Ilori v. Carnegie Mellon University (742 F. Supp. 2d 734, 2010)

United States District Court for the Western District of Pennsylvania 2010-09-23

Citations

Full opinion text

MEMORANDUM OPINION

CONTI, District Judge.

Ademóla Ilori (“plaintiff’), an African-American software engineer, commenced this race-based discrimination action against his former employer, Carnegie Mellon University (“CMU”) and former supervisor Leonard Brush (“Brush,” together with CMU, collectively “defendants”). Plaintiffs complaint includes the following claims: (1) race-based hostile work environment implicating a constructive discharge in violation of the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 959 et seq. (“PHRA”); (2) retaliation implicating a failure to promote and constructive discharge in violation of the PHRA, 43 Pa. Cons. Stat. § 959; (3) race-based discrimination implicating a failure to promote in violation of the PHRA; and (4) race-based hostile work environment, retaliation, and race-based discrimination implicating a failure to promote and constructive discharge, pursuant to 42 U.S.C. § 1981 (“§ 1981”).

After considering the defendants’ motion for summary judgment (Docket No. 21), plaintiffs response (Docket No. 31), the joint statement of material facts (“J.C.S.”) (Docket No. 44), and the parties’ other submissions, defendants’ motion will be denied with respect to plaintiffs § 1981 and PHRA claims for retaliation. Defendants’ motion will be granted with respect to all remaining claims because the claims are either time-barred or plaintiff did not adduce sufficient evidence for a jury to render a verdict in his favor.

Factual Background

A. General

Ilori began his employment at CMU in 2000 as an intern in the Department of Administrative Computing and Information Services (“ACIS”). (J.C.S. ¶ 1.) ACIS was responsible for, among other things, administrative software development and deployment and maintaining information systems managed by ACIS. {Id. ¶ 2.) After completing his internship, Brush offered plaintiff a full-time position with ACIS. Brush offered plaintiff a software engineer I position. {Id.) Plaintiff accepted the position and commenced his employment with CMU in December 2000. {Id.) Plaintiffs experience working in computer programming and software development before his full-time employment was training at the Institute for Advanced Technology and his internship with ACIS. {Id. ¶ 4.) In 2004, ACIS employed twenty-five employees. {Id. ¶ 5.)

B. Plaintiffs work assignments and supervisors

From 2000 through the end of 2003, plaintiff reported to Robert Rittiger (“Rittiger”) and Mary Ann Blair (“Blair”). (Defs.’ App. (Docket No. 24), Tab E at 41-42.) Plaintiff considered Blair “a good mentor, a friend and the rest,” and his “best supervisor.” (Defs.’ App., Tab B at 224-25.) Plaintiff considered Ashish Khetan (“Krishna”), a senior co-worker, to be his mentor. (Id. at 61.) Plaintiff avers he had no single supervisor and was isolated in the department. (Ilori Aff. (Docket No. 30), ¶¶ 13-14.)

CMU invited plaintiff to work on a software development project undertaken by ACIS called the “Applicant Tracking Project” (“TMS”). (PL’s App. (Docket No. 40), Tab 18 at 43.) TMS used the computer programming language known as Java. (Id.) In early 2003, plaintiff withdrew from TMS and recommended his co-worker as a replacement. (Id. at 45-46.) Plaintiff contended he withdrew from the project to allow Janet Piper (“Piper”), who he recruited to CMU, to work on the project. (Id.)

In August 2003, plaintiff was assigned to the risk management information system (“RMIS”) project. (J.C.S. ¶ 13.) The RMIS project was a long-term development assignment for plaintiff in the Oracle platform. (PL’s App., Tab 18 at 20.) Krishna previously trained plaintiff on Oracle format reports. (Id. at 37.) Plaintiff was excited when Blair invited him to work on the RMIS project. (Id. at 36.) As part of the project, plaintiff designed and developed the vehicles module. (J.C.S. ¶ 20.) The vehicles module involved developing a portion of the risk management information system that would track every vehicle owned by CMU, the insurance carried on the vehicle, the age of the vehicle, etc. (Id.; Defs.’ App., Tab F at 53.)

In December 2003, Blair went on a maternity leave of absence. (J.C.S. ¶ 16.) In anticipation of her leave, Blair assigned Carol Rigdon (“Rigdon”) as the project leader on the RMIS project and as plaintiffs immediate supervisor. (Id.) Plaintiff asserts Rigdon, as a senior software engineer, did not have supervisory authority over him as a software engineer I. (PL’s App., Tab 8 at 8.6-8.7.) Rigdon came to CMU in 1999 from Oracle Corporation where she did Oracle software development. (J.C.S. ¶ 17.) She was hired by ACIS for her knowledge and background with the Oracle architecture to which CMU was in process of converting. (Id.) Prior to supervising plaintiff, Rigdon was assigned to work for more than a year on a project in the School of Computer Science concerning issues with the Oracle system. (J.C.S. ¶ 18.) During the project, Rigdon placed one of the employees, who was white, on probation, and subsequently terminated his employment for failing to improve his performance to a satisfactory level. (Id.; Defs.’ App., Tab G at D-0178-81, D-0197.)

In the spring of 2004, the RMIS project was still in the design phase. (J.C.S. ¶ 22.) The design phase was a crucial part of software development — similar to creating a blueprint for a building. (Id.) In March 2004, Rigdon provided plaintiff with a technical specifications template for performing the assigned tasks on RMIS using the Oracle platform. (Defs.’ App., Tab F at 60-61, Tab C at 82.) According to Rigdon and Blair, the templates were given to plaintiff because his development assignment “appeared to be a difficult thing for him to grasp.” (Defs.’ App., Tab C at 82.) Plaintiff asserts the specifications template was incomplete. (Pl.’s App., Tab 18 at 36.)

On April 2, 2004, Brush became aware that plaintiff disparaged Rigdon to coworkers in ACIS and discussed personnel issues with employees who were not his supervisors. (Defs.’ App., Tab A at 74-75.) Brush could not recall plaintiffs statements, but remembered plaintiff complained to co-workers John Zamperini, Piper, and John Bird. (Id.; Pl.’s App., Tab 1 at 1.37-1.38.)

