IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SANDRA KASALI : CIVIL ACTION

: NO. 04-500 

Plaintiff, :

:

v. :

:

J.P. MORGAN/CHASE MANHATTAN :

MORTGAGE CORP., :

:

Defendant. :

ORDER - MEMORANDUM

AND NOW, this 7th day of November 2005, upon

consideration of defendant’s motion for summary judgment (doc.

no. 34) and plaintiff’s response thereto (doc. no. 38), and a

hearing in which counsel for both parties participated, it is

hereby ORDERED that the motion is GRANTED IN PART and DENIED IN

PART. 

It is FURTHER ORDERED that Defendant’s Motion for Leave

to File a Reply Brief (doc. no. 39) is GRANTED.

I. BACKGROUND

Plaintiff, Sandra Kasali, filed an age discrimination 

action against Chase Manhattan Mortgage Corp. (“Chase”) in

February 2004. Plaintiff alleged that defendant violated the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §

623(a)(1),(2), and the Pennsylvania Human Relations Act (PHRA),

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 1 of 15
2

43 Pa. Cons. Stat. Ann. § 951, et seq, by illegally failing to

promote her on or about June 6, 2001, because of her age, and

illegally retaliating against her in December 2001. After

defendant moved to dismiss and subsequently moved for summary

judgment on timeliness grounds, the Court permitted plaintiff to

proceed with the failure to promote and the retaliation claim. 

See Order of September 28, 2004 (doc. no. 19) (dismissing

plaintiff’s claims of “pattern and practice” as not exhausted). 

On September 2, 2004, plaintiff filed a second charge

with the EEOC alleging that Chase maintained a hostile work

environment from the fall of 2001 to the present. She filed an

amended complaint on January 10, 2005 (after being granted leave

to do so). In her amended complaint, plaintiff added allegations

to her original claims that from the fall of 2001 through the

present, Chase unlawfully: (1) denied plaintiff several

promotional opportunities because of her age and her protected

anti-discriminatory activities, (2) provided her with less

favorable compensation and other terms and conditions of her

employment because of her age and her protected antidiscriminatory activities, and (3) maintained a work environment

that was hostile to plaintiff because of her age and her

protected anti-discriminatory activities. Plaintiff collapsed

these allegations into two counts: one under the ADEA and one

under the PHRA. 

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 2 of 15
3

On March 4, 2005, defendant filed a motion for summary

judgment, and plaintiff responded thereto. During oral argument

on October 21, 2005, plaintiff’s counsel indicated that plaintiff

was dropping all claims except for the June 2001 failure to

promote claim and the December 2001 retaliation claim, both of

which were made in the initial complaint. 

Defendant argues that summary judgment should be

granted as to the remaining claims based on the following: (1)

plaintiff’s PHRA claim concerning the June 2001 denial of

promotion is time-barred because plaintiff did not file a claim

with the PHRC within 180 days from the denial of the position;

(2) plaintiff fails to put forward a prima facie case of

discrimination under the ADEA on the failure to promote claim,

and cannot show that the failure to promote was pretextual; and

(3) plaintiff failed to demonstrate retaliation. 

Standard for Summary Judgment

A court may grant summary judgment only when “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). A fact is “material” only if its

existence or non-existence would affect the outcome of the suit

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 3 of 15
4

under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242 (1986). An issue of fact is “genuine” only when there is

sufficient evidence from which a reasonable jury could find in

favor of the non-moving party regarding the existence of that

fact. Id. In determining whether there exist genuine issues of

material fact, all inferences must be drawn, and all doubts must

be resolved, in favor of the non-moving party. Coregis Ins. Co.

v. Baratta & Fenerty, Ltd., 264 F.3d 302, 305-06 (3d Cir. 2001)

(citing Anderson, 477 U.S. at 248). 

