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VELEZ v. QVC

September 27, 2002

VICTOR VELEZ, ET AL., PLAINTIFFS,
V.
QVC, INC., DEFENDANT



The opinion of the court was delivered by: Eduardo C. Robreno, United States District Judge

                MEMORANDUM

Plaintiff Victor Velez ("Velez") and five other former show hosts of defendant QVC, a telemarketing television network, have filed this putative class action against QVC for alleged discrimination based on race and sex. QVC conducts its business through the medium of nationally broadcast direct response television programming which is aired live twenty-four hours a day, seven days a week. As show hosts, plaintiffs appeared on the air for the purpose of marketing and selling the products sold by QVC.

The claims are based on federal civil rights law as well as the laws of New York and Pennsylvania. The case was initially filed as a class action. However, given the number of putative class representatives, the complexity of the claims asserted under the laws of various jurisdictions, which were applicable to some but not all plaintiffs, under the unusual circumstances of this case, and for case management purposes, the court deferred holding a hearing on class certification until merit discovery was concluded and the contours of each claim asserted by each plaintiff became more apparent. Following the filing of five amended complaints, completion of exhaustive and contentious discovery, and lengthy briefing by the parties, the legal issues implicated by the various claims are ripe for decision.

Presently before the court are defendant's motions for summary judgment. For the reasons that follow, summary judgment will be granted on all of the claims of plaintiffs Clarence Reynolds, Sophia Minott-Talley, and Daliza Ramirez-Crane, because the claims are time-barred. Summary judgment as to the claims of plaintiffs Velez, Owens and Tucker is granted in part and denied in part.

I. BACKGROUND

In Counts III and IV, plaintiffs Velez and Tucker allege violations of New York Executive Law § 296 (New York State Human Rights Law ("NYSHRL")) and Administrative Code of the City of New York § 8-107 (New York City Civil Rights Law ("NYCCRL")). In Count V, plaintiffs Velez, Owens and Tucker allege violations of the Pennsylvania Human Relations Act, 43 Pa. Con. Stat. Ann. § 954(a) ("PHRA"). In Count XI, plaintiff Tucker asserts a fraud claim under Pennsylvania law arising from the final contract that she entered into with QVC in May, 1999. Finally, in Count XII, plaintiffs Owens, Tucker and Ramirez-Crane allege violations of the Equal Pay Act.*fn2

Defendant maintains that it is entitled to summary judgment on all plaintiffs' claims because they are either untimely or raise no genuine issue of material fact.

II. DISCUSSION*fn3

A. Untimeliness Issues as to Plaintiffs Reynold, Minott-Talley and Ramirez-Crane

Defendant makes the following arguments with respect to the untimeliness of some of the plaintiffs' claims. First, the Title VII claims of plaintiffs Reynolds, Minott-Talley and Ramirez-Crane are time-barred for failure to exhaust administrative remedies. Second, the Section 1981 claims of plaintiffs Reynolds, Minott-Talley and Ramirez-Crane are barred by the two year statute of limitations. Third, plaintiff Ramirez-Crane's Equal Pay Act claim is barred by the applicable statute of limitations. Fourth, plaintiff Owens' sex discrimination claim is barred because her EEOC charge did not include an allegation of sex discrimination.

1. Plaintiffs Reynolds, Minott-Talley and Ramirez-Crane's Title VII claims

Before a lawsuit can be brought to assert claims under Title VII, a charge of discrimination must be filed with the EEOC within 300 days of the occurrence of the alleged discriminatory employment practice. 42 U.S.C. § 2000e-5(f) & 2000e-5(e); EEOC v. Commercial Office Prods., 486 U.S. 107, 110 (1988); Woodson v. Scott Paper Co., 109 F.3d 913, 926 (3d Cir. 1997) ("[F]ederal courts lack jurisdiction to hear a Title VII claim, unless the plaintiff has filed a charge with the EEOC."). The purpose of the EEOC filing requirement is twofold: one, to notify the charged party of the grievances against it, and, two, to encourage conciliation between the parties. See Hicks v. ABT Assocs., Inc., 572 F.2d 960, 963 (3d Cir. 1978). A violation which is not made the subject of an EEOC charge within the requisite time period is "the legal equivalent of a discriminatory act which occurred before the statute was passed" and is "merely an unfortunate event in history which has no present legal consequences." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).

