The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL QUINN NASSRY, No. 4:23-CV-00148
Plaintiff, (Chief Judge Brann)
v.
THE PENNSYLVANIA STATE
UNIVERSITY, et al.,
Defendants.
MEMORANDUM OPINION
AUGUST 8, 2023
Michael Quinn Nassry brought this amended complaint alleging violations of
Title VII of the Civil Rights Act of 19641 along with various state law claims related
to the alleged sexual harassment that he endured while employed at The
Pennsylvania State University (“Penn State”). Regardless of any potential merits to
his claims, the complaint makes clear that Nassry’s Title VII claim is facially
untimely, and there is no basis for the Court to apply equitable tolling. Consequently,
Nassry’s Title VII claim will be dismissed with prejudice, and the Court will not
exercise supplemental jurisdiction over his state law claims.
I. BACKGROUND
In 2013, Nassry was hired by Penn State as a postdoctoral scholar.2 Nassry
was employed in the Riparia Research Center (“Riparia”) in Penn State’s
Department of Geography where he served as a hydrology subject matter expert and
taught undergraduate classes.3 Nassry’s employment with Penn State was generally
positive until sometime around 2015, when Nassry alleges that incidents of sexual
harassment began, which escalated through 2018.4
Nassry alleges that, in 2015, Sarah Chamberlain, an associate professor at
Penn State and Nassry’s coworker at Riparia, began sexually harassing Nassry both
on campus and off campus at meetings and professional conferences.5 The first
incident allegedly occurred in 2015 or 2016 during a meeting at the Environmental
Protection Agency’s (“EPA”) offices in Crystal City, Virginia, when an EPA
employee who was friends with Chamberlain informed Nassry that Chamberlain
“really needs to get laid.”6
In the autumn of 2016, Chamberlain requested a meeting with Nassry at a bar
to discuss a grant proposal, but then did not wish to discuss the proposal and, in
October 2016, she asked Nassry to have dinner with her, which he declined.7 In the
2 Doc. 15 ¶ 19.
3 Id. ¶ 22.
4 Id. ¶ 23.
5 Id. ¶¶ 23-25.
6 Id. ¶¶ 49-50.
spring of 2017, Chamberlain allegedly initiated “unnecessary calls and text
messages” that, for example, requested contact information for Chamberlain’s
friends.8 Nassry later blocked Chamberlain’s phone number to prevent these calls
and text messages, which caused Chamberlain to cry in the office of a coworker for
one hour.9
In the spring of 2017, Nassry became aware that several women within Penn
State’s Department of Geography published a scholarly article entitled “Effects of
Human Activity on the Processing of Nitrogen in Riparian Wetlands: Implications
for Watershed Water Quality.”10 Nassry was not credited as an author on the paper,
despite having conducted extensive work that was critical to the article.11 When
Nassry questioned his exclusion from the paper, Denice Wardrop, another employee
at Riparia and a credited author on the paper, apologized for his exclusion as a listed
author.12 Nevertheless, in May 2018, during a presentation at a conference, Wardrop
presented data and figures that Nassry had developed; she then characterized this to