C. Evaluations

The performance management process in ACIS was a continuous process of objective setting, development, and review with the goal of continuing to enhance performance and develop the employee. (Defs.’ App., Tab C at 57.) The performance management process was interactive; encouraging open lines of communication and sharing the objectives. (Id.) The supervisor turned handwritten comments into a final performance evaluation document that was eo-signed by the supervisor and employee. (Id.) Sometimes supervisors, however, did not make final documents and have them signed. (Id.) The performance review guidelines were a human resource tool available to departments at CMU, but there was no requirement employees receive reviews on an annual basis. (J.C.S. ¶ 7.)

In March 2001, plaintiff received written performance objectives including “Oracle Report Development.” (Defs.’ App., Tab B at D-0889.) The performance objectives included a section labeled “Oracle Reports” with the handwritten comment “meet with Krishna, 1 hour per week ... Krishna mentors.” (Id. at D-0890.) Plaintiff did not sign this evaluation. (Id.) In April 2002, plaintiff received written performance objectives including “[b]e-come proficient in the use of Oracle Report Writer.” (Id. at D0891.) Plaintiff signed this evaluation. Although the document is dated April 10, 2002, his signature is dated April 4, 2002. (Id. at D-0891-93.) In February 2003, plaintiffs performance objectives included “[bjecome proficient in the use of Oracle Report Writer.” (Id. at D-0897.) Plaintiff did not sign this performance review. (Id.) Plaintiff signed a draft of performance objectives for the period March 2004 through June 2004, which included: “Become proficient developing Oracle Forms & Reports within Oracle applications’ architecture” and “[b]e-come a team player.” (Defs.’ App., Tab B at D0221.)

D. Alleged qualifications for promotion

A software engineer I was required to “maintain existing applications ... [and] make system directions.” (PL’s App., Tab 8 at 8.6 — 8.9.) These responsibilities were necessary to keep the applications and systems that currently existed up and running, and correct and enhance them as needed. (J.C.S. ¶ 79.) Other duties included running the production of existing applications, working with supervisors and clients to make production schedules, and detecting and correcting production errors. (Id. ¶ 80.) The senior software engineer “devise[d] solutions to business problems ... [and] developed] and test[ed] applications.” (Id. ¶ 83; PL’s App., Tab 15 at 50.) Blair explained the senior software engineer was required to communicate well with business customers and engage in new development efforts; rather than starting from pre-existing programs and enhancing the software. (PL’s App., Tab 15 at 50.)

Plaintiff asserts he was involved in complex software development work during his employment at CMU. (J.C.S. ¶ 81.) Plaintiff states because he was not under any supervision, he was performing the job of a senior software engineer. (Id. ¶ 62.) Blair described plaintiffs projects as enhancement projects, requiring no experience with software development from scratch, and with no responsibility for the development of business relationships. (PL’s App., Tab 15 at 43-50.) During the spring of 2004 it was the consensus of Blair, Rittiger, and Martha Baron (“Baron”) that plaintiff lacked skills for promotion to senior software engineer. (Defs.’ App., Tab C at D-0923.) To receive the promotion, plaintiff needed to “build the necessary skills in programming, database design, SQL, operating in a Unix environment and teamwork.” (Id.) Blair, Rittiger, and Baron agreed the RMIS assignment provided plaintiff the opportunity to acquire the necessary skills “for a successful promotion bid.” (Id.)

On April 2, 2004, Brush and Blair met with plaintiff to discuss his approaching Blair for a recommendation for promotion. (J.C.S. ¶ 75.) During the meeting, Brush confronted plaintiff about his discussing personnel issues (including his poor relationship with Rigdon) with co-workers. Brush stated, “If I hear you say anything about Carol, I will fire you.” (Defs.’ App., Tab B at 11.) Plaintiff asked why he could not be evaluated on the work he had done with Java for a promotion. (J.C.S. ¶ 76.) Brush stated, “If I hear you say ‘Java’ one more time, I will fire you.” (Id. ¶ 77.)

E. Alleged retaliation incidents

On April 5, 2004, plaintiff approached Brush around noon to discuss Brush’s threats to fire him. (J.C.S. ¶ 87.) Plaintiff told Brush he was going to speak with CMU president Jared Cohon (“Cohon”) about Brush’s conduct, which he asserts was in violation of CMU’s diversity policy, and about the alleged racism plaintiff was experiencing. (Id.) Brush advised plaintiff to speak with ombudsman Everett Tademy (“Tademy”) about his issues instead of Co-hon. (Id. ¶ 88.) Plaintiff subsequently delivered a letter to Cohon’s office explaining Brush’s threat to fire him in the presence of another supervisor. (Pl.’s App., Tab 1 Ex. 1. 8.) Plaintiff explained in the letter he “had [no] peace” since the threat because he perceived the threat to be serious. (Id.)

After Brush’s meeting with plaintiff on April 5, 2004, Brush sent an email to Tademy stating: “I will be initiating an involuntary termination in the department (ACIS) today; any advice?” (Pl.’s App., Tab 2 Ex. 2.4.) Tademy recalled talking to Brush on April 5, 2004. (J.C.S. ¶ 91; Defs.’ App., Tab Q at 48.) Brush “was upset” and wanted to fire plaintiff. (Id.) Tademy could not recall why Brush wanted to fire plaintiff. (Id.) On April 7, 2004, Brush met with William Elliot and CMU counsel to discuss his decision to terminate plaintiff for cause. (PL’s App., Tab 2 Ex. 2. 1.) Blair subsequently contacted Ed Hey (“Hey”) and “was told to move forward with either the probation letter or involuntary termination.” (Id.)

On April 5, 2004, plaintiff met with Blair and Rigdon to review the performance objectives discussed in March 2004. (J.C.S. ¶ 26.) Blair and Rigdon revised those performance objectives and directed plaintiff to “become a RMIS team player.” (Defs.’ App., Tab A at D-2532.) The evaluation objectives included:

Successfully contributes to group performance by completing tasks on time and as assigned; [a]ctively participates in team discussions; [a]ccepts technical direction and mentoring from senior team members; [cjonforms to group standards for software development ... [and rjesolves issues within the . team structure (Escalation path: Carol Rig-don, then Mary Ann Blair, and ultimately Len Brush.)

(Id.)

