                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-16-2005

Drake v. Steamfitters Local
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1493




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"Drake v. Steamfitters Local" (2005). 2005 Decisions. Paper 691.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/691


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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-1493
                                  ________________

                                   OLIVIA DRAKE,

                                             Appellant

                                            v.

                       STEAMFITTERS LOCAL UNION 420
                    _______________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 01-cv-06968)
                     District Judge: Honorable Legrome D. Davis
                    _______________________________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   July 25, 2005

             Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                               (Filed August 16, 2005 )
                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Appellant Olivia Drake appeals pro se the District Court’s grant of Steamfitters

Local Union 420’s (Local 420) motion for summary judgment on her complaint alleging

numerous civil rights violations under 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), and 43
Pa. Cons. Stat. Ann. §§ 951-963 (PHRA). For the reasons that follow, we will affirm.

We will also grant Appellee’s motion to seal Appellant’s brief.

       The parties are familiar with the facts, thus, we will only briefly summarize them

here. In 1980, Drake entered an apprenticeship training program administered by the

Local 420 Joint Apprenticeship Training Program (JATP), an employee benefit plan

under 29 U.S.C. § 1002(1). Drake completed the program in 1984. She then started

paying Local 420 membership dues as a journeyperson, which she continued paying until

1997. Local 420 then terminated her membership status after six months of non-payment.

Around the same period, Drake sued Local 420 for violations similar to those alleged in

the current complaint, but lost in the District Court, Drake v. Steamfitters Local Union

420, E.D. Pa. Civ. No. 97-cv-00585, and on appeal in this Court. Drake v. Steamfitters

Local Union 420, 242 F.3d 370 (3d Cir. Oct. 17, 2002) (Table).

       She took no further action until May 2, 2000, when she filed the underlying

charges with the Equal Employment Opportunity Commission (EEOC). Declining to act

on the charges, the EEOC issued Drake a right-to-sue letter on September 25, 2001.

Drake then filed the current complaint alleging numerous civil rights violations. In

August, 2003, the District Court dismissed the complaint for failure to prosecute, which

was vacated by this Court on May 10, 2004. Upon returning to the District Court, Local

420 deposed Drake and filed a motion for summary judgment on all claims. The District

Court granted the motion, finding that the majority of the claims were time-barred and the



                                             2
remaining counts lacked support. Drake appealed. “We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291 and exercise plenary review.” See Kelly v. Drexel

University, 94 F.3d 102, 104 (3d Cir. 1996).1

       We largely agree with the District Court that Drake’s complaint can be broken

down into several categories. Thus, there is no need to repeat the extensive categorization

here. Assuming arguendo that Drake’s claims are asserted against the proper party,2 the

majority of her claims are time-barred. Where an injury arises in Pennsylvania, a Title

VII claim must be brought with the EEOC within 300 days of the alleged violation. See

42 U.S.C. § 2000e-5(e)(1); 29 C.F.R. § 1016.13(a)(4); West v. Philadelphia Elec. Co., 45


   1
     Local 420 filed a motion to strike or seal Drake’s informal brief pursuant to Federal
Rule of Appellate Procedure 27(a) on the grounds that Drake fails to argue any points
relevant to the District Court’s reasons for granting summary judgment and that
throughout the document Drake makes unsupported inappropriate allegations against the
District Court and Appellee’s attorneys, officials, and members. We find that Drake’s
informal brief is largely lacking in substantive legal argument and attempts to publicly
damage the reputation and standing of persons both in and outside of this litigation.
Thus, we will grant Appellee’s motion to seal. See Leucadia, Inc. v. Applied Extrusion
Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993); Republic of Philippines v. Westinghouse
Elec. Corp., 949 F.2d 653, 660-64 (3d Cir. 1991) (finding that the presumption of public
access to documents in a civil proceeding is not absolute, and may be overcome by
weighing the countervailing reasons for prohibiting public access). We also note that
Drake’s claims of misconduct on the part of Local 420 and its counsel are baseless.
Further, she provides no support for her claim that the District Court’s January 27th order
was in retaliation for our reversal of an earlier motion to dismiss.
   2
     Local 420 argues that any claims relating to the JATP, the apprenticeship program,
or the pension and retirement funds are meritless because it has no legal authority over
these programs. We express no opinion on the merit of this claim. Local 420 fails to
provide any documentary evidence to support its claim, but Drake has failed to refute the
assertion. However, irrespective of whether Local 420 is correct, it does not alter the
results of this litigation.

                                             3
F.3d 744, 754 (3d Cir. 1995).3 Drake filed her charge on May 2, 2000, meaning the

limitation period prevents the consideration of any act occurring prior to July 7, 1999.

Although several of Drake’s claims assert continuous or ongoing violations, Drake’s

relationship with Local 420 terminated in 1997. After her membership status ended, she

was no longer entitled to the benefits she claims were denied because of her race and

gender, such as job referral, voting rights, and the ability to run for office.

           Drake argues in her reply brief that her membership status was not revoked until

2000, but she concedes she stopped paying dues in 1997. Neither party has submitted a

copy of a notice of expulsion. However, the Union’s Constitution expressly provides that

“[a]ny member in arrears for dues for a period of six (6) months shall stand expelled . . .

.”       United Association Constitution § 165 (1986). Drake does not argue, and the record

does not reflect, that she is entitled to equitable tolling.

           Only claims 9 and 31 survive the statute of limitation. However, they fail on their

merits. Claim 9 alleges that in February of 2000, Local 420 stated Drake was not



     3
      We need not decide whether the 300-day period applies to Drake, or whether the
shorter 180-day period is applicable in this instance. In West, we recognized that the 300-
day limitation period applies only when “the plaintiff has initially instituted proceedings
with a state or local agency . . . .” West, 45 F.3d at 754 n.8. See also 29 C.F.R. § 1601.13
(discussing the applicable limitation periods where a state agency defers or accepts a
charge). The record fails to show that Drake initially filed her complaint with the
Pennsylvania Human Rights Commission (PHRC), or that the EEOC forwarded the
complaint to the PHRC. Regardless, Local 420 concedes the applicability of the 300-day
period. Additionally, the PHRA applies a 180-day limitation period. See 43 Pa. Cons.
Stat. Ann. § 959(a)-(h). Irrespective of which period applies, Drake’s claims remain
time-barred.

                                                4
qualified for positions despite her JATP training. Even if we accept that the statement

was made, Drake cites no adverse employment action. See Storey v. Burns Int’l Sec.

Servs., 390 F.3d 760, 764 (3d Cir. 2004). With respect to claim 31, Drake fails to counter

Local 420’s assertion that any withdrawal or transfer of her pension fund is permitted at

all.

       For all of the foregoing reasons, Drake’s claims are either time-barred or lack

persuasive merit. Accordingly we will affirm.
