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Husick v. Allegheny County

June 18, 2009

ROBERT J. HUSICK, PLAINTIFF,
v.
ALLEGHENY COUNTY, DEFENDANT.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Judge Nora Barry Fischer

MEMORANDUM OPINION

I. Introduction

This matter comes before the Court on Defendant Allegheny County's Motion to Dismiss (Docket No. 10) Plaintiff Robert J. Husick's (hereinafter "Plaintiff" or "Husick") Complaint (Docket No. 1) based on his failure to timely exhaust his administrative remedies pursuant to the rule pronounced in First Judicial Dist. v. PHRC, 556 Pa. 258 (1999), more fully discussed below. Plaintiff initiated this action against Defendant alleging that he was terminated from his employment at the Allegheny County Court of Common Pleas as a result of his gender,*fn1 race,*fn2 age*fn3 and claiming retaliation*fn4 in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq. For the reasons more fully outlined herein, the Court DENIES Defendant's Motion to Dismiss. (Docket No. 10).

II. Factual Background*fn5

Because the timing of events underlying Plaintiff's actions and his contact with the Equal Employment Opportunity Commission ("EEOC") are essential in determining this motion, the facts are organized chronologically. The following facts are accepted as true for purposes of analyzing the instant motion and are gleaned from the record and taken in the light most favorable to Plaintiff, the non-moving party. Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006)(citing Pryor v. NCAA, 288 F.3d 548, 559 (3d Cir. 2002)); see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993).

A. Plaintiff's Hiring and Firing

Plaintiff avers that he was judicially appointed to the Allegheny County Court of Common Pleas by the late Judge Robert E. Dauer but that his order of appointment was signed by the late Judge Henry Ellenbogen. (Docket No. 1 at 4). He claims that at the time of his appointment, he was told that his job "was for life." (Id.). Plaintiff worked for twenty-nine years as an unassigned minute clerk in the court. (Id. at 2).

During the first week of February of 2004, Plaintiff claims to have met with then Criminal Division Administrative Judge Donna Jo McDaniel to discuss his position with the court as an unassigned clerk in the Criminal Division.*fn6 (Id.). At that meeting, Plaintiff alleges that Judge McDaniel assigned him to Judge Cheryl Allen, who had been transferred back to the Criminal Division from the Juvenile Section.*fn7 (Id.). Plaintiff claims that Judge McDaniel repeatedly asked him if he knew that Judge Allen is a black woman, and that her staff was comprised solely of black females. (Id.). To that end, Judge McDaniel allegedly asked him, "[d]o you realize that you don't fit in there?" (Id.). Judge McDaniel further questioned Plaintiff about his knowledge of Judge Allen's regular schedule, i.e, that she routinely worked through lunch and until 6:00 or 7:00 p.m. at night. (Id.). Plaintiff also avers that Judge McDaniel knew it was important for him to leave work at 4:30 p.m. in order to pick up his wife,*fn8 who is deaf. (Id.; Docket No. 33 at 38:3). In response, Judge McDaniel informed him that he could not work with any other judge or staff. (Id.). Specifically, she allegedly stated that "if for any reason you are not working for Judge Allen, I am going to get rid of you." (Id.). Plaintiff claims that Judge McDaniel harassed him in an attempt to force him to quit. (Id.). Nevertheless, Plaintiff accepted the position with Judge Allen, as he planned to retire in a few years. (Id.).

On April 5, 2004, Plaintiff became Judge Allen's clerk. (Id.). After twenty-two months of clerking for Judge Allen, in early January of 2006, Judge Allen met with Plaintiff and asked him whether he was happy with his new position, to which Plaintiff raised the issue of his daily departure time and the need to leave by 4:30 p.m. for his wife.*fn9 (Id.). Judge Allen gave him permission to continue to leave at 4:30 p.m. as long as he obtained a substitute to stay after 4:30 p.m.*fn10 (Id. at 3; Docket No. 33 at 36:4-14). Thereafter, on January 25, 2006, Plaintiff was told by his supervisor, Al Russo, to go to Judge McDaniel's officewhere he met with Judge McDaniel and Helen Lynch, Esquire, the Criminal Division Administrator. (Docket No. 1 at 3). During the meeting, Plaintiff was informed by Ms. Lynch and Judge McDaniel that his employment was being terminated effective immediately. (Id.). Plaintiff claims that Ms. Lynch told him that it had nothing to do with his work performance, but that they were "not happy" with his attitude and that he was a "rude employee." (Id.). Further, they told him that he was the "best minute clerk" but that it did not matter because he was "rude to the wrong people." (Id.).