Nassry as a misunderstanding.13 Wardrop later informed Nassry that she did not
believe any plagiarism had occurred in that publication.14
8 Id. ¶ 53.
9 Id. ¶¶ 54-55.
10 Id. ¶¶ 124-26.
11 Id. ¶¶ 111-23.
12 Id. ¶¶ 127-31.
13 Id. ¶¶ 132-34.
In June 2018, Wardrop was appointed the director of Riparia and became
Nassry’s direct supervisor.15 Nassry was thereafter “given a project to complete
after” Chamberlain and Wardrop “used budget funds without participating in the
corresponding amount of work.”16 In November 2018, the Riparia research group
attended a conference in Cooperstown, New York and, while at that conference,
Nassry heard Chamberlain “loudly disparaging him.”17 In January 2019,
Chamberlain was promoted to Associate Research Professor, despite Nassry’s
complaints regarding Chamberlain and despite Chamberlain’s purported issues with
alcohol.18
In February 2019, at lunch during a conference event, Nassry noticed a
conference attendee speaking with Chamberlain; after Chamberlain pointed in
Nassry’s direction, the attendee walked to the table where Nassry was seated, picked
up belongings from the chairs, and informed Nassry that she had been asked to move
before returning to sit with Chamberlain.19 In April 2019, Nassry informed Wardrop
that he would not attend the next conference due to Chamberlain’s behavior at
previous conferences and, in May 2019, Nassry requested that Wardrop address
Chamberlain’s behavior.20 Rather than address Chamberlain’s behavior, Wardrop
15 Id. ¶ 58.
16 Id. ¶ 59.
17 Id. ¶ 61.
18 Id. ¶ 69.
19 Id. ¶¶ 71-74.
reached out to Riparia’s previous director—Robert Brooks—who then requested
that Nassry apologize to Chamberlain.21
In June 2019, Wardrop advised Nassry not to teach a first year seminar, then
informed Nassry that she had volunteered on the committee that would conduct the
final interview for a position to which Nassry had applied, and “said there would be
‘consequences.’”22 That same month, Wardrop emailed Nassry and apologized for
some of her conduct, stating that he had overheard conversations between her and a
friend, and stating that it would not happen again.23
The following month Wardrop requested that Nassry perform administrative
tasks for Chamberlain; Nassry refused, leading Wardrop to “scream at [Nassry]
accusing him of blackmailing her by including details of Sarah Chamberlain’s
harassment in an email.”24 In June 2020, Nassry submitted a proposal to the EPA,
but alleges that he was intimidated into not putting his name on the proposal due to
(1) the harassment he had experienced—which led him to believe that Riparia had a
better chance of receiving funding if his name was left off of the proposal—(2)
Wardrop and Chamberlain’s relationships with EPA staff, and (3) Wardrop’s
unspecified attempts to isolate Nassry from outside agencies.25
21 Id. ¶¶ 80-83.
22 Id. ¶¶ 150-52. These “consequences” are unspecified.
23 Id. ¶ 86.
24 Id. ¶¶ 87-89.
By March 1, 2021, “Nassry decided the situation was intolerable and informed
the new director of Riparia (Dr. Trevor Birkenholtz) [that] he planned to resign from
Penn State effective June 30, 2021.”26 Nassry later informed Birkenholtz that he had
resigned due to Wardrop and Chamberlain’s harassment.27 On June 30, 2021, Nassry
ceased working full time for Penn State, but “remained as a part-time, remote
employee to continue advising a graduate student until December 31, 2021.”28
Beginning in December 2021 and continuing into July 2022, the Penn State
Affirmative Action Office investigated Nassry’s claims, although apparently
nothing came of the investigation.29
On October 3, 2022, Nassry filed a complaint of gender discrimination and
retaliation with the EEOC.30 The EEOC ultimately took no action and issued a right
to sue letter to Nassry on October 21, 2022.31
As a result of the conduct to which Nassry alleges he was exposed, in January
2023, Nassry filed a complaint—which he later amended—against Penn State,
Wardrop, Nicholas P. Jones, Lee Kump, and Cynthia Brewer.32 Nassry raises one
federal claim for a violation of Title VII based on gender discrimination, sexual
26 Id. ¶ 93.
27 Id. ¶ 95.
28 Id. ¶ 97.
29 Id. ¶¶ 98-110, 184-94.
30 Id. ¶ 6.
31 Id. ¶ 7.
32 Docs. 1, 15. In the opening paragraph of the amended complaint Nassry also lists Chamberlain
as a defendant. Doc. 15 at 2. However, Chamberlain is not listed in the caption of the amended
complaint, nor is she discussed in the “parties” section of the amended complaint, and it is
harassment, and constructive discharge, as well as state law claims for violations of
the Pennsylvania Human Relations Act, the Pennsylvania Whistleblower Law, and
wrongful termination.33
Defendants have filed a motion to dismiss three of the claims against it as
barred by the statute of limitations—including the Title VII claim—and one claim
as being preempted.34 Nassry contends, as relevant to this Memorandum Opinion,
that his Title VII claim is timely as there are sufficient allegations to state a claim
for equitable tolling, which would render his Title VII claim timely.35 Defendants
have filed a reply brief, and Nassry has filed a sur reply brief, rendering this matter
ripe for disposition.36 For the following reasons, the motion to dismiss will be
granted.