The timeliness of the charge is determined by the date that the statute of limitations begins to run, i.e., the date of the discriminatory act, not the time that the consequences of that act are realized. Del. State Coll. v. Ricks, 449 U.S. 250, 259 (1980) ("[T]he limitations period commenced to run when the tenure decision was made and Ricks was notified."). An employee who is terminated or resigns must file charges with the EEOC within 300 days of the resignation or termination, since their last date of employment is the last day on which the employee could have suffered an adverse employment action. See Hipp v. Liberty Mutual Ins. Co., 252 F.3d 1208, 1222 n. 12 (11th Cir. 2001). Reynolds' last day of employment with QVC, the last day he could have suffered an adverse employment action, was November 12, 1993. He had until September 8, 1994 to file an EEOC charge. Minott-Talley was terminated on February 28, 1995; thus, she had to file an EEOC charge by December 25, 1995. Ramirez-Crane was terminated on June 1, 1995. She had to file a charge with the EEOC by March 27, 1996. Because plaintiffs Reynolds, Minott-Talley and Ramirez-Crane did not file charges with the EEOC within 300 days of their termination or resignations, their claims are barred.

Plaintiffs seek to breathe new life into their expired claims by arguing that the filing requirement of Title VII and the applicable statute of limitations of § 1981 should be tolled under: 1) the continuing violation doctrine, 2) the single filing rule, and/or 3) as a result of plaintiffs' severe emotional distress.*fn4 These arguments are unavailing.

a. Continuing violations doctrine

The continuing violations doctrine enables a plaintiff who files an EEOC complaint about a specific discriminatory act by his employer to reach back in time to prove other discriminatory acts that his employer committed against him, even if those acts occurred more than 300 days before the event of which he formally complained, see West v. Philadelphia Elec. Co., 45 F.3d 744, 748 (3d Cir. 1995), provided that he "can demonstrate that the act is part of an ongoing practice or pattern of discrimination of the defendant." Id. at 754; see also Hipp, 252 F.3d at 1221 (explaining that "claims of discrimination were not time-barred because some acts of discrimination against the individual plaintiffs had occurred within the statutory period, even though prior acts did not. The earlier acts of discrimination were actionable because they were part of a continuing violation").

As stated above, plaintiffs Reynolds, Minott-Talley and Ramirez-Crane did not file a claim within 300 days of the last act of discrimination alleged, i.e., the last day of their employment with defendant. Only Velez did so. Plaintiffs Reynolds, Minott-Talley and Ramirez-Crane argue that the defendant continued the same type of alleged discriminatory pattern and practice against Velez for more than 300 days after the last adverse employment action against them had occurred. Therefore, plaintiffs Reynolds, Minott-Talley and Ramirez-Crane contend that the timely filing by Velez with the EEOC revives their stale claims, because Velez's filing was based on the same pattern and practice of discrimination as that suffered by the plaintiffs.

This is not so. The law is clear that the continuing violation doctrine tolls the statutory filing period only where some aspect of the discriminatory violation as to that plaintiff continued into the statutory filing period. "To establish that a claim falls within the continuing violations theory, the plaintiff . . . must demonstrate that at least one act occurred within the filing period: `The crucial [sic] question is whether any present violation exists [as to that plaintiff].'" West, 45 F.3d at 754-55 (quoting United Airlines v. Evans, 431 U.S. 553, 558 (1977) (emphasis in original)). Thus, the rule cannot apply to a Title VII claim that became stale before the first EEOC charge was filed by another plaintiff, even if it involves the same type of discriminatory conduct by the defendant. See Miller v. Int'l Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985). ("[S]everal courts have held that an employee who has been discharged pursuant to a discriminatory policy may not take advantage of later discriminatory acts against other employees for the purpose of postponing the running of the statutory period as to him on a continuing violation theory."); Hipp, 252 F.3d at 1221 (finding "no authority . . . for allowing one plaintiff to revive a stale claim simply because the allegedly discriminatory policy still exists and is being enforced against others"); cf. Wetzel v. Liberty Mut. Life Ins. Co., 508 F.2d 239, 246 (3d Cir. 1975) ("[C]ontinuing violations of Title VII . . . allow a filing of a charge at any time by a present employee.").*fn5