On April 12, 2004, plaintiff received an email from Rigdon asking why he did not attend a regularly scheduled meeting on that day. (J.C.S. ¶ 100; Defs.’ App., Tab B Ex. 8.) Plaintiff responded with an email saying he “just forgot about it.” (Defs.’ App., Tab B Ex. 8.) Plaintiff checked his electronic calendar that morning and the meeting was not scheduled. (J.C.S. ¶ 101.) When he checked his electronic calendar later in the day, however, the meeting was on his schedule. (Id. ¶ 102.) On May 16, 2004, plaintiff notified the computer science department about a possible glitch in the corporate time calendar that may have caused the disappearance of the appointment. (Id.; Pl.’s App., Tab 1 Ex. 1.79.) Plaintiff was informed a calendar glitch was possible. (Id.) A meeting was subsequently scheduled for April 19, 2004. (J.C.S. ¶ 28; Defs.’ App., Tab A at 75-76.) Plaintiff asserts he went to Rigdon’s office on April 19, 2004 at 9:30 a.m. (the time the meeting was scheduled) and Rigdon was not there. (Defs.’ App., Tab A at 93.) Defendants assert Rigdon had not arrived at work. (Id.) Plaintiff made no effort to inform Rigdon he went to her office on time for the meeting, and Rigdon made no effort to ask plaintiff why he was not at the meeting. (Id.)

On or about April 23, 2004, Blair gave plaintiff a memorandum dated April 21, 2004, entitled “Departmental Discussions — Second Warning.” (J.C.S. ¶ 104.) The memorandum concerned plaintiffs continuing conduct to discuss “personnel matters” with employees who were not his supervisors. (Defs.’ App., Tab B Ex. 10.) The memorandum encouraged plaintiff to discuss his issues with Rigdon or Blair because they were his supervisors. (Id.) In the memorandum Blair explained:

If you have work-related and/or personnel concerns moving forward, I remind you to follow the escalation path identified in your Performance Management Form dated April 5, 2004. Carol Rigdon is your immediate supervisor. If you can not resolve your concern with Carol, feel free to come to me.

(Id.) Blair informed plaintiff in the memorandum to contact Hey at human resources if plaintiff felt it was necessary. (Id.) Plaintiff asserts he never received a first warning “letter” prior to the “Second Warning” memorandum. Defendants counter the first paragraph of Blair’s April 23, 2004 memorandum expressly referred to the prior verbal warning Brush gave to plaintiff on April 2, 2004. (Id.) (emphasis added).

On April 26, 2004, Blair gave plaintiff a memorandum dated April 23, 2004, entitled “Probationary Action.” (Defs.’ App., Tab B at D-0111.) In the memorandum, Blair reminded plaintiff that during their meeting to review his performance objectives on April 5, 2004, they discussed plaintiff becoming a team player on the RMIS project. (Id.) The memorandum described the ways in which plaintiff violated specific evaluation criteria for that objective including: plaintiffs failure to attend meetings with Rigdon on April 12, 2004 and April 19, 2004; plaintiffs resistance to the documentation framework (template) given by Rigdon for the development project; plaintiffs failure to resolve issues within the team structure; and plaintiffs general lack of responsiveness and cooperation with Rigdon. (Id.) The memorandum informed plaintiff to observe regular office hours and notify Rigdon if he would not be in the office between 8:30 a.m. and 5:00 p.m. (Id.) The memorandum placed plaintiff on probation from April 23, 2004 to June 30, 2004. (Id.) If plaintiffs performance did not improve in the outlined areas, plaintiff might have faced further disciplinary action, including termination. (Id.) The probationary action caused plaintiff to be ineligible for a merit increase in pay in June 2004. (Id.) On the same day defendants issued the probation memorandum, Brush sent an email to Blair, Rittiger, and Baron, stating, “THANX FOR EXTRA EFFORT; I think the timing of the probation letter will make his grievance a bit weak. We shall see, Len.” (Pl.’s App., Tab 1 Ex. 1.22.)

In late April or early May 2004, plaintiff saw a stress counselor due to work-related stress three or four times. (Pl.’s App., Tab 18 at 215.) Plaintiff saw the counselor because the probation letter suggested he do so, and the letter provided plaintiff with the number to CMU’s employee assistance program. (Id.) CMU paid for three sessions under this program. (Id.) Plaintiff paid for one or two additional sessions on his own. (Id.) On April 26, 2004, plaintiff filed a complaint with Tademy accusing ACIS of discriminating against him. (PL’s App., Tab 1 Ex. 1.26.) In his complaint, plaintiff asserted Blair’s memorandum entitled “Department Discussions — Second Warning” and the probation were acts of retaliation for “trying to improve diversity in ACIS.” (Id.)

In May and June 2004, ACIS provided plaintiff with two separate training sessions to develop technical skills in the Oracle platform. The first training session took place the week of May 10, 2004. ACIS provided plaintiff with in-house, in-person technical development training on PL/SQL. (Defs.’App., Tab F at 44.) PL/ SQL is coding language for Oracle. (Id. at 45.) Plaintiff asserts this training session was not suitable for him because it was too advanced. (Defs.’ App., Tab B at 127.) The training was not comparable to similar software training given to non-ACIS staff members that lasted three to four weeks. (Defs.’ App., Tab C at 34-37.) The second session went from June 8 to 17, 2004, and ACIS paid an outside vendor to provide technical development training to plaintiff on “Extend the Oracle Applications (Forms Development).” (Defs.’ App., Tab B at 126-27, D-0116.) Plaintiff asserts this training was not adequate to prepare him for his work assignments. (J.C.S. ¶ 38.)

On May 28, 2004, Blair and Rigdon met with plaintiff to conduct a review of his progress on developing the design for the vehicles module for RMIS. (J.C.S. ¶ 34.) On June 1, 2004, Blair sent plaintiff an email discussing the May 28, 2004 meeting, telling plaintiff:

You were disrespectful of your supervisor — this is not acceptable ... you did not focus on the purpose of the meeting ... you were argumentative even before the substantive discussion began ... your behavior was extremely unprofessional and is affecting yom- ability to get the job done as well as costing others valuable time and productivity ... you must be cooperative if we can proceed with mentoring and training ... the way you were behaving and ignoring your supervisor was insubordinate. As long as you behave in this manner you will not be a productive member of the team. Worse, continued insubordination will result in disciplinary action. Meetings with your supervisor are designed to be constructive and informative. In the future, please attend prepared to listen, learn, share, and engage with due respect and professionalism.

(Defs.’ App., Tab B Ex. 15.)

