Monday, November 28, 2005

employment - age discrim. - statute of limitations - equitable tolling

Uber v. Slippery Rock University - Commonwealth Court - November 23, 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/269CD05_11-23-05.pdf

Appellant, a police officer at a university, applied for but was denied a higher position in March 1998. He filed an internal grievance, which was denied in October 1998. In May 1999, he filed a complaint with the Pa. Human Relations Commission, which after investigation dismissed the case in December 1999. In January 2000, he filed a complaint with the EEOC and cross-filed with the PHRC, which closed the investigation in January 2001, after finding no violations. Appellant then filed a complaint in a court of common pleas alleging age discrimination and retaliation under the PHRA, 43 P.S. 955(a) and (d).

The trial court's dismissal of the age discrimination complaint was upheld on appeal. Appellant's complaint with the PHRC was not filed within 180 days of the alleged act of discrimination, as required by the PHRC. His complaint was not subject to equitable tolling by his filing an internal complaint with the university, because: a) he was not actively misled by the defendant; b) there were no extraordinary circumstances that prevented him from asserting his right; c) he did not present his claims in a timely manner but in the wrong forum. An internal complaint with an employer is not what the legislature intended as a substitute for filing a complaint with the PHRC.

On the retaliation claim, appellant failed to show an adverse employment action. A 1999 performance evaluation -- and not his not being hired for the job -- was the only issue before the trial court and the only one preserved for appeal.

Donald Marritz
MidPenn Legal Services

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