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Angelia E. M. Rockmore v. Harrisburg Property Service; Harristown Development Corp.; and

March 20, 2012


The opinion of the court was delivered by: Chief Judge Kane

(Magistrate Judge Mannion)


Before the Court is Magistrate Judge Malachy E. Mannion's Report and Recommendation, recommending that Defendants Harrisburg Property Service ("HPS"), Harristown Development Corp. ("HDC"), and Harristown Hilton Towers' ("HHT") motion to dismiss (Doc. No. 7) be denied, and that Defendants HDC and HHT's motion to dismiss (Doc. No. 9) be granted. (Doc. No. 16.) Defendants filed objections to the Report and Recommendation (Doc. No. 17), and Plaintiff filed a response (Doc. No. 19). For the reasons that follow, the Court will not adopt the Report and Recommendation and will dismiss the complaint with prejudice.


The background of this matter is set forth in more detail in Magistrate Judge Mannion's Report and Recommendation; however, the Court will briefly summarize the pertinent details.*fn1

Plaintiff Angelia E. Rockmore initiated this action by filing a complaint against her employers. (Doc. No. 1.) In her complaint, Plaintiff alleges that she has been employed by Defendants HPS, HDC, and HHT for twenty years. (Id. at 1-2.) She further alleges that for the past six years she has been discriminated against based on her gender and religion, resulting in a hostile work environment. (Id. at 2.) Plaintiff filed an administrative charge with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC") against Defendant HPS. On June 3, 2010, the EEOC mailed Plaintiff and her attorney a right-to-sue letter. (Id. at 7.) Plaintiff filed her complaint in this matter on December 28, 2010, asserting violations against Defendants under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Relations Act ("PHRA"). (Id.)

On February 13, 2012, Magistrate Judge Mannion issued a Report and Recommendation, in which he recommended: (1) that the Court deny Defendants HPS, HDC, and HHT's motion to dismiss; and (2) that the Court grant Defendants HDC and HHT's motion to dismiss. (Doc. No. 16.) In the first motion to dismiss, Defendants argued that the Court should dismiss Plaintiff's complaint because she filed it after the 90-day limitations period had run and because a number of the factual allegations are time-barred. (Doc. No. 8.) In the second motion, Defendants HDC and HHT argued that the complaint should be dismissed as against them because Plaintiff failed to include their names in the administrative charge dual-filed with the PHRC and EEOC. (Doc. No. 10.) Magistrate Judge Mannion recommended that the first motion be denied at this time, because issues of fact exist as to whether Plaintiff's late filing can be excused by the doctrine of equitable tolling and as to which claims would be time-barred. (Doc. No. 16 at 9, 12.) Magistrate Judge Mannion recommended, however, that the second motion be granted, because Plaintiff failed to name Defendants HDC and HHT in her administrative charge. (Id. at 13.)

On February 27, 2012, Defendants filed objections to the Report and Recommendation (Doc. No. 17), along with a brief in support of those objections (Doc. No. 18). Defendants argue that Plaintiff is not entitled to equitable tolling and that some of her claims are time-barred. (Doc. No. 18 at 4-8.) Specifically, Defendants argue that Plaintiff should not be entitled to equitable tolling because her attorney's conduct was not so egregious as to invoke equitable tolling. Defendants also argue that Plaintiff was not diligent in ensuring that her complaint was filed on time, and that there was a significant delay after the 90-day period before Plaintiff filed her complaint. (Id. at 4-6.) Defendants further argue that there is sufficient evidence for the Court to conclude that some of Plaintiff's claims accrued more than 300 days prior to the filing of her administrative charges and are thus time-barred. (Id. at 6-8.)

In response, Plaintiff filed a letter with the Court, which the Court construes as a brief in opposition to Defendants' objections, detailing Plaintiff's interactions with her attorney. (Doc. No. 19.) For the purpose of this motion, the Court will assume the truth of all of Plaintiff's assertions. Plaintiff asserts that she inquired about her case on August 19, 2010, and her attorney's paralegal told her not to worry and that her complaint would be filed. (Id. at 12.) She further asserts that her attorney contacted her on August 31, 2010, and informed her that her 90-day limitation period would expire the next day, and that he hadn't filed her complaint because he understood that she was offered a promotion. (Id. at 12-13.) When Plaintiff informed her attorney that she still wanted to file her complaint, she alleges that he told her that he would file it. (Id. at 13.) Plaintiff alleges that she next contacted her attorney on September 24, 2010, because she had not yet received the paperwork that her attorney told her he would send.

Plaintiff alleges that her attorney's paralegal informed her that her complaint had not yet been filed but that she should not worry because her 90-day limitation period would not expire until later that month, and that she would receive a letter informing her of the status of her case. (Id.) On November 23, 2010, Plaintiff alleges that she contacted her attorney again, and that after speaking with him briefly on his cell phone, she called his office and his paralegal told her that her complaint had not been filed. (Id.) On November 29, 2010, Plaintiff received a letter from her attorney, informing her that he had no basis to file a complaint because Plaintiff was offered a promotion and explaining that his firm's notes indicate that someone from the firm had called Plaintiff to discuss the issue with her. (Id. at 14-15.) Plaintiff attached documents to her brief that show that she filed a complaint against her attorney with the Disciplinary Board of the Supreme Court of Pennsylvania and that she wrote to the EEOC on December 2, 2010, asking it to extend the 90-day limitation period. (Id. at 16, 24.)


A. Report and Recommendation

The Magistrate Act, 28 U.S.C. ยง 636, and Federal Rule of Civil Procedure 72(b), provide that any party may file written objections to a magistrate's proposed findings and recommendations. In deciding whether to accept, reject, or modify the Report and Recommendation, the Court is to make a de novo determination of those portions of ...

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