Burgh v. Borough Council of Montrose

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

5-25-2001

Burgh v. Borough Council of Montrose

Precedential or Non-Precedential:

Docket 99-4032

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Filed May 25, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-4032

TIMOTHY M. BURGH

v.

BOROUGH COUNCIL OF THE

BOROUGH OF MONTROSE

TIMOTHY BURGH,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 99-cv-00315)

District Judge: Honorable Richard P. Conaboy

Argued November 6, 2000

Before: ROTH, RENDELL and STAPLETON, Circuit Judges

(Opinion filed May 25, 2001)

David S. Dessen, Esquire (Argued)

Dessen, Moses & Sheinoff

1814 Chestnut Street

Philadelphia, PA 19103

Attorney for Appellant

Patrick J. Murphy, Esquire (Argued)

Murphy, Piazza & Genello

538 Spruce Street

Scranton Life Building, Suite 300

Scranton, PA 18503

Attorneys for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

Plaintiff Timothy M. Burgh, an African-American male,

applied for a job as a part-time police officer with the

Borough of Montrose (Pennsylvania) Police Department. He

was not hired for the position, which was filled by a white

male with no prior on-the-job police experience. Bur gh

brought suit against the Borough under T itle VII of the Civil

Rights Act of 1964, 42 U.S.C. S 2000e, et seq., and under

the Pennsylvania Human Relations Act (PHRA), 43 Pa. C.S.

S 951, et seq., alleging that the Bor ough did not hire him

because of his race. The District Court granted summary

judgment in favor of the Borough and against Burgh on

both counts, finding that the claims had beenfiled beyond

the applicable statutory limitations periods. For the reasons

that follow, we will reverse the grant of summary judgment

and remand both claims to the District Court for further

proceedings consistent with this opinion.

I. FACTS

The facts underlying the instant dispute have not been

developed in detail, given the early stage at which the

matter was resolved in the District Court. Bur gh's

complaint is the only pleading in the recor d and no

discovery has been taken.

According to the complaint, in April 1993, Bur gh applied

for a position as a part-time police officer with the

Borough's police department. He updated this job

application sometime before June 1994. In April 1994,

Burgh accepted a position as a part-time police officer in

the Clifford Township (Pennsylvania) Police Department.

Clifford Township is located appr oximately 25 miles from

Burgh's home in South Montrose.

In June 1994, the Montrose Police Department hired a

white male, allegedly with no prior on-the-job police

experience, as a part-time police officer,filling the position

that Burgh had sought. The Montrose Police Department

2

did not interview Burgh for this, or any other , position.

Burgh alleges that he was more qualified than the person

hired and that the department failed to hir e him because of

his race.

On December 8, 1994, Burgh filed a char ge of racial

discrimination against the Borough with the Pennsylvania

Human Relations Commission (PHRC) under the PHRA, 43

Pa. C.S. S 955(a).1 The PHRA claim was filed within 180

days of the alleged unlawful employment practice, the

Borough's failure to hire Bur gh because of his race. The

state administrative complaint was therefor e timely. See 43

Pa. C.S. S 959(h).

Burgh requested that his complaint be r eferred to the

United States Equal Employment Opportunity Commission

(EEOC) for dual filing as a Title VII char ge. The federal

claim was accepted and docketed by the EEOC on Mar ch

20, 1995. This claim was filed within 300 days of the

alleged discriminatory employment practice and it too was

timely. See 42 U.S.C. S 2000e-5(e)(1). On May 20, 1995, the

EEOC sent Burgh a letter advising him of thefiling of his

Title VII claim. The letter stated that the EEOC would

investigate and resolve the charge and that the Commission

must issue a Notice of Right Sue before Bur gh could file a

court action under Title VII.

On March 18, 1996, the PHRC sent Burgh a letter

advising him that it had been one year since hefiled his

complaint with the PHRC and notifying him that he now

had the right to bring a private civil action under the PHRA

in the Court of Common Pleas. The letter stated that Burgh

was not required to file such a private action and that the

Commission was continuing to process his case and would

make every effort to resolve it as soon as possible. If,

however, Burgh did wish to file in state court, the

Commission would dismiss the administrative complaint

and would not decide the case. The letter further advised

Burgh to ensure that any complaint was pr operly filed,

particularly that it was timely filed, and to consult an

_________________________________________________________________

1. The administrative complaint was not time-stamped and docketed

with the PHRC until December 24, 1994. However , the parties have

stipulated to the December 8 filing date.

