Opinion
Civil Action No. 04-500.
August 25, 2004
ORDER
AND NOW, this 25th day of August 2004, upon consideration of defendant's motion for summary judgment (doc. no. 15) and plaintiff's response thereto (doc. no. 16), it is hereby ORDERED that the motion is GRANTED IN PART and DENIED IN PART.
In deciding a motion for summary judgment on timeliness grounds, "a court construes the record in a light most favorable to plaintiff and determines whether there are genuine issues of material fact regarding the timeliness of the plaintiff's claims and whether defendant is entitled to judgment as a matter of law." Gulezian v. Drexel Univ., No. CIV. A. 98-3004, 1999 WL 153720 at *3 (E.D. Pa. Mar. 19, 1999).
Defendant contends that plaintiff's claims of unlawful age discrimination are time-barred. Plaintiff has made two claims of unlawful age discrimination: (1) defendant failed to promote her because of her age, and (2) defendant retaliated and harassed her after she reported her allegations of unlawful age discrimination. Specifically, Defendant contends that plaintiff has failed to exhaust her administrative remedies on both her claims within the 300-day limitations period set forth in the Age Discrimination in Employment Act, 29 U.S.C. § 626(d)(2), leaving no genuine issue of material fact regarding the timeliness of plaintiff's claims and entitling defendant to judgment as a matter of law.
With respect to plaintiff's failure-to-promote claim, defendant's motion for summary judgment is DENIED.
With respect to plaintiff's retaliation and harassment claim, defendant's motion for summary judgment is GRANTED.
From the papers submitted by the parties in connection with the instant motion, it is apparent that plaintiff's December 3, 2001 letter 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 terms of 29 C.F.R. §§ 1626.3, 1626.6 and 1626.8 (2004). The December 3, 2001 letter was sent within the 300-day limitations period, as plaintiff's cause of action accrued on the date she learned of the alleged discriminatory act, on or about June 6, 2001. Plaintiff's December 3, 2001 charge contained an allegation of unlawful age discrimination stemming from defendant's failure to promote her. The Court therefore finds that plaintiff has timely exhausted her failure-to-promote claim.
With respect to plaintiff's retaliation and harassment claim, the December 3, 2001 charge made no reference to such claims, nor does it provide facts that would support a finding of retaliation and harassment. 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 Court finds that the check of the box in the questionnaire and in the Form 5 Charge are insufficient to satisfy the exhaustion requirement. The "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). The "check" in the Form 5 Charge does not suffice to satisfy the exhaustion requirement because plaintiff failed to complete the Form 5 Charge until after the 300-day time period had expired. A core purpose of the exhaustion requirement is to "put the employer on notice that a complaint has been lodged against him and give him the opportunity to take remedial action," Bihler v. Singer Co., 710 F.2d 96, 99 (3d Cir. 1983). The Court finds that permitting plaintiff to raise her retaliation and harassment claim would contravene this core purpose.
It is FURTHER ORDERED that:
1. The parties are required to comply with the requirements of self-executing disclosure by September 6, 2004;
2. All discovery shall be completed by January 25, 2005 (pursuant to Federal Rule of Civil Procedure 26(a)(2), the parties' experts' identities and their reports (including any curricula vitae) shall be disclosed by January 25, 2005);
3. Any motions for summary judgment shall be filed by January 25, 2005, provided that the parties submit a statement of uncontested facts with any such motion. Responses to any motions for summary judgment shall be filed within the time permitted under Local Rule of Civil Procedure 7.1(c);
4. Pretrial memoranda pursuant to Local Rule of Civil Procedure 16.1(c); proposed voir dire questions, jury instructions, special interrogatories, and verdict forms for a jury trial (or proposed findings of fact and conclusions of law for a non-jury trial); and any motions in limine shall be filed (with a copy of each also delivered to Chambers) by February 15, 2005;
Each proposed jury instruction should be numbered, should appear on a separate page, and should include citations to the authorities supporting the proposed instruction.
When possible, a courtesy copy of proposed jury instructions (or proposed findings of fact and conclusions of law) should be submitted to Chambers on an IBM-compatible computer diskette, in addition to the hard courtesy copy.
5. The case shall be placed in the trial pool on February 25, 2005. Once placed in the trial pool, a case may be called to trial upon 24 hours' notice to counsel;
6. If agreeable to both parties, counsel for plaintiff shall telephone Chambers to schedule a settlement conference with a Magistrate Judge; and
7. Plaintiff's counsel shall advise the Court promptly of any settlement of the case.
AND IT IS SO ORDERED.