II. LAW
Under Federal Rule of Civil Procedure 12(b)(6), courts dismiss a complaint,
in whole or in part, if the plaintiff fails to “state a claim upon which relief can be
granted.” Following the landmark decisions of Bell Atlantic Corp. v. Twombly37 and
Ashcroft v. Iqbal,38 “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
33 Id. at 38-43.
34 Docs. 17, 18.
35 Doc. 21 at 9-15.
36 Docs. 22, 25.
37 550 U.S. 544 (2007).
on its face.’”39 The United States Court of Appeals for the Third Circuit has
instructed that “[u]nder the pleading regime established by Twombly and Iqbal, a
court reviewing the sufficiency of a complaint must take three steps”: (1) “take note
of the elements the plaintiff must plead to state a claim”; (2) “identify allegations
that, because they are no more than conclusions, are not entitled to the assumption
of truth”; and (3) “assume the[] veracity” of all “well-pleaded factual allegations”
and then “determine whether they plausibly give rise to an entitlement to relief.”40
With respect to motions to dismiss based upon a statute of limitations, “[t]he
running of the statute of limitations is an affirmative defense.”41 Consequently, “[a]
complaint is subject to dismissal for failure to state a claim on statute of limitations
grounds only when the statute of limitations defense is apparent on the face of the
complaint.”42
III. ANALYSIS
Defendants seek dismissal of Nassry’s Title VII claim on the ground that said
claim is barred by the relevant statute of limitations, as assertions of discrimination
must be filed with the Equal Employment Opportunity Commission (“EEOC”)
within 300 days of the discriminatory action, and the complaint clearly establishes
39 Id. at 678 (quoting Twombly, 550 U.S. at 570).
40 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations
and citations omitted).
41 Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017).
that such a claim was not timely filed.43 Nassry responds that he is entitled to
equitable tolling because, instead of timely filing a complaint with the EEOC, he
attempted to “address the problems he encountered through existing channels at”
Penn State, which is “commendable” as it potentially avoids overburdening the
EEOC.44
Title VII prohibits discrimination against an employee on the basis of, inter
alia, that individual’s gender.45 “Before filing a claim in federal court, a Title VII
plaintiff in Pennsylvania must file a charge of discrimination with the EEOC within
300 days of the alleged unlawful employment practice.”46 “If a claimant fails to
exhaust his or her claim within the requisite time period, that claim is
administratively barred”47 and, consequently, “time-barred.”48 However, the EEOC
filing requirement is “non-jurisdictional” and therefore subject to “equitable tolling
principles.”49
Although Nassry does not contest that his complaint to the EEOC was filed
more than 300 days after the events of which he complains and was therefore facially
untimely, the Court nevertheless independently analyzes the timeliness of his filing
with the EEOC. The last overt act of alleged discrimination or harassment of which
43 Doc. 18.
44 Doc. 22 at 13-15.
45 42 U.S.C. § 2000e–2(a).
46 Noel v. The Boeing Co., 622 F.3d 266, 270 (3d Cir. 2010).
47 Id. (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)).
48 Mikula v. Allegheny Cnty. Of PA, 583 F.3d 181, 183 (3d Cir. 2009).
Nassry complains occurred in June 2020, when he was allegedly intimidated into not
including his name on an EPA funding proposal.50 Even assuming that this conduct
occurred on June 30, 2020, Nassry would need to have filed an EEOC complaint on
or before April 26, 2021—a full 525 days prior to the date that Nassry actually filed
his EEOC complaint.51 Any complaint as to harassment, discrimination, or
retaliation is therefore facially untimely.
