# Petition for Writ of Certiorari — Jordan v. SmithKline Beecham, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1247%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 871 ## Text Supreme Cou ~ rt, U.S. FILED 98 80 sus 993 No. 98- OFFICE OF THE CLERK IN THE SUPREME COURT OF THE UNITED STATES October Term, 1998 J. ST. GIRARD JORDAN, Petitioner, V. SMITHKLINE BEECHAM, INC.., Respondent. me ee ee ere es me me me ee ee ee ee ee ee ee ee ee ee SES SS EE Ee LEE LE S_ LS LE LS LS ee a a Petition for Writ of Certiorari to the United States Court of Appeals for the Third Circuit eee eee oSocoS SSS CS ES SS SS OS SS SE SE ES ES SE ESS me ee er me ee ee mee ee ee ee ee ee ee ee ee ee ee ee ee ee SSS OLE LE_LE_LE_—_El PETER GOLDBERGER Counsel of Record ANNA M. DURBIN PAMELA A. WILK 50 Rittenhouse Place Ardmore, PA 19003-2276 (610) 649-8200 Attorneys for Petitioner July 1998 PUBLISHER’S NOTE: E FOLLOWING PAGE WAS UNAVAILABLE FOR FILMING: \ TABLE OF CONTENTS Fete Be rR BIE STOED cicincckvncananvensaesiuasanicesscceners i RT WN IE IID snc cccpnssuacedsevincnmnnacebedvansivetens i SE RD PRIME IT. ss... ssccunssactiseunnsiiobensieancecseacnets iii MR ST PAGS REMIIEE BE BESEE sikcstiss indscdsscdcesncssnccovecesics iv PETITION I a cb ipnaiehes 1 RTE SERED SA OCI Ee Tee ON 1 FEDERAL STATUTE and RULE INVOLVED ......... 2 eR GR BEY IE «cass csoscecncdcssacorasicecoonceners 3 BRO COUTSS OF Proceedings .......0....0..ccsssoresessessersoeee 4 a semsecance 5 Statement of Lower Court Jurisdiction ............0...... 7 REASONS FOR GRANTING THE WRIT The decision of the court of appeals upholding summary judgment on the statute of limitations defense, allowing isolated and ambiguous comments of a plaintiff in his deposition to defeat his right to trial on the facts underlying application of the "discovery rule," conflicts with this Court’s cases on summary judgment and the GEIIOCINS OE CURGE CATO, ost cn cenesissiccsccscessessoveseneces 7 ME EEIET ciceinidalevcibitincedetiacxinussdatindestrionnsiironesees 14 INDEX TO APPENDIX A. Memorandum Opinion of the Court of Appeals B. Memorandum Opinion of the District Court oe -lll- TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ... 9 Byers v. Burleson, 713 F.2d 856 (D.C.Cir. 1983) ......... 12 Cambridge Plating Co. v. Napco, Inc., 991 F.2d 21 (1st Cir. ME doris chek slabiceck shal enices 13 Celotex Corp. v. Catrett, 477 U.S. S21 (1986) .........0000: 10 Foster v. Johns-Manville Sales Corp., 787 F.2d 390 (8th Cir. WOE Wat dirduclack,, 13 Goodman v. Lukens Steel Co., 482 U.S. 656 CEPT) vases, 9 Jordan v. SmithKline Beecham, Inc. 958 F.Supp. 1012, 70 Empl.Prac.Dec. 144,735 (E.D.Pa. 1997) .......... 1 Matsushita Electric Industrial Co. v. Zenith Radio Corp., WTS WI SPU AAOMR i en ih 9 Maughan v. SW Servicing, Inc., 758 F.2d 1381 (10th Cir. coe, SO EES 12 Oubre v. Entergy Operations, inc., $22 U.S. ~, 139 L.Ed.2d 849, 118 S.Ct. 838 EWI E visistcsrshccosnis 5 Rose v. A.C.& S., Inc., 796 F.2d 294 (9th Cir. 1986) ... 13 Sellars v. Perry, 80 F.3d 243 Fem Ce: PO oc cesseises 12 United States v. Kubrick, 444 U.S. 111 (1979)... 8 Urie v. Thompson, 337 U.S. 163 i Bee 8 STATUTES AND RULES: ns Os es a a Ss 7 aD NBA SD SOUND so ecccicnsdcnsn 7 dhcchbent el hott. 4 MC ee 7 bcbg Ee sgscit ROD TTT LOR RTE 7 Oe AON PROD seceding ck ani 1 OOD ORIN i i en a2 7 SS UGE GSM chosen, ch A eee 1 -jv- | | | | | BERT eae | SABRE Merced teettet ame E Dee EADY Or HTONE Em 4,9 GE AIT. FIs si ctnciendetinnsosinsaienciaincnssatninanastamnmboaaleea isis 12 Fe Bs SI pas tcnnctsiinesnialleciniineeagiaietntentominas 4 We Cai Be i sssinitisseresevindincuananninienaiaiintieioni 8 AED DRE, BFS sscncnsnccnciicicsstcsoianctenctoninscnsierpsendanens 9 REPT. SOD} sacctnsessaissrsvinstcnisserssscevesisnnbenanisesnansbaas 7 PO Re would still be eligible for the enhanced severance package if the anticipated merger occurred and their positions were terminated in the ensuing 24 months. This resolution was not publicized to affected employees at the time, however. In April 1989 respondent’s CEO circulated a memo- randum, addressed to "All Corporate Staff" (a category that would have included petitioner), announcing the substance of the January Board resolution. In his complaint, petitioner denied knowing of the Board resolution-or having seen the memorandum. At his deposition he testified that he could not recall having seen the memorandum at the time and that he did not know of the Board resolution. He also stated, however, that if the memorandum was, in fact circulated to all corporate staff, he "should have seen it." In the same passage of the deposition, petitioner commented that if someone else in his position said the April memorandum was circulated or posted, he would accept that as a fact. App. A3. Petitioner left respondent’s employment in J uly 1989. He soon began a period of consulting with respondent, but the consultancy was terminated eight months later. - App. B7. Petitioner filed his original civil summons in State court four years later, on J uly 12, 1993; he amended it to add the federal civil rights claims at issue here in December 1995, within the required 90 days after receiving the right to sue from the Pennsylvania Human Relations Commission, to which he had