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July 16, 1999


The opinion of the court was delivered by: Barry, District Judge.


Defendants International Total Services, Inc. ("ITS") and Dan Richards ("Richards") (collectively as "defendants") move for summary judgment. Plaintiff Kristy Lemke ("Lemke" or "plaintiff") cross-moves for partial summary judgment as to her claims under the New Jersey Law Against Discrimination ("NJLAD") and Title VII of the Civil Rights Act of 1964. For the following reasons, this court will grant defendants' motion and deny plaintiff's motion.

I. Background

ITS is a company which contracts with airlines to provide security and other services to airports nationwide. On November 18, 1992, plaintiff was hired by ITS as the General Manager at Washington National Airport. See Am.Compl. ¶¶ 1-2; Weitzel V.S. ¶ 2.*fn1 In November 1994, she relocated to New Jersey and became a Continental Airlines Terminal Manager for ITS at Newark International Airport. See Pl.Dep. at 217, 402-403.

Plaintiff was a Terminal Manager until April 1996 when she became an acting District Manager. See id. at 219. In 1996, ITS was organized into three divisions — the Eastern, the Central, and the Western Divisions. See id. at 241. By May 1996, plaintiff was the District Manager of the New York Metro Area, a district within the Eastern Division of ITS. See id. at 219; Am.Compl. ¶ 3. In 1996, there were four districts in the Eastern Division: (1) Newark, which was managed by John Pudlak; (2) New York Metro, which included the airports in New York City, Long Island, Baltimore, Washington, Atlantic City, Allentown (Pa.), Boston, Cape seasonal airports and Burlington (Vt.) and was managed by plaintiff; (3) New York State, including Buffalo, Syracuse, Rochester, Albany, Elmira, Ithaca, Binghamton, and Erie (Pa.) managed by Jim Patric; and (4) Southeast, which included Florida, Georgia, the Carolinas and other southeast states managed by Peter Collins. See Richards V.S. ¶ 2;*fn2 Reimer Cert. dated Feb. 3, 1999, Exh. D. Thus, even though plaintiff remained in Newark after she was promoted to District Manager, Newark was not within her district and, instead, was managed by Pudlak. See Richards V.S. ¶ 5.

Toward the end of 1996, Richards became the Eastern Division President and plaintiff reported to him throughout the remainder of her employment with ITS. See Pl.Dep. at 200. In early 1997, Richards decided to realign the geographic districts in the Eastern Division for a number of reasons: one, districts with "purer, straight East-to-West lines would be more efficient;" two, a realignment of the district managers would "make a stronger business team with more potential for growth;" and, three, it lacked common sense for plaintiff to be a district manager based in Newark when Newark was not within her area of responsibility. See Richards V.S. ¶ 5.

In March 1997, Richards began talking to plaintiff about possible changes in the territory for which she was responsible. See Pl.Dep. at 369. For starters, Richards left plaintiff a voice mail message to the effect of: "I don't know what your personal situation is and would you be interested in possibly relocating." See id. at 370. Richards and plaintiff discussed plaintiff's possible relocation to more of a Mid-Atlantic/Mid-South district in a phone conversation and Richards ultimately provided plaintiff with a colorized map of the geographically reorganized Eastern Division. See id. at 381, 385, 388. The colorized map divided the Eastern Division into four geographic districts: the Northeastern states, including New York; New Jersey; the Mid-Atlantic states, including Pennsylvania; and the Southern states extending to Florida. See Richards Dep., Exh. 1.*fn3

Richards met with plaintiff at the Boston airport on April 9, 1997 to discuss plaintiff's possible relocation to a site in the Mid-Atlantic region. See Pl.Dep. at 391. Plaintiff told Richards that she was not interested in relocating, see id., and memorialized the meeting in a memorandum to Richards dated April 10, 1997. See Reimer Cert. dated Feb. 3, 1999, Exh. B. In the memorandum, plaintiff expressed her concern that the reorganization would cause her to lose areas, including the New York Metro area, which she had worked hard to establish. See id. Plaintiff also stated that she felt that her territory was being taken away "because [Richards] want[s] to hire a friend and give him the largest area and revenue base to support a large salary." See id. Plaintiff mentioned gender in the memorandum only insofar as she asserted that she was "well aware of the number of female managers in the company that are at the same level that I am, not many." See id.

