APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 08-cv-04313) District Judge: Honorable Petrese B. Tucker.
The opinion of the court was delivered by: Barry, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) September 21, 2009.
Before: BARRY, FISHER and JORDAN, Circuit Judges.
In a complaint dated May 1, 2008, plaintiff Emad Elkadrawy, an American citizen of Egyptian origin and a Muslim, alleged that his former employer, The Vanguard Group, Inc. ("Vanguard"), discriminated against him on account of his race, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., and his age under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. On August 12, 2008, the District Court (Dalzell, J.) dismissed Elkadrawy's complaint for his failure to bring his claims within the ninety-day period mandated by 42 U.S.C. § 2000e-5(f)(1).
On September 8, 2008, Elkadrawy filed a second complaint, alleging race- and national origin-based discrimination and retaliation in violation of 42 U.S.C. § 1981 and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 962 et seq., also against Vanguard. On December 5, 2008, the District Court (Tucker, J.) dismissed Elkadrawy's federal claims as barred by the doctrine of res judicata. The Court also dismissed the PHRA claim without prejudice to its renewal in state court. The parties' cross-appeals followed.
Elkadrawy challenges the dismissal of his federal claims, arguing that res judicata does not apply because (1) his prior complaint had not been resolved "on the merits" and (2) his § 1981 claims do not arise from the same material facts as his Title VII claims. Vanguard, on cross-appeal, argues that the District Court should have dismissed the PHRA claim with prejudice on res judicata grounds, because it is based on the same set of facts underlying the Title VII claims dismissed as part of Elkadrawy's first complaint. We will affirm.
Elkadrawy was employed as a corporate accountant for Vanguard from October 2000 until December 2007. On May 21, 2007, he filed a charge of discrimination with the Pennsylvania Human Rights Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC"). On February 4, 2008, the EEOC notified him that it was closing his file and provided notice of his right to sue. He received substantially the same notice from the PHRC by its letter of April 21, 2008.
On May 1, 2008, Elkadrawy filed a pro se form complaint, with his EEOC charge and right-to-sue letter attached thereto. His PHRC notice was not attached and his filing with the PHRC was only obliquely mentioned in the EEOC charge. The complaint alleged (1) that Vanguard refused to provide the work experience and verification he needed to become a Certified Public Accountant, even though similarly situated co-workers were routinely afforded that opportunity, and (2) that he received a poor performance review four days after filing with the EEOC. Although his complaint named Vanguard as the only defendant, Elkadrawy mentioned three specific Vanguard employees. Elkadrawy also filed a motion to proceed in forma pauperis, which was denied on May 5, 2008. On May 13, 2008, he paid his filing fee, and his complaint was docketed. On May 27, 2008, counsel entered an appearance on his behalf.
On August 12, 2008, Judge Dalzell dismissed Elkadrawy's first complaint with prejudice as time-barred. The Court observed that Elkadrawy constructively received his EEOC right-to-sue letter on February 7, 2008. Elkadrawy paid his filing fee on May 13, 2008, ninety-two days after his receipt of the right-to-sue letter, and therefore in violation of 42 U.S.C. § 2000e-5(f)(1).*fn1
Elkadrawy filed his counseled second complaint on September 8, 2008. The allegations in that complaint can be divided into two groups. The allegations of discrimination set forth at ¶¶ 11-19 are indistinguishable from the allegations contained in his EEOC filing and first complaint. In his brief to us, Elkadrawy explains that these allegations were included in his second complaint only to support his previously unraised PHRA claims. The allegations at ¶¶ 20-29 constitute new claims, raised in neither the EEOC charge nor the first complaint, which implicate previously unmentioned Vanguard employees.*fn2 Elkadrawy asserts that these allegations support only the § 1981 claims.
Vanguard moved to dismiss Elkadrawy's second complaint in its entirety on res judicata grounds. As to the federal claims, the District Court held that Elkadrawy's "current § 1981 claims and previous Title VII claims quite clearly rest upon the same facts of alleged discrimination by Defendant, and would require presentation of the same evidence." (App. 4-5 n.1.) As "[t]he ninety-day filing requirement for Title VII claims has been treated by the courts as a statute of limitations," and "[t]he rules of finality . . . treat a dismissal on statute-of-limitations grounds as a judgment on the merits," the Court found the federal claims precluded. (Id. (citations omitted).) The Court then noted that, pursuant to the PHRA, 43 Pa. Cons. Stat. § 962(c), Elkadrawy had two years from the dismissal of his complaint by the PHRC to file suit against Vanguard. As that time had not elapsed by the filing of the second complaint, and the ninety-day limitation that required dismissal of the first complaint was inapplicable to Elkadrawy's PHRA claim, the Court concluded that ...