complained within 300 days of the date when he contended he discovered the factual basis for his discrimination claims -- during discovery on the contract issues, in February 1995, when he first saw the January 1989 Board resolu- ’ PS ee Re tion, which allowed those privy to it to receive all the VRIF benefits, and also to receive additional stock options, without resigning. Statement of Lower Court Jurisdiction Under Rule 14.1(g)(ii). The district court’s jurisdiction was properly invoked in this case under 28 U.S.C. §§ 1331, 1332(a)(1), 1343(a)(4), 1367(a), and 42 U.S.C. § 2000e- 5(f)(3), in that the complain‘, as amended, alleged federal civil causes of action arising under federal statutes providing for civil rights, including Title VII, and state law claims arising out of the same core of operative facts, between citizens of different states, valued at more than $75,000. The jurisdiction of the court below rested upon 28 U.S.C. § 1291 and was timely invoked by Notice of Appeal filed within 30 days after entry of the summary judgment. Fed.R.App.P. 4(a). REASONS FOR GRANTING THE WRIT The decision of the court of appeals upholding summary judgment on the statute of limitations defense, allowing isolated and ambiguous comments of a plaintiff in his deposition to defeat his right to trial on the facts underlying the application of the "discovery rule," conflicts with this Court’s cases on summary judgment and the decisions of other circuits. This Court should grant certiorari in this case to establish a civil rights plaintiff's right to trial on disputed facts underlying his or her assertion of the "discovery rule," which defers accrual of a statute of limitations until the injured party knew or reasonably should have known a of the injury.” Here, petitioner did not know he had been injured until he knew persons of other races had been treated better than he in connection with the 1988-89 VRIF.* In contravention of this Court’s cases and in conflict with the decisions of other circuits, the Court below deprived him of his right to trial on the question whether he knew or should have known of that fact more than 300 days before he brought his Title VII complaint before the local human relations agency, 42 U.S.C. § 2000e-5(e),4 or more than two years before he sued * See generally United States v. Kubrick, 444 U.S. 111 (1979); Urie v. Thompson, 337 U.S. 163, 168-71 (1949). > That petitioner, a relatively high-ranking corporate lawyer, was treated rather well -- a fact that respondents repeatedly emphasized below and which both courts below found occasion to imply in their opinions -- in no way undermines his case. He was entitled to complain if he had a basis for believing that others -- particularly, similarly situated white corporate employees -- were treated better. * Both the district court and the court of appeals misstated the statute of limitations for Title VII claims. See App. A8, B20. It is not the complainant’s lawsuit that must be brought within 180 days (or 300 days if a local agency is involved) but rather the administrative charge of discrimination. 42 U.S.C. § 2000e-S(e). The lawsuit must be filed within 90 days of issuance of the "right to sue" letter indicating that the agency has either dismissed the complaint, or has been unable to conciliate it, or has been unable to process it within the allowed time. Id. § 2000e- 5(f)(1); see Statute and Rule Involved. -8. ; | under 42 U.S.C. § 1981. [t was respondent’s burden, in moving for summary judgment on an affirmative defense, to show "that there [wa]s no genuine issue as to any material fact and that the moving party [wa]s entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Statute and Rule Involved. The court below did not suggest any overriding statutory policy reasons, nor could any be imagined, why summary judgment opponents in civil rights actions should be held to any special or greater burden than to advance some evidence on which the factfinder might rely to find in the complainant’s favor on the discovery rule issue. Compare Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (heightened duty of plaintiff under Rule 56(e)° where substantive law imposes burden of proof by clear and convincing evidence); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588-98 (1986) (identifying special considerations where issue is existence of antitrust conspiracy). Rather, this is an example of the ordinary case, where a legiti- mate jury issue could be established merely by pointing * See Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) (determining statute of limitations for § 1981 action under Pennsylvania law). The same error in granting summary judgment wrongly precluded him from proving Count III of his complaint, charging a breach of the covenant of good faith and fair dealing, which under state law carried a four-year statute, App. A6-A7, and Count VI, under Pennsylvania’s Human Relations Act, 43 Pa.Stat. § 955(a). © See Statute and Rule Involved. -9. to evidence that a factfinder might credit as sufficient to meet the plaintiff's burden by a preponderance. See Celotex Corp. v. Catrett, 477 U.S. 321 (1986). The court of appeals in this case, like the district court, focused on the existence