Plaintiff and Richards met again in Newark on April 18, 1997. See Pl.Dep. at 419. The parties characterize the meeting somewhat differently, i.e. plaintiff asserts that she was fired and defendants assert that she quit, but both sides agree that during the meeting, Richards reiterated that plaintiff's district was being eliminated or "downsized." Richards V.S. ¶ 9; Lemke Aff. ¶ 9; Reimer Aff. dated Feb. 3, 1999, ¶ 14; Pl.Dep. at 426-27. Plaintiff responded by calling Richards "a piece of work." Lemke Aff. ¶ 9; Richards V.S. ¶ 9. Plaintiff left Richards' office but shortly thereafter returned and asked questions about severance pay and money for accrued vacation. See Lemke Aff. ¶ 9; Richards Aff. ¶ 9; Pl.Dep. at 422-24. After Richards stated that he would have to look into her questions, see Pl.Dep. at 429, plaintiff collected her personal belongings, wished the employees in the building well, and left the building, never to return. See id. at 430. The ITS Hourly Transaction Form, dated April 18, 1997 and signed by Richards, states that plaintiff's last day of employment was April 18, 1997 and the box labeled "Termination" sets forth "Organizational Downsizing" as the reason. Lemke Aff., Exh. E.

Because Richards needed to immediately submit a budget plan for the Eastern Division and because plaintiff had rejected the Mid-Atlantic region, Richards expanded Pudlak's New Jersey territory to include the Mid-Atlantic states. See Richards V.S. ¶ 11. Thus, when plaintiff left ITS, there were three district managers: Pudlak, covering New Jersey and the Mid-Atlantic region; Collins, covering the Southern region; and Brian Michel who was hired to cover the Northeastern region, including New York and Boston. See Pl.Dep., Exh. D-25. Not long afterwards, Michel resigned and Bruce Watson took over the Northeastern region. On October 2, 1997, plaintiff began working as a full-time second grade teacher at St. Francis School. See Pl.Dep. at 99-101.

On August 8, 1997, plaintiff filed a charge of gender discrimination against ITS with the United States Equal Employment Opportunity Commission ("EEOC"). See Pl.Dep. at 110-11. On August 22, 1997, plaintiff requested a notice of right to sue from the EEOC and it was issued on August 28, 1997. See id. at 118-20 and Exhs. D-11, D-12. Plaintiff simultaneously filed a charge of gender discrimination with the New Jersey Division of Civil Rights ("NJDCR"). See Pl.Dep. at 117. Plaintiff never withdrew the charge filed with the NJDCR and the NJDCR has yet to issue a determination on her charge of discrimination. See id. at 117-18.

On November 24, 1997, plaintiff filed with this court a four-count complaint against ITS and Richards alleging gender discrimination in violation of NJLAD (Count One), gender discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") (Count Two), and intentional infliction of emotional distress (Counts Three and Four). On January 4, 1999, plaintiff amended her complaint and added Count Five, alleging that defendants violated the Federal Equal Pay Act ("EPA"). Cross-motions for summary judgment followed.*fn4


Summary judgment may be granted if, after consideration of such items as depositions, affidavits or certifications, and after viewing the facts in the light most favorable to the non-moving party, "there is no genuine issue as to any material fact and [] the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 536 n. 3 (3d Cir. 1994). With this standard in mind, this court will evaluate each of plaintiff's claims.

A. Gender Discrimination Claims

In Counts One and Two of the complaint, plaintiff alleges that defendants violated Title VII and NJLAD, respectively, by discriminating against her on the basis of her gender. Defendants move for summary judgment because: (1) plaintiff has failed to exhaust the administrative remedies required to bring a Title VII claim; (2) plaintiff's NJLAD claim is barred because she has a charge pending with the NJDCR; (3) plaintiff has failed to set forth a prima facie case of gender discrimination under Title VII and NJLAD as she has not shown that she suffered an adverse employment action; and (4) even assuming a prima facie case under Title VII and NJLAD, plaintiff has not demonstrated that defendants' reasons for their actions were pretextual. Plaintiff not only opposes defendants' motion for summary judgment but asserts that this is the "very rare" case in which summary judgment should be granted to a plaintiff on her Title VII and NJLAD claims. See Pl.Br. at 11.