3

attorney about representing him in court. There is no

dispute that Burgh received this letter . Burgh never filed an

action in the Court of Common Pleas. The PHRC appar ently

took no further action on the administrative char ge.

Sometime prior to October 1998, Burgh r etained counsel.

On October 19, 1998, Burgh's attorney sent a letter to the

EEOC, requesting that the agency issue a right-to-sue letter

in "light of the Pennsylvania Commission's extended delay

in resolving this matter." The EEOC on December 1, 1998,

sent a letter to Burgh's attorney, advising Burgh of his right

to institute a civil action under Title VII within 90 days of

receipt of that letter. Burghfiled his lawsuit, alleging

violations of Title VII and the PHRA, in the United States

District Court for the Middle District of Pennsylvania. His

suit was filed on February 26, 1999, 87 days after the

right-to-sue letter was issued.

On May 28, 1999, Burgh moved for default judgment;

this motion was withdrawn by stipulation, dated June 21,

1999. On June 28, 1999, the Borough filed a motion to

dismiss for failure to state a claim, pursuant to Fed. R. Civ.

P. 12(b)(6), contending that, because Bur gh had brought

suit beyond the applicable statutes of limitations, his

discrimination claims were untimely.

The District Court notified both parties during a case

management conference that the motion would be treated

as one for summary judgment; both parties agr eed to rest

on their memoranda and neither requested the opportunity

to file additional evidence. On November 16, 1999, the

District Court granted summary judgment in favor of

defendants.

The District Court held first that Burgh could not rely on

the fact that he had not received a right-to-sue letter from

the EEOC prior to December 1998 as reason for the delay

in filing his action because to "accept Plaintiff's argument

we would have to decide we could wait forever to file suit

even when the commission takes no action and fails to

notify the Plaintiff. This flies in the face of the basic reason

for a statute of limitations." The court then determined that

the issuance of a right-to-sue letter was not a necessary

prerequisite to the commencement of a civil action. In

4

reaching this conclusion, the court relied on case law

holding that the PHRC's failure to issue a notice of right to

sue after one year does not bar a civil action under the

state statute. See Rogers v. Mount Union Bor ough by Zook,

816 F. Supp. 308, 316 (M.D. Pa. 1993) (citing Snyder v.

Pennsylvania Ass'n of Sch. Retirees, 566 A.2d 1235 (Pa.

Super. Ct. 1989)). The court concluded that each agency

should have responded to Burgh's administrative

complaints within one year of filing with that agency--the

PHRC by December 8, 1995; the EEOC by March 20, 1996.

The court reasoned that after the passage of one year,

Burgh could have brought a private civil action on the

federal and state claims. As a result, the statute of

limitations for each claim began to run on the one year

anniversary of its filing with the agency.

The District Court went on to determine the period after

the one-year anniversary within which a complainant could

bring suit. Because the court found no specific limitations

period in Title VII, it decided to borr ow a state statute of

limitations governing an analogous cause of action. The

court held that Pennsylvania's two-year limitations period

for personal injury actions, which has been applied to

federal civil rights actions brought under 42 U.S.C. S 1983,

should govern Title VII. The court found a rationale for this

conclusion in the fact that both statutes pr ovide redress for

employment discrimination. Working fr om March 20, 1996,

the one-year anniversary of the referral of the complaint to

the EEOC, the court held that Burgh had until March 20,

1998, to file suit.2 Because he did not file until February

_________________________________________________________________

2. It is worth noting that, even assuming ar guendo that the District

Court's approach to the limitations issue was correct as a matter of law,

its application of the limitations period to this case was incorrect.

Under

federal law, the EEOC has 180 days to process a claim and notify the

complainant of the result; the complainant may request a right-to-sue

letter after that 180 days. 42 U.S.C. S 2000e-5(f)(1); 29 C.F.R.

S 1601.28(a). There is no provision in the statute that supports the

application of a one-year period from the filing of the EEOC charge as a

limit for the filing of a court action. Ther efore, even if a two-year

limitations period were to be grafted onto T itle VII, the two-year period

should have begun to run on September 16, 1995, 180 days from the

March 20 EEOC filing. It would then have lapsed on September 16,

1997, even earlier than the District Court deter mined.

5

1999, his suit was 11 months late and therefor e time-

barred.

The District Court did note that the inaction of the PHRC

and EEOC was partially to blame for the delays. However,

the court held that the filing of the action almost five years

after the filing of the first administrative complaint was

"clearly unreasonable" and therefor e untimely. This timely

appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had original federal question

jurisdiction over the Title VII claim, pursuant to 42 U.S.C.

