                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-20-2006

Gloeckl v. Giant Eagle Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1758




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Gloeckl v. Giant Eagle Inc" (2006). 2006 Decisions. Paper 1239.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1239


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-1758



                                 LAURIE GLOECKL,

                                                       Appellant
                                           v.

                                 GIANT EAGLE, INC.




                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                          (D.C. Civil Action No. 03-cv-00550)
                     District Judge: Honorable Terrance F. McVerry


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 20, 2006

                   Before: SLOVITER and AMBRO, Circuit Judges,
                             and DuBOIS,* District Judge

                            (Opinion filed: April 20, 2006)


                                       OPINION


AMBRO, Circuit Judge


      *
       Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
       Laurie Gloeckl filed a complaint against her employer, Giant Eagle, Inc. (“Giant

Eagle”), in the United States District Court for the Western District of Pennsylvania. In it

she alleged the failure to provide reasonable accommodation under the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). Because Gloeckl failed to file her

charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”)

within 300 days of the challenged employment decision, the District Court granted

summary judgment for Giant Eagle. Gloeckl timely filed a notice of appeal and, for the

reasons provided below, we affirm.1

                                              I.

       As we write only for the parties, who are familiar with the underlying facts, we set

out only those facts necessary to our analysis. Gloeckl was hired by Giant Eagle in 1990

as floral manager. Due to a shoulder and arm injury that occurred in 1991, she was

moved, at her request, to the position of office manager. When this injury made it

difficult for Gloeckl to perform her duties in that capacity, she requested a transfer to the

position of personnel manager, which was granted.

       Gloeckl unfortunately continued to have problems with her left arm and shoulder.

After two surgeries and extensive physical therapy, she was released to return to work

twenty hours per week on June 15, 1998. Dale Giovengo, Giant Eagle’s Director of



       1
       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331
and 1343. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

                                              2
Human Resources, permitted her to return to her former position with the understanding

that over time she would be able to satisfy the full-time requirement. Gloeckl, however,

suffered a relapse, was unable to return full-time to her position, and went on disability

leave.

         Following a thermal shrink procedure and additional physical

therapy/rehabilitation, Gloeckl was released in 2001 to return to work twenty hours a

week. As a result, she spoke with Giovengo and inquired whether she could return to her

former position with the twenty-hour restriction. On August 16, 2001, Giovengo

informed Gloeckl that she could not return to work as a personnel manager because it was

a full-time position and she could only work part-time. He further stated that she was not

physically able to perform the essential functions of any other position at Giant Eagle

and, thus, could not return to work in any capacity.

         In an attempt to persuade Giant Eagle to reconsider, Gloeckl inquired of Ray

Huber, Vice President of Human Resources. Huber investigated the matter and, on

September 15, 2001, called Gloeckl and told her that he concurred with Giovengo.

Eleven months later (on August 16, 2002), Gloeckl filed a complaint for discrimination

with the EEOC. A fact-finding conference was held before an EEOC investigator who,

on January 24, 2003, dismissed Gloeckl’s complaint as untimely filed. This appeal

followed.

                                             II.

         Under the ADA, prior to filing an employment discrimination action, an employee

                                              3
must file a timely charge of discrimination with the EEOC. 42 U.S.C. § 12117(a)

(applying the administrative enforcement procedures of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-5, to ADA claims). For a charge to be timely, an employee

normally must file it with the EEOC within 180 days of the alleged unlawful employment

practice. 42 U.S.C. § 2000e-5(e)(1). However, in a deferral state such as Pennsylvania

(that is, a state that has a state or local law prohibiting the practice alleged and has

established or authorized the state or local authority to grant or seek relief from practices

prohibited under the ADA), the employee has not 180 but 300 days from the date of the

alleged unlawful employment practice in which to file her charge of discrimination. Id.;

see Cardenas v. Massey, 269 F.3d 251, 255 n.2 (3d Cir. 2001).

       Giant Eagle argues that, because Gloeckl filed her EEOC charge more than 300

days after her adverse employment action, we have no jurisdiction to hear her ADA

claim. We agree. As noted above, Gloeckl filed her charge of discrimination with the

EEOC on August 16, 2002. Accordingly, in order for her claim to be timely, the alleged

unlawful employment practice must have occurred and been communicated to her on or

after October 20, 2001.

       Giant Eagle takes the position that the alleged unlawful employment practice at

issue occurred on August 16, 2001, when, as conceded by Gloeckl in her deposition

testimony, Giovengo informed her that she could not return to work at Giant Eagle in any

capacity. Gloeckl, on the other hand, contends that the unlawful employment action

occurred when Giant Eagle failed to consider her requests for funded part-time work that

                                               4
became available and was advertised in November 2001. We are convinced that the

alleged discriminatory practice took place when the company denied Gloeckl’s request to

be transferred to a part-time position on August 16, 2001. As aptly stated by the District

Court, “such an action was, in effect, equivalent to a termination of her employment.

Therefore, [Gloeckl’s] subsequent requests for reconsideration of [Giant Eagle’s] decision

not to allow her to return to work in any capacity had no effect on tolling the statute of

limitations.” App. vol. 1, at 28. In this context, Gloeckl failed to file a timely charge of

discrimination with the EEOC.

       Gloeckl maintains, however, that even if we rule that her claim was filed untimely,

we should invoke our equitable powers and toll the statutory time limitation to allow her

to proceed. In Title VII actions, we have found equitable tolling appropriate

       when a claimant received inadequate notice of her right to file suit, where a
       motion for appointment of counsel is pending or where the court has misled
       the plaintiff into believing that she had done everything required of her.

Setizinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999). We have

also allowed equitable tolling when

       plaintiff “in some extraordinary way” was prevented from asserting her
       rights; or when the plaintiff timely asserted her rights in the wrong forum.

Id. (citations omitted). Gloeckl essentially argues that Giant Eagle’s failure to bring to

her attention part-time, vacant positions invites equitable tolling because the company’s

inaction lulled her into believing that those positions were not available.

       We disagree. Gloeckl has failed to point to any evidence in the record that


                                              5
establishes that Giant Eagle knew, when she requested a transfer to a part-time position in

August 2001, that a suitable, part-time position was available or was going to be available

in the near future. Indeed, even if Giant Eagle had been aware of an available part-time

position in August 2001 and failed to notify Gloeckl about that position, we can not say

that its inaction “actively misled” Gloeckl under current case law.

                                         *****

       Gloeckl did not timely file her EEOC claim. That failure was not excused by

equitable tolling following the limitations period. We thus affirm the District Court’s

grant of summary judgment for Giant Eagle.




                                             6
