Opinion

Nassry v. The Pennsylvania State University

Court
District Court, M.D. Pennsylvania
Filed
Aug 8, 2023
Cited by
0 cases
Authority
More cited than 29.2%

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).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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