The rationale against allowing the revival of stale claims is sound. First, "[w]hen an employee is terminated, the employment relationship ends; and the fear of reprisal and the reasons for allowing employees to claim a continuing discriminatory policy are removed." Hipp, 252 F.3d at 1222 n. 12 (quoting Gray v. Phillips Petroleum Co., 858 F.2d 610, 614 (10th Cir. 1988));*fn6 Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982) ("A refusal to hire or a decision to fire an employee may place the victim out of reach of any further effect of company policy, so that such a complainant must file a charge within the requisite period after the refusal to hire or termination, or be time-barred."). Second, "if former employees were allowed to assert charges [outside the filing period], the purpose of the statute of limitations would be undermined and employers could be exposed to unlimited suits." Hipp, 252 F.3d 1222 n. 12. Thus, when an employee has left his company, "he must comply with the charge-filing period, and the continuing violation doctrine will no longer save a late claim." Id.

b. Single filing rule*fn7

Plaintiffs Reynolds, Minott-Talley and Ramirez-Crane also assert under the single filing rule that their claims are not time-barred based on the timely filed EEOC charge of plaintiffs Velez, Owens and Tucker.*fn8 Under the single filing rule, "if one plaintiff has filed a timely EEOC complaint as to that plaintiff's individual claim, then co-plaintiffs with individual claims arising out of similar discriminatory treatment in the same time frame need not have satisfied the filing requirement." Allen v. U.S. Steel Corp., 665 F.2d 689, 695 (5th Cir. 1982). Similarly, a plaintiff may bring a class action on behalf of those who have not filed charges with the EEOC, and thus toll the statute of limitations for all members of the class. Wetzel, 508 F.2d at 246.*fn9 While the complaints need not be identical, they must arise out of similar discriminatory treatment in the same time frame, provided that they give the employer adequate notice and an opportunity for conciliation. Snell v. Suffolk County, 782 F.2d 1084, 1100 (2d Cir. 1986).

However, as one court of appeals has stated:

That filing, it seems clear, however, cannot revive claims which are no longer viable at the time of the filing. Any other result would produce an anomaly. Time-barred members could not press their claims individually either before the Commission or judicial tribunals; and surely the employer's liability to them cannot be made to depend upon whether they come into court in a different character. True it is that class actions are liberally permitted in the federal courts, but that procedural device cannot be used to expand substantive rights. Not surprisingly, then, courts which have considered the question directly have uniformly held that only those employees who could have filed charges with the Commission individually when the class filing was made are properly members of the litigating class.

Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 (D.C. Cir. 1976) (citing Wetzel, 508 F.2d 239) (footnotes omitted).

The last possible date on which discrimination occurred towards plaintiffs Reynolds, Minott-Talley and Ramirez-Crane are the dates that they ceased working for defendant. These dates are November 12, 1993, February 28, 1995, and June 1, 1995, respectively. The first timely-filed EEOC charge in this case was that of Victor Velez on December 11, 1997. The non-filing plaintiffs could not have filed a timely charge because by the time that Velez filed his claim, the statutory period during which Reynolds, Minott-Talley, and Ramirez-Crane were required to file their claims had expired."*fn10 Thus, the single filing rule does not save plaintiffs Reynolds, Minott-Talley and Ramirez-Crane's claims of discrimination under Title VII.

Plaintiffs make the additional argument that Minott-Talley and Ramirez-Crane should be permitted to piggyback on the EEOC charge of non-plaintiff Chuck Fields who filed a charge on March 6, 1995.*fn11 Plaintiffs argue that because the Fields charge was filed at a time when Minott-Talley and Ramirez-Crane's claims were still viable, and because the resulting lawsuit continued past December 11, 1997, when plaintiff Victor Velez filed his timely EEOC charge, Minott-Talley and Ramirez-Crane should be allowed to rely on Fields' charge to cure the gap in time between the expiration of the 300 day statutory period during which they had to filed charges and the filing of the Velez charge. The court does not agree.