Although the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact, in

a case such as this, where the non-moving party is the plaintiff,

and therefore, bears the burden of proof at trial, that party

must present affirmative evidence sufficient to establish the

existence of each element of his case. Id. at 306 (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 323, (1986)). Accordingly, a

plaintiff cannot rely on unsupported assertions, speculation, or

conclusory allegations to avoid the entry of summary judgment,

see Celotex, 477 U.S. at 324, but rather, she “must go beyond the

pleadings and provide some evidence that would show that there

exists a genuine issue for trial.” Jones v. United Parcel Serv.,

214 F.3d 402, 407 (3d Cir. 2000).

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 4 of 15
 A deferral state is a state that has a procedure for 1

conciliation by state agencies. 29 U.S.C.A. § 633 (2005). In

Pennsylvania, the Pennsylvania Human Relations Commission

(“PHRC”) is responsible for hearing complaints brought under the

PHRA. 43 Pa. Cons. Stat. § 957 (2005).

5

II. TIMELINESS OF PLAINTIFF’S PHRA CLAIM

The ADEA provides a federal cause of action for

individuals who have been discriminated against on the basis of

their age. 29 U.S.C.A. § 621 et seq. Because the Equal

Employment Opportunity Commission (EEOC) possesses primary

responsibility for enforcing the ADEA, the ADEA requires that a

complainant file a charge with the EEOC to provide it with the

opportunity to resolve the dispute before filing a lawsuit in

federal court See Bailey v. United Airlines, 279 F.3d 194, 197

(3d Cir. 2002). A federal court must dismiss a plaintiff’s

complaint if the plaintiff fails to file a timely charge with the

EEOC. See Lipson v. Jackson Nat’l Life Ins. Co., No. Civ. A. 97-

8051, 2004 WL 163681, at *3 (E.D. Pa. Jan. 8, 2004) (citing

Bihler v. Singer Co., 710 F.2d 96, 98-99 (3d Cir. 1983)). In a

“deferral” state (including Pennsylvania), the complainant must 1

file its EEOC charge within 300 days after the alleged unlawful

employment practice occurs. See Bailey v. United Airlines, 279

F.3d 194, 197 (3d Cir. 2002). To bring a suit under the PHRA, a

plaintiff must file a claim with the PHRC within 180 days of the

alleged incident. 43 Pa. Cons. Stat. § 959(h)(2005); Gaul v.

Zep Manuf. Co., 2004 WL 234370, at *2 (E.D. Pa. 2004).

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 5 of 15
 Plaintiff argues that the June 6, 2001 accrual date is 2

incorrect because she was not aware she had lost the promotion

until late June 2001.

6

Defendant moves for summary judgment on plaintiff’s

PHRA claim based on the June 2001 alleged failure to promote. 

Plaintiff did not dual-file her claim regarding the June 2001

failure to promote with the PHRA until April 30, 2002, 328 days

after the June 6, 2001 date of accrual, and defendant argues that

the claim is therefore untimely.2

 Plaintiff contends that the PHRA statute of

limitations is subject to equitable tolling, and that such

tolling should be applied to plaintiff’s claim. Arguing that the

reasoning in Gharzouzi v. Northwestern Human Servs. of

Pennsylvania, 225 F. Supp.2d 514 (E.D. Pa. 2002), should be

applied here, plaintiff states that she filed a charge with the

EEOC within 180 days of accrual, and that the claim contained a

request for dual-filing.

In Gharzouzi, the plaintiff filed a charge of

discrimination with the EEOC on January 5, 2000, and clearly

indicated on both the EEOC charge form and his accompanying cover

letter that he wanted his charge to be dual-filed with the PHRC. 

The EEOC forwarded the charge to the PHRC in May 2000, and the

PHRC formally docketed the charge on May 9, 2000. Defendants

moved to dismiss plaintiff’s PHRA claims due to untimeliness. 