of statements in peti- tioner’s deposition that could be understood by a fact- finder as unhelpful to his position on the "discovery rule." See App. A3. But petitioner did not concede respon- dent’s case; his statements were not fatal admissions. He testified that he did not remember having seen the April 1989 memorandum summarizing the January 1989 Board resolution. Id. No one testified that petitioner had seen it or eveu that it had been sent to him. Other witnesses testified at depositions either that the memorandum had been generally circulated or that they, themselves, had received copies of it at the time. A factfinder might have concluded from this testimony that petitioner, too, had received the memorandum in 1989 and therefore "should have" read and understood it. But the factfinder would not be bound to draw this conclusion. The finder of fact might instead conclude that peti- tioner’s modestly-phrased statement of lack of recollec- tion was sufficient proof that he had not been sent a copy of the memorandum when others had, and that discov- ering this was the essential evidence from which he first "should have known" that respondent's allocation of discretionary benefits to its corporate staff was tainted by racial discrimination. Petitioner’s theory was not that the April 1989 memorandum contained a "smoking gun" admission of respondent's discriminatory conduct, but rather that his discovery of the memorandum within material turned over as a result of a request for document disclosure led -10- him to realize that the offer made in the memorandum had been extended to others and not to him, because he was not given a copy of the memo at the time. This, he contended, was when he first "knew" or "should have known" that he had been discriminated against on the basis of race.’ Both courts below made much of petitioner’s deposi- tion testimony to the effect that if the April 1989 memo- randum was distributed to all corporate staff then he "should have seen it." But a factfinder could as easily have understood this comment as petitioner’s way of saying that he believed the memorandum had not been distributed to everyone, but rather only to a favored group, because he hadn’t seen it at the time. Since he had not seen it, and if it had been universally distributed he should have seen it, then it followed that the memo- randum had not been circulated to everyone. Likewise, petitioner’s comment that "if someone said they [i.e., respondent] did either one [i.e., either post or circulate the April 1989 memorandum], I would accept that" should not have been given the least favorable interpretation to himself -- as some kind of offer to dismiss his case if the other side could produce a single contrary witness -- but rather as a generous-spirited suggestion that any of his former colleagues who said they had seen the memorandum were no doubt telling ’ That he earlier suspected racial discrimination at SmithKline, or even that he complained about it, App. B24 & n.13, does not prove that petitioner "should have known" that he was not given the same notice of favorable economic opportunities in 1989 as other comparable corporate staff. es the truth. But that statement also cannot logically lead to a conclusion that no rational factfinder could find for petitioner on the discovery rule. To the contrary, the summary judgment record was sufficient to find that peti- tioner neither knew nor should have known until 1995 that he had been treated differently from others in 1988- 89 on account of race, based on his own testimony that he did not believe he had seen the April 1989 memorandum, i.e., that the document and its contents had been invidi- ously kept from him when he "should" have "seen it," that is, when it should have been distributed to him, too. Other circuits have been far more favorable to plaintiffs than the court below when reviewing summary judgments granted on statute of limitations grounds, over assertion of the "discovery rule." For example, in Sellars v. Perry, 80 F.3d 243 (7th Cir. 1996), the court reversed the grant of summary judgment on limitations grounds in a § 1983 case, where there was no evidence that the plaintiff in fact even knew he had been terminated; the court remanded for further factual development on whether he should have known. Similarly, in non-civil rights contexts, many circuits have found the "should have known" aspect of the discovery rule a particularly poor candidate for summary judgment. The District of Columbia Circuit (with then- Judge Scalia on the panel) carefully reviewed the standard for summary judgment on a "discovery rule" issue that threatened to undo the plaintiff's legal malpractice case, finding the issue a complex one factually, on which reasonable minds could differ. Byers vy. Burleson, 713 F.2d 856 (D.C.Cir. 1983). In Maughan v. SW Servicing, Inc., 758 F.2d 1381 (10th Cir. 1985), the same principles required reversal of In Blakeney, the court refused to permit a plaintiff who had released all claims "growing out of any legal restrictions on the company’s right to terminate its -B13- General Foods, 774 F.Supp. 299, 316 (D.N.J 1991), aff'd, 968 F.2d 14 (3d Cir.1992) (same). (6}[7}[8] More fundamentally, Plaintiff