S 2000e-5(f)(3) and 28 U.S.C. S 1331, and supplemental

jurisdiction over the PHRA claim, pursuant to 28 U.S.C.

S 1367(a). We have appellate jurisdiction over the final

decision of the District Court, pursuant to 28 U.S.C.

S 1291.

The District Court granted summary judgment, which is

subject to plenary review, applying the same legal standard

used by the District Court. See Pacitti v. Macy's, 193 F.3d

766, 772 (3d Cir. 1999); Ideal Dairy Far ms, Inc. v. John

LaBatt, Inc., 90 F.3d 838, 841 (3d Cir . 1996). Further, the

issue of the proper limitations period under T itle VII is

primarily a legal one, involving the interpr etation of federal

law, and our review is plenary. See Lavia v. Pennsylvania

Dep't of Corrs., 224 F.3d 190, 194-95 (3d Cir. 2000).

Summary judgment is appropriate when ther e are no

genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. See Fed. R. Civ. P

56(c); DeHart v. Horn, 227 F.3d 47, 50 (3d Cir. 2000) (en

banc).

III. DISCUSSION

Both Title VII and the PHRA make it unlawful to fail or

refuse to hire or employ an individual because of that

individual's race or color. See 42 U.S.C. S 2000e-2(a)(1); 43

Pa. C.S. S 955(a). The analysis of the claims is identical.

See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313,

317 n.3 (3d Cir. 2000) (citing Jones v. School Dist. of

6

Philadelphia, 198 F.3d 403, 410-11 (3d Cir. 1999)). Both

statutes also establish administrative remedies and

procedures that claimants must exhaust prior to bringing a

civil action in court. See 42 U.S.C. S 2000e-5, 43 Pa. C.S.

S 962(c); see also Robinson v. Dalton, 107 F.3d 1018, 1020

(3d Cir. 1997) (holding, in Title VII case, that plaintiff must

exhaust administrative remedies prior to bringing suit in

court); Clay v. Advanced Computer Applications, Inc., 559

A.2d 917, 921 (Pa. 1989) (holding that the intended forum

for initially addressing PHRA claims is the PHRC); Bailey v.

Storlazzi, 729 A.2d 1206, 1214 (Pa. Super . Ct. 1999)

(holding that plaintiff must exhaust administrative

remedies under PHRA prior to bringing case to court). The

statutes have slightly different r equirements in terms of

timing and scope of the administrative remedy. Because

this case turns on the precise requirements of each statute,

an overview of the statutory provisions is helpful.

A. TITLE VII

Under Title VII, a charge of race discrimination in

employment must be filed with the EEOC within 180 days

of the occurrence of the alleged unlawful employment

practice. The EEOC must serve notice of the char ge on the

employer within ten days of the filing of the char ge. See 42

U.S.C. S 2000e-5(e)(1); see also Occidental Life Ins. Co. v.

EEOC, 432 U.S. 355, 359 (1977). If the complainant also

initiates a complaint with a parallel state agency, as

occurred in the instant case, the period forfiling the charge

with the EEOC is extended to 300 days from the date of the

alleged unlawful employment practice. See 42 U.S.C.

S 2000e-5(e)(1).

The EEOC is then required to investigate the charge, see

Occidental Life, 432 U.S. at 359, and the complainant must

allow a minimum of 180 days for the EEOC investigation to

proceed. See 42 U.S.C. S 2000e-5(f)(1); see also Occidental

Life, 432 U.S. at 361 (holding that a private right of action

does not arise until 180 days after a charge has been filed).

The congressional policy underlying this framework was to

resolve discrimination claims administratively through

cooperation and voluntary compliance in an infor mal,

noncoercive manner. See Occidental Life, 432 U.S. at 363;

7

Anjelino v. New York Times Co., 200 F.3d 73, 93 (3d Cir.

1999).

If, after 180 days, the EEOC has not resolved the charge,

it must notify the complainant, see 42 U.S.C. S 2000e-

5(f)(1), generally through the issuance of a"right-to-sue"

letter, in which the EEOC states that it sees no reason to

take action on the complaint. See Waiters v. Parsons, 729

F.2d 233, 237 (3d Cir. 1984). After 180 days, the

complainant on his own may also request a right-to-sue

letter. The EEOC must issue the letter pr omptly on request.

