United States District Court, E.D. Pennsylvania
January 30, 2004.
KAREN LEE GAUL
ZEP MANUFACTURING COMPANY, et al
The opinion of the court was delivered by: HERBERT HUTTON, District Judge
MEMORANDUM AND ORDER
Presently before the Court are Defendants' Motion for Judgment on the
Pleadings With Respect to Plaintiff's Failure to Promote Claim (Docket
No. 18), Plaintiff's response (Docket No. 22), Defendants' reply (Docket
No. 25), Plaintiff's sur-response (Docket No. 27), and Defendants'
sur-reply (Docket No. 30).
Plaintiff Karen Lee Gaul ("Plaintiff") brings suit against Defendants
Acuity Specialty Products Group, Inc. d/b/a Zep Manufacturing Company
("Zep") and National Service Industries, Inc. ("NSI"),*fn1 alleging
claims under Title VII of the Civil Rights Act ("Title VII"),
42 U.S.C. § 2000 (e) et seq., the Equal Pay Act ("EPA"),
29 U.S.C. § 206 et seq., and the Pennsylvania Human Relations Act
("PHRA"), 43 Pa. Cons. Stat. Ann. § 951 et seq., as well as
for breach of contract. Zep is a manufacturer and supplier
of industrial and institutional maintenance and sanitation
Plaintiff started working for Defendant Zep on August 22, 1994 in a
sales position. Approximately four years later, on June 1, 1998,
Plaintiff was promoted to the position of Branch Sales Manager ("BSM").
In mid-1999, Zep had an opening for a District Sales Manager ("DSM") for
the Mid-Atlantic District. Plaintiff applied for the position but did not
get the promotion. Instead, Defendant promoted Ethan Powers, an allegedly
less qualified male, on June 1, 1999. Plaintiff alleges that Defendants
denied her the promotion because of her gender.
Plaintiff next alleges that she was demoted, because of her gender,
from her BSM position to the position of Field Sales Manager in August of
2001. Plaintiff also alleges that Zep retaliated against her after she
filed a complaint with the Pennsylvania Human Rights Commission ("PHRC")
by setting unrealistic sales goals, by failing to give her business leads
at a comparable rate that male employees were receiving, and by reducing
Plaintiff filed her complaint with the PHRC on November 26, 2001. The
complaint was cross-filed with the United States Equal Employment
Opportunity Commission ("EEOC") on that same date. On March 6, 2003, the
EEOC issued a Notice of Right to Sue letter to Plaintiff. Plaintiff filed
suit on April 23, 2003. Defendants now
move for judgment on the pleadings with respect to Plaintiff's
failure to promote claim.
II. LEGAL STANDARD
A motion for judgment on the pleadings, made pursuant to Federal Rule
of Civil Procedure 12(c) is treated under the same standard as a motion
to dismiss under 12(b)(6). See Jablonski v. Pan American World
Airways, Inc., 863 F.2d 289, 290-91 (3d Cir. 1988); Abdulaziz
v. City of Philadelphia, No. 00-5672, 2001 WL 1257441, at *1 (E.D.
Pa. Oct. 18, 2001). A motion for judgment on the pleadings will only be
granted where the moving party has established that no material issue of
fact remains to be resolved, and that the movant is entitled to judgment
as a matter of law. See Consolidated Rail Corp. v. Protlight,
Inc., 188 F.3d 93, 95-96 (3d Cir. 1999); Institute for
Scientific Info., Inc. v. Gordon and Breach, Science Publishers,
Inc., 931 F.2d 1002, 1005 (3d Cir. 1991). In determining whether a
material issue of fact exists, the court must view the facts and
inferences to be drawn from the pleadings in the light most favorable to
the non-moving party. See Green v. Fund Asset Management, L.P.,
245 F.3d 241, 220 (3d Cir. 2001); Janney Montgomery Scott, Inc. v.
Shepard Miles, Inc., 11 F.3d 399, 406 (3d Cir. 1993).
A. Title VII and PHRA Claims*fn2
Defendants argue that Plaintiff's claims arising from the alleged
failure to promote her to the DSM position in mid-1999 are time-barred
under Title VII and the PHRA. Plaintiff responds that she is not
time-barred under the continuing violation doctrine.
1. Timeliness of Plaintiff's Claims
A plaintiff under Title VII must file a timely charge with the EEOC
before initiating suit in federal court. See Love v. Pullman,
404 U.S. 522, 523 (1972). Title VII provides that a plaintiff must file
with the EEOC or its state or local equivalent within 300 days of the
alleged actions or practice that constitutes illegal discrimination.
See 42 U.S.C. § 2000e-5 (e);*fn3 West v. Philadelphia
Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). To bring a suit under
the PHRA, Pennsylvania law requires that a plaintiff first file an
administrative complaint with the PHRC within 180 days of the alleged act
of discrimination. See 43 Pa. Cons. Stat. § 959(h);
Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir.
1997). Because the federal period is longer, if a claim is untimely under
Title VII, it will also be untimely under the PHRA.
Plaintiff filed her charge of discrimination with the PHRC on November
26, 2001, where it was also cross-filed with the EEOC. See
Pl.'s Compl. ¶ 12 (Docket No. 1). Therefore, alleged acts of
discrimination that occurred before January 30, 2001 are time-barred
under Title VII and alleged acts of discrimination that occurred before
May 30, 2001 are time-barred under the PHRA. Thus, Plaintiff's failure to
promote claim, based on events in mid-1999, is time-barred under Title
VII and the PHRA unless some exception applies.