In the Third Circuit, "piggybacking [under the single filing rule] has never been allowed when the subsequent action is not a class action." Communications Workers of America v. N.J. Dep't of Pers., 282 F.3d 213, 217 (3d Cir. 2002);*fn12 see also EEOC v. Air Line Pilots Ass'n, 885 F. Supp. 289, 294 (D.D.C. 1995). ("[T]he single filing rule applies only where at least one plaintiff in a lawsuit filed a timely EEOC charge.") (emphasis supplied); Banas v. American Airlines, 969 F.2d 477, 483 (7th Cir. 1992) ("[An] . . . EEOC charge can be relied upon by a plaintiff who did not actually file the charge but upon whose behalf the charge was filed.") (emphasis supplied); Romasanta v. United Airlines, Inc., 537 F.2d 915, 918 (7th Cir. 1976). ("[Class] members may rely on the champion of the class until he or she abdicates.")

Therefore, "outside the context of a representative or class action, . . . an individual plaintiff must file a timely administrative charge." Whalen v. W.R. Grace & Co., 56 F.3d 504, 505 (3d Cir. 1995). A contrary rule "would allow a would-be plaintiff who missed the statutory time limit for filing an EEOC charge to file an independent lawsuit by relying upon the timely charge of some other individual, even though the individual is not named in the lawsuit," Air Line Pilots Ass'n, 885 F. Supp. at 293, and thus "circumvent the well-settled principle `that a party seeking relief under Title VII must file timely charges of employment discrimination with the EEOC before that party may seek judicial relief.'" Id. Since Fields' claim was not a representative or a class action, Minott-Talley and Ramirez-Crane may not piggyback on his complaint.*fn13

c. Emotional distress

Plaintiffs also argue that Reynolds, Minott-Talley and Ramirez-Crane suffer from post-traumatic stress disorders that disabled them from pursuing legal action as a consequence of their conditions. Under these circumstances, plaintiffs argue that the period for filing an EEOC charge as to these plaintiffs is equitably tolled for the entire time during which they suffered emotional distress. The court does not agree.

"[T]here is no absolute rule that would require tolling whenever there is mental disability. The federal courts `have taken a uniformly narrow view of equitable exceptions to Title VII limitations periods.'" Lopez v. Citibank, N.A., 808 F.2d 905, 906 (1st Cir. 1987). "[M]ental illness tolls a statute of limitations only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them." Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) (not allowing tolling because plaintiff attended university for two semesters during filing period).

Illustrative is Powell v. Independence Blue Cross, Inc., No. 95-2509, 1997 U.S. Dist. LEXIS 3866 (E.D. Pa. Mar. 25, 1997), where the court found that the plaintiff had not demonstrated that he was unable to manage his own affairs, despite doctor's testimony that the plaintiff's condition rendered him incapable of making a decision about how to proceed on his claim of discrimination, and despite the fact that the plaintiff had been a patient in a mental health outpatient day treatment program. Id. at *6-*7, *13-*14. In Powell, the court found that plaintiff discussed his legal rights with an attorney, cared for himself and his son, read and played computer games, and handled household accounts, id. at *16, and concluded that, "[a]ssuming that mental incapacitation is an `extraordinary' reason which would justify tolling a federal limitations period, plaintiff has not presented evidence sufficient to satisfy the test for such incapacitation recognized or employed by any court." Id.; see also Speiser v. U.S. Dep't of Health and Hum. Servs., 670 F. Supp. 380, 383-84 (D.D.C. 1984) (despite doctor's testimony about plaintiff's depression and hospitalizations, plaintiff did not submit sufficient evidence that she could not handle her affairs or comprehend her legal rights).