See 29 C.F.R. S 1601.28(a)(1). The receipt of the right-to-sue

letter indicates that a complainant has exhausted

administrative remedies, an essential element for bringing

a claim in court under Title VII. See Anjelino, 200 F.3d at

93 (citing Ostapowicz v. Johnson Bronze Co., 541 F.2d 394,

398 (3d Cir. 1976)) ("The preliminary step of the filing of the

EEOC charge and the receipt of the right to sue notification

are `essential parts of the statutory plan."'). A complainant

may not bring a Title VII suit without havingfirst received

a right-to-sue letter. See Anjelino, 200 F.3d at 87; Robinson,

107 F.3d at 1020. Nothing in the statute or the regulations,

however, requires a complainant to request a right-to-sue

letter or to bring a private suit. Nevertheless, if the

complainant does choose to bring a private action, it must

be filed within 90 days of the date on which the

complainant has notice of the EEOC's decision not to

pursue the administrative charge. See 42 U.S.C. S 2000e-

5(f)(1). The on-set of the 90-day period is generally

considered to be the date on which the complainant

receives the right-to-sue letter. See Seitzinger v. Reading

Hosp. and Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999);

Mosel v. Hills Dept. Store, Inc. v., 789 F.2d 251, 52 (3d Cir.

1986) (per curiam).

Both the 180-day period for filing the administrative

complaint3 and the 90-day period for filing the court action

are treated as statutes of limitations. See Zipes v. Trans

World Airways, Inc., 455 U.S. 385, 393 (1982) (likening

requirement of timely filing of administrative charge to

statute of limitations); Figueroa v. Buccaneer Hotel Inc., 188

_________________________________________________________________

3. Or the 300-day period if there is a parallel state filing.

8

F.3d 172, 176 (3d Cir. 1999) (same with respect to time for

bringing court action after receipt of right-to-sue letter). We

have strictly construed the 90-day period and held that, in

the absence of some equitable basis for tolling, a civil suit

filed even one day late is time-barred and may be

dismissed. See Figueroa, 188 F .3d at 176. In our review of

this case, we must keep in mind, however, that the statute

of limitations does not begin to run unless and until there

is "final agency action," such as the issuance of a right-to-

sue letter. See Waiters, 729 F .2d at 237. Without that final

agency action, the complainant has not exhausted his

administrative remedies and cannot bring suit. See

Anjelino, 200 F.3d at 87.

B. THE PHRA

The PHRA similarly requires that claims be brought first

to an administrative agency, the PHRC, which has exclusive

jurisdiction over the claim for a period of one year in order

to investigate and, if possible, conciliate the matter. See

Clay, 559 A.2d at 920 (quoting Lukus v. W estinghouse Elec.

Corp., 419 A.2d 431, 455 (Pa. Super. Ct. 1980)). A

complainant may not file an action in court for a period of

one year. See Clay, 559 A.2d at 921; 43 Pa. C.S. S 962(c)(1).

If the PHRC does not resolve the administrative charge

within one year, the commission must notify the

complainant that he may bring an action in the Court of

Common Pleas. See 43 Pa. C.S. S 962(c)(1); see also Snyder,

566 A.2d at 1240 (holding that where a complainant has

not had her grievance resolved by the PHRC within one

year of filing, she could pursue another course, namely, an

action in the judicial system). Importantly, and unlike

under Title VII, notice of the right to sue is not required in

order to bring the PHRA action. Instead, after one year has

elapsed, a complainant may bring a court action r egardless

of whether or not he has received a letter fr om the PHRC.

See Snyder, 566 A.2d at 1240. No case law suggests,

however, that a complainant must bring the civil action

then or at any later time.

Moreover, the PHRA does not limit the time, after receipt

of the one-year notice, within which a civil action must be

brought. The statute does provide that any civil action must

9

be filed within two years after notice from the PHRC that it

is closing the complaint. See 43 Pa. C.S.S 962(c)(2).4 The

PHRC one-year notice is not, however, the equivalent of

notice that the PHRC is closing the complaint. A r eview of

the notice sent to Burgh illustrates this point. The letter

states that Burgh was not required to file suit in court, that

the Commission was continuing to process the case and

would make every effort to resolve it as soon as possible,

and that only if Burgh filed a complaint in state court

would the PHRC dismiss the complaint.

C. IS THERE A GAP IN THE TITLE VII LIMITA TIONS

PERIODS

The District Court granted summary judgment on

Burgh's Title VII claim, applying the Pennsylvania two-year

statute of limitations to Title VII as a gap-filler and running

the limitations period from the date on which Burgh could

have requested a right-to-sue letter fr om the EEOC. Under

this application of limitations, the court found Bur gh's

claim to be untimely.