On or about July 8, 2004, Rigdon gave plaintiff a written review of his performance during the probation period. (Defs.’ App., Tab B at D-0116.) Plaintiff received a “Below Expectations” rating from Rig-don with respect to the objectives of (1) becoming proficient in developing Oracle forms and reports within Oracle application architecture, and (2) becoming a RMIS team player. (Id.) Despite Rigdon’s evaluation of “Below Expectations,” Rittiger and Baron provided comments on the review and rated plaintiffs overall performance as “At Expectations.” (Id.) Blairprepared a memorandum expressing the same concerns about plaintiff mentioned in the April 23, 2004 probation letter. (Id.)

F. The risk management position in Qatar

In the spring of 2004, plaintiff was interested in pursuing an employment position at CMU’s new campus in Doha, Qatar. (J.C.S. ¶ 41.) In March 2004, plaintiff applied for the position of risk management specialist at the Qatar campus. (PL’s App., Tab 18 at 51-53; Defs.’ App., Tab H at D-0492, D-0422.) Plaintiffs wife secured employment in Qatar to begin July 2004. (Defs.’ App., Tab I at D-0541-42.) While plaintiffs application for employment in Qatar was pending, he sought a personal leave of absence from ACIS to bridge his service with CMU until he obtained a job in Qatar. (J.C.S. ¶ 44.) CMU provided personal leaves of absence only to staff members whose performance was satisfactory and if the department was reasonably certain the staff member intended to return at the end of the leave. (Defs.’ App., Tab J at D-2269.) Approval of a requested leave was at the discretion of the department head. (Id.)

On July 8, 2004, Blair, Sally Love, and Brush met with plaintiff to discuss his leave request. (PL’s App., Tab 1 Ex. 1.76.) During the meeting, plaintiff stated July 16, 2004 would be his “last day.” (Id.) Brush attempted to confirm that July 16, 2004 would be plaintiffs last day of employment at CMU. (Id.) Plaintiff became confused stating he was not ending his employment, but seeking a leave. (Id.) Plaintiff stated, “I am not leaving, I’m not quitting. I am still an ACIS employee.” (PL’s App., Tab 18 at 144.) Brush replied that if plaintiff did not resign, he would pick a date for him to resign. (Id.) Brush advised plaintiff his days at ACIS were numbered. (J.C.S. ¶ 119.) Plaintiff reiterated at the conclusion of the meeting: “As of today, I am not leaving.” (PL’s App., Tab 1 Ex. 1.76.) Brush denied plaintiffs leave of absence request during the July 8, 2004 meeting. (Id.)

Because his leave of absence was denied, plaintiff sought paid-time-off (“PTO”) to relocate his wife and children to Qatar. (PL’s App., Tab 18 at 129-30.) Plaintiff was on PTO from on or about July 23, 2004 through August 23, 2004. (Id.) Defendants assert plaintiff did not inform Brush if or when he planned to return to ACIS. (Defs.’ App., Tab A at D-2993.) Plaintiff responds he “told [defendants] when [he] was coming back” to ACIS. (PL’s App., Tab 18 at 144.)

On August 23, 2004, plaintiff returned to work at ACIS in Pittsburgh. (J.C.S. ¶ 122.) Blair had transferred positions and was no longer working in ACIS on that day. (Defs.’ App., Tab B Ex. 18.) Brush assigned Rittiger to assume Blair’s role in plaintiffs supervisory chain of command. (Pl.’s App., Tab 18 at 152-53; Defs.’ App., Tab B Ex. 18.) Plaintiff avers that on July 23, 2004 (i.e., the day plaintiff began PTO) his name was removed from the CMU server and he could not access the applications he was working on in Qatar. (Pl.’s App., Tab 18 at 144.) On August 23, 2004, plaintiff found his office had been reassigned, the area reconfigured, and his computer was gone. (Id. at 155.) On August 23, 2004, Rigdon sent an email to plaintiff giving him certain assignments while he waited for his computer to be reconnected and his work area to be reconfigured to its original layout. (Defs.’ Supplemental App. (Docket No. 43), Tab 4.) Rigdon stated in the email she expected plaintiffs work area would be restored “tomorrow afternoon ....” (Id.) Plaintiffs access to the database at ACIS was denied until August 30, 2004. (PL’s App., Tab 18 at 144.)

The risk management specialist position in Qatar for which plaintiff had applied was withdrawn on August 27, 2004. (Defs.’ App., Tab H at D-0488; Pl.’s App., Tab 9 at 9.18, 9.27.) From the time the position was originally posted to the time it was withdrawn, there was an ongoing discussion among the Qatar management team to define what CMU wanted in the position. (PL’s App., Tab 14 at 14.5-14.8.) The posted position description, however, remained substantively the same until it was withdrawn. (PL’s App., Tab 9 at 9.2-9.29.) Experience in environmental health and safety and risk were the primary qualifications for the job listing. (Id.) On August 26, 2004, Chuck Thorpe (“Thorpe”), dean of the Qatar campus, and Mohamed Dobashi, associate dean of the Qatar campus, suggested the job responsibilities of the risk management position could be fulfilled by drawing on the expertise of various existing employees at the Pittsburgh campus. (Defs.’ App., Tab H at D-3001.) In October 2004, James Gartner was appointed senior director of global security. (Defs.’ App., Tab H at 6-7.) The position was based in Pittsburgh with the primary responsibility for security at CMU’s Qatar campus. (Id.) Gartner was transferred to Qatar in August 2006. (Id. at 22-23.)

On September 1, 2004, Rittiger and Rig-don met with plaintiff to resume the discussion of his work performance detailed in the performance review document given to plaintiff in July 2004. (J.C.S. ¶ 50.) Rittiger and Rigdon gave plaintiff a memorandum outlining his assignments and their expectations on the RMIS project. (Defs.’ App., Tab B Ex. 19.) The memorandum informed plaintiff his probationary period would continue from August 29, 2004 through September 30, 2004 for the purpose of providing plaintiff “an opportunity to improve [his] work performance and show that [he would be] able to conduct [himself] in a professional manner.” (Id.) Defendants assert Rigdon went on vacation immediately following the assignment, and plaintiff asserts he could not receive guidance from anyone to do the work. (PL’s App., Tab 18 at 178.) Rigdon took a “long Labor Day holiday” to attend a wedding. (Defs.’ App., Tab F at 95.) On September 2, 2004, plaintiff was denied an early lunch to accommodate a doctor’s appointment the following day. (PL’s App., Tab 18 at 177.)