2. Continuing Violation Theory
Although courts generally adhere to the 300 day filing requirement, the
Supreme Court has recognized that certain exceptions exist. If a
plaintiff has difficulty identifying precisely when the illegal conduct
occurred or if a violation is continuous and ongoing, the filing
requirement is "a requirement that, like a statute of limitation, is
subject to waiver, estoppel, and equitable tolling." Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393 (1982). The continuing
violation theory is an equitable exception and allows a plaintiff to
"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
practice or pattern of discrimination of the defendant." West
v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995).
In order to successfully present a continuing violation claim, the
plaintiff must demonstrate that at least one discriminatory act occurred
within the actual filing period and that the discriminatory conduct is an
ongoing pattern, rather than isolated or sporadic acts. See id.
at 754-55; Alien v. Best Foods Baking Co., No. 02-3663, 2003 WL
22858351, at *3 (E.D. Pa. Oct. 22, 2003). Once a plaintiff has
demonstrated a continuing violation, she may recover for the entire
violation and offer evidence of all events that compose the violation,
regardless of whether they fall within the 300 day filing period.
See Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 481 (3d
Cir. 1997). If the plaintiff does not establish a continuing violation,
she may recover only for the conduct within the applicable statutory
period. See West, 45 F.3d at 755.
The Third Circuit has enumerated several factors relevant to whether or
not a continuing violation exists. These include the subject matter of
the various incidents, the frequency at which they occur, and most
importantly, their "degree of permanence." Rush, 113 F.3d at
482. Where the alleged actions of the defendant are of the type that
should trigger "an employee's awareness of and duty to assert his or her
rights," then there is less likelihood that a continuing violation has
In the instant case, Plaintiff attempts to use the continuing violation
theory to save her time-barred claim. However, the Supreme Court and the
Third Circuit have held that promotions are isolated, discrete incidents
as to which the continuing violation theory rarely, if ever, applies. In
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 115
(2002), the Supreme Court stated that "discrete discriminatory acts,"
such as "termination, failure to promote, denial of transfer, or refusal
to hire," are not actionable if time-barred, even if they are related to
acts alleged in timely-filed charges. Such discrete discriminatory acts
are easy to identify, each "incident of discrimination and each
retaliatory adverse employment decision constitutes a separate actionable
`unlawful employment practice,'" and each must be complained about within
the statutory period. Id. at 114; see also Rush, 113
F.3d at 483 (finding that failure to promote was not a continuing
violation because the promotion of another employee over plaintiff was an
individual act that put plaintiff on notice to assert her rights).
Here, Plaintiff alleges one instance where Defendant failed to promote
Plaintiff. The alleged failure to promote Plaintiff to the DSM position
in mid-1999 occurred outside the 300 day filing period. Defendant's
failure to promote Plaintiff was a discrete act known to Plaintiff and
placed her on notice to assert her rights. If she had wanted to challenge
the alleged discriminatory
failure to promote, she was required to timely file charges with
the EEOC or the PHRC. Her failure to do so was fatal, and the continuing
violation theory does not save her claim. Accordingly, because
Plaintiff's failure to promote claim is time-barred under both Title VII
and the PHRA, Plaintiff's claim is dismissed.
B. Equal Pay Act
Plaintiff also contends that her failure to promote claim survives
under the Equal Pay Act, 29 U.S.C. § 206 et seq. Defendant
responds that the EPA does not recognize a cause of action for
discriminatory failure to promote claims.
The fundamental purpose of the Act is to remedy disparities in pay
arising from traditional concepts of gender. See Corning Blass Works
v. Brennan, 417 U.S. 188, 195 (1974). Under the EPA, an employer is
proscribed from discriminating, on the basis of gender, by paying lower
wages to employees of one gender than those paid to employees of the
other gender who are performing equal work on jobs that require equal
skill and responsibility. See 29 U.S.C. § 206(d)(1).*fn4
To establish a prima facie EPA claim, a plaintiff must
show that her employer has paid lower wages to her than to males
for equal skill, effort and responsibility under similar working
conditions. See Corning Glass Works, 417 U.S. at 195,
Stanziale v. Jarcfowsky, 200 F.2d 101, 107 (3d Cir. 2000).
Courts "look beyond the job title to determine whether the jobs are
substantially equal." Ryan v. General Mach. Prods.,
277 F. Supp.2d 585, 597 (E.D. Pa. 2003) (quoting Brobst v. Columbus
Servs. Int'l, 761 F.2d 148, 151 (3d Cir. 1985)).
In this case, Plaintiff alleges that she was wrongfully denied a
promotion from Branch Sales Manager to District Sales Manager in
mid-1999. Plaintiff does not allege that she performed the work of a DSM
and was paid less than a male employee in that position. In fact, it is
undisputed that the DSM position is one level above the BSM position.
See Pl.'s Compl. ¶ 24. Thus, even if Plaintiff is correct
that the EPA recognizes a cause of action for failure to promote,
Plaintiff has failed to allege a prima facie EPA claim.*fn5
For the reasons stated, Defendants' motion is granted. Plaintiff's
failure to promote claims under Title VII and the PHRA are time-barred.
Because Plaintiff has also failed to make a prima facie case of EPA
violation under her failure to promote claim, that claim is also
An appropriate Order follows.
AND NOW, this ____ day of January, 2004, upon consideration of
Defendants' Motion for Judgment on the Pleadings With Respect to
Plaintiff's Failure to Promote Claim (Docket No. 18), Plaintiff's
response thereto (Docket No. 22), Defendants' reply thereto (Docket No.
25), Plaintiff's sur-response thereto (Docket No. 27), Defendants'
sur-reply (Docket No. 30), and for the reasons set forth in the
accompanying Memorandum, IT IS HEREBY ORDERED that Defendants' Motion is
GRANTED. Plaintiff's failure to promote claims under Title VII
of the Civil Rights Act, the Equal Pay Act, and the Pennsylvania Human
Relations Act are dismissed as to all Defendants.