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Gary R. Dieffenbach v. Earl Crago

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


June 29, 2011

GARY R. DIEFFENBACH, PLAINTIFF,
v.
EARL CRAGO, THOMAS SCOTT, MIKE :GARMAN, JOE CRAIGWELL, PAUL SLOAD,
KIM GLASER, CARRIE FERREE,: ALLEN JONES, DONALD PATTERSON,
COLLEEN ALVIANI, BRIAN WILLIAMS, GREG FAJT, JULIA SHERIDAN, MOLLY LEACH, WILBUR HETRICK, COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF REVENUE, AND OFFICE OF INSPECTOR GENERAL, DEFENDANTS

The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania

(Chief Judge Kane) (Magistrate Judge Smyser)

MEMORANDUM OPINION

The only claims remaining*fn1 in this action are Plaintiff's claims alleging violations of Title VII*fn2 against Defendant Department of Revenue and alleging violations of the Pennsylvania Human Rights Act against Defendants Alviani, Ferree, Williams, Jones, and Leach. Currently pending before the Court is Magistrate Judge Smyser's Report and Recommendation*fn3 (Doc. No. 123) that Defendants' motion for summary judgment on all remaining claims (Doc. No. 114) be granted. Plaintiff has filed a memorandum labeled "Plaintiff's, Pro Se, Reply Brief Objection to Court Report and Recommendation Dated June 10, 2011." (Doc. No. 124.) In that memorandum, Plaintiff urges the Court to strike Magistrate Smyser's Report and Recommendation. However, Plaintiff fails to lodge any actual objection to the Report and Recommendation. For the reasons stated herein, the Court will adopt Magistrate Smyser's Report and Recommendation and grant Defendants' motion for summary judgment.

Magistrate Judge Smyser's Report and Recommendation turned on whether Plaintiff exhausted his administrative remedies. Specifically, Defendants contend that the claims Plaintiff raised in his administrative complaint are unrelated to the claims raised in Plaintiff's civil complaint. The issues that may be raised in a civil action are defined by "the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Atkinson v. Lafayette Coll., 460 F.3d 447, 453 (3d Cir. 2006); see also Clay v. Advanced Computer Applications, 559 A.2d 917, 919-20 (Pa. 1989) (holding PHRA claims must be raised with the PHRC prior to those claims being litigated in court). In Plaintiff's administrative complaint he asserted two claims of age discrimination, alleging his supervisors, including Defendant Ferree retaliated against Plaintiff for reporting younger workers who took extended breaks without being disciplined and alleging that Defendant Ferree gave him a warning for taking an extended break while younger workers were not disciplined for the same activity. (Doc. No. 117-4 at 3-4.) Plaintiff's civil complaint, however, raises claims of retaliation for testifying on behalf of an African American co-worker and uncovering corruption in the Department of Revenue. (Doc. No 51.) To the extent that these claims assert violations of Title VII, the ADEA, or the PHRA, they were not within the scope of any potential administrative investigation that could have reasonably grown out of Plaintiff's administrative complaint. The claims are therefore not exhausted, and Magistrate Judge Smyser properly recommended that the motion for summary judgment be granted.*fn4

Finally, Defendant Leach has neither entered an appearance nor been served in this case. On January 12, 2010, Judge Muir ordered Plaintiff to serve Defendant Leach before February 9, 2010. (Doc. No. 35.) Plaintiff has not served Defendant Leach. Therefore, he shall be dismissed from this action pursuant to Fed.R.Civ.P. 4(m).

ACCORDINGLY, on this 29th day of June 2011,

IT IS HEREBY ORDERED THAT the Report and Recommendation (Doc. No. 123) is ADOPTED and the motion for summary judgment is GRANTED (Doc. No. 114). The clerk of court is directed to close the case.

Yvette Kane


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