On September 2, 2004, plaintiff visited a doctor to address the stress and alleged hostility he faced at work. (J.C.S. ¶ 51.) Plaintiffs last day at work was September 3, 2004. (Ilori Dep. at 182.) On September 3, 2004, after working until about 10:30 a.m., plaintiff delivered a doctor’s note to CMU which stated he would be excused from work for the remainder of September 3, 2004 until November 3, 2004. (J.C.S. ¶ 52; Ilori Dep. at 182.) CMU approved plaintiff for short-term disability leave through early December 2004. (Id.) Plaintiff never returned to work after September 3, 2004. (Id.) While on disability leave plaintiff was an employee of CMU and received income, health insurance and other benefits. (J.C.S. ¶ 53.) During his disability leave, plaintiff sent two resignation letters — the first dated October 18, 2004, and the second dated October 20, 2004— stating his resignation would be effective December 4, 2004. (J.C.S. ¶ 54.)

Procedural History

On May 18, 2004, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Defs.’ App., Tab R at D-0079-81.) The EEOC charge was dual-filed with the Pennsylvania Human Relations Commission (“PHRC”). (Id.) On June 3, 2008, plaintiff received notice his EEOC and PHRC complaints were dismissed. (Id. at D-0548.) Plaintiff filed his complaint in this case on September 3, 2008. (PL’s Compl. (Docket No. 1).)

Standard of Review

Federal Rule of Civil Procedure 56(c) provides summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, “the pleadings, discovery and disclosure materials on file, and any affidavits show that there is a genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether the dispute is genuine, the court’s function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249, 106 S.Ct. 2505. The court is to draw all reasonable inferences in favor of the nonmoving party. El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir.2007) (“In considering the evidence, the court should draw all reasonable inferences against the moving party.”). The United States Court of Appeals for the Third Circuit has stated:

[I]f there is a chance that a reasonable factfinder would not accept a moving party’s necessary propositions of fact, pretrial judgment cannot be granted. Specious objections will not, of course, defeat a motion for summary judgment, but real questions about credibility, gaps in the evidence, and doubts as to the

sufficiency of the movant’s proof, will. Id. The court may consider material evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir.1993) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2721, at 40 (2d ed. 1983)); Pollack v. City of Newark, 147 F.Supp. 35, 39 (D.N.J.1956), aff'd, 248 F.2d 543 (3d Cir.1957) (“[I]n considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence.”).

Discussion

Plaintiff asserts the following claims: (1) race-based hostile work environment in violation of the PHRA (count I); (2) retaliation in violation of the PHRA (count II); (3) race-based discrimination in violation of the PHRA (count III); and (4) race-based hostile work environment, retaliation, and race-based discrimination, pursuant to § 1981 (count IV).

Defendants argue they are entitled to summary judgment with respect to all plaintiffs claims. With respect to the PHRA claims against Brush, defendants argue plaintiff failed to exhaust his administrative remedies with respect to Brush, and summary judgment should be granted in defendants favor. (Defs.’ Br. (Docket No. 23), at 19.) With respect to count IV, defendants contend plaintiff did not file his § 1981 claims in a timely manner and the claims are barred by the statute of limitations. (Id. at 1 n. 1.) With respect to counts I and IV, defendants argue plaintiff was not subjected to a hostile work environment because plaintiff did not suffer intentional discrimination due to his race, and the discrimination was not pervasive and regular. (Id. at 4 n. 4.) With respect to counts II and IV, defendants dispute the causal connection between plaintiffs protected activity and any alleged acts of retaliation. (Id. at 9.) With respect to counts III and IV, defendants argue there is no adverse employment action because the Qatar position was withdrawn and plaintiff cannot show pretext and plaintiffs resignation was voluntary. (Id. at 9, 18.)

I. PHRA claims against Brash

Defendants allege the PHRA claims against Brush should be dismissed because plaintiff failed to file the requisite PHRC administrative charge against Brush. In an administrative complaint filed with the PHRC, a plaintiff must, among other things, provide the name and address of the respondent charged, the alleged violation, and the particulars of the charge. 43 Pa. Cons.Stat. § 959. If a party is not a named respondent in the charge, the plaintiff is prevented from later filing a lawsuit against that party alleging violations of the PHRA. See Urey v. East Hempfield Twp., No. 08-5346, 2009 WL 561664, at *3 (E.D.Pa. Mar. 4, 2009) (“Title VII and/or PHRA claims may only be brought against a party named as a ‘respondent’ in the administrative action. The purpose of this rule is to alert the implicated parties and to encourage an informal conciliation process in lieu of trial.”) (citations omitted).

The Court of Appeals for the Third Circuit has promulgated an exception to the “named respondent” rule to PHRC administrative filings. In Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.1977), the court outlined a four-part test to consider when a plaintiff fails to name a party in an EEOC or PHRC administrative filing:

1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [sic] are so similar as the unnamed party’s that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

Id. at 888, vacated on other grounds, 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981).

Here, plaintiff did not name Brush as a respondent in any of his three PHRA complaints. The court must therefore consider the Glus factors. Considering the first factor, the undisputed evidence shows plaintiff knew Brush could have been listed as a respondent as early as his first PHRA complaint in May 2004. This complaint followed Brush’s threats to fire plaintiff in early April 2004. Under the second factor, there is no evidence to suggest the interests of Brush and CMU are so similar that naming Brush would be unnecessary. Brush’s supervisory role does not automatically implicate him in an employee’s discrimination claims against his employer. Urey, 2009 WL 561664, at *4. The third factor is somewhat neutral because plaintiffs failure to include Brush as a named respondent in the administrative complaints may or may not have prejudiced Brush. The PHRC determination arguably was not adverse to Brush even though he did not have notice of the claims and an opportunity to prepare a defense. See Id. For the final factor, there was no evidence adduced demonstrating Brush represented to plaintiff that their relationship was to be through CMU.

Plaintiff did not adduce sufficient evidence to satisfy the Glus filing exception and no reasonable jury could conclude othexwise. Summary judgment must be entered in favor of Brush with respect to plaintiffs PHRA claims. Plaintiffs § 1981 claims against Brush remain, because plaintiff was not required to file an administrative complaint prior to commencing suit against Brush for those claims. See Waters v. Genesis Health Ventures, Inc., No. 03-2909, 2004 WL 2958436, at *5 (E.D.Pa. Dec. 21, 2004) (“section 1981 does not require filing an administrative complaint prior to commencing suit”).

