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Kenne v. Southeastern Pennsylvania Transportation Authority

United States District Court, E.D. Pennsylvania

September 17, 2014



ROBERT F. KELLY, Sr., District Judge.

Presently pending before the Court is the Motion to Dismiss Complaint by Defendant Southeastern Pennsylvania Transportation Authority ("SEPTA"), the Response by Plaintiff Blondel Tchoupou Kenne ("Kenne") entitled "Motion to Continue the Complaint, " and SEPTA's Reply. For the reasons set forth below, SEPTA's Motion is granted.


Kenne's pro se Complaint alleges unlawful employment discrimination and retaliation against SEPTA under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S. §§ 951 et seq. [1] See Compl. Kenne, who is from Cameroon, Africa, alleges that SEPTA harassed him based upon his national origin, and terminated his employment in retaliation for filing a charge of discrimination. Id . at 3, 6. Kenne started working for SEPTA on November 3, 2007. Id . at 3.

Prior to filing this action, Kenne filed two charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") that were dual filed with the Pennsylvania Human Relations Commission ("PHRC").[2] (Pl.'s Mot. to Continue Compl.; Doc. Nos. 13-2, 13-3.) On September 9, 2009, Kenne filed a discrimination charge alleging discrimination and harassment based upon his national origin ("2009 Charge"). (Id.) On September 16, 2009, Kenne submitted a "Request for Withdrawal of Charge of Discrimination" based upon confidential reasons. ( Id., Doc. No. 13-2.) It does not appear that Kenne subsequently attempted to proceed in any manner with the 2009 Charge.

On November 22, 2011, Kenne's employment with SEPTA as a First Class Maintainer was terminated. Compl. at 3. Kenne states that the reasons given by SEPTA for the discharge were failure to follow a directive and job abandonment. Id . On January 3, 2012, Kenne filed a charge of discriminatory retaliation with the EEOC and the PHRA ("2012 Charge"). (Pl.s' Mot. to Continue Compl.; Doc. No. 13-3.) Kenne states that SEPTA terminated his employment in retaliation for his filing of the 2009 Charge. (Id.) On July 30, 2013, the EEOC sent Kenne a Right-To-Sue letter. Compl. at 7. Kenne filed his Complaint, and was granted in forma pauperis status, on October 17, 2013. (Doc. Nos. 3, 4.) Kenne's Request for Appointment of Counsel was denied on July 25, 2014. (Doc. No. 12.)


A. Harassment & Discrimination Claim

SEPTA argues that Kenne's claim based upon harassment and discrimination should be dismissed for failure to exhaust his administrative remedies. (Def.'s Reply at 2-4.) SEPTA asserts that Kenne's withdrawal of his 2009 Charge forecloses him from bringing this lawsuit based upon the harassment and discrimination claims contained therein. (Id.) We agree.

"To bring suit under the PHRA, a plaintiff must first have filed an administrative complaint with the PHRC within 180 days of the alleged act of discrimination." Woodson v. Scott Paper Co. , 109 F.3d 913, 925 (3d Cir. 1997) (citing 43 Pa. C.S. §§ 959(a), 962). "If a plaintiff fails to file a timely complaint with the PHRC, then he or she is precluded from judicial remedies under the PHRA." Id .; see also Hills v. Borough of Colwyn , 978 F.Supp.2d 469, 478 (E.D. Pa. 2013) ("Before filing suit under the PHRA, a plaintiff must first exhaust all administrative remedies by filing a charge of discrimination (also referred to as an administrative complaint) with the [PHRC] or EEOC.") "The analysis of whether a plaintiff has failed to exhaust those remedies under the PHRA is identical to that of whether he or she has done so under Title VII."[3] Schouten v. CSX Transp., Inc. , 58 F.Supp.2d 614, 617 (E.D. Pa. 1999) (citation omitted).

"It is well settled that withdrawal of one's claims prior to a determination by the proper administrative agency constitutes failure to exhaust one's remedies." Richards v. Foulke Assocs., Inc. , 151 F.Supp.2d 610, 613 (E.D. Pa. 2001); see also Rhoades v. Young Women's Christian Ass'n of Greater Pitts., Civ. No. 09-1548, 2010 WL 4668469, at *4-5 (W.D. Pa. Nov. 9, 2010) ("Even if Plaintiff had timely filed her claims with the PHRC, she failed to exhaust her administrative remedies with respect to those claims when she withdrew them from the PHRC."); Ellis v. Mohenis Svcs., Inc., Civ. No. 96-6307, 1997 WL 364468, at *3 (E.D. Pa. June 18, 1997) ("Despite Plaintiff's mention of the PHRA in his EEOC charge, Plaintiff has not made use of the PHRA's procedures, and has asserted that he will not make use of them in the future. Under these circumstances, I find that Plaintiff has not invoked the PHRA.")

Kenne's withdrawal of his 2009 Charge one week after initiating it did not permit the PHRC nor the EEOC to make any determinations on his claims. Kenne has failed to exhaust his administrative remedies under the PHRA and Title VII insofar as he claims harassment and discriminatory conduct in his Complaint. Consequently, SEPTA's Motion to Dismiss Kenne's harassment and discrimination claims based upon national origin are dismissed.

B. Retaliation Claim

Kenne asserts that SEPTA retaliated against him by terminating his employment, based on his national origin, for engaging in the protected activity of filing his 2009 Charge. See Compl. Title VII protects employees who attempt to exercise the rights guaranteed by the Act against retaliation by employers. See 42 U.S.C. § 2000e-3(a). Similarly, the PHRA declares it to be an "unlawful discriminatory practice" for an employer "to discriminate in any manner against any individual because such individual has opposed any practice forbidden by [the PHRA], or because such ...

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