In addition, the courts have not permitted tolling based on alleged mental incapacity where a plaintiff has consulted with or been represented by an attorney. See Hood v. Sears Roebuck and Co., 168 F.3d 231, 233 (5th Cir. 1999) (plaintiff's retaining counsel during filing period demonstrates an ability to manage own affairs); Lopez, 808 F.2d at 907 (where plaintiff was represented by counsel during charge-filing period, no strong reason why plaintiff was unable to bring suit); Temparali v. Rubin, No. 96-5382, 1997 U.S. Dist. LEXIS 8845, at *15 (E.D. Pa. June 19, 1997) (plaintiff could not show inability to manage own affairs or pursue a legal claim where she consulted an attorney about paternity, custody and support issues).

No plaintiff here has provided sufficient evidence to show that he or she could not manage his or her own affairs or comprehend his or her legal rights. Plaintiff Clarence Reynolds testified that he suffered from depression for an eight-month period of time following his resignation on November 23, 1993, the same date that his EEOC filing period began to run. During this period, despite the mental incapacity that he claims prevented him from filing a timely EEOC charge, Reynolds found employment as a disc jockey about a month after leaving QVC, and eight months after that became employed as a show host by Home Shopping Network, and later became executive producer of a joint venture between Home Shopping Network and Black Entertainment Television, where he remained for two years. Additionally, he sought no medical assistance from a physician or psychologist during the filing period.

Similarly, plaintiff Minott-Talley has not provided evidence that she was unable to manage her affairs or understand her legal rights. Minott-Talley testified that following her departure from QVC, she moved to New York in order to pursue a career in affiliate marketing, began working for a nonprofit organization, and over the course of the next few years, held a variety of jobs in New York City. In addition, while she did seek medical treatment for back pain she experienced after her termination by QVC, she sought no psychiatric or psychological treatment. Further, she consulted with her cousin, an attorney, on matters unrelated to her experiences at QVC.

Plaintiff Ramirez-Crane has also failed to show that she was unable to manage her affairs or understand her legal rights. After Ramirez-Crane's departure from QVC, she was reemployed on a temporary basis, spent five months as a permanent executive assistant, and within a year after she left QVC was employed by Global Shopping Network as an on-air host. Furthermore, she was enrolled in a Ph.D. program at Temple University during her QVC employment, and has remained enrolled until the present. In addition, approximately six months after her termination, she consulted a lawyer to discuss the issue of the non-compete clause in her QVC contract.

Plaintiffs rely on Llewellyn v. Celanese Corp., 693 F. Supp. 369 (W.D.N.C. 1988) in support of their emotional distress claims. There, as a result of over thirty acts of discrimination over three years, plaintiff suffered from severe anxiety and depression for which she was placed on various combinations and dosages of psychotropic medications; she also developed what appeared to be a seizure disorder. Id. at 375. As a result, the court found that:

The combined effect of her depression and the medications rendered plaintiff unable to attend to everyday activities such as washing dishes, cleaning her home, and caring for her children. Her parents took her children to buy food. Her children cleaned the house. She spent most of her time sleeping. When she awoke she had trouble walking down the hall of her trailer to the kitchen. She experienced a lump in her throat, had difficultly eating, would frequently vomit what she had eaten, and had chronic diarrhea.

Id. Plaintiffs have presented no evidence representing the type of incapacitation at issue in Llewellyn.*fn14 Indeed, in stark contrast, each of the plaintiffs in the present case quickly obtained other employment and remained able to discuss issues concerning their affairs with attorneys.*fn15 Thus, the court finds that all have failed to provide sufficient evidence to raise a genuine issue of material fact as to whether they were unable to manage their affairs or understand their legal rights or make decisions in matters of importance to such an extent to toll the statute of limitations.

2. Plaintiffs Reynolds, Minott-Talley and Ramirez-Crane's Section 1981 claims

Title 42 U.S.C. § 1981 does not set forth an express statute of limitations. To fill this void, the United States Supreme Court has directed courts to locate the "most appropriate or analogous state statute of limitations." Goodman v. Lukens Steel, 482 U.S. 656, 660 (1987). Specifically, the Court has held that the Pennsylvania two-year statute of limitations for personal injury applies to a § 1981 action relating to an employment discrimination claim in Pennsylvania.*fn16 Id. at 661-62.

