Rush v. Scott Specialty Gases, Inc.

• Decision Date: 12 February 1996
• Docket Number: Civ. A. No. 95-CV-0748.
• Citation: 914 F. Supp. 104
• Parties: Christine RUSH v. SCOTT SPECIALTY GASES, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

914 F. Supp. 104

Christine RUSH v. SCOTT SPECIALTY GASES, INC.

Civ. A. No. 95-CV-0748.

United States District Court, E.D. Pennsylvania.

February 12, 1996.

Martha Sperling, Silver & Sperling, Doylestown, PA, for plaintiff.

J. Freedley Hunsicker, Jr., Patricia Proctor, Drinker, Biddle & Reath, Philadelphia, PA, for defendant.

MEMORANDUM

JOYNER, District Judge.

Plaintiff Christine Rush's action asserts discrimination against her by her former employer, Defendant Scott Specialty Gases, Inc., on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e — 2000e-17 (1994); the Federal Equal Pay Act, 29 U.S.C. § 206 (1978); the Pennsylvania Human Relations Act, 43 Pa.Stat.Ann. §§ 951-963 (1991) (PHRA); the Pennsylvania Equal Pay Law, 43 Pa.Stat. Ann. §§ 336.1 — 336.10 (1992) and Pennsylvania common law. Both Plaintiff and Defendant have moved for summary judgment on each of the eight counts in the Complaint. We will dispose of both motions in this Memorandum and accompanying Order.

In considering a motion for summary judgment, a court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256, 106 S.Ct. at 2514. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1313, 113 L.Ed.2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)).

FACTUAL BACKGROUND

Rush was hired by Scott in September, 1991, on a full-time basis to replace a male employee. Although she was hired as a Lab Tech I, the man she replaced was a Lab Tech II, which has a different job description as well as higher salary and benefits. During her time at Scott, Rush was the only female employee in its lab. Rush alleges that she was continuously discriminated against at the lab. This discrimination allegedly took the form of unequal training and promotion as well as a hostile environment.

Rush's evidence is that from the day she was hired, she was consistently given the more routine and mundane tasks to perform and was singled out for discipline. In addition, her evidence is that she was denied equal training opportunities, which limited her opportunity for advancement. For example, in 1990, she avers that she was not told about a class in standard flask making, which had become a prerequisite for promotion. As a result, she did not attend the class. When she learned about the class and that it had been videotaped, she asked to watch the tape and then be considered for promotion. Scott refused and subsequently promoted three of her male co-workers. This evidence is contested by Scott.

In addition, Rush presents evidence that Scott's lab was a hostile work environment for women. She, and others, testified at their depositions that derogatory comments about women in general and her in particular, were constant and came from numerous men at the lab, including and often in the presence of management. Also, more than once, one co-worker apparently told other male co-workers that he wanted to `take Rush to his van, f* * * her and then shoot her in the head so that she could not say what he had done.' Rush and others also testified that a different co-worker groped her on a near-daily basis and often slapped her on the buttocks. This evidence is also contested by Scott.

In 1991, Rush filed a claim with the EEOC concerning the standard flask making class and subsequent failure to promote. This charge was disposed of through a Negotiated Settlement Agreement and Release. Scott agreed to meet with Rush to discuss its policy concerning training and promotion, to provide her with the same formal training and instruction as other employees received and to consider her for a Lab Tech II Analyst position if such a vacancy occurred. In exchange for Scott's satisfactory fulfillment of those promises, Rush agreed not to institute a lawsuit on those charges.

Rush alleges that at the meeting, Scott set much higher prerequisites for her promotion then any of the men were required to, or could, meet. In addition, Scott allegedly promoted a man to Lab Tech II without considering her, and hired a male college student to work one summer as a Lab Tech II. These acts, she alleges, violate the Settlement Agreement.

DISCUSSION

1. PRELIMINARY OBJECTIONS

Scott seeks summary judgment on the ground that all claims that accrued prior to 300 days before her second EEOC claim was filed on November 1, 1993 are time-barred and that her pre-1991 claims are barred by the release in the Settlement Agreement. Rush objects to both arguments. First, she asserts that her claims are not time-barred because she pleads continuing violations, of which a portion of each claim occurred within the limitations period. Second, she contends that the Settlement Agreement is no bar because Scott has not substantially performed its duties under the Settlement Agreement.

First, Rush contends that her claims are not time-barred because she pleads continuing violations. The Supreme Court first recognized the concept of continuing violations in Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). The Court ruled that when a plaintiff "challenges not just one incident of unlawful conduct ... but an unlawful practice that continues into the limitations period," the complaint is timely so long as it is filed within the appropriate time after one specific occurrence of that practice. Id. at 380, 102 S.Ct. at 1125. The limitation on this rule is that the actual violations must be continuing, not just the effects of a violation. Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980).

Rush's evidence of a hostile environment fits comfortably into the continuing violations mold. Rush alleges that from the time she started in the lab, she was subjected to offensive conduct involving sexual harassment, such as comments about the propriety of working women, discussions of sex, told she was a loser and an animal and groped on an almost daily basis by one co-worker. West v. PECO, 45 F.3d 744, 755 (3d Cir. 1995). Further, she has adequately proffered evidence that there was an ongoing discriminatory policy of denying her equal training and promotional opportunity, giving her the least challenging and interesting work and singling her out for discipline on matters such as late arrivals. Haithcock v. Frank, 958 F.2d 671, 678 (6th Cir.1992). These contested evidentiary showings are sufficient to show continuing violations, of which some incidents occurred within the statutory time. For this reason, Rush's claims are not time-barred.

Second, Rush maintains that the Release and Settlement Agreement are not bars to a revival of the claims within the first EEOC charge. When an employer promises to take remedial action and the employee's release of claims is conditioned on a successful completion of the remedial action, only a substantial performance of the remedy will serve to bar revival of the claims. Melendez v. Horizon Cellular Tele. Co., 841 F.Supp. 687, 691 (E.D.Pa.1994).

Rush's evidence is that she was given standards to meet that were much higher than any of the men in the lab had been required to, or could, meet and also that a Lab Tech II vacancy occurred and that she was not considered. Scott contests this with evidence that the opening was not for a Lab Tech II Analyst position, but for a different Lab Tech position. There is a genuine issue of fact as to the actual job that was filled, as opposed to the title placed on it. At this point in the litigation, we cannot say that Scott substantially performed the Settlement Agreement. For that reason, Rush's first EEOC charges can be revived. However, she must elect her remedies, and by electing to revive those earlier claims, cannot also sue for breach of the Settlement Agreement. Id.; Polish American Mach. Corp. v. R.D. & D. Corp., 760 F.2d 507, 514 (3d Cir.1985). For this reason, if at trial Rush proves that the Settlement Agreement was not substantially performed by Scott, and therefore proceeds with her revived claims, summary judgment will be granted on the breach of contract claim.

2. TITLE VII AND PHRA VIOLATIONS

Rush brings both a hostile environment and disparate treatment claim under Title VII and the PHRA.¹ For the purposes of its summary judgment motion, Scott does not dispute whether Rush can show a prima facie case of sex discrimination. EEOC v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990). Once a prima facie case is made, the burden of production switches to a defendant to assert legitimate, non-discriminatory reasons for the allegedly discriminatory actions. Id. If a defendant can make that showing, the burden of production switches back to the plaintiff to rebut the defendant's proffered legitimate reasons by a preponderance of the evidence. Id. This can be done either by showing that each reason is a recent fabrication or that discrimination is more likely than not a motivating or determinative cause for the actions. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct....