United States District Court, E.D. Pennsylvania
July 14, 2004.
EAGLE INDUSTRIAL HYGIENE ASSOCIATES, INC., et al.
The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge
Plaintiff has sued her former employer Eagle Industrial Hygiene
Associates, Inc. ("Eagle") for sexual and racial discrimination
and retaliation under federal and state law. She also alleges
that the two individual defendants, who at the time were her
supervisors at Eagle, are liable for common law torts. Before the
court are the defendants' motions to dismiss the complaint on
various grounds. Eagle also seeks a more definite statement of
claim pursuant to Rule 12(e) of the Federal Rules of Civil
First, Eagle has moved to dismiss plaintiff's claim under Title
VII of the Civil Rights Act of 1964 and 1991, 42 U.S.C. § 1981,
et seq., on the ground that plaintiff did not file her signed
charge of discrimination with the Equal Employment Opportunity
Commission ("EEOC") in a timely manner. Under
42 U.S.C. § 2000e-5(e), "such charge shall be filed by or on behalf of the
person aggrieved within three hundred days after the alleged
unlawful employment practice occurred" in a state such as Pennsylvania with an agency analogous to the EEOC. See
Woodson v. Scott Paper Co., 109 F.3d 913, 926 n. 12 (3d Cir.
1997), cert. denied 522 U.S. 914 (1997); Colgan v. Fisher
Scientific Co., 935 F.2d 1407, 1414-15 (3d Cir. 1991); Zysk v.
FFE Minerals USA, Inc., 225 F. Supp.2d 482, 493-94 (E.D.
Pa. 2001). Otherwise, the plaintiff must file with the EEOC within
one hundred eighty days. 42 U.S.C. § 2000e-5(e). Eagle contends
that plaintiff did not meet the three hundred day deadline.
A plaintiff, of course, must exhaust her administrative
remedies before instituting a lawsuit in the district court.
However, the timely filing of a charge of discrimination with the
EEOC is not a jurisdictional prerequisite to seeking judicial
relief. Rather, the three hundred day and the one hundred eighty
day time periods are akin to a statute of limitations. See
Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997). Since
facts outside the pleading are relied on by both sides, we will
treat Eagle's motion to dismiss as a motion for summary judgment.
See Fed.R.Civ.P. 12(b); Pryor v. Nat'l Collegiate Athletic
Ass'n, 288 F.3d 548, 560 (3d Cir. 2002).
The relevant undisputed facts are these. Plaintiff resigned her
position as a lab technician and technical microscopist at Eagle
on June 12, 2001.*fn1 On August 22, 2001, she visited the
Philadelphia District Office of the EEOC to file a charge of discrimination but was not scheduled for an intake
interview until October 3, 2001. She appeared on that date but
"due to the extensiveness of the interview," the assigned
investigator was not able to prepare the formal charge while
plaintiff waited. Instead, the investigator prepared the charge
later that week and forwarded it to another section in the office
for mailing. Unfortunately, the mailing never occurred and
apparently some or all of the information was not preserved
because of a computer problem at the EEOC. In October, 2002,
approximately a year later, plaintiff inquired concerning the
status of her case. At that point, upon discovering that a file
had not been opened for plaintiff, the investigator sent her
another copy of the charge for her review and signature.
Plaintiff signed it on November 8, 2002 and dual filed with the
Pennsylvania Human Relations Commission that same day. EEOC
notified Eagle about the plaintiff's charge of discrimination on
January 7, 2003. After the EEOC issued plaintiff a right-to-sue
letter on December 22, 2003, this lawsuit followed.
The signed charge of discrimination was not filed within the
three hundred days of June 12, 2001, the day she resigned from
her job and thus the last possible day when her claim could have
accrued. While conceding as much, plaintiff contends she timely
filed as a result of the intake statement lodged with the EEOC in
October, 2001 and if not, she is entitled to equitable tolling. There is precedent that a signed intake questionnaire, filed
with the EEOC by the aggrieved party, can be tantamount to a
formal charge of discrimination so as to satisfy the time
requirements under 42 U.S.C. § 2000e-5(e). Zysk, 225 F. Supp.2d
at 488-92; Deily v. Waste Mgmt. of Allentown, 118 F. Supp.2d 539,
543 (E.D. Pa. 2000); 29 C.F.R. § 1601.9 (1999).