has stil] not identified the misrepresentation upon which he bases his claim of fraud. In order to state a prima facie case of fraud, a plaintiff must show 3 (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying upon it; (5) justi- fiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 889 (1994). The misrepresentation must be "a misrepresentation of a past or present material fact"--"a prediction of a future event is not a misrepresentation." BMB Assocs. v. Ortwein, 1994 WL 314330, at *4 (E.D.Pa. June 29, 1994), aff'd, 60 F.3d 813 (3d Cir.1995). In this case, it appears that Plaintiff has only alleged the "non-communication" of the possibility of a future (continued) employees" to bring a claim based on the company’s failure to rehire the plaintiff after he had executed the release. 65 F.3d at 484. The court held that such a claim is not a "future claim," but rather is simply an attempt to revive a claim the plaintiff was paid to release. Jd. at 485. Since the claim arose out of the termination, it was barred by the release which the plaintiff had ratified by refusing to return the consideration that the company had paid. Id. -B14- bitte ie Se Te eee ae SN ee eT ee event--the possibility that in January 1989 the Board would decide to pass a resolution that changed the VRIF rules for certain employees who had not yet accepted the VRIF package or who had elected it and then revoked the election. Plaintiff has offered no evidence that anyone in the Company knew on December 8, 1988 when Plaintiff first signed the release that the Board would pass a resolution in Januaiy 1929. Plaintiff, however, contends that this board resolu- tion may not have been a future event because Smith- Kline may have contemplated *1021 allowing certain employees to revoke their VRIF acceptances before December 7, 1989 and therefore misled Plaintiff into signing the release by representing that he would lose the enhanced benefits. In making this argument, Plaintiff ignores the evidence that, in a memorandum dated April 6, 1989, SmithKline informed "All Corporate Staff Employees" of the very facts which Plaintiff claims that the company concealed from him. As Plaintiff re- affirmed his general release after this disclosure, he cannot sustain the claim that the Court should invalidate the release due to fraudulent concealment.® ® In his deposition, Plaintiff states that he does not recall having seen this memorandum "but [as] it went to all corporate staff employees, I should have seen it." Jordan Dep. at 347. Plaintiff also testified that he had no reason to believe that this document did not go to all corporate staff employees and stated that "[o]ften times the policy was to or procedure, I should say, was posted on the Board, it may have been posted or it may have gone out, but if someone said that they did either one, I would accept that." Jd. -B1S- Although SmithKline is entitled to summary judgment solely on the basis of the release, I will address Plaintiff's additional claims. 2. Count I--Contractual Right to the January 1989 Stock Option Grant [9] In Count I of the Amended Complaint, Plaintiff alleges a breach of contract claim as he contends that SmithKline should have included him in the January 1989 stock option grant. SmithKline argues that (1) Plaintiff's claims are barred by the statute of limitations and (2) Plaintiff cannot prove that he had a contract which required SmithKline to issue any stock options to Plaintiff. As I agree that SmithKline retained the authority to determine which of its employees would receive stock options, I conclude that Plaintiff did not have a contractual right to the 1989 stock option grant.’ [10] In order to prove an enforceable contract in which an employer grants a specific benefit to an employee, the employee must prove that the employer communicated an intentional offer with definite terms, that the employer intended to be bound by the offer and that the employer made the offer to induce the employee to accept or continue employment with the company. Morosetti v. Louisiana Land and Exploration Co., 522 Pa. 492, 564 A.2d 151, 152 (1989). In Morosetti, the Pennsylvania Supreme Court held that employees did not have a contractual right to severance pay despite the fact that the company had a policy of granting it. The court held that it was insuffi- ” As I will reach a decision on the merits, I will not address SmithKline’s statute of limitations argument in this instance. -B16- eas. ee ee cient for an employee to show that the employer occasionally granted these benefits or even that the employer had a policy awarding these benefits to all employees. Morosetti, 564 A.2d at 152-53. In support of its conclusion, the court reasoned that It is basic contract law that one cannot suppose, believe, suspect, imagine or hope that an offer has been made.... Nor can one be bound because they are contemplating making an offer, or that they would or should have or that someday they might. A company may indeed have a policy upon which they intend to act, given certain circum- stances or events, but unless they communicate that policy as part of a definite offer of employ- ment they are free to change as events may require. Id. As in Morosetti, Plaintiff