It is well-established that, if Congress has cr eated a

cause of action and not specified the period of time within

which a claim must be asserted, a court may infer that

Congress intended state limitations periods to apply and

may borrow such periods and engraft them onto the federal

statute. See Occidental Life, 432 U.S. at 367; see also id.

(citing, inter alia, Runyon v. McCrary , 427 U.S. 160, 179-82

(1976) (state limitations period applies to Civil Rights Act of

1866, 42 U.S.C. S 1981) and O'Sullivan v. Felix, 233 U.S.

318 (1911) (same as to Civil Rights Act of 1871, 42 U.S.C.

S 1983)). We have borrowed two-year personal injury

_________________________________________________________________

4. This provision was added to the PHRA in 1991. Some courts had held

prior to the amendment that Pennsylvania's two-year statute of

limitations for personal injury, 42 Pa. C.S. S 5524(7), applied to PHRA

claims. See Raleigh v. Westinghouse Elec. Corp., 550 A.2d 1013, 1014

(Pa. Super. Ct. 1988); see also Long v. Board of Educ. of City of

Philadelphia, 812 F. Supp. 525, 534 (E.D. Pa.) (relying on Raleigh in

dismissing as time-barred PHRA claims that wer e not brought within two

years of the plaintiff's receipt of notice of her right to sue), aff'd 8

F.3d

811 (3d Cir. 1993) (mem.).

10

limitations periods from the states and imposed them in

both S 1981 claims, see Zubi v. AT&T Corp., 219 F.3d 220,

222 (3d Cir. 2000), and S 1983 claims. See Nelson v. County

of Allegheny, 60 F.3d 1010, 1012 (3d Cir . 1995). Where,

however, Congress explicitly provides a limitations period in

the text of the statute, that period is definitive. There is no

need to borrow a state period. See Holmber g v. Armbrecht,

327 U.S. 392, 395 (1946).

Contrary to the Borough's arguments, T itle VII is not a

statute without a limitations period. Congress did provide a

statutory limitations period for employment discrimination

claims; in fact, Congress provided two periods. First, a

complainant has 180 days from the occurr ence of the

alleged unlawful employment practice within which to bring

a discrimination charge before the EEOC, see 42 U.S.C.

S 2000e-5(e)(1), or 300 days where ther e has been cross-

filing with a state agency under state law. See 42 U.S.C.

S 2000e-5(e)(1). Second, a complainant has 90 days from

receipt of the right-to-sue letter to bring an action in court.

See 42 U.S.C. S 2000e-5(f)(1); see also Seitzinger, 165 F.3d

at 239; Mosel, 789 F.2d at 252. Both periods have been

treated as statutes of limitations. See Zipes, 455 U.S. at

393; Figueroa, 188 F.3d at 176. The latter limit is strictly

enforced and a delay of even one day will bar a claim. See

Figueroa, 188 F.3d at 176.

These two periods together represent the congressional

determination of the relevant and pr oper time limitations

under Title VII. The imposition of an additional limitations

period is inconsistent, and indeed in direct conflict, with

the plain language of the federal statute. Ther e is no gap to

fill and thus no need to import a state limitations period as

a gap-filler. The statute by its ter ms establishes the two

appropriate time requirements that a complainant must

satisfy in order to bring a timely claim.

Furthermore, the two-year limitations period urged by

the Borough would conflict with the timetables established

in Title VII. See Occidental Life, 432 U.S. at 368-69 & n.23.

For example, in the most basic case, if a complainant

requests and receives a right-to-sue letter exactly 180 days

after he files his EEOC charge, the statute gives him 90

days to bring his action in court, see 42 U.S.C. S 2000e-

11

5(f)(1), while the borrowed state limitations period would

give him two full years (640 additional days) tofile his

action. To complicate matters further, a complainant would

have no guidance as to which limitations period controlled.

In the instant case, Burgh unquestionably satisfied the

timing requirements established by the text of the statute:

He received the right-to-sue letter on December 1, 1998,

and filed his civil action on February 26, 1999, 87 days

later. There is no time period pr ovided in the statute that

Burgh failed to satisfy.

The Borough recognizes this conflict but nonetheless

argues that the borrowed state limitations period should

apply here, relying on a decision fr om the Middle District of

Pennsylvania, Rode v. Dellarciprete , 646 F. Supp. 876 (M.D.