II. Timeliness of § 1981 and PHRA claims

A. § 1981 claims

Section 1981 does not contain a statute of limitations. The relevant statutory language provides:

§ 1981. Equal Rights under the law (a) Statement of Equal Rights. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) “Make and enforce contracts” defined. For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contacts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c)Protection against impairment. The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981. Subsections (b) and (c) were added by Congress as part of the Civil Rights Act of 1991, which was signed into law by President George H.W. Bush on November 21, 1991. Civil Rights Act of 1991, Pub. L. No. 102-166, § 1745, 105 Stat. 1071, 1072 (1991). These subsections were added because prior to the amendments, § 1981 did not expressly prohibit discriminatory conduct occurring after the formation of a contract. See Patterson v. McLean Credit Union, 491 U.S. 164, 179, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (holding post-formation conduct, while reprehensible, was not actionable under § 1981).

Before a federal catchall statute of limitations was enacted in 1990, the Supreme Court instructed courts to apply the most appropriate state statute of limitations for violations of § 1981. Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). The Court characterized § 1981 claims as personal injury claims for statute of limitations’ purposes. Id. In Pennsylvania, the applicable limitations period for personal injury actions is two years. 42 Pa. Cons. Stat. § 5524(2), (7).

On December 1,1990, Congress enacted a federal “catchall” foxxr-year statute of limitations applicable to any “civil action arising under an Act of Congress enacted after the date of the enactment of this section.” 28 U.S.C § 1658 (“§ 1658”). The four-year federal catchall statute of limitations applies to alleged violations of § 1981 that arise, or are made possible by, the 1991 amendments. Jones v. RR. Donnelley & Sons Co., 541 U.S. 869, 382, 124 S.Ct. 1836,158 L.Ed.2d 645 (2004) (holding a cause of action “arises under an Act of Congress enacted” after December 1,1990, and is therefore governed by § 1658’s four-year statute of limitations, if the plaintiffs claim was made possible by a posN1990 enactment). Claims brought under the original provisions of § 1981 are still subject to Pennsylvania’s two-year statute of limitations in accordance with Goodman. Id.

The parties do not dispute plaintiffs claims are subject to the four-year statute of limitations under § 1658. (Defs.’ Br. at 1 n. 1; Pl.’s Br. (Docket No. 37.) at 19.) Defendants argue plaintiffs § 1981 claims are time-barred because the complaint was filed with this court on September 3, 2008. (Defs.’ Br. at 1 n. 1.) Defendants argue the alleged discriminatory actions occurred before September 3, 2004. Plaintiff argues the constructive discharge triggered the continuing violation doctrine and all his § 1981 claims were timely raised.

Where discriminatory conduct occurred prior to the filing period, but the plaintiff can demonstrate it was part of an ongoing pattern or practice of discrimination, the claim is not time-barred. West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). To establish that an otherwise time-barred claim benefits from the continuing violation doctrine, a plaintiff must (1) demonstrate that at least one act occurred within the filing period, and (2) establish that the harassment is “more than the occurrence of isolated or sporadic acts of intentional discrimination.” Id. at 754-55. “The relevant distinction is between the occurrence of isolated, intermittent acts of discrimination and a persistent, on-going pattern.” Id.

The Supreme Court has stated that “discrete discriminatory acts” are not actionable if they are time-barred, even when related to acts alleged within the statutory period. Nat’l R.R. Co. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The Court in Morgan explained:

Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable “unlawful employment practice.” [Plaintiff] can only file a charge to cover discrete acts that “occurred” within the appropriate time period.

Morgan, 536 U.S. at 114, 122 S.Ct. 2061. The Supreme Court distinguished “discrete acts” of unlawful discrimination, which are individually actionable, from “hostile [work] environment” claims, which are based on the totality of a series of acts that may not be independently actionable. Id. at 115, 122 S.Ct. 2061. Because a hostile work environment is itself an “unlawful employment practice,” the Court held in Morgan that so long as one act contributing to the claim occurred within the statutory period, “the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id. at 117, 122 S.Ct. 2061.

The Court of Appeals for the Third Circuit in O’Connor v. City of Newark, 440 F.3d 125 (3d Cir.2006), concluded the distinction between “discrete acts” and “continuing violations” made in Morgan is “a generic feature of federal employment law,” rather than “an artifact of Title VII.” Id. at 128. The court of appeals explained:

Morgan held simply that causes of action that can be brought individually expire with the applicable limitations period. By contrast, the “hostile workplace environment” theory is designed explicitly to address situations in which the plaintiffs claim is based on the cumulative effect of a thousand cuts, rather than on any particular action taken by the defendant. In such cases, obviously the filing clock cannot begin running with the first act, because at that point the plaintiff has no claim; nor can a claim expire as to that first act, because the full course of conduct is the actionable infringement. The Court did nothing more than to restate, in the employment discrimination context, the commonsense proposition that an applicable statute of limitations begins to run at the time the claim accrues, and that time-barred claims cannot be resurrected by being aggregated and labeled continuing violations.

O’Connor, 440 F.3d at 128-29 (internal citations omitted). The continuing violation doctrine, as explained in West, and the “discrete acts” distinction made in Morgan, are relevant to plaintiffs § 1981 claims.

1. Plaintiffs § 1981 race-based discrimination claim implicating a failure to promote is time-barred.

Plaintiffs race-based discrimination claim implicating a failure to promote cannot be saved by the continuing violation doctrine because a failure to promote is a “discrete discriminatory act.” Morgan, 536 U.S. at 114, 122 S.Ct. 2061. Plaintiff applied for the risk management specialist position at CMU’s Qatar campus in late March 2004. On August 27, 2004, the position was withdrawn because CMU management believed the job responsibilities could be fulfilled using employees currently employed at the Pittsburgh campus. Because the position was withdrawn on August 27, 2004, this discrete act is outside the four-year statute of limitations period. Plaintiffs § 1981 race-based discrimination claim implicating a failure to promote is time-barred.

2. Plaintiffs remaining § 1981 claims

Defendants argue plaintiff can recover on his § 1981 claims only for incidents that occurred within the four-year statutory period after September 3, 2004. Plaintiff asserts the Supreme Court’s decision in Morgan allows him to recover for events that occurred before September 3, 2004 because those acts relate to events that occurred within the limitations period. The only discriminatory acts that allegedly occurred on or after September 3, 2004 were plaintiffs constructive discharge and the continued probationary period until September 30, 2004. First, the court will need to determine when plaintiffs alleged constructive discharge occurred. If plaintiffs alleged constructive discharge occurred on or after September 3, 2004, then a discriminatory act fell within the limitations period, and plaintiffs remaining § 1981 claims are considered timely for purposes of resolving the motion for summary judgment.