With regard to Nassry’s constructive discharge claim, while his final day of
employment was December 31, 2021,52 he submitted his letter of resignation on
March 1, 2021, allegedly because his employment at Penn State “was intolerable.”53
This leaves some question as to whether Nassry’s constructive discharge was
effectuated on March 1, 2021, when he submitted his notice of resignation, or
December 31, 2021, his last day of employment at Penn State.
Although the United States Court of Appeals for the Third Circuit has not
weighed in on this issue, numerous district courts within this Circuit have
determined that the applicable “statute of limitations begins to run on the date the
constructive discharge is effectuated.”54 Importantly, a number of circuit and district
50 Doc. 15 ¶¶ 91-92. Nassry baldly alleges that “[d]espite no longer having a full-time position,
the harassment, discrimination and retaliation continued into 2022.” Id. ¶ 100. However, this
statement is “no more than [a mere] conclusion[]” and therefore is “not entitled to the
assumption of truth.” Connelly, 809 F.3d at 787.
51 Doc. 15 ¶ 6.
52 Id. ¶ 97.
53 Id. ¶ 93.
54 Zurchin v. Ambridge Area Sch. Dist., 300 F. Supp. 3d 681, 690 (W.D. Pa. 2018) (collecting
courts have concluded that any constructive discharge is effectuated “on the date a
plaintiff gives notice of his or her resignation.”55 Those courts have reached that
decision on the logical conclusion that “[i]n the case of constructive discharge, it is
only the employee who can know when the atmosphere has been made so intolerable
by the discrimination-motivated employer that the employee must leave.”56
Consequently, the limitations period begins to run “on the date the plaintiff knew or
should have known of his or her inability to return to work,” which is generally the
date that a letter of resignation is submitted, not the last date of actual employment.57
This Court adopts that reasoning and concludes that the date Nassry submitted
his letter of resignation, March 1, 2021, is the relevant date upon which the
limitations period began to run.58 That date is the date that Nassry’s constructive
discharge occurred, as his allegations make clear that, by that date, his conditions of
employment had become “intolerable,”59 and he therefore “knew or should have
known of [his] inability to return to work.”60 Consequently, the limitations period to
file an EEOC complaint based on Nassry’s constructive discharge ran 300 days later
55 Ilori v. Carnegie Mellon Univ., 742 F. Supp. 2d 734, 751 (W.D. Pa. 2010) (collecting cases).
56 Id. at 753 (quoting Gerhart v. Boyertown Area School District, No. 00-5914, 2002 WL
31999365, at *4 n.9 (E.D. Pa. Mar. 4, 2002)).
57 Id. at 752 (quoting Gary v. Washington Metro. Area Transit Auth., 886 F. Supp. 78, 91 (D.D.C.
1995) (bracket omitted)).
58 Doc. 15 ¶ 93.
59 Id.
on December 27, 2021, or 280 days prior to the date that Nassry actually filed his
complaint with the EEOC.
Because Nassry’s EEOC filing was untimely, the Court turns to the question
of whether the amended complaint states facts upon which one could conclude that
equitable tolling may be warranted, which would render Nassry’s Title VII claim
timely. As stated above, claims under Title VII are subject to “equitable tolling
principles.”61
“It is well established that a court may “rescue a claim otherwise barred as
untimely by a statute of limitations when a plaintiff shows []he has been prevented
from filing in a timely manner due to sufficiently inequitable circumstances.”62
However, “[t]olling is an extraordinary remedy, and is proper only when the
principles of equity would make the rigid application of a limitation period unfair.”63
The Third Circuit has noted that:
There are three principal, though not exclusive, situations in which
equitable tolling may be appropriate: (1) where the defendant has
actively misled the plaintiff respecting the plaintiff’s cause of action;
(2) where the plaintiff in some extraordinary way has been prevented
from asserting her rights; or (3) where the plaintiff has timely asserted
her rights mistakenly in the wrong forum.64
61 Commc’ns Workers of Am., 282 F.3d at 216-17.
62 D.J.S.-W. by Stewart v. United States, 962 F.3d 745, 749-50 (3d Cir. 2020) (brackets and
internal quotation marks omitted).