Pa. 1986), aff'd in part, vacated in part , 845 F.2d 1195 (3d

Cir. 1988). But the Borough misr eads Rode. In Rode, the

District Court dismissed a S 1983 claim as untimely under

a borrowed state two-year limitations period. See Rode, 646

F. Supp. at 882. But the court did not dismiss the Title VII

claim as untimely. In fact, a careful r eview of Rode shows

that the District Court found plaintiff's T itle VII allegations

were not barred by laches, as alleged by defendants, since

defendants had not shown that the delay had caused them

any prejudice. See id. at 883.

Moreover, other courts of appeals have r ejected the

argument that state statutes of limitations should be

borrowed in Title VII cases. The Ninth Circuit held that the

time limits for filing a charge with the EEOC and for giving

notice to the employer of that charge "ar e a Congressionally

established statute of limitations" and ther e is no basis

under the statute to import a different period from state

law. See Kirk v. Rockwell Int'l Corp., 578 F .2d 814, 819 (9th

Cir. 1978). Concurring specially, Judge Hufstedler stated

that "Title VII's time provisions fully define the steps which

must be taken by a Title VII litigant to pr eserve his or her

right to sue. State statutes of limitations ar e not borrowed

because there is no gap to fill." Id. at 824. The Sixth Circuit

reached the same conclusion in Draper v. United States

Pipe and Foundry Co., 527 F.2d 515, 522 (6th Cir. 1975),

noting the specific time periods for filing a charge with the

EEOC and for commencing a civil action after r eceipt of the

12

right-to-sue letter, and holding that "T itle VII establishes its

own statute of limitations, and state law is irr elevant in

determining whether a private individual has lost his right

of action under Title VII through the passage of time."

We can also derive guidance from our decision in Waddell

v. Small Tube Prods., Inc., 799 F .2d 69 (3d Cir. 1986), a

case involving procedural delays similar to those in the

instant case. In Waddell, the plaintiff filed a failure-to-

rehire charge with the PHRC in February 1977; this charge

was referred to the EEOC for cross-filing in March 1977. In

April 1977, the PHRC dismissed the charge and notified the

plaintiff, but not the EEOC, of that dismissal. The PHRC

did not send any notification to the EEOC until November

1981, more than 4 years later. In the meantime, the

plaintiff wrote two letters to the EEOC inquiring about his

case, the first in April 1977, the second in September 1977.

In May 1983, the plaintiff learned that he could request a

right-to-sue letter, which he did; he r eceived the letter in

June 1983 and brought suit in August 1983, within 90

days of receipt of the letter. The issue then was whether the

plaintiff's claim should be barred by the equitable doctrine

of laches, based on the plaintiff's failur e to diligently pursue

his claim, either administratively or by seeking a right-to-

sue letter at an earlier time. See id. at 74-75. We ultimately

remanded the case to the District Court to determine

whether the defendant had established the elements of a

laches defense. See id. at 79-80. Ther e is, however, no

mention in Waddell of any statute of limitations; nor is

there any suggestion that the plaintiff had violated a

statutory limitations period -- either federal or state-- in

bringing his civil action more than seven years after filing

the administrative charge and almost six years after his last

letter to the EEOC.

We note, finally, that the limitations scheme provided for

in Title VII is consistent with Congress's intent that most

complaints be resolved through the EEOC rather than by

private lawsuits. See Occidental Life, 432 U.S. at 366

(discussing Senate Report). Congress's concer n that the

"fair operation" of Title VII required a time limitation was

focused on when a charge was filed with the EEOC and a

defendant received notice of that charge. Id. at 371. The

13

"benchmark, for purposes of a statute of limitations, is not

the last phase of the multistage scheme, but the

commencement of the proceeding before the administrative

body." Id. at 372. Title VII establishes a clear period of 180

days following the alleged unlawful employment decision to

file an administrative charge with the EEOC (or parallel

state agency) and to provide notice of the char ge to the

defendant ten days later. See 42 U.S.C. S 2000e-5(e)(1). This

notice gives the defendant the opportunity to gather and

preserve evidence in anticipation of court action. See

Occidental Life, 432 U.S. at 372-73. Statutes of limitations

exist, in part, to ensure such notice to the adversary. See

Barnes v. The Am. Tobacco Co., 161 F .3d 127, 151-52 (3d

Cir. 1998) ("The theory [of statutes of limitations] is that

even if one has a just claim it is not unjust to put the

adversary on notice to defend within the period of

limitation.") (citations omitted).