1. Exhaustion under Title VII

Although plaintiff offers no response to defendants' exhaustion argument, this court will first address whether plaintiff has sufficiently exhausted her administrative remedies such that her Title VII claim is properly before this court. Neither side disputes that plaintiff must file a charge of discrimination with the EEOC and receive a notice of right to sue before she can bring an action in federal court alleging a Title VII violation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (noting that prerequisites to filing Title VII civil action are the timely filing of charges of discrimination with the EEOC as well as receiving the EEOC's statutory notice of the right to sue). Plaintiff did, in fact, file a charge with the EEOC on August 8, 1997. The question here is whether plaintiff's notice of right to sue, requested only fourteen days after the charge was filed and issued only six days later, was premature given that it bypassed the 180-day administrative investigation and conciliation process mandated by Title VII.

Section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1) (1994), is the statutory provision governing right to sue notices issued to aggrieved parties and, thus, guides this court's analysis. It provides that the EEOC shall issue a notice of right to sue to an aggrieved party if the charge of discrimination filed with the EEOC is dismissed or 180 days have elapsed without the EEOC filing a civil action or entering into a conciliation agreement. See 42 U.S.C. § 2000e-5(f)(1) (1994). Once notified, the aggrieved party has ninety days within which to initiate a civil action against the respondent named in the charge. See id.

The EEOC has been given the power to issue procedural regulations in order to "carry out the provisions of [Title VII]." 42 U.S.C. § 2000e-12(a). One such regulation provides that a notice of right to sue may be issued before the 180-day period has expired (an "early" right to sue notice). See 29 C.F.R. § 1601.28(a)(2) (1998). Section 1601.28(a)(2) allows the EEOC to issue an early notice of right to sue "any time prior to the expiration of 180 days from the date of filing the charge" provided that an Area Director or other enumerated director certifies that "it is probable that the Commission will be unable to complete its administrative processing of the charge within 180 days from the filing of the charge. . . ."*fn5 29 C.F.R. § 1601.28(a)(2) (1998). The EEOC's rationale that regulation was "the legal principle that a party is not required to perform a useless act, i.e., wait for the passage of 180 days when the passage of such time will not accomplish any purpose." Pearce v. Barry Sable Diamonds, 912 F. Supp. 149, 154 (E.D.Pa. 1996) (citing to 42 Fed. Reg. 47,828, 47,831 (1977)).

Here, plaintiff filed her charge of discrimination with the EEOC on August 8, 1997 and requested a right to sue letter on August 22, 1997 because she wanted to "file a lawsuit in this matter as quickly as possible." Pl.Dep., Exh. D-11. Pursuant to 29 C.F.R. § 1601.28(a)(1), the Area Director, on behalf of the EEOC, issued a notice of right to sue on August 28, 1997 — only 20 days after the charge was filed — stating that "[l]ess than 180 days have passed since the filing of this charge, but I have determined that it is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the filing of the charge." Id. at D-12. The EEOC immediately terminated its processing of the charge, see id., and plaintiff filed suit in this court on November 24, 1997.

  Since September 1977, when 29 C.F.R. § 1601.28(a)(2) was
issued, the validity of the regulation has been called into
question and has been hotly debated in the courts. See, e.g.,
Valerie J. Pacer, Case Comment, The Early Right-To-Sue Letter:
Has the EEOC Exceeded its Authority?

 Henschke v. New York Hospital-Cornell Medical Center,
821 F. Supp. 166 (S.D.N.Y. 1993), 72 Wn.U.L.Q. 757, 766 (1994)
(noting the twenty-year split among the courts regarding the
early right to sue letter). Some courts have held that
29 C.F.R. § 1601.28(a)(2) contravenes the procedural requirements of Title
VII and Congress's intention that 180 days is an appropriate
length of time to allow for conciliation of employment disputes
while preserving a claimant's right to speedy relief. See, e.g.,
Montoya v. Valencia County, 872 F. Supp. 904 (D.N.M. 1994);
Henschke v. New York Hospital-Cornell Med. Ctr., 821 F. Supp. 166,
169-71 (S.D.N.Y. 1993); People of State of N.Y. by Abrams
v. Holiday Inns, Inc., 656 F. Supp. 675, 678-80 (W.D.N.Y. 1984);
Mills v. Jefferson Bank E., 559 F. Supp. 34, 34-36 (D.Colo.
1983); Spencer v. Banco Real, S.A., 87 F.R.D. 739 (S.D.N Y
1980); Grimes v. Pitney Bowes, Inc., 480 F. Supp. 1381, 1383-85
(N.D.Ga. 1979). Other courts, including the only two Circuits to
have directly decided this issue,*fn6 have concluded that the
regulation is reasonable, and thus entitled to deference, because
it makes little sense that a claimant must sit idly by for 180
days when the EEOC has certified that it is unable to investigate
the charge within the prescribed time. See, e.g., Sims v. Trus
Joist MacMillan, 22 F.3d 1059 (11th Cir. 1994); Brown v. Puget
Sound Elec., 732 F.2d 726, 729 (9th Cir. 1984), cert. denied,
469 U.S. 1108, 105 S.Ct. 784, 83 L.Ed.2d 778 (1985); Saulsbury
v. Wismer & Becker, Inc., 644 F.2d 1251, 1256-57 (9th Cir.
1980); Bryant v. California Brewers Ass'n, 585 F.2d 421, 425
(9th Cir. 1978), vacated and remanded on other grounds,
444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980); Martinez v.
Labelmaster, 1996 WL 580893 (N.D.Ill. Oct.4, 1996); Chandler v.
Fast Lane, Inc., 868 F. Supp. 1138, 1141-42 (E.D.Ark. 1994);
Rolark v. University of Chicago Hospitals, 688 F. Supp. 401
(N.D.Ill. 1988); Cattell v. Bob Frensley Ford, Inc.,
505 F. Supp. 617, 619-22 (M.D.Tenn. 1980).