Unfortunately, while the EEOC concedes that the plaintiff had
given an intake statement to it in October, 2001, the record
before us does not contain the intake statement and it is not
clear whether it was signed. See Deily, supra. at 543. Thus,
plaintiff has not established that she filed the equivalent of a
charge of discrimination within the requisite three hundred days.
Even if her charge of discrimination was not timely filed, we
turn to the question whether equitable tolling saves her claim
from dismissal. As explained by the Court of Appeals, equitable
tolling is permitted:
(1) where the defendant has actively misled the
plaintiff respecting the plaintiff's cause of action;
(2) where the plaintiff in some extraordinary way has
been prevented from asserting his or her rights; or
(3) where the plaintiff has timely asserted his or
her rights mistakenly in the wrong forum.
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380
(3d Cir. 1994) (citations omitted). Only paragraph (2) can
possibly have applicability here since Eagle did not actively mislead plaintiff, and she did not mistakenly assert her rights
in the wrong forum.
We recognize that the doctrine of equitable tolling, while
available, is to be applied sparingly. See Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002)
(citations omitted). However, we view the situation presented
here as exceptional. Plaintiff first approached the EEOC to file
a charge of discrimination on August 22, 2001, a little more than
two months after she resigned her position at Eagle. Thus, she
did not wait until the last minute to take the initiative. In
August the EEOC sent her away and told her to return on October
3, 2001. She did so. At that time, she timely provided the EEOC
with an extensive intake statement. The EEOC has conceded that
the failure to send plaintiff the formal charge for her review
and signature must be placed solely at its feet. Under the
circumstances, it would be inequitable to penalize plaintiff, an
unrepresented layperson, because of the EEOC's admitted
dereliction. See Steffen v. Meridian Life Ins. Co.,
859 F.2d 534, 544 (7th Cir. 1988). This is not a situation where plaintiff
is relying on her uncorroborated self-serving statements to place
the blame for her untimeliness on the EEOC or a third party.
See Robinson, 107 F.3d at 1021. The blame, which is conceded
and documented, lies with the EEOC. We find that under the
undisputed facts "plaintiff in some extraordinary way has been
prevented from asserting . . . her rights." Oshiver, 38 F.3d at
1387. While plaintiff argues in favor of equitable tolling, Eagle
contends that the action should be dismissed because of laches.
Morgan, 536 U.S. at 121-22; Brzozowski v. Corr. Physician
Servs., Inc., 360 F.3d 173, 181 (3d Cir. 2004). This equitable
defense is available to an employer sued under Title VII if the
plaintiff "unreasonably delays in filing a suit and as a result
harms the defendant." Id. at 121. Our Court of Appeals has
added that "A Title VII defendant who has been prejudiced because
of a delay in the administrative process does have the right to
invoke the equitable defense of laches." Brzozowski, 360 F.3d
at 181. In order to invoke laches, however, a defendant must
prove "(1) lack of diligence by the party against whom the
defense is asserted, and (2) prejudice to the party asserting the
defense.'" Morgan, 536 U.S. at 121-22 (citations omitted).
Specifically, Eagle claims that it has been prejudiced by the
delay which has occurred between the time plaintiff provided her
intake statement to the EEOC in October, 2001 and October, 2002
when plaintiff made inquiry of the EEOC concerning the status of
We first must consider whether plaintiff's failure to contact
the EEOC for a year to inquire about her claim constitutes a lack
of diligence. By October, 2001, she had done her part, and she
was waiting for the EEOC to take the next step. Plaintiff was
unrepresented by counsel. It is common knowledge that the wheels
of government often move slowly, particularly with an
overburdened agency such as the EEOC. Up to a point, it is fair for any plaintiff to assume that the EEOC is doing its
job properly. We will not fault this plaintiff under the present
circumstances for waiting a year to check on her claim.
In any event, Eagle has come forth with no evidence
demonstrating how it has been prejudiced by this one year delay.
