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United States District Court, E.D. Pennsylvania

January 30, 2004.


The opinion of the court was delivered by: HERBERT HUTTON, District Judge


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 Page 2 of industrial and institutional maintenance and sanitation products.

  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 her compensation.

  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 Page 3 move for judgment on the pleadings with respect to Plaintiff's failure to promote claim.


  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). Page 4


 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); Page 5 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 ongoing Page 6 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 occurred. Id. Page 7

  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 Page 8 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 Page 9 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 Page 10


  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 dismissed.

  An appropriate Order follows. Page 11


  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.

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