The court found the PHRA limitations period to be equitably

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 6 of 15
7

tolled, holding that if a plaintiff clearly requests cross-filing

in the EEOC charge, but there is a delay in the transmission of

the charge from the EEOC to the PHRC, the plaintiff may be

allowed to pursue the PHRA claims. 225 F. Supp.2d at 527. The

court notes that a plaintiff can clearly request dual-filing by

checking the box on the form or indicating the request elsewhere,

as in the cover letter. Id.

Other cases where courts found equitable tolling to

apply also illustrate what it means for a plaintiff to clearly

indicate to the EEOC that the charge should be dual-filed with

the PHRC. In Carter v. Philadelphia Stock Exchange, 1999 WL

715205, at *1 (E.D. Pa. 1999), the court found equitable tolling

when the plaintiff had requested dual-filing in her cover letter,

on the first page of the charge itself, and on an official form

used by the EEOC for dual-filing requests. In Brennan v.

National Telephone Directory Corp., 881 F. Supp. 986, 998 (E.D.

Pa. 1995), the court allowed the PHRA limitations period to be

tolled when the plaintiff indicated to the EEOC that her charge

should be dual-filed, and, for reasons beyond her control, the

dual-filing did not take place. 

The instant case is distinguishable from plaintiff’s

cited authorities. Here, counsel for plaintiff wrote the

following in the cover letter included with the December 3, 2001

EEOC charge: “I would like to schedule the interviews now and in

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 7 of 15
Even if plaintiff’s contention that she did not learn about 3

the denial of the promotion until late June 2001 is accepted, the

PHRA claim remains untimely. 

8

the meantime have my [client] complete all necessary intake

questionnaires and dual filing requests.” This sentence does not

convey a request for dual-filing. If anything, it advises that

plaintiff may do so in the future if and when she completed

certain forms. Given that dual-filing was not requested by

plaintiff within 180 days of the alleged discrimination,

equitable tolling is not applicable, and the PHRA claim is

untimely. Defendant will be granted summary judgment on 3

plaintiff’s PHRA claim based on the June 2001 failure to promote.

III. DISCRIMINATION UNDER THE ADEA

The Court next turns to plaintiff’s ADEA claim based on

the June 2001 denial of promotion. Defendant moves for summary

judgment based on the argument that plaintiff has not

established a prima facie case of discrimination or pretext under

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under McDonnell Douglas the plaintiff must, first,

“produce evidence that is sufficient to convince a reasonable

fact finder to find all of the elements of a prima facie case.” 

Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d

Cir. 1997) (quoting St. Mary's Honor Center v. Hicks, 509 U.S.

502, 506 (1993)). Next, if the plaintiff establishes a prima

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 8 of 15
9

facie case, “the burden of production (but not the burden of

persuasion) shifts to the defendant, who must then offer evidence

that is sufficient, if believed, to support a finding that it had

a legitimate, nondiscriminatory reason for the discharge." Id.

(citing Hicks, 509 U.S. at 506-07). Third, if the defendant

articulates a legitimate, non-discriminatory reason for the

adverse employment action, the employer satisfies its burden of

production. See id. (citing Hicks, 509 U.S. at 507-08). The

plaintiff may then “survive summary judgment . . . by submitting

evidence from which a fact finder could reasonably either (1)

disbelieve the employer's articulated reasons; or (2) believe

that an invidious discriminatory reason was more likely than not

a motivating or determinative cause of the employer's actions." 

Id. at 1108 (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.

1994)). With regard to the showing required of plaintiff: 

To discredit the employer’s proffered reason, however,

the plaintiff cannot simply show that the employer's

decision was wrong or mistaken, since the factual

dispute at issue is whether discriminatory animus

motivated the employer, not whether the employer is

wise, shrewd, prudent, or competent. Rather, the

non-moving plaintiff must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate

reasons for its action that a reasonable fact finder

could rationally find them "unworthy of credence," and

hence infer "that the employer did not act for [the

asserted] non-discriminatory reasons." While this

standard places a difficult burden on the plaintiff,

"it arises from an inherent tension between the goal of

all discrimination law and our society's commitment to

free decisionmaking by the private sector in economic

affairs.