63 Id. at 750 (brackets, citations, and internal quotation marks omitted).
“In addition, a litigant will not receive the benefit of tolling in any of these
situations unless she exercised due diligence in pursuing and preserving her claim.”65
“That is, tolling will never extend to ‘a garden variety claim of excusable neglect,
such as a simple miscalculation that leads a lawyer to miss a filing deadline.’”66
Nassry asserts that he did not file a timely complaint with the EEOC because
he “did not run to the [EEOC] as soon as problems arose with the Defendants. He
[instead] attempted to resolve the issues on his own using the existing channels
established at” Penn State.67 Nassry’s argument seems to demonstrate that he knew
of the limitations period and simply chose to ignore the EEOC filing deadline in
favor of pursuing remedies internally through Penn State—although it is unclear
what remedy Nassry expected from these internal processes since, at the time he was
pursuing them, he had already offered his resignation and was either on the verge of
finishing his time at Penn State, or had already ceased working for Penn State.68
The Court has been unable to locate any case that equitably tolled the
limitations period in circumstances such as these. Indeed, this Court cannot locate
any case where a plaintiff was bold enough to even offer such a reason in support of
equitable tolling. Nor could equitable tolling reasonably apply in these
circumstances. Nassry describes his conduct in failing to timely pursue an EEOC
65 Id. (internal quotation marks omitted).
66 Id. (quoting Holland v. Florida, 560 U.S. 631, 651-52 (2010)).
67 Doc. 21 at 13.
claim as “commendable” and “model behavior” since such behavior may help
prevent the EEOC from becoming “overwhelmed.”69 Commendable or not, there
simply is no way to conclude that Nassry was “prevented from filing in a timely
manner due to sufficiently inequitable circumstances.”70 Rather, Nassry chose not to
file a timely complaint with the EEOC, instead opting to pursue alternative systems
of remedy; nothing prevented Nassry from timely filing with the EEOC other than
his own choices and actions.
Simply put, Nassry did not exercise “due diligence in pursuing and preserving
[his] claim.”71 By the time Nassry submitted his resignation, and certainly by the
time his full-time employment ended and he remained at Penn State on a remote and
part-time basis only to assist a single graduate student, Nassry’s claims of
discrimination, retaliation, and constructive discharge would have been apparent to
him. To that end, Nassry alleges that, in June 2021, he met with an attorney regarding
his issues at Penn State, indicating that Nassry was aware of his claims.72 By that
time, Nassry’s claims were clear, and a reasonable person intent on preserving those
claims would have initiated the process of filing a complaint with the EEOC.
Bearing in mind that courts must “approach the doctrine [of equitable tolling]
warily, so as to guard against possible misuse” and that the limitations period may
69 Doc. 21 at 14-15.
70 D.J.S.-W., 962 F.3d at 749-50.
71 Id. at 750.
“not to be disregarded by courts out of a vague sympathy for particular litigants,”73
the Court concludes that, in these circumstances, equitable tolling is inappropriate
as a matter of law. Nassry’s Title VII claim is therefore time-barred and will be
dismissed with prejudice.
As the Court will dismiss Nassry’s Title VII claim with prejudice, all that
remains are his three state law claims. It is well established that, “[u]nder 28 U.S.C.
§ 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over
a claim if ‘the district court has dismissed all claims over which it has original
jurisdiction.’”74 Because this Court has “dismissed the Title VII claim that provided
the court with its jurisdiction,” it declines to exercise supplemental jurisdiction over
Nassry’s remaining state law claims, and those claims will be dismissed without
prejudice.75
IV. CONCLUSION
For the reasons stated herein, Defendants’ motion to dismiss the amended
complaint will be granted. An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
73 Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999) (quoting Baldwin
Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)).
74 Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir. 1999).