has only alleged that SmithKline had a program for stock option grants and that SmithKline had granted Plaintiff stock options in the past. Amended Complaint at PP 13-15. Plaintiff does not contend that anybody ever promised to grant him the January 1989 stock option grant; rather he only claims that he was among the employees of the corporation who were eligible to receive stock option grants. Amended Complaint at P 14. Moreover, the documents governing SmithKline’s stock option program provide that the company retained the discretion at all times to select the persons to receive the options and to determine the number of shares to be distributed. See SmithKline at Ex. A, PP 6-8; Ex. A-6 at 3 (May 20, 1997 *1022 Prospectus); Ex. A-8 at 1 (Incentive -B17- Compensation Plan). Thus, as Plaintiff has no contractual right to the grant, his claim fails.8 3. Count II--Contractual Right to a Larger Bonus In Count II of the Amended Complaint, Plaintiff a alleges that SmithKline "paid Plaintiff a bonus in 1990 which represented less that [sic] 50% of the amount Plaintiff should have received for employees in the same management level." Amended Complaint at P 29.9 ® SmithKline also argues that Plaintiff was ineligible for the stock option grant for the additional reason thata grantee could not exercise this stock option grant unless he or she remained with the company for a year or more and that Plaintiff would be leaving before this time expired. See SmithKline’s Motion at Ex. A-7, D000534. Plaintiff counters that SmithKline should have included him in the stock option grant because the corporation later accelerated the exercise date as part of the Beecham merger. As such, Plaintiff concludes that SmithKline could not exclude him on the basis that only employees who planned to remain with the company for a year or more were eligible. Plaintiff's argument fails because the exercise date is irrelevant. Here, SmithKline retained the discretion to determine which employees would receive stock options. See SmithKline’s Motion at Ex. A, PP 6-8; Ex. A-6 at zx Ex. A-8 at 1. As stock options served to provide incentive for future performance, SmithKline had the right to offer them only to employees who either revoked their VRIF acceptances or who elected to remain with the company. See SmithKline’s Motion at Ex. A, P 8. 9 In 1990, Plaintiff received $23,300 for his seven and a half months of employment before his resignation on July | -B18- I er al ae aor es SmithKline argues that Plaintiff cannot prove a right to a larger bonus as (1) the level of bonuses was within the company’s discretion and (2) SmithKline never promised Plaintiff a particular bonus. As discussed above, the burden falls upon the employee to prove a definite offer to pay an additional benefit. Morosetti, 564 A.2d at 152-53. In this case, Plaintiff testified that the level of bonuses for individual employees was within the discretion of the corporation. !° Since Plaintiff admits that he had no contract for (continued) 14, 1989. 10 Tn particular, Plaintiff stated that "the very nature of bonuses is with discretion. I mean, bonus is something that’s not guaranteed, that’s the very nature of the bonus." Jordan Dep. at 62-63. Plaintiff then testified as follows: Q: Did anyone at SmithKline ever promise you either orally or in writing, that you would get a bonus at a certain level for services rendered in 1989? A: Not to my knowledge, no. No, I mean, it’s accepted, as a matter of general operating policy since I’ve been there, that if the corporation met certain levels of profitability, they paid bonuses. Now, no one went around and told individuals that you were going to get that bonus because it was an accepted policy of the corporation year in year out. No one tapped me on the shoulder and said, Jack, you’re getting a bonus next year.’ Jordan Dep. at 63. -B19- payment of a bonus at any particular level for service rendered in 1989, I conclude that SmithKline is also entitled to judgment on Count II of the Amended Complaint. 4. Race Discrimination Claims Plaintiff asserts race discrimination claims under . Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seg. (Count IV), under 42 U.S.C. § 1981 (Count V) and under the Pennsylvania Human Relations Act, 43 Pa.S.A. § 955(a) (Count VI). Again, SmithKline’s attack on Plaintiff's allegations is two-pronged. First, SmithKline contends that Plaintiff did not promptly file his claims with the EEOC and therefore his charges are time-barred. Second, Smith- Kline argues that Plaintiff has adduced no evidence that the company’s decision was pretextual. Plaintiff disputes the alleged untimeliness and further suggests that he was not informed of the opportunity to revoke his VRIF acceptance due to his race. I agree with SmithKline that Plaintiff did not file his claims within the time period allotted under the statute of limitations and that Plaintiff has not provided any evidence of discrimination. a. Statute of Limitations [11] Under Title VII, a plaintiff may bring suit within 180 days of the alleged discrimination; however, if the plaintiff initially filed a complaint with a state or local agency with the authority to adjudicate the claim, he or she is allotted 300 days from the date of the alleged discrimination within which to file a charge of employ- ment discrimination *1023 with the EEOC. 42 U.S.C. -B20- § 2000e-5(e).! [12}[13][14][15] In order to extend this time period in which to file charges of discrimination, a plaintiff may invoke the discovery rule.!