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 9 of 15
10

Fuentes, 32 F.3d at 765 (internal citations omitted). Finally,

courts should keep in mind that “[a]lthough intermediate

evidentiary burdens shift back and forth under this framework,

‘the ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff

remains at all times with the plaintiff.’" Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Texas

Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

For plaintiff to establish a prima facie case of age

discrimination under the law of the Third Circuit, she must show

she: “(1) was over 40 years of age at the time in question, (2)

applied for and was minimally qualified for the job, (3) but was

rejected (4) in favor of a person who was ‘sufficiently younger

to permit an inference of age discrimination.’” Sheridan v. E.I.

DuPont de Nemours and Co., 100 F.3d 1061, 1084 (3d Cir. 1996)

(Alito, J., concurring in part and dissenting in part) (citing

Barbour v. CSX Distrib. Serv., 68 F.3d 694, 698 (3d Cir. 1995)).

"The burden of establishing a prima facie case of

disparate treatment is not onerous." Sheridan, 100 F.3d at 1084

(citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

253 (1981)). Taking the evidence in the light most favorably to

plaintiff, plaintiff has established a prima facie case. She was

57 years old at the time of the first alleged violation and has

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 10 of 15
 In addition to the qualifications listed on her resume, 4

plaintiff’s qualifications were adequate for her to be

interviewed for the position. Defendant has put forward evidence

that the woman hired for the position instead of plaintiff was 41

at the time of hiring.

Plaintiff argues that this reason is not sufficient, as 5

defendant failed to offer deposition evidence of the hiring

decisionmakers. However, defendant need not prove that the

reason put forward was the actual reason for its behavior, as the

ultimate burden of proving discrimination always remains with

plaintiff. Fuentes, 32 F.3d at 764.

11

put forward evidence that she was qualified for the job, but was

rejected in favor of a substantially younger individual. 

4

The inquiry now turns to whether the defendant has

articulated a legitimate, nondiscriminatory reason for the

discharge, and if so, whether plaintiff has offered sufficient

evidence to “show by a preponderance of the evidence that the

employer's explanation is pretextual.” Fuentes, 32 F.3d at 764. 

To survive summary judgment, a plaintiff must offer evidence that

raises a genuine issue of fact as to whether the employer’s

proffered reasons for the employment decision were not its true

reasons. Sheridan, 100 F.3d at 1067.

Here, defendant states that plaintiff was not hired

because her qualifications were not equal to or better than Hilda

Massenburg’s, the individual who was ultimately hired for the

job. Plaintiff argues that this reason is pretextual, 5

contending that plaintiff’s qualifications were better than

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 11 of 15
Plaintiff argues that both candidates had: (1) three to 6

five years of customer service experience, (2) call center

management experience, (3) computer and telephone software

knowledge, and (4) prior supervisory experience. Additionally,

plaintiff had already worked in the department, while Massenburg

was an outside candidate. Defendant disputes plaintiff’s call

center management experience and supervisory experience, and

points out that Massenburg holds a bachelor of arts degree, a

preferred qualification for the position. 

12

Massenburg’s. According to plaintiff, Massenburg had a prior 6

business relationship with the decision maker, and Massenburg’s

hiring was the result of favoritism. Plaintiff also offers

evidence that the decisionmaker told another employee that “new

blood” was needed for the position for which plaintiff applied. 

To establish pretext, it is not enough to show that the

employment decision was wrong. A plaintiff must show

“weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for

its action that a reasonable fact finder could rationally find

them "unworthy of credence.” Fuentes, 32 F.3d at 765. Here, no

individual piece of evidence put forward by the plaintiff, when

taken on its own, demonstrates the necessary weakness in

defendant’s offered reason. However, here, if viewed together, a

reasonable fact-finder could find the cumulative effect of the

evidence casts doubt on defendant’s proffered reason for its

hiring decision. The Court finds that there are genuine issues

of material fact as to whether defendant’s proffered legitimate,

non-discriminatory reason is pretextual. For this reason,

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 12 of 15
13

plaintiff’s claim under the ADEA for the June 2001 failure to

promote will be permitted to proceed to trial.