It did produce an affidavit that defendant Gregory Smith is no
longer an employee of Eagle, but it says nothing more about how
this adversely affects Eagle's defense. Indeed, Eagle's counsel
is representing him in this lawsuit. Eagle also baldly asserts
that memories have faded in the meantime, but again it has
produced no affidavit or other evidence describing any of the
Without any harm shown by Eagle, the defense of laches fails,
and equitable tolling carries the day. See Morgan, 536 U.S.
at 121-22. Accordingly, we will deny Eagle's motion for summary
judgment (incorrectly denominated as a motion to dismiss) as to
plaintiff's claim under Title VII because the deadline for filing
a formal charge of discrimination with the EEOC was equitably
Eagle next moves to dismiss the claim under the Pennsylvania
Human Relations Act ("PHRA"), again for failure timely to file an
administrative claim. 43 Pa. Cons. Stat. Ann. §§ 951 et seq.
The record is devoid of any filing or even contact with the
Pennsylvania Human Relations Commission ("PHRC") until November
8, 2002. This is clearly outside the one hundred eighty day time
period mandated under this statute. See 43 Pa. Cons. Stat. Ann. § 959(h). Plaintiff makes no argument that she
was misled or otherwise entitled to equitable tolling with
respect to any filing with that agency. Since plaintiff has not
established that she filed her charge or its equivalent with the
PHRC within the required one hundred eighty day window, her
judicial remedies under the PHRA are time barred. See
Woodson, 109 F.3d at 925; Zysk, 225 F. Supp.2d at 493-94.
Defendant Lawrence Nagelberg, an employee of Eagle, moves to
dismiss the complaint alleging common law assault and battery on
the ground that it is barred by the two year Pennsylvania statute
of limitations. Lake v. Arnold, 232 F.3d 360, 368 (3d Cir.
2000); 42 Pa. Cons. Stat. Ann. § 5524(1). Again, we note that
plaintiff resigned from her job on June 12, 2001. Any tort had to
have been committed by that date. The complaint was not filed
until March 19, 2004, over three years later. Clearly, this
claim, which is the only one against this defendant, is out of
time and will be dismissed.
Defendant Gregory Smith moves to dismiss on the ground of
improper service of process. Plaintiff alleges that he committed
an assault against her. There is uncontradicted evidence before
us that he was no longer an employee of Eagle on March 24, 2004
when service on him was attempted at Eagle's place of business in
Horsham, Pennsylvania. Neither Rule 4 of the Federal Rules of
Civil Procedure nor any provision of the Pennsylvania Rules of
Civil Procedure authorizes an individual to be served at a former
place of employment by leaving a copy of the summons and complaint, as was done here, with a person said
to be in charge of the office. Therefore, we will grant the
motion to dismiss the only claim against Gregory Smith.
Finally, the motion to dismiss the complaint for improper
service as to defendants Eagle and Lawrence Nagelberg is without
merit. Likewise, we are not persuaded by Eagle's motion for a
more definite statement under Rule 12(e) of the Federal Rules of
Civil Procedure. See Swierkiewicz v. Sorena N.A.,
534 U.S. 506, 512 (2002).
In summary, we will grant the motion of Eagle for summary
judgment (incorrectly denominated as a motion to dismiss) as to
plaintiff's claim under the Pennsylvania Human Relations Act and
will deny the motion with respect to plaintiff's claim under
Title VII. We will also deny Eagle's motion to dismiss for
improper service and for a more definite statement. Finally, the
claims against defendants Lawrence Nagelberg and Gregory Smith
will be dismissed. ORDER
AND NOW, this ____ day of July, 2004, for reasons set forth in
the accompanying Memorandum, it is hereby ORDERED that:
(1) the motion of defendant Eagle Industrial Hygiene
Associates, Inc. ("Eagle") for summary judgment (incorrectly
denominated as a motion to dismiss) is GRANTED as to plaintiff's
claim under the Pennsylvania Human Relations Act but is otherwise
(2) judgment is entered in favor of defendant Eagle Industrial
Hygiene Associates, Inc. and against plaintiff Dawn Jones on
plaintiff's claim under the Pennsylvania Human Relations Act;
(3) the motion of defendant Eagle to dismiss for improper
service is DENIED;
(4) the motion of defendant Eagle for a more definite statement
is DENIED; and (5) the motion of defendants Lawrence Nagelberg and Gregory
Smith to dismiss the complaint is GRANTED.