintiff discussed this matter with Kozlowski, Kozlowski attributed the failure to consider plaintiff to the fact that his "degree is from India." (Kovoor Dep., 97). Plaintiff filed his EEOC charge on February 29, 2000 and filed this lawsuit on November 17, 2000.*fn5 Plaintiff continues to work for the School District of Philadelphia.

II. Summary Judgment Standard

The court may grant 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). The trial court must determine if there are issues with regard to material facts that warrant a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When making this determination, the court must consider the underlying facts in the light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that might be drawn from those same facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Sempier v. Johnson and Higgins, 45 F.3d 724, 727 (3d Cir. 1995) (en banc). It is appropriate to grant summary judgment if the court finds that the record "could not lead a rational trier of fact to find for the nonmoving party, [and] there is no `genuine issue for trial.'" Matsushita 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted).

III. Discussion

Defendant claims it is entitled to summary judgment on a number of different grounds. First, the district argues that plaintiff cannot bring a Title VII hostile environment claim because he failed to include this claim in his EEOC charge and has therefore failed to satisfy a jurisdictional prerequisite to bringing suit. Defendant next asserts that the applicable statute of limitations bars both Kovoor's Title VII and ยง 1981 claims, rendering the claims untimely. Finally, reaching the merits of plaintiffs claims, defendant contends that based on the undisputed facts of the case, ...

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