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Discrimination Case Handled by Julie Uebler Receives Significant Ruling

Posted on March 23, 2009

In a ruling that clarifies an area of law that had suddenly become murky, a federal judge has ruled that employment discrimination plaintiffs in Pennsylvania cannot be barred from pursuing both federal and state law claims if they file a timely request with a federal agency to have their claims cross-filed with the state agency.

In her 55-page opinion in Seybert v. The International Group Inc. , U.S. District Judge Gene E.K. Pratter ruled that a sexual harassment plaintiff is entitled to rely on the “worksharing agreement” between the Pennsylvania Human Relations Commission and the U.S. Equal Employment Opportunity Commission.

IGI’s lawyer, William T. Wilson of MacElree Harvey in West Chester, Pa., argued that plaintiff Susan Seybert’s claim under the Pennsylvania Human Relations Act should be tossed out because the EEOC delayed the cross-filing of Seybert’s claim with the PHRC.

Wilson argued that Seybert “apparently relied on a request made to the EEOC that it file a copy of her charge with the PHRC, and did not take steps to ensure that filing otherwise.”

As a result, Wilson argued, Seybert’s PHRA claim must be dismissed because the 3rd U.S. Circuit Court of Appeals has held that Pennsylvania strictly interprets the PHRA’s timeliness provisions.

But Seybert’s lawyer, Julie A. Uebler of Rubin Fortunato & Harbison in Paoli, Pa., argued that Wilson was asking for too broad a reading of the 3rd Circuit’s 1997 decision in Woodson v. Scott Paper Co.

Uebler argued that Woodson never held that a complaint must be physically filed with the PHRC within 180 days. Instead, she said, the case involved a plaintiff who had filed a charge at the EEOC, but never sought dual-filing with the PHRC.

It was only on the basis of those specific facts in Woodson , she argued, that the 3rd Circuit stated that a plaintiff who fails to file a timely complaint with the PHRC is precluded from judicial remedies under the PHRA.

“The court did not hold that a filing at the EEOC within 180 days along with a request to dual-file would not satisfy this requirement. In fact, the court explicitly stated that the case would be ‘quite different’ if the plaintiff had ‘marked the box for the EEOC to cross-file,’” Uebler wrote.

But Wilson insisted in his brief that two recent decisions from the Western District of Pennsylvania federal court — Cunningham v. Freedom Ford Sales Inc. and Zahavi v. PNC Financial Services Group — have relied on Woodson in tossing out PHRA claims.

Now Pratter has sided with Uebler and ruled that the worksharing agreement would be rendered meaningless if the courts took too expansive a view of Woodson .

“The most reasoned conclusion here is that filing a charge of discrimination with the EEOC within the 180-day mandatory filing period, together with a request that the EEOC dual-file it with the PHRC, is sufficient to preserve claims under the PHRA,” Pratter wrote.

Pratter found there was nothing in the PHRA that requires a claimant who has already filed at the EEOC to personally file a second formal complaint with the PHRC.

“Yet, if this court were to follow the path urged by IGI, that is exactly what a claimant would have to do, to ensure that her complaint was timely received by the PHRC,” Pratter wrote.

“In effect, every discrimination claimant would have to file a charge of discrimination with both the EEOC and the PHRC, to ensure that it was received by both agencies by the 180-day deadline.”

Under such a reading of the law, Pratter said, “the claimant would have to assume the entire risk of transmission delays between the EEOC and the PHRC, and the cross-filing procedure contemplated by the worksharing agreement would thus be rendered meaningless to the claimant.”

Such a result, Pratter said, “cannot be what the Legislature intended.”

Pratter said she recognized that “some district courts in this circuit” have cited Woodson in holding that a complaint must actually be filed with, or transmitted to, the PHRC within 180 days after a defendant’s alleged discriminatory act in order to preserve a claim under the PHRA.

But Pratter found that the Cunningham decision was distinguishable from Seybert’s case because the plaintiff in Cunningham “clearly indicated to the EEOC upon filing her charge with that agency that she did not want her charge dual-filed with the PHRC.”

The Zahavi case was “more problematic to distinguish” because the plaintiff in that case had requested that the EEOC cross-file it with the PHRC, but the EEOC did not actually transmit the complaint to the PHRC until after the 180-day period had expired, and the court dismissed the PHRA claim as untimely.

Without explicitly denouncing the holding in Zahavi , Pratter opted not to follow it and instead found that numerous federal courts “have held that first-filing a discrimination complaint with either the EEOC or the PHRC within the applicable mandatory filing period, together with a request to dual-file, is sufficient to preserve claims under the second-filed statute.”

Hostile Environment

Pratter’s ruling is also legally significant for rejecting IGI’s argument that Seybert’s claim of sexual harassment must fail because it was premised on only three incidents, none of which was severe enough to meet the test for establishing a “hostile environment.”

But Pratter concluded Seybert had other evidence of hostility that, although non-sexual in nature, must be viewed by a jury in the “totality of the circumstances” and could support a finding of a sexually hostile environment.

In court papers, Seybert claims that her supervisor, Brett Marchand, stared at her breasts on two occasions and responded negatively when she told him to stop.

She also claims that, at a company dinner, Marchand leaned down in her direction and said, loudly and in front of co-workers: “I heard it’s really good if you go down deep, into the chocolate, with your berry.”

Seybert testified in her deposition that, in response to Marchand’s comment, she was “mortified” and could feel herself turning red.

“This was a comment that was made in front of senior management and my peers and I was horrified by it,” she testified.

Pratter found that although Seybert had alleged only three incidents that had “overt sexual overtones,” the evidence also showed that Marchand’s sexual conduct was immediately followed by other hostility toward Seybert including belittling her and yelling at her, and later giving her bad performance reviews.

“Although not all of this mistreatment was overtly sexual, under the ‘totality of the circumstances,’ a jury could find that Ms. Seybert was mistreated and harassed ‘because of’ her gender or sex,” Pratter wrote.

For the same reason, Pratter found, Marchand’s alleged conduct also meets the definition of “severe and pervasive” under Title VII because Seybert “has described a pattern of discriminatory behavior spanning several months, in which Mr. Marchand apparently singled her out for inappropriate sexual exchanges, insults, harsh rebukes, humiliation, and an unfair performance review.”

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