The Court of Appeals for the Third Circuit has not addressed when the limitations period begins to run on a claim for which a constructive discharge is the adverse action. See Fiorucci v. City of Wilkes-Barre, No. 06-1084, 2007 WL 800848, at *3 (M.D.Pa. Mar. 14, 2007). Other circuits, however, have held the statute of limitations for such a claim accrues on the date a plaintiff gives notice of his or her resignation. See Flaherty v. Metromail Corp., 235 F.3d 133, 137-39 (2d Cir. 2000) (holding the date the plaintiffs claim accrued was the date she gave definite notice of her intent to retire, noting the rule should be the same in all cases of constructive discharge); Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir.1998) (explaining the plaintiffs claim was timely filed if the date of her resignation fell within the limitations period). In Flaherty and Draper the plaintiffs alleged discriminatory incidents, other than their resignation, that fell within the limitations period. See Flaherty, 235 F.3d at 136-37 (the plaintiffs hostile work environment claim was time-barred if it accrued prior to April 15, 1997; the plaintiff submitted her resignation letter on June 12,1997 alleging her supervisor refused to meet with her in May 1997); Draper, 147 F.3d at 1109 (the plaintiffs hostile work environment claim was time-barred if it accrued prior to November 19, 1994; the court held the plaintiffs claim was not time-barred because the plaintiff raised a genuine issue concerning whether a confrontation with a coworker on December 7, 1994 was an act of discrimination).

In Gary v. Washington Metropolitan Transit Authority, 886 F.Supp. 78 (D.D.C. 1995), the court held claims implicating a constructive discharge do not necessarily accrue on the date the plaintiff elects to resign. Gary, 886 F.Supp. at 91. The court reasoned: “Under this theory, a plaintiff could set the date on which the statute of limitations would begin to run, no matter how much time had elapsed since the acts complained of.” Id. The court held the statute of limitations begins to run on the date the plaintiff “knew or should have known of [his or] her inability to return to work,” which is a question of fact. Id. Relying on the reasoning in Gary, the court in Velikonja v. Gonzales, No. 04-1001, 2005 WL 6164807, at *6 (D.D.C. June 30, 2005), held the statute of limitations on the plaintiffs claim implicating a constructive discharge accrued on his last day of work; not the date he submitted his letter of resignation. Id. The court explained the plaintiffs working conditions could not possibly have become intolerable during the period of time, i.e., inside the limitations period, when the plaintiff was not going to work. Id. The court concluded the statute of limitations barred the plaintiffs claim because the plaintiff did not aver a discriminatory act occurred within the limitations period to trigger the continuing violation doctrine. Id.

Two district courts within the Third Circuit have addressed this issue. In Graham v. Avella Area School District, No. 05-1344, 2006 WL 1669881, at *4 (W.D.Pa. June 14, 2006), the plaintiff submitted her resignation letter on April 21, 2004, completed her last day of work on June 30, 2004, and filed her charge of discrimination on April 25, 2005. The defendant in Graham argued the accrual date should have been the plaintiffs resignation date on April 21, 2004, making her claim time-barred because she filed her complaint with the PHRC more than one year after her resignation. Id. The plaintiff argued the accrual date was the date of her last day of work on June 30, 2004, which fell within the limitations period. Id. Relying on the reasoning in Flaherty, the court held the accrual date was April 21, 2004, the day the plaintiff submitted her resignation letter, because that was the date the plaintiff knew about her injury and, therefore, was the date her claims accrued. Id.

In Gerhart v. Boyertown Area School District, No. 00-5914, 2002 WL 31999365, at *4 (E.D.Pa. Mar. 4, 2002), the court held the accrual date for the plaintiffs claim implicating a constructive discharge was the date she submitted her letter of resignation. Id. The court rejected the plaintiffs argument that the accrual date should be the date the plaintiffs retirement became effective, which was after she submitted her letter. Id. The court relied on the reasoning in Flaherty, stating: “ ‘In 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.’ ” Id. at *4 n. 9 (citing Flaherty, 235 F.3d at 138). In Gerhart, the plaintiff knew about the intolerable atmosphere when she submitted the resignation letter, not when the retirement became effective. Id. at *4.

Plaintiff argues the constructive discharge occurred during the relevant statutory period, which triggers the continuing violation doctrine. A constructive discharge occurs when an employer is aware that an employee was subjected to a continuous pattern of discrimination about which the employer does nothing to stop. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084-85 (3d Cir.1996). A constructive discharge is a “discriminatory act” for purposes of Morgan. See Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir.1998); Young v. Nat’l Ctr. for Health Servs. Research, 828 F.2d 235, 237-38 (4th Cir.1987); Miles v. Pa. Dep’t of Conservation and Natural Res., No. 08-1561, 2009 WL 506371, at *5 (M.D.Pa. Feb. 27, 2009). Plaintiffs last day at work was September 3, 2004. Under the Flaherty rationale, the alleged constructive discharge was within the limitations period. Alternatively, plaintiff sent his first letter of resignation on October 18, 2004 — also within the limitations period. Under either line of cases discussed above, plaintiffs § 1981 claims implicating a constructive discharge would be timely filed if the constructive discharge meets the framework set forth in Berry v. Board of Supervisors of Louisiana State University, 715 F.2d 971 (5th Cir.1983), to determine whether a continuing violation existed. See Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.2001).

The court of appeals in Berry enumerated three factors to consider:

(1) subject matter — whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency— whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence — whether the act had a degree of permanence which should trigger the plaintiffs awareness of and [sic] duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.

Cowell, 263 F.3d at 292 (citing Berry, 715 F.2d at 981). The degree of permanence factor is the most important. Id.

Turning to the first Berry factor, plaintiff adduced sufficient evidence that the subject matter of the hostile work environment and retaliation he experienced at CMU outside and during the limitations period was of the same type. The alleged acts of discrimination include: (1) a verbal warning including being threatened to be fired on April 2, 2004; (2) Brush’s email stating his intent to fire plaintiff; (3) a “second warning” memorandum on April 23, 2004; (4) a probationary letter on April 26, 2004; (5) a poor performance evaluation on July 8, 2004; (6) denial of leave on July 8, 2004; (7) clearing plaintiffs work station and denying plaintiff access to the ACIS server while on PTO; (8) continued probation from August 29, 2004 through September 30, 2004; and (9) denial of permission to take an early lunch on September 2, 2004. A reasonable jury could conclude that plaintiffs constructive discharge was caused by the same on-going discriminatory conduct from April 2004 through September 2004 as the conduct which formed the basis of his hostile work environment and retaliation claims.