IV. RETALIATION CLAIM

Plaintiff’s retaliation claim also proceeds under the

McDonnell Douglas standard. See Fasold v. Justice, 409 F.3d 178,

188 (3d Cir. 2005). Plaintiff must first establish a prima facie

case. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108

(3d Cir. 1997). If she does so, the defendant must offer

sufficient evidence to support a legitimate, nondiscriminatory

reason for its action. Id. If the defendant articulates a

legitimate, non-discriminatory reason for the adverse employment

action, the plaintiff may then “survive summary judgment . . . by

submitting evidence from which a fact finder could reasonably

either (1) disbelieve the employer's articulated reasons; or (2)

believe that an invidious discriminatory reason was more likely

than not a motivating or determinative cause of the employer's

actions." Id. at 1108 (citing Fuentes v. Perskie, 32 F.3d 759,

764 (3d Cir. 1994)). 

For a plaintiff to establish a prima facie case of

illegal retaliation, the plaintiff must prove: (1) she engaged in

a protected employee activity; (2) she suffered an adverse action

by the employer either after or contemporaneous with the

employee's protected activity; and (3) a causal connection exists

between the employee's protected activity and the employer's

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 13 of 15
14

adverse action. See Glanzman v. Metro. Mgmt. Corp., 391 F.3d

506, 509 (3d Cir. 2004). 

Plaintiff has not established a prima facie case of

retaliation. Plaintiff alleges that her disability benefits were

improperly withheld in late December 2001 as retaliation for

instigating an internal investigation, ending in October 2001,

and lodging a complaint with the EEOC in early December 2001. 

This problem was resolved early in 2002, and plaintiff received

the benefits due. There was no “adverse employment action,” as

is necessary for a claim of retaliation. “[R]etaliatory conduct

must be serious and tangible enough to alter an employee's

compensation, terms, conditions, or privileges of employment.”

Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.

1997). The action must cause a “significant change in employment

status, such as hiring, firing, failing to promote, or

reassignment.” Parrillo v. Lower Bucks County Joint Mun.

Authority, 2003 WL 23162434, at *7 (E.D. Pa. 2003). In this

case, plaintiff’s benefit payments were withheld for a short

amount of time, and then reinstated. Although this action may

very well have caused difficulties for plaintiff, and could

possibly constitute a violation of Pennsylvania wage or contract

law, it does not amount to an adverse employment action for the

purpose of a retaliation claim. 

Additionally, there is no evidence offered that the

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 14 of 15
 Apparently, an entirely separate entity from defendant is 7

responsible for the administration of disability benefits.

15

withholding of plaintiff’s disability benefits was because of, or

in any way connected to her complaint of discrimination or her

filing of a charge with the EEOC. In fact, plaintiff admitted at

her deposition that she did not know who was responsible for the

withholding error. Her conclusory allegation that these 7

incidents “[have] to do with me [plaintiff] filing that

complaint,” is simply not sufficient to establish a prima facie

case of retaliation. Summary judgment will be granted to

defendant on the retaliation claim.

V. CONCLUSION

For the reasons stated above, summary judgment will be

granted to defendant on plaintiff’s PHRA claim for the June 2001

denial of promotion and on plaintiff’s retaliation claim. 

Plaintiff’s claim under the ADEA for the June 2001 denial of

promotion will be permitted to proceed to trial.

AND IT IS SO ORDERED.

______________________________

EDUARDO C. ROBRENO, J.

Case 2:04-cv-00500-ER Document 52 Filed 11/08/05 Page 15 of 15