                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-25-2001

Burgh v. Borough Council of Montrose
Precedential or Non-Precedential:

Docket 99-4032




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"Burgh v. Borough Council of Montrose" (2001). 2001 Decisions. Paper 116.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/116


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Filed May 25, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-4032

TIMOTHY M. BURGH

v.

BOROUGH COUNCIL OF THE
BOROUGH OF MONTROSE

       TIMOTHY BURGH,

       Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 99-cv-00315)
District Judge: Honorable Richard P. Conaboy

Argued November 6, 2000

Before: ROTH, RENDELL and STAPLETON, Circuit Judges

(Opinion filed May 25, 2001)

       David S. Dessen, Esquire (Argued)
       Dessen, Moses & Sheinoff
       1814 Chestnut Street
       Philadelphia, PA 19103

        Attorney for Appellant

       Patrick J. Murphy, Esquire (Argued)
       Murphy, Piazza & Genello
       538 Spruce Street
       Scranton Life Building, Suite 300
       Scranton, PA 18503

        Attorneys for Appellee
OPINION OF THE COURT

ROTH, Circuit Judge:

Plaintiff Timothy M. Burgh, an African-American male,
applied for a job as a part-time police officer with the
Borough of Montrose (Pennsylvania) Police Department. He
was not hired for the position, which was filled by a white
male with no prior on-the-job police experience. Bur gh
brought suit against the Borough under T itle VII of the Civil
Rights Act of 1964, 42 U.S.C. S 2000e, et seq., and under
the Pennsylvania Human Relations Act (PHRA), 43 Pa. C.S.
S 951, et seq., alleging that the Bor ough did not hire him
because of his race. The District Court granted summary
judgment in favor of the Borough and against Burgh on
both counts, finding that the claims had beenfiled beyond
the applicable statutory limitations periods. For the reasons
that follow, we will reverse the grant of summary judgment
and remand both claims to the District Court for further
proceedings consistent with this opinion.

I. FACTS

The facts underlying the instant dispute have not been
developed in detail, given the early stage at which the
matter was resolved in the District Court. Bur gh's
complaint is the only pleading in the recor d and no
discovery has been taken.

According to the complaint, in April 1993, Bur gh applied
for a position as a part-time police officer with the
Borough's police department. He updated this job
application sometime before June 1994. In April 1994,
Burgh accepted a position as a part-time police officer in
the Clifford Township (Pennsylvania) Police Department.
Clifford Township is located appr oximately 25 miles from
Burgh's home in South Montrose.

In June 1994, the Montrose   Police Department hired a
white male, allegedly with   no prior on-the-job police
experience, as a part-time   police officer,filling the position
that Burgh had sought. The   Montrose Police Department

                                 2
did not interview Burgh for this, or any other , position.
Burgh alleges that he was more qualified than the person
hired and that the department failed to hir e him because of
his race.

On December 8, 1994, Burgh filed a char ge of racial
discrimination against the Borough with the Pennsylvania
Human Relations Commission (PHRC) under the PHRA, 43
Pa. C.S. S 955(a).1 The PHRA claim was filed within 180
days of the alleged unlawful employment practice, the
Borough's failure to hire Bur gh because of his race. The
state administrative complaint was therefor e timely. See 43
Pa. C.S. S 959(h).

Burgh requested that his complaint be r eferred to the
United States Equal Employment Opportunity Commission
(EEOC) for dual filing as a Title VII char ge. The federal
claim was accepted and docketed by the EEOC on Mar ch
20, 1995. This claim was filed within 300 days of the
alleged discriminatory employment practice and it too was
timely. See 42 U.S.C. S 2000e-5(e)(1). On May 20, 1995, the
EEOC sent Burgh a letter advising him of thefiling of his
Title VII claim. The letter stated that the EEOC would
investigate and resolve the charge and that the Commission
must issue a Notice of Right Sue before Bur gh could file a
court action under Title VII.

On March 18, 1996, the PHRC sent Burgh a letter
advising him that it had been one year since hefiled his
complaint with the PHRC and notifying him that he now
had the right to bring a private civil action under the PHRA
in the Court of Common Pleas. The letter stated that Burgh
was not required to file such a private action and that the
Commission was continuing to process his case and would
make every effort to resolve it as soon as possible. If,
however, Burgh did wish to file in state court, the
Commission would dismiss the administrative complaint
and would not decide the case. The letter further advised
Burgh to ensure that any complaint was pr operly filed,
particularly that it was timely filed, and to consult an
_________________________________________________________________

1. The administrative complaint was not time-stamped and docketed
with the PHRC until December 24, 1994. However , the parties have
stipulated to the December 8 filing date.

                               3
attorney about representing him in court. There is no
dispute that Burgh received this letter . Burgh never filed an
action in the Court of Common Pleas. The PHRC appar ently
took no further action on the administrative char ge.

Sometime prior to October 1998, Burgh r etained counsel.
On October 19, 1998, Burgh's attorney sent a letter to the
EEOC, requesting that the agency issue a right-to-sue letter
in "light of the Pennsylvania Commission's extended delay
in resolving this matter." The EEOC on December 1, 1998,
sent a letter to Burgh's attorney, advising Burgh of his right
to institute a civil action under Title VII within 90 days of
receipt of that letter. Burghfiled his lawsuit, alleging
violations of Title VII and the PHRA, in the United States
District Court for the Middle District of Pennsylvania. His
suit was filed on February 26, 1999, 87 days after the
right-to-sue letter was issued.

