The opinion of the court was delivered by: Ambrose, Chief District Judge
OPINION and ORDER OF COURT
Plaintiff Richard Street ("Street") was employed by Defendant Steel Valley OIC ("Steel Valley") for a number of years. During that period of time, he contends that he was subject to racial discrimination -- he is African-American -- in violation of § 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. He also claims that he was subject to sexual harassment, discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq.
Street previously filed another action, at Docket No. 06-421. In that action, he also sought redress under 42 U.S.C. § 1981 for race discrimination for the very acts of which he complains here. He also set forth a claim under the Pennsylvania Whistleblower Law, 43 P.S. § 1421 et seq. Following the filings of multiple dispositive Motions, I granted summary judgment in favor of Steel Valley on the Whistleblower claim. I also granted Street an additional period of time within which to effectuate proper service, as he had repeatedly struggled in this regard. Thereafter, Street filed an Amended Complaint and, then, never having properly served the Defendants, he filed a Motion for Voluntary Dismissal Pursuant to Rule 41(a)(2). See Docket No. 51-1 in Civil Action No. 6-421. I granted that Motion. He subsequently commenced this action, asserting the Title VII claim and later filing an Amended Complaint which included the § 1981 claim previously voluntarily dismissed in the earlier litigation.
Steel Valley has now filed a Motion to Dismiss and Motion to Dismiss To Be Treated As A Motion For Summary Judgment Based On Evidence Outside The Pleadings (see Docket No. ) in this action. More specifically, Steel Valley seeks the dismissal of all claims based upon Street's repeated failures to abide by this Court's previous Orders in the earlier litigation at Civil Action No. 06-421. Steel Valley also seeks the dismissal of the claims asserted under the PHRA based upon Street's failure to allege that he exhausted his administrative remedies. Finally, Steel Valley seeks the entry of summary judgment in its favor on Street's claims under Title VII based upon the contention that it is not subject to Title VII because it did not employ the requisite number of employees.
Significantly, Street did not file a Brief in Opposition. Counsel for Street attended a Conference on March 8, 2007 during which counsel for Steel Valley made it clear that Steel Valley intended to file a dispositive motion on these issues. Street was instructed at that conference to file a Brief in Opposition no later than April 16, 2007 and was further informed that no extensions would be permitted. See Docket No. . Nevertheless, when Street requested an extension, I granted one and gave Street until May 7, 2007 to file a response. See Docket No. . No response was forthcoming.
I. Dismissal Of All Claims - Based Upon Conduct In Prior Litigation*fn1
Steel Valley urges that it "is entitled to have all claims against it dismissed with prejudice because of Plaintiff's repeated failures of procedure." See Docket No. , p. 7. The "failures of procedure" to which Steel Valley refers occurred in Civil Action No. 06-421. Certain of the claims raised in this action were not raised in the previous litigation. Accordingly, even were I inclined to consider Street's conduct in prior litigation a basis for dismissing, with prejudice, claims in this litigation, Steel Valley's request that all claims be dismissed is far too extreme.
Additionally, to the extent that Steel Valley now has to defend against the § 1981 claim in this litigation which was previously at issue in the prior litigation, let me state that I am empathetic with its frustrations. The earlier case was poorly managed by counsel for Street. Perhaps this Court was too lenient with granting additional periods of time within which to perfect service. Yet the docket demonstrated that Street had attempted service in good faith, but had simply served the wrong individual. Thus, I was convinced that the failure to properly serve was not simply an attempt to delay litigation. Further, even had I dismissed the prior litigation under Rule 4m of the Federal Rules of Civil Procedure, such dismissal would have been without prejudice. Finally, again, while I understand Steel Valley's frustrations, the Federal Rules do encourage waiver of service of process and Steel Valley could have exercised this option, thus minimizing the costs associated with Civil Action No. 06-421.
At any rate, Steel Valley has not convinced me that it has suffered anything more egregious than frustration occasioned by the service issues associated with the prior litigation. Certainly it has not suggested that the statute of limitations expired on the § 1981 claim and that permitting Street to incorporate that claim in this litigation somehow unfairly exposed it to liability. Consequently, the Motion to Dismiss all claims based upon Street's conduct in the prior litigation is denied.
II. PHRA Claim - Exhaustion of Remedies*fn2
In Count III of the First Amended Complaint, Street asserts a claim under the PHRA. Steel Valley insists that the claim be dismissed based upon the contention that Street has not alleged that the PHRC dismissed his administrative complaint or that more than one year has passed since the filing of his administrative complaint. I have reviewed the First Amended Complaint and find that Street alleges that he: timely exhausted his administrative remedies by filing charges with the U.S. Equal Employment Opportunity Commission that were cross-filed with the Pennsylvania Human Relations Commission. Plaintiff has filed the instant suit within 90 days of receipt of Right to Sue letters.
See First Amended Complaint, ¶ 4. Street later contends, when referencing the filing of the EEOC and the cross-filing with the PHRC, that he received letters "dismissing the charges." See First Amended Complaint, ¶ 12. These allegations, all of which are incorporated in the PHRA claim, satisfy Street's pleading requirements regarding ...