Turning to the second Berry factor, plaintiff adduced sufficient evidence that the discrimination was continuous. Courts have not set a specific standard for determining how close together the acts must occur to amount to a continuing violation. Cowell, 263 F.3d at 295. The kind of acts that would satisfy the “frequency” factor of the Berry inquiry, however, must at least be acts of substantially similar nature to those which were the basis of the original claim. Id.

The time between the initial alleged acts of discrimination in April 2004 and the alleged constructive discharge on September 3, 2004 was about six months. The longest break between discriminatory acts occurred between July 8, 2004 and August 23, 2004. The court concludes plaintiff adduced sufficient evidence to raise a genuine question for the jury to determine whether the events were persistent acts of on-going discrimination sufficient to satisfy the frequency factor under Berry. Compare West, 45 F.3d at 755-56 (the frequency factor was satisfied when the discriminatory events occurred consistently with increased frequency over time); with Sicalides v. Pathmark Stores, Inc., No. 99-3465, 2000 WL 760439, at *5 (E.D.Pa. June 12, 2000) (three-month intervening period between incidents prevented the plaintiff from satisfying the frequency factor).

Plaintiff presented sufficient facts to raise a genuine issue of material fact about whether the acts of discrimination had a degree of permanence such that he should have been aware of a duty to assert his rights before September 3, 2004 — the date of the alleged adverse employment action. The court notes plaintiff filed his EEOC and PHRC complaints in May 2004, based upon the alleged discriminatory conduct that occurred prior to his filings. While the discriminatory conduct was sufficient to generate plaintiffs complaints, the constructive discharge relating to the hostile work environment occurred within the statutory limitations period. Compare Devito v. Bd. of Educ. of City of Newark, 29 Fed.Appx. 886, 889 (3d Cir.2002) (holding the plaintiffs employment discrimination complaints buttressed the finding that discrete instances of discrimination had the requisite degree of permanence); with Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 483 (3d Cir.1997) (holding continuing violation existed after EEOC charge was filed when the harassment intensified and plaintiff “did not realize early on how pervasive or severe the harassment was”).

Because the court finds that a genuine issue of material fact exists with respect to whether there was a continuing violation from April 2004 to September 3, 2004, plaintiffs § 1981 claims for retaliation and hostile work environment were timely filed.

B. PHRA claims

The PHRA requires a claim be brought first to an administrative agency, the PHRC, which has exclusive jurisdiction over the claim for one year in order to investigate the matter. Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 471 (3d Cir.2001). The administrative charge must be filed with the PHRC within 180 days of the alleged discrimination. 43 Pa. Cons. Stat. § 959(h). Once the administrative complaint is filed, a complainant may not file an action in court for one year. Id. If the PHRC does not resolve the administrative complaint within one year, it is required to notify the complainant that he may bring an action in the court of common pleas. Id.; 43 Pa. Cons. Stat. § 962(c)(1). The complainant is not required to bring an action within any limitations period, Burgh, 251 F.3d at 476, unless the PHRC notifies the complainant that it is closing the complaint. If the PHRC provides that kind of notice, the complainant has two years from the date notice was sent to bring a civil action. 43 Pa. Cons. Stat. § 962(c)(2).

Plaintiff filed his first administrative charge with the PHRC on May 18, 2004. Under the rationale of Burgh, plaintiff could ham filed this civil action beginning May 18, 2005. Plaintiff, however, did not receive a letter from the PHRC until June 3, 2008, stating his complaint had been dismissed by the commission. Plaintiff, therefore, had until June 3, 2010, to file his complaint with this court. Because plaintiff filed his complaint on September 3, 2008, his PHRA raced-based hostile work environment and retaliation claims were timely filed.

Plaintiff filed his first PHRC complaint prior to the alleged failure to promote him on August 27, 2004. Plaintiff filed his second PHRC complaint on December 20, 2004. While this complaint was filed after the alleged failure to promote, the complaint only asserts incidents of retaliation and harassment. The December 20, 2004 PHRC complaint did not raise any claim implicating a failure to promote.

Plaintiff filed his third and final PHRC complaint on July 11, 2005. Plaintiff filed this complaint after the alleged failure to promote, but the filing of the complaint was not timely made. Under the PHRA, a claimant must file a charge within 180 days of the alleged discrimination. 43 Pa. Cons. Stat. § 959(h). Since the failure to promote occurred at the latest on August 27, 2004, the date the job posting was withdrawn, the filing of the charge was more than 315 days after the failure to promote and was therefore beyond the relevant 180-day period. Plaintiff did not file any timely charge with the PHRC with respect to this claim. Plaintiff, therefore, failed to exhaust his administrative remedies with respect to his PHRA race-based discrimination claim implicating a failure to promote, and summary judgment must be granted in favor of defendants with respect to that claim.

III. Sufficiency of facts to raise a genuine issue

A. Counts I and IV — race-based hostile work environment i. Burden-shifting framework

Plaintiff asserted race-based hostile work environment claims under § 1981 (count IV) and the PHRA (count I). Defendants argue these claims fail as a matter of law because plaintiff failed to adduce evidence to demonstrate the incidents of alleged harassment (1) were motivated by his race, (2) were severe or pervasive, or (3) would have detrimentally affected a reasonable person of the same race.

In cases where the plaintiff lacks direct evidence of discrimination, the Court of Appeals for the Third Circuit has applied the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir.1995).

A plaintiff must establish first a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If a plaintiff successfully proves a prima facie case of discrimination, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. Simpson v. Kay Jewelers Div. of Sterling, Inc., 142 F.3d 639, 644 n. 5 (3d Cir.1998). The defendant may satisfy its burden by offering evidence of a nondiscriminatory reason for its action. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). Once the defendant offers a legitimate reason for the conduct in question, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were pretext for discrimination. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir.1999). This “scheme of proof’ set forth in McDonnell Douglas applies to claims under § 1981 and the PHRA. See Jones, 198 F.3d at 410.

ii. Prima facie case

To allege a successful hostile work environment claim, “ ‘the harassment must be so severe or pervasive that it alters the conditions of the victim’s employment and creates an abusive environment.’ ” Grassmyer v. Shred-It USA, Inc., No. 09-3876, 392 Fed.Appx.