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JONES v. EAGLE INDUSTRIAL HYGIENE ASSOC.

United States District Court, E.D. Pennsylvania


July 14, 2004.

DAWN JONES
v.
EAGLE INDUSTRIAL HYGIENE ASSOCIATES, INC., et al.

The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge

MEMORANDUM

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 Procedure.

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, 1387 (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 her claim.

  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 specifics.

  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 tolled.

  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 DENIED;

  (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.


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