* Under the discovery rule, a 11 42 U.S.C. § 2000e-5(e) states in the pertinent part: A charge under this section shall be filed within ; one hundred and eighty days after the alleged i unlawful employment practice occurred ... 7 except that in a case of unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to . grant or seek relief from such practice or to institute criminal proceedings with respect — : thereto upon receiving notice thereof, such ! charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred .... 12 A plaintiff may also employ equitable tolling to extend this deadline. Equitable tolling functions to stop the statute of limitations from running where the claim’s : accrual date has already passed. Oshiver v. Levin, | Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994). Equitable tolling is appropriate in three principle although not exclusive situations: (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 his or her rights; or (3) where the plaintiff has asserted his or her rights mistakenly in the wrong forum. /d. (citations -B21- Sisal ee. ; iil plaintiff may toll the time limit for filing a charge until he "has discovered, or, by exercising reasonable diligence, should have discovered (1) that he or she has been injured, and (2) that the injury has been caused by another party’s conduct." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir.1994) (emphasis added). [16][17] The awareness which is at issue under the discovery rule is the plaintiff's awareness or constructive awareness of his "actual injury," not the awareness that this injury constitutes a legal wrong. Jd. at 1386. In order to take advantage of the discovery rule, the plaintiff must "take reasonable measures to uncover the existence of an injury." Jd. at 1390. In Oshiver, the defendant (a law firm) dismissed plaintiff (an attorney) on April 10, 1990 with the explana- tion that the firm did not have sufficient work to sustain her position. Jd. at 1384. On May 21, 1991 ata hearing to secure unemployment compensation, plaintiff discovered that the firm had instead hired a male attorney to assume her former duties. id. at 1385. The district court granted defendant’s motion to dismiss, holding that plaintiff's claims were time-barred as the statutory limitations period had begun to run on the day that the firm dismissed her. Jd. On appeal, the Third Circuit ruled that the discovery rule does not preserve a claim where the claimant knew of her injury (the fact that she was no longer employed) (continued) omitted). As Plaintiff does not assert that SmithKline engaged in any of the above delay tactics, I will not apply the equitable tolling doctrine in this case. -B22- a .. 1 4 4 2 e but she did not discover some of the alleged evidence (the fact that the firm had replaced her with a male attorney) until it was too late to file a claim. Oshiver, 38 F.3d at 1391. if in this case, Plaintiff contends that he did not discover that he had a legal claim against SmithKline until February 1995, when, as part of the discovery in this case, he received a copy of the January 1989 Board Reso- lution which caused him to believe that other SmithKline corporate staff employees were treated differently from Plaintiff in the administration of the VRIF program when they were informed of its 24 month extension. However, Plaintiff has not identified any injury which he first discovered in 1995. The only thing that Plaintiff claims to have discovered is the purported evidence of his claim of discrimination, ie., the January 1989 Board minutes. The injuries Plaintiff is claiming in this suit are (1) the fact that he did not receive certain stock options and (2) the fact that he is no longer employed by SmithKline. Plaintiff does not dispute that he knew of those facts much more than 300 days before he filed his administra- tive charges. Moreover, it is undisputed that SmithKline commun- icated the substance of the January 1989 board resolution to all corporate staff on April 6, 1989, in a memorandum which Plaintiff testified he "should be seen." See Jordan *1024 Dep. at 347-48; SmithKline’s Motion at Ex. A-11, (April 6, 1989 Memorandum); Ex. A, PP 10-11; Ex. B, PP 6-7; Ex. C, P 4. Even if Plaintiff did not, in fact, see the April 6, 1989 memo, he cannot dispute that if he had exercised the reasonable diligence required by the discovery rule he should have seen it when it was circu- lated to all corporate staff. -B23- Finally, as a general matter, it is clear from Plaintiff's own correspondence that Plaintiff cannot possibly claim that a race discrimination suit never entered his mind before 1995. In Plaintiff's letters to SmithKline in May and June 1992, he complained about race discrimination at SmithKline and the alleged "special, private arrange- ments" whereby executives purportedly received more favorable treatment in the administration of the VRIF program.'