Perusal of the case law within this Circuit provides little guidance. Although in dicta expressing disapproval of the regulation and attempts by claimants to "deliberate[ly] bypass" administrative remedies, the Court of Appeals for the Third Circuit declined to reach the issue of the validity of 29 C.F.R. § 1601.28(a)(2) and the effect of early right to sue notices in Moteles v. University of Pa., 730 F.2d 913, 916-18 (3d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 179, 83 L.Ed.2d 114 (1984). Moreover, district courts within this Circuit have reached different conclusions. Compare DeFranks v. Court of Common Pleas of Fayette County, 1995 WL 606800 (W.D.Pa. Aug.17, 1995) (rejecting contention that 29 C.F.R. § 1601.28(a)(2) was invalid); Anjelino v. New York Times Co., 1993 WL 170209 at *8 n. 8 (D.N.J. May 14, 1993) (refusing to find that Moteles required dismissal even if the plaintiffs deliberately bypassed the EEOC administrative process and obtained right to sue letters pursuant to 29 C.F.R. § 1601.28(a)(2)); Hooks v. RCA Corp., 620 F. Supp. 1, 1-2 (E.D.Pa. 1984) (finding that right to sue letter was properly issued by EEOC pursuant to 29 C.F.R. § 1601.28(a)(2)); Bey v. Schneider Sheet Metal, Inc., 596 F. Supp. 319, 323 (W.D.Pa. 1984) (holding that EEOC's issuance of right to sue letter at plaintiff's request, twenty-seven days after receipt of the charge, did not deprive court of subject matter jurisdiction); with Robinson v. Red Rose Communications, Inc., 1998 WL 221028 (E.D.Pa. May 5, 1998) (holding that, despite 29 C.F.R. § 1601.28(a)(1), plaintiff must wait 180 days to satisfy the exhaustion of remedies requirement); Krause v. Security Search & Abstract Co. of Phila., Inc., 1997 WL 528081 (E.D.Pa. Aug.21, 1997) (same); Pearce v. Barry Sable Diamonds, 912 F. Supp. 149, 151 (E.D.Pa. 1996) (noting its inclination to find the regulation invalid). Finally, in 1996, recognizing the "cacophony" within the courts, a district court in the Eastern District of Pennsylvania certified questions concerning the validity of 29 C.F.R. § 1601.28(a)(2) to the Court of Appeals for the Third Circuit but it appears that no answers were furnished. See Pearce, 912 F. Supp. at 151.

It is within this morass that this court must address defendants' contention that summary judgment is warranted on plaintiff's Title VII claim because plaintiff's right to sue letter was premature and, thus, that she has failed to properly exhaust her administrative remedies.

This court is inclined to agree with the disapproving tenor of the Court of Appeals for the Third Circuit in Moteles and the various district courts which have held that the EEOC exceeded its authority in issuing a regulation which allows for early right to sue letters. While this court must defer to the EEOC's interpretation of Title VII in its regulations if "reasonable", EEOC v. Commercial Office Products, Co., 486 U.S. 107, 115, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988), the EEOC cannot adopt regulations that are inconsistent with Congress's statutory mandate. See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980).

The regulation providing for early right to sue letters, especially as applied in this case, contravenes both the statutory language and the purpose of Title VII. ...

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