Although the continuing violation doctrine applies to § 1981 claims, and tolls the statute of limitations where a defendant has engaged in continued alleged discriminatory conduct, see Anjelino v. N.Y. Times Co., 200 F.3d 73, 97-98 (3d Cir. 1999), for the same reasons stated in connection with plaintiffs' Title VII claims, see supra Part II.A.1.a., the doctrine is not applicable here either. Plaintiff Reynolds resigned from QVC on November 12, 1993; his § 1981 limitations period ended on November 12, 1995. Plaintiff Minott-Talley was terminated on February 28, 1995; her § 1981 limitations period ended on February 28, 1997. Plaintiff Ramirez-Crane was terminated on June 1, 1995; her § 1981 limitations period ended on June 1, 1997. However, the original complaint filed in this action (on behalf of Victor Velez) was filed on August 28, 1998, after the statute of limitations had expired as to each of these three plaintiffs. Because the employment of these three plaintiffs ended more than two years prior to the filing of any complaint in this matter, the court finds that plaintiffs Reynolds, Minott-Talley and Ramirez-Crane's § 1981 claims are untimely.

3. Plaintiff Ramirez-Crane's Equal Pay Act claim

In Count XII of the Fifth Amended Complaint, plaintiff Ramirez-Crane asserts a violation of the Equal Pay Act ("EPA"). Under the Equal Pay Act, a claim must be brought within two years after a violation or three years after an alleged willful violation. 29 U.S.C. § 255(a). Thus, in order to have filed a timely EPA claim, Ramirez-Crane was required to file her complaint, at the latest, within three years from the date that she alleges the last violation occurred.

The continuing violation doctrine applies to Equal Pay Act claims, but only to the extent that plaintiff continued to be paid. See Miller v. Beneficial Mgmt. Corp., 977 F.2d 834, 843-44 (3d Cir. 1992) (pay discrimination is a continuing violation while plaintiff continues to receive paychecks). Therefore, any claim by Ramirez-Crane under the Equal Pay Act was required to be brought, at the latest, before June 1, 1998, three years after her termination from QVC or the date she received her last paycheck from QVC.*fn17 No claims were filed on Crane's behalf, and no EPA claim was asserted on behalf of any plaintiff until January 1999. Thus, the court finds that plaintiff Ramirez-Crane's EPA claim is similarly time-barred.*fn18

4. Plaintiff Owens' Title VII sex discrimination claim

Defendant argues that plaintiff Owens' claim for sex discrimination in Counts I and V are barred because her EEOC charge did not include allegations of sex discrimination. When a complaint contains a claim not presented to the appropriate administrative agency, the Third Circuit requires courts to determine "whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996).

Plaintiff Owens was terminated on November 12, 1998 and filed a charge of race discrimination on December 22, 1998. However, on February 11, 1999, Owens filed an amended charge of discrimination with the EEOC, alleging sex discrimination. Since this amended charge was filed within the applicable 300 day period, Owens' claims of sex discrimination survive.

For the reasons set forth above, the court will grant defendant's motion for summary judgment with respect to plaintiffs Reynolds, Minott-Talley and Ramirez-Crane as time-barred, and deny the motion with respect to plaintiff Owens.

B. Merits of Plaintiffs Velez, Owens and Tucker's Claims

The three remaining plaintiffs assert the following claims. Plaintiff Velez asserts claims under Title VII, 42 U.S.C. § 1981, Pennsylvania Human Relations Act, New York State Human Rights Act, and New York City Civil Rights Act, alleging (1) token hiring, (2) hostile work environment, (3) disparate treatment, (4) termination, and (5) retaliation. Plaintiff Owens asserts claims under Title VII, 42 U.S.C. § 1981, and Pennsylvania Human Relations Act, alleging (1) hostile work environment, (2) disparate treatment, (3) termination, and (4) retaliation. Plaintiff Tucker asserts claims under Title VII, Pennsylvania Human Relations Act, New York State Human Rights Act, and New York City Civil Rights Act, alleging (1) hostile work environment and (2) ...


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