During this meeting, Ms. Lynch gave Plaintiff his termination letter, which stated that Plaintiff had:

[M]isrepresented information to a Criminal Division Judge to whom [he] was assigned, to court personnel, the Sheriff's Department and members of the public. In a separate matter, potentially compromised the safety of this Judicial Officer by not following established security precautions regarding a [criminal] defendant. These actions are inappropriate for a Senior Minute Clerk and undermine the integrity of the court system and the safety of our staff and public.*fn11

(Docket No. 22-3 at 1). This letter also alluded to previous discussions about his work performance.*fn12 (Id.). The letter further informed Plaintiff that his final paycheck would include compensation for any unused vacation days.*fn13 (Docket No. 22-3 at 1). The letter also advises Plaintiff that if he had any questions regarding benefit options, his pension, or payroll matters, to contact the appropriate offices of the County. (Docket No. 22-3 at 1). Significantly, these offices include the Allegheny County Department of Human Resources (for benefit questions), the Allegheny County Retirement Board (for pension questions), and the Court Human Resources Office (for payroll questions). (Docket No. 22-3 at 1). Helen Lynch signed the letter and copies were provided to Judge McDaniel and Raymond L. Billotte, Court Administrator. (Docket No. 22-3 at 2).

Plaintiff states that the termination letter is vague and imprecise, and "allude[s] to incidents of which he is "unclear and uncertain" and that were not discussed at the meeting. (Docket No. 1 at 3-4). Plaintiff does not understand why he was terminated or what specific incident gave rise to his termination. (Id. at 4). Rather, he believes Judge McDaniel discriminated against him when she placed him "in [Judge Allen's] courtroom stressing that the employees of that room where [sic] 'black and female'" and that he would not fit in because of that. (Id.). In fact, he claims that he was assigned to Judge Allen's courtroom on the basis of his race and gender alone,*fn14 and that after his termination, Judge McDaniel replaced him with an appointee from the District Attorney's office. (Id.). Plaintiff further alleges that at the time of his termination, Judge McDaniel had terminated several other employees and replaced them with relatives and friends consistent with her "setting up a self-appointed power base" and "getting rid of...as many Judge Dauer people as she possibly could." (Id.; Docket No. 33 at 33:6-9). Plaintiff further avers that one of his co-workers, Lisa Franklin, was also fired for discriminatory reasons.*fn15 (Docket No. 1 at 3-4).

B. Plaintiff's Filing with the EEOC

Within 30 days of his termination, i.e. on or about February 25, 2006, Plaintiff claims that he contacted the EEOC by phone and was informed that he had 300 days to file a discrimination charge. (Docket No. 18 at 2; Docket No. 22 at 1). Plaintiff then allegedly contacted an attorney, Samuel J. Pasquarelli,*fn16 within 60 days of his termination, who also told him that he had 300 days to file. (Docket No. 22 at 1; Docket No. 33 at 8:5-15; 12:12-21). Specifically, Plaintiff states that he called Mr. Pasquarelli two to four additional times, including calling on his cell phone, and that in all of these conversations, Mr. Pasquarelli confirmed that he had 300 days to file. (Docket No. 22 at 1; Docket No. 33 at 12: 11-13). Plaintiff alleges that he later met with an EEOC official at the agency's Pittsburgh office within 75 days of his termination, on or about April 10, 2006, and was again assured that he had 300 days to file a charge. (Docket No. 22 at 1). At the hearing on the Rule to Show Cause, Plaintiff testified that his discussion with the EEOC official on April 10th was not very long and that he asked to see someone about filing his complaint. (Docket No. 33 at 11:23-25). When Plaintiff expressed a desire to file his charge with the EEOC that day, he was told that it was not EEOC procedure "to do it on the spot." (Id. at 12:3). Rather, he contends that the EEOC official requested that he fill it out at home or bring back the completed paperwork at a later time. (Id.; Docket No. 33 at 12:4-8).