Congress wanted cooperation and voluntary compliance

to be the primary means of resolving claims in an informal

and noncoercive manner. See Occidental Life, 432 U.S. at

367-68; Anjelino, 200 F.3d at 93 (holding that the statutory

plan of Title VII was aimed at correcting discrimination

through informal administrative conciliation). This goal of

resolving problems by conciliation is better met by enacting

a limitations period for filing a court action that runs from

the receipt of the right-to-sue letter at the end of the

administrative process rather than from the date of the

unlawful employment practice.

For all the above reasons, we conclude that there is no

gap in Title VII that requires the grafting on to it of any

state limitations period. Burgh's Title VII claim, filed within

the statutory period of 90 days from receipt of the right-to-

sue letter from the EEOC, was timely filed and may go

forward.

D. IS THERE A GAP IN THE PHRA LIMITA TIONS

PERIODS

We turn now to Burgh's PHRA claim. This involves an

issue of state law, requiring us, as a federal court sitting in

diversity on this claim, to apply state substantive law,

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statutory and decisional as interpreted by the highest court

of the state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938); McKenna v. Pacific Rail Serv., 32 F.3d 820, 825 (3d

Cir. 1994). In the absence of a reported decision on point by

the Pennsylvania Supreme Court, we must look to the

decisions of the intermediate appellate courts for guidance.

See McKenna, 32 F.3d at 825. In the absence of guidance

from the state supreme court or any inter mediate appellate

courts, we must predict how the state supr eme court would

resolve this issue if it were befor e that court. See

Nationwide Ins. Co. v. Resseguie, 980 F.3d 226, 229 (3d

Cir. 1992).

In its opinion, the District Court conflated T itle VII with

the PHRA in applying the one-year period after filing the

administrative complaint as the accrual of the time to file

suit. The court held that the limitations period on the PHRA

claim began running one year after Burgh hadfiled the

administrative charge, on December 8, 1995, because at

that point Burgh had exhausted his administrative

remedies and could have brought his claim in court. The

court held that this period for bringing a court action

expired two years later.5

Like Title VII, the PHRA establishes two limitations

periods: first, the administrative charge must be filed by a

complainant with the PHRC within 180 days of the alleged

discrimination, see 43 Pa. C.S. S 959(h); second, a court

action must be filed within two years of the date that the

PHRC gives the complainant notice of the closing of the

administrative complaint. See 43 Pa. C.S.S 962(c)(2). As in

Title VII, these periods represent the complete legislative

determination as to the appropriate timing provisions

under the PHRA. There is no basis for a court, particularly

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5. As it did on the Title VII claim, see supra note 2, the District Court

calculated the PHRA dates improperly. The court started the clock on the

PHRA claim on March 20, 1996, one year after the EEOC charge was

filed. The court stated that this was to give the plaintiff the benefit of

all

reasonable factual inferences. But thefiling of the EEOC charge is

irrelevant to any limitations period under the PHRA. If the District Court

was correct that the PHRA limitations period began to run one year after

the filing of the PHRC charge, the clock would have expired on December

8, 1997.

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a federal court sitting in diversity, to engraft any additional

limitations periods as gap-fillers. There ar e no statutory

gaps to be filled.

As we note in footnote 4, the Pennsylvania Superior

Court in Raleigh v. Westinghouse Elec. Corp., 550 A.2d

1013, 1014 (Pa. Super. Ct. 1988), did apply the

Pennsylvania two-year personal injury statute of limitations

to bar plaintiff's claim. Raleigh, however, was decided in

1988, prior to the 1991 amendments to the PHRA that

added the two-year limitations period from the dismissal of

the administrative complaint now contained in S 962(c)(2).

Because Raleigh is inconsistent with S 962(c) as amended,

we will not follow it. We similarly decline to follow our

dictum in Northview Motors, Inc. v. Chrysler Motors Corp.,

227 F.3d 78, 90-91 (3d Cir. 2000), which cited Raleigh in

stating that Pennsylvania's two-year personal injury

limitations period applies to PHRA claims. Finally, we

disapprove the District Court decisions in Onibokun v.

Berks County Children and Youth Servs. , Civ. No. 98-4402,

1999 WL 681697 (E.D. Pa. 1999) and Long v. Boar d of

Educ. of City of Philadelphia, 812 F. Supp. 525, 534 (E.D.

Pa. 1993),6 both of which applied the two-year limitations

period to PHRA claims, running from the date of the

plaintiff's receipt of the right-to-sue letter.