* See SmithKline’s Motion at Exs, A-14 and A- 15. Yet he did not pursue such claims for several years after he wrote those letters. Plaintiff's second and related basis for his race discrimination claims, his alleged constructive discharge, is also untimely for the same reasons set forth above. The discovery rule cannot toll the time limit for filing a charge because the Plaintiff's purported injury (discharge) occurred with his full knowledge by July 1989, when he resigned from SmithKline. See Oshiver, 38 F.3d at 1386. 13 Specifically, on May 11, 1992, Plaintiff claimed that: Not to receive this value due would constitute a double economic impact for me. It is an obvious fact that African Americans (and in many instances, women) have not received anything approaching the level of advancement and income for equal service, time and contribution. SmithKline’s Motion at Ex. A-14. Plaintiff also stated that there was a "blatant case" for race discrimination should one be interested and that the “implications of race ... discrimination" were his "motivating force" because "the structural bias permeates all levels." SmithKline’s Motion at Ex. A-15. -B24- CE i IO LDN TED SPOR COA iti Ns aie bh [18] Plaintiff's additional race discrimination claims in Count V (under 42 U.S.C. § 1981) and Count VI (under the Pennsylvania Human Relations Act) fail as well. The statute of limitations under 42 U.S.C. § 1981 in federal court in Pennsylvania is two years from the date of the alleged discrimination. Goodman v. Lukens Steel Co., 482 U.S. 656, 662, 107 S.Ct. 2617, 2621-22, 96 L.Ed.2d 572 (1987). Plaintiff did not assert a § 1981 claim until 1995, over six years after the alleged discrimination and after Plaintiff knew or should have known of the substance of the board resolution. Therefore, his § 1981 claim is barred by the statute of limitations, as well. [19][20] The time limit for filing a charge under the Pennsylvania Human Relations Act ("PHRA") is 180 days after the occurrence of the alleged unlawful employ- ment practice. Oshiver, 38 F.3d at 1385. Plaintiff did not file a charge with the PHRC within 180 days of the alleged employment practice or within 180 days of the date he knew or should have known of the substance of the Board Resolution. As such, the PHRA claim in Count VI is also time-barred. b. Merits Even though Plaintiff's race discrimination claims are untimely, I will address his substantive arguments. [21] Plaintiff's race discrimination claims are based on Plaintiff's allegations that SmithKline purposely did not inform him of the Board’s January 1989 resolution because of his race. Plaintiff contends that he has estab- lished his prima facie case because (1) he is black, (2) his job qualifications were undisputed, (3) he was treated less favorably than white employees and (4) others similarly situated were not subject to the same adverse -B25- action. In response, SmithKline asserts that it did not treat white employees more favorably than black and that it informed all corporate staff of the January 1989 resolu- tion when it circulated the April 6, 1989 memorandum. [22] When the defendant offers a legitimate reason for its employment action, the plaintiff generally must submit evidence which: (1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably concluded that each reason was a fabrication *1025 or (2) allows the fact- finder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.1994). In this case, the only evidence that Plaintiff has provided to support his claim that SmithKline only informed white employees of the substance of the January 1989 board resolution is the Affidavit of Matthew D. Clayton, Esq., a former SmithKline employee. See Plaintiff's Motion in Opposition to Defendant’s Motion for Summary Judgment ("Plaintiff's Motion") at Ex. B. This employee, who states that he did not receive the April 6, 1989 memorandum, also avers that his employment with SmithKline terminated in February 1989. Id. Since he was not employed at the company when SmithKline issued this memorandum, it is not surprising that he did not receive it. As such, his testimony is irrelevant. On the contrary, one of the employees, who specifi- cally recalls receiving the April 1989 memorandum, is African American. See SmithKline’s Motion at Ex. C, PP 4-5. Even more compelling is the fact that Plaintiff -B26- 5 Bias i att Bees himself does not even deny that the information set forth in the memorandum was sent to all corporate staff. [23][24][25] Plaintiff's related claim of constructive discharge fails as well. Constructive discharge may exist where an employer knowingly permitted conditions of such intolerable discrimination that a reasonable person would feel compelled to resign. Spangle v. Valley Forge Sewer Auth., 839 F.2d 171, 173 (3d Cir.1988); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir.1992). However, an employee can still maintain a constructive discharge claim even if an employer treats him or her in a “civil, businesslike, gentlemanly fashion;" verbal or physical harassment is not a necessary element. EEOC v. Hay Assocs., 545 F.Supp. 1064, 1087 (E.D.Pa.1982). Here, Plaintiff argues that the fact that SmithKline allegedly kept certain information from him created an intolerable workplace. Yet, he