Thereafter, Plaintiff claims to have had several more, "at least three to four more" discussions with Mr. Pasquarelli, while he also talked with a couple of other attorneys, all of whom assured him he had 300 days to file. (Docket No. 33 at 12:11-19). Plaintiff claims that Mr. Pasquarelli offered to answer questions Plaintiff might have filling out his EEOC paperwork, and that Lisa Franklin also helped him with his paperwork. (Docket No. 33 at 14:2-17). He also testified that he was informed by many other attorneys, between five and ten in number, that he had 300 days to file. (Id. at 15: 1- 6). Plaintiff returned to the EEOC's office many weeks after his initial visit, in July of 2006,*fn17 to again attempt to file his discrimination charge, but was told that he needed to first schedule an interview and meet with an EEOC agent. (Docket No. 22 at 1). An interview was scheduled for October 30, 2006 with Constance Smith of the EEOC. (Id.).

On October 30, 2006, approximately 275 days after his termination, Plaintiff filed his formal charge with the EEOC against the Allegheny County Court of Common Pleas Criminal Division and had a three hour interview with Ms. Smith.*fn18 (Docket No. 18 at 2; Docket No. 22 at 2; Docket No. 33 at 19: 13-17). Plaintiff next claims he received a phone call from an EEOC employee in April of 2007 informing him that the Allegheny County Court of Common Pleas had filed a motion to dismiss for untimeliness (see Docket No. 28-3 at 2), which Plaintiff purports they filed three times.*fn19

(Id.). Plaintiff further contends that he was reassured again by an EEOC employee during this phone call that he had timely filed his charge. (Id.). Specifically, Plaintiff testified that the EEOC employee said "we are not understanding why she can't get it and why she keeps the same motion coming to us time and again" and that the EEOC was "positive" he had 300 days to file. (Docket No. 33 at 17:4-12). To that end, Plaintiff provided the Court with a copy of an email from John Wozniak, EEOC investigator, to Jennifer Stroschein, a legal assistant in the legal department of Allegheny County, dated April 23, 2007, wherein Mr. Wozniak stated the following:

The Commission takes the position that although [the Court of Common Pleas] asserts the defense that this is an untimely matter, (beyond a 180-day time period to file a charge of employment discrimination), because the Pennsylvania Human Relations Commission is a Fair Employment Practices Agency at the state level, [Plaintiff] is provided with the protection of filing a charge of alleged discrimination with the EEOC as long as it is within a 300-day time period. The record reflects that [Plaintiff] submitted a minimally sufficient charge with the EEOC that was received date and time stamped on 11/01/06. Therefore, the date difference between 01/25/06 through 11/01/06 is 280 days, well within the 300-day time period for filing a timely charge. (Docket No. 26-2 at 3). Mr. Wozniak then provided two options, offered by Plaintiff, for the Court of Common Pleas to consider in an effort to reach an amicable resolution. (Id.).

However, a month later on May 31, 2007, Plaintiff testified that he received a phone call from Ron Dean, head of the Pittsburgh EEOC office, informing him that they had sent the Court of Common Pleas' motion to dismiss to the Philadelphia EEOC office, which concluded that he did not timely file his charge due to the "law in Pennsylvania that the EEOC has exclusive jurisdiction over claims brought by state court employees, and therefore, he had 180 and not 300 days to file his charge." (Id.; Docket No. 33 at 17:13-22, 25; 69:2-4). Mr. Dean allegedly said to Plaintiff that the EEOC was "absolutely stymied, we're overwhelmed, we don't know what to say" and that the Pittsburgh EEOC had just found out about the law concerning the 180-day limitation for Pennsylvania state court employees.*fn20 (Docket No. 33 at 17:16-22). Plaintiff alleges that he received apologies from Mr. Wozniak and Mr. Dean and another ...


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