PHILADELPHIA – A federal judge has decided that two out of three claims for a former Philadelphia Housing Authority police officer’s wrongful termination lawsuit against her ex-employer would be dismissed, while one survived said dismissal.
On Nov. 30, Judge Timothy J. Savage of the U.S. District Court for the Eastern District of Pennsylvania ruled plaintiff Geralyn Hemphill’s retaliation and hostile work environment claims against the Philadelphia Housing Authority would be dismissed, but her gender discrimination claim against the very same agency would proceed.
After serving as an officer in the PHA Police Department (PHAPD) for 18 years, Hemphill, a 67-year-old white female, was terminated in July 2012. Two days after her firing, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). Her charge was also filed with the Pennsylvania Human Relations Commission (PHRC).
In her EEOC discrimination charge, Hemphill checked the boxes for race and age discrimination – but did not check the boxes for “sex,” “retaliation,” or “other.” Though, Hemphill did mention she was a white female in an age group protected by the Age Discrimination in Employment Act.
Hemphill stated she reported to a meeting and was terminated on July 11, 2012, and when she asked for the reason for her employment discharge, she was allegedly told she had “done nothing wrong.”
Hemphill explained “she believed the discharge was because of her age” and she was not given the opportunity to appeal the job action, while listing four other employees in her same protected age group who were disciplined – and one of them was allowed to appeal.
The EEOC notified Hemphill on May 16 it had determined it wasn’t likely to decide in her favor, because “she had performance issues unrelated to her allegations of discrimination” and was “unable to conclude that the information obtained establishes violations of the statutes.”
Subsequent to the EEOC issuing its right-to-sue letter, Hemphill filed the instant action claiming gender discrimination, retaliation, and a hostile work environment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000(e) and the Pennsylvania Human Relations Act (PHRA).
In her complaint, Hemphill made new claims, contending days before the meeting at which she was terminated, she met with her supervisor to complain about “harassment…disparate treatment…and a sexually biased and misogynist culture”, which Hemphill says was responsible for her being passed for promotions – allegations which were not presented to the EEOC.
Savage began by explaining a plaintiff must exhaust all required administrative remedies before filing an action for employment discrimination under Title VII and the PHRA; which involved filing a charge of discrimination with the EEOC and receive a right-to-sue notice from the EEOC.
“If the plaintiff’s EEOC filing did not explicitly state the specific claim, it may still be deemed exhausted if the claim falls within the scope of the charge or the EEOC’s investigation. Stated conversely, if the claim asserted in the complaint was not included in the charge and did not fall within the scope of the EEOC’s investigation, it has not been exhausted and cannot be raised for the first time in a subsequent action,” Savage said.
When Hemphill filed her EEOC charge, she did not check the boxes for sex discrimination, retaliation, or other. Though such an omission alone does not preclude these claims, if they were within the scope of the EEOC’s reasonable investigation, they are exhausted.
“Notwithstanding that Hemphill failed to check the gender discrimination box, she included sufficient facts alerting the EEOC that she was raising a gender discrimination claim. She began her narrative with ‘I am a white female.’ Indeed, the EEOC interpreted her charge to include a gender-based claim. It investigated the claim and found it meritless. The EEOC determined that her claim for discrimination ‘on the basis of…sex-female’ was ‘self-defeating.’ Thus, the gender discrimination claim has been exhausted,” Savage said.
“Unlike her gender discrimination claim, her retaliation and hostile work environment claims have not been exhausted. For the first time, Hemphill alleges in her complaint that days before the meeting at which she was terminated, she had met with her supervisor to complain about ‘the harassment and disparate treatment she was experiencing in the Department,” Savage stated.
Savage clarified on her charge form that Hemphill “made no allegation that she engaged in protected activity prior to her termination”, alternatively stating “she was terminated at a meeting on July 11, 2012.” Thus, Hemphill did not report any conduct or adverse action before the meeting that could have been interpreted as causing her termination – believing her firing was due to her age.
Savage explained Hemphill’s instant disparate treatment claim is for a failure to promote, though none of these new charges were explicitly or implicitly raised in her discrimination charge, nor were they investigated by the EEOC.
“Like her retaliation charge, Hemphill raises her hostile work environment claim for the first time in this action. She alleges in her complaint that the PHAPD suffered from a ‘sexually biased and misogynist culture,’ resulting in sexual harassment creating a hostile work environment. Her Charge of Discrimination makes no mention, directly or inferentially, of a hostile work environment,” Savage said.
Savage added “there are no facts in her charge that could have been construed as raising a hostile work environment claim that the EEOC would have investigated” and Hemphill failed to exhaust administrative remedies regarding the alleged hostile work environment at PHA.
“Hemphill exhausted her administrative remedies as to her claim of gender discrimination. She did not exhaust her current claims for retaliation and hostile work environment. These claims are not included in her EEOC charge and were not within the EEOC investigation. Therefore, we shall grant PHA’s motion in part and deny it in part, dismissing the retaliation and hostile work environment claims,” Savage said.
The plaintiff is represented by Robert B. Eyre of Foehl & Eyre, in Media.
The defendant is represented by Candace D. Embry and Ronda K. O’Donnell of Marshall Dennehey Warner Coleman & Goggin, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-04551
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at firstname.lastname@example.org