has only testified that he had "great affection" for the company and that he wanted to continue his work. Jordan Dep. at 136, 138, 414, 416. In light of these comments and the fact that Plaintiff does not assert that his working conditions were unpleasant or difficult but merely that SmithKline kept information from him, I will dismiss Plaintiff's constructive discharge claim, as well. (26][27] Finally, Plaintiffs claim under 42 U.S.C. § 1981 (Count V) is also meritless for all the above 14 Plaintiff testified that he had no reason to believe that this document did not go to all corporate staff employees and he specifically stated that "[o]ften times the policy was to or procedure, I should say, was posted on the Board, it may have been posted or it may have gone out, but if someone said they did either one, I would accept that." Jordan Dep. 347 -B27- reasons and because Plaintiff has not alleged discrimina- tion prohibited by § 1981. The Civil Rights Act of 1991 amendments to § 1981 are not applicable to conduct which occurred before November 21, 1991. Rivers v. Roadway Exp., Inc., 511 U.S. 298, 301-03, 114 S.Ct. 15 10, 1514, 128 L.Ed.2d 274 (1994). Claims previous to this date are governed by Patterson v. McLean Credit Union, 491 U.S. 164, 185-86, 109 S.Ct. 2363, 2377-78, 105 L.Ed.2d 132 (1989). Under Patterson, § 1981 only applies to claims based on certain hiring or promotion decisions. Id. As Plaintiff has not alleged a hiring or promotion claim, I will grant summary judgment for SmithKline. 5. Remaining State Law Claims In Count III of the Amended Complaint, Plaintiff states a cause of action for the breach of the covenant of good faith and fair dealing based on SmithKline’s alleged failure to provide Plaintiff with notice of the January 25, 1989 board resolution and to otherwise ensure that "all information was available to him" during the course of the negotiations leading up to the signing of Plaintiff's general release on December 8, 1988. Amended Complaint at PP 31-32; Jordan Dep. at 391. In Count VII, Plaintiff asserts a claim of misrepresentation based on the same alleged failure to provide information. Amended Complaint at P 44. I will grant summary judgment for SmithKline on these Counts, as well. *1026 a. Statute of Limitations [28][29] A claim for breach of good faith and fair dealing should be treated as a breach of contract claim. Engstrom v. John Nuveen & Co., Inc., 668 F.Supp. 953, 958 (E.D.Pa.1987) (claim purporting to be based ona breach of good faith and fair dealing in an at-will employ- ment relationship is analyzed as a breach of contract -B28- claim). The statute of limitations governing a breach of contract claim is four years. See 42 Pa.C.S.A. § 5525. Count III is therefore time-barred, since the alleged breach occurred prior to December 8, 1988, but Plaintiff did not assert the claim in Count III until he filed his Amended Complaint in December 1995, seven years later. |30] Count VII, is governed by the two year statute of limitations for negligence. See 42 Pa.C.S.A. § 5524; AAMCO Transmissions, Inc. v. Harris, 759 F.Supp. 1141, 1144 (E.D.Pa.1991). Since the alleged negligence occurred in 1988, this claim is also untimely. Moreover, even if the "discovery rule" applied, this claim would be untimely because Plaintiff is aware, or should have been aware of the existence of the board resolution by April 6, 1989, when SmithKline distributed the memorandum describing the substance of the resolution. b. Merits [31]}|32] Plaintiff bases his allegations in Count III on SmithKline’s alleged failure to provide Plaintiff with notice of the January 25, 1989 board resolution. In order to state a claim for breach of good faith and fair dealing, a party must plead facts which would give rise to a contractual obligation to provide information, such as offer, acceptance or consideration. See Engstrom, 668 F.Supp. at 957-58; Garvey v. National Grange Mut. Ins. Co., 1995 WL 461228, at *1 (E.D.Pa. Aug.2, 1995) (duty to act in good faith and deal fairly arises from the contract itself). In this case, SmithKline had no obligation to inform its employees of future plans 0. resolutions of its Board of Directors. Moreover, it did take these measures by posting the April 6, 1989 memorandum. -B29- [33][34] In order to state a claim for negligent misrepresentation, the plaintiff must allege a misrepre- sentation of material fact, among other elements. Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 890 (1994). In Count VII, Plaintiff has alleged nothing more than a “non- communication" of information. Therefore he has failed to allege an essential element of his claim. Additionally, the information that Plaintiff claims that SmithKline concealed from him was published in the April 6, 1989 memorandum. IV. COUNTERCLAIM Based on the foregoing analysis, it is clear that plaintiff violated the terms and conditions of the release by breaching the covenant not to sue the defendant. The issue of damages cannot be resolved by the present summary judgment motion. V. CONCLUSION For the above reasons, SmithKline’s Motion for Summary Judgment is granted in its entirety. -B30- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1247%3A1. Public record. Not legal advice.