Unlike Title VII, the PHRA limitations period for bringing

suit, S 962(c)(2), does not run from the date of receipt of the

letter from the PHRC one year after filing, but from the date

of notice that the PHRC closed the complaint. Mor eover, the

PHRC one-year letter does not automatically close the

complaint and trigger S 962(c)(2), as a r eview of the March

18, 1996, letter to Burgh illustrates. That letter provided

that the "Commission is continuing to process your case,

and we will make every effort to resolve it as soon as

possible. If we are not notified otherwise, we will assume

that you want the Commission to continue handling your

case." The PHRC informed Burgh that it would close his

complaint only if he filed an action in court. Furthermore,

_________________________________________________________________

6. The Borough relies on the fact that we summarily affirmed the District

Court in Long. See 8 F.3d 811 (3d Cir. 1993) (mem.). However, such a

summary affirmance is not precedential and not binding on this panel.

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there is nothing in the record to indicate that the PHRC

ever closed Burgh's administrative char ge. Thus, the

S 962(c)(2) two-year period never began to run on Burgh's

state claim.

Nor under the PHRA was Burgh ever requir ed to

commence litigation. The District Court relied on the

Pennsylvania Superior Court decision in Snyder v.

Pennsylvania Ass'n of Sch. Retirees, 566 A.2d 1235 (Pa.

Super. Ct. 1989) and the Middle District of Pennsylvania

decision in Rogers v. Mount Union Borough by Zook, 816 F.

Supp. 308 (M.D. Pa. 1993), to conclude that Bur gh could

have brought suit on the one-year anniversary of the filing

of the administrative claims and the limitations clock

started on that date. In Snyder, 566 A.2d at 1242, the

Superior Court held that a plaintiff could pr oceed into

court, even absent the issuance of a right-to-sue notice, on

a discrimination charge that had been br ought before the

PHRC and had remained there for at least one year. In

Rogers, 816 F. Supp. at 316, the court cited Snyder for the

proposition that the lack of issuance of a right-to-sue notice

does not bar the civil action on the grounds of failure to

exhaust.

Both cases are distinguishable. In both, the plaintiffs had

gone to court without having received right-to-sue notices

and, in both, the courts were addressing and rejecting the

defendants' argument that the claims should be dismissed

because the plaintiffs had failed to exhaust administrative

remedies. Both courts held that the expiration of the one-

year period in S 962(c)(1) was sufficient exhaustion under

the statute. These cases stand for the proposition that a

PHRA plaintiff may, after one year , with or without a letter

from the PHRC, forego the administrative process and bring

his discrimination claim in court.

Neither case, however, stands for or supports the

proposition that a plaintiff must do so on pain of losing that

claim to a rigid statute of limitations. In fact, we can predict

that a more appropriate view of Pennsylvania law would

hold that a plaintiff should not be required to cut short the

administrative process in favor of litigation. This prediction

is supported by the legislative policy underlying the PHRA,

as discussed by the Pennsylvania Supreme Court in Clay,

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supra. The Supreme Court held that the state legislature

intended "that the PHRC would bring to bear particular

expertise in handling discrimination cases." Clay, 559 A.2d

at 919. The legislature sought to create an administrative

scheme that would ensure maximum use of the PHRC's

expertise in the area of unlawful discrimination. See id. at

920 (quoting Lukus, 419 A.2d at 455). The PHRC is granted

exclusive jurisdiction for one year in order to carry out its

expert function. See Clay, 559 A.2d at 920 (quoting Lukus,

419 A.2d at 455); see also Clay, 559 A.2d at 921 (holding

that parties were restrained from judicial recourse for a

period of one year after bringing an administrative charge).

It follows that the policy underlying the PHRA, like the

policy underlying Title VII, is to per mit the administrative

process to continue to completion and to allow the PHRC

adequate time to resolve the case, rather than having the

plaintiff cut short that process and r esort to litigation.

We conclude, therefore, that the limitations period for

Burgh to bring his PHRA action did not begin to run on the

one-year anniversary of the filing of his PHRC claim.

Because the PHRC never closed the administrative

complaint, the limitations period on his PHRA claim never

started. The state claim was timely filed and may go

forward.

IV. CONCLUSION

For the foregoing reasons, the statute of limitations did

not lapse either on Burgh's Title VII claim or on his PHRA

claim; both claims are timely and both may go forward. We

will reverse the order of the District Court granting

summary judgment in favor of the Borough and r emand

this matter to the District Court for further pr oceedings

consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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