Opinion
Civil Action No. 04-500.
September 28, 2004
ORDER
AND NOW, this 28th day of September, 2004, upon consideration of defendant's motion for summary judgment (doc. no. 15) and plaintiff's response thereto (doc. no. 16), and a hearing in which counsel for both parties participated, it is hereby ORDERED that the motion is GRANTED IN PART and DENIED IN PART.
Plaintiff filed an age discrimination action pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1), (2), and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons. Stat. Ann. § 951, et seq. Plaintiff alleges that defendant unlawfully refused to promote her because of her age and unlawfully retaliated against her after she reported her allegations of unlawful age discrimination.
Defendant moved for summary judgment, relying on 29 U.S.C. § 626(d)(2), which requires that a charge of unlawful discrimination under the ADEA be filed with the EEOC "within 300 days after the alleged unlawful practice occurred." Regarding plaintiff's PHRA claim, defendant moved for summary judgment, relying on 43 Pa. Cons. Stat. § 959(h), which requires that any matter "dual filed" with the PHRC be presented less than 180 days after the act of discrimination. Defendant contends that plaintiff filed her charge more than 300 days (or 180 days in regard to plaintiff's claims under the PHRA) after her claims accrued. Plaintiff's claims are therefore time barred, the argument goes, leaving no genuine issue of material fact regarding the timeliness of plaintiff's claims and entitling defendant to judgment as a matter of law.
Concerning plaintiff's federal claim of failure to promote, from the papers submitted by the parties, it is apparent that counsel's letter of December 3, 2001 constituted a charge filed with the Equal Employment and Opportunity Commission (EEOC) within the meaning of 29 U.S.C. § 626(d) and consistent with the provisions of 29 C.F.R. §§ 1626.3, 1626.6 and 1626.8 (2004). Counsel's letter of December 3, 2001 was sent within the 300-day limitations period, as plaintiff's cause of action accrued on the earliest possible date she could have learned of the alleged discriminatory act, June 6, 2001.
As to plaintiff's state claim of failure to promote, the record is unclear as to precisely when plaintiff filed this claim with the Pennsylvania Human Relations Commission (PHRC). The record does reveal, however, that plaintiff filed her PHRA claim some time between February 5, 2002 and June 12, 2002, both of which dates are outside of the relevant 180-day limitations period. Plaintiff's PHRA claim is, therefore, time barred, and defendant's motion for summary judgment with respect to this claim is GRANTED.
Concerning plaintiff's retaliation claim, plaintiff points to the February 5, 2002 intake questionnaire and the June 12, 2002 Form 5 Charge of Discrimination, on each of which she checked off a box for "retaliation." The "check" in the questionnaire was accompanied by a detailed description of plaintiff's retaliation claim. Plaintiff's description of her claim, along with the other relevant portions of the intake questionnaire, satisfies the provisions of 29 C.F.R. §§ 1626.3, 1626.6 and 1626.8, and is therefore a charge. Although a mere "check" in the questionnaire does not suffice to satisfy the exhaustion requirement under this Court's ruling in Johnson v. Chase Home Finance, 309 F. Supp.2d 667 (E.D. Pa. 2004), plaintiff's detailed description of her retaliation claim distinguishes this case from Johnson. See Benn v. First Judicial Dist. of Pa., 2000 WL 1236201 (E.D. Pa. Apr. 26, 2000) (holding that intake questionnaire was a charge where it was of a kind that would convince a reasonable person that grievant manifested intent to pursue ADA claim). Compare also Gulezian, 1999 WL 153720, at *2 (holding intake questionnaire was not a charge where complainant checked a box alleging discrimination, but provided no substantive details about the alleged discrimination).
To the extent, however, that plaintiff seeks to raise claims of any pattern and practice of harassment, discrimination, and/or retaliation above and beyond the discrete failure-to-promote and retaliation claims discussed above, the Court finds that these additional claims are not within the scope of her prior EEOC charges, or a reasonable investigation arising therefrom. Neither counsel's December 3, 2001 letter, nor plaintiff's intake questionnaire, nor her Form 5 charge refer to such claims. These documents similarly do not provide facts which would support these claims. The Court therefore finds that plaintiff has not alleged in her various EEOC charges any claims other than her discrete failure-to-promote and retaliation claims, and that any EEOC investigation could not "reasonably be expected to grow [into allegations of a pattern and practice of harassment, discrimination, and/or retaliation] out the charge of discrimination, including new acts which occurred during the pendency of the proceedings before the Commission." Robinson v. Dalton, 107 F.3d 1018, 1025-26 (3d Cir. 1997). Because plaintiff has failed to exhaust her administrative remedies for all claims other than her discrete failure-to-promote and retaliation claims, defendant's motion for summary judgment with respect to these additional claims is GRANTED.
It is FURTHER ORDERED that the Order dated August 25, 2004 (doc. no. 17) is vacated. It was entered inadvertently and in error. This Order supersedes the Order dated August 25, 2004 in all respects.
AND IT IS SO ORDERED.