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Saellam v. Norfolk Southern Corp.

June 6, 2007


The opinion of the court was delivered by: Ambrose, Chief District Judge


Plaintiff, Bruce Saellam ("Plaintiff"), initiated this action against Defendants Norfolk Southern Corporation and Norfolk Southern Railway Corporation ("Defendants" or "Norfolk Southern"), alleging discriminatory treatment on the basis of national origin and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), retaliation under Title VII and the ADEA, and pendent state claims under the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951, et seq. ("PHRA").

Pending before the Court is Defendants' Motion for Summary Judgment. seeking dismissal of Plaintiff's claims in their entirety. (Docket No. 14). After careful consideration of the parties' submissions and for the reasons set forth below, Defendants' Motion is granted in part and denied without prejudice in part.



Unless otherwise indicated, the following material facts are undisputed.

Plaintiff filed a charge of discrimination with the EEOC on June 16, 2005, alleging discrimination based on national origin, retaliation, and age against Defendants in connection with his Norfolk Southern employment. While that charge was pending, Plaintiff filed a Chapter 7 Bankruptcy Petition in the United States Bankruptcy Court for the Western District of Pennsylvania on October 8, 2005, at Bankruptcy No. 05-34922. See Defs.' App., Exs. 36-37. Plaintiff retained attorney Gino Peluso in September 2005 to file the petition on his behalf.

In his bankruptcy petition, Plaintiff did not list his employment discrimination claim as either a contingent claim in his schedule of assets, or as a suit or administrative proceeding in his statement of financial affairs. Id. Ex. 37. On the statement of financial affairs, Plaintiff specifically was asked to "list all suits and administrative proceedings to which the debtor is a party within one year immediately preceding the filing of his bankruptcy case." Plaintif checked "none" on the answer to this inquiry even though he had filed his EEOC charge approximately five months before. Id.

Plaintiff filed the instant lawsuit on January 27, 2006. Plaintiff did not amend his bankruptcy petition to include any reference to this lawsuit. On April 6, 2006, Plaintiff was granted a discharge in bankruptcy. Id., Ex. 38.

Plaintiff claims he was not aware in 2005 that his EEOC charge of discrimination constituted an "administrative proceeding" or a "legal proceeding." Accordingly, Plaintiff contends he did not discuss his EEOC charge with his bankruptcy counsel. Plaintiff avers that he first became aware that he failed to disclose this "asset" when he and his counsel in this lawsuit (Joel Sansone, Esq.) received the instant Motion for Summary Judgment. Plaintiff states that, upon learning of this "oversight," he directed Mr. Sansone to take all steps necessary to reopen the bankruptcy and to have Mr. Sansone appointed as special counsel to the bankruptcy trustee in order to continue the prosecution of this action.

A review of the bankruptcy court docket reflects that on March 21, 2007, the trustee in Plaintiff's bankruptcy case filed a Motion to Reopen the Case "so he can file an Asset Notice and appoint Special Counsel to continue with the litigation of the claim v. Norfolk Southern Railroad and to administer any monies awarded to the Plaintiff upon approval of the Bankruptcy Court." (Bankr. Docket No. 20). On June 4, 2007, the bankruptcy court judge granted the bankruptcy trustee's Motion and reopened the case. (Bankr. Docket No. 35). The bankruptcy court docket also indicates that an application by the trustee to employ Mr. Sansone as special counsel is still pending, with a hearing set for June 5, 2007.


For purposes of ruling upon the pending Motion, the following procedural history is relevant.

After exhausting his administrative remedies, Plaintiff filed a Complaint against Defendants on January 27, 2006. (Docket No. 1). Defendants answered Plaintiff's Complaint on April 12, 2006. (Docket No. 2). On January 31, 2007, Defendants filed their Motion for Summary Judgment, Brief in Support, Concise Statement of Material Facts, and Appendix. (Docket Nos. 14-16). On March 28, 2007, Plaintiff filed a Brief in Opposition, Counterstatement of Material Facts, and Appendix in opposition to Defendants' Motion. (Docket Nos. 20-22). Defendants filed a Reply Brief on April 12, 2007. (Docket No. 23). On May 25, 2007, I sent a Notice to the parties requesting that they file supplementary briefs addressing the issue of Plaintiff's standing to pursue his ...

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