On May 28, 1999, Burgh moved for default judgment;
this motion was withdrawn by stipulation, dated June 21,
1999. On June 28, 1999, the Borough filed a motion to
dismiss for failure to state a claim, pursuant to Fed. R. Civ.
P. 12(b)(6), contending that, because Bur gh had brought
suit beyond the applicable statutes of limitations, his
discrimination claims were untimely.

The District Court notified both parties during a case
management conference that the motion would be treated
as one for summary judgment; both parties agr eed to rest
on their memoranda and neither requested the opportunity
to file additional evidence. On November 16, 1999, the
District Court granted summary judgment in favor of
defendants.

The District Court held first that Burgh could not rely on
the fact that he had not received a right-to-sue letter from
the EEOC prior to December 1998 as reason for the delay
in filing his action because to "accept Plaintiff's argument
we would have to decide we could wait forever to file suit
even when the commission takes no action and fails to
notify the Plaintiff. This flies in the face of the basic reason
for a statute of limitations." The court then determined that
the issuance of a right-to-sue letter was not a necessary
prerequisite to the commencement of a civil action. In

                               4
reaching this conclusion, the court relied on case law
holding that the PHRC's failure to issue a notice of right to
sue after one year does not bar a civil action under the
state statute. See Rogers v. Mount Union Bor ough by Zook,
816 F. Supp. 308, 316 (M.D. Pa. 1993) (citing Snyder v.
Pennsylvania Ass'n of Sch. Retirees, 566 A.2d 1235 (Pa.
Super. Ct. 1989)). The court concluded that each agency
should have responded to Burgh's administrative
complaints within one year of filing with that agency--the
PHRC by December 8, 1995; the EEOC by March 20, 1996.
The court reasoned that after the passage of one year,
Burgh could have brought a private civil action on the
federal and state claims. As a result, the statute of
limitations for each claim began to run on the one year
anniversary of its filing with the agency.

The District Court went on to determine the period after
the one-year anniversary within which a complainant could
bring suit. Because the court found no specific limitations
period in Title VII, it decided to borr ow a state statute of
limitations governing an analogous cause of action. The
court held that Pennsylvania's two-year limitations period
for personal injury actions, which has been applied to
federal civil rights actions brought under 42 U.S.C. S 1983,
should govern Title VII. The court found a rationale for this
conclusion in the fact that both statutes pr ovide redress for
employment discrimination. Working fr om March 20, 1996,
the one-year anniversary of the referral of the complaint to
the EEOC, the court held that Burgh had until March 20,
1998, to file suit.2 Because he did not file until February
_________________________________________________________________

2. It is worth noting that, even assuming ar guendo that the District
Court's approach to the limitations issue was correct as a matter of law,
its application of the limitations period to this case was incorrect.
Under
federal law, the EEOC has 180 days to process a claim and notify the
complainant of the result; the complainant may request a right-to-sue
letter after that 180 days. 42 U.S.C. S 2000e-5(f)(1); 29 C.F.R.
S 1601.28(a). There is no provision in the statute that supports the
application of a one-year period from the filing of the EEOC charge as a
limit for the filing of a court action. Ther efore, even if a two-year
limitations period were to be grafted onto T itle VII, the two-year period
should have begun to run on September 16, 1995, 180 days from the
March 20 EEOC filing. It would then have lapsed on September 16,
1997, even earlier than the District Court deter mined.

                               5
1999, his suit was 11 months late and therefor e time-
barred.

The District Court did note that the inaction of the PHRC
and EEOC was partially to blame for the delays. However,
the court held that the filing of the action almost five years
after the filing of the first administrative complaint was
"clearly unreasonable" and therefor e untimely. This timely
appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had original federal question
jurisdiction over the Title VII claim, pursuant to 42 U.S.C.
S 2000e-5(f)(3) and 28 U.S.C. S 1331, and supplemental
jurisdiction over the PHRA claim, pursuant to 28 U.S.C.
S 1367(a). We have appellate jurisdiction over the final
decision of the District Court, pursuant to 28 U.S.C.
S 1291.

The District Court granted summary judgment, which is
subject to plenary review, applying the same legal standard
used by the District Court. See Pacitti v. Macy's, 193 F.3d
766, 772 (3d Cir. 1999); Ideal Dairy Far ms, Inc. v. John
LaBatt, Inc., 90 F.3d 838, 841 (3d Cir . 1996). Further, the
issue of the proper limitations period under T itle VII is
primarily a legal one, involving the interpr etation of federal
law, and our review is plenary. See Lavia v. Pennsylvania
Dep't of Corrs., 224 F.3d 190, 194-95 (3d Cir. 2000).
Summary judgment is appropriate when ther e are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P
56(c); DeHart v. Horn, 227 F.3d 47, 50 (3d Cir. 2000) (en
banc).

III. DISCUSSION

Both Title VII and the PHRA make it unlawful to fail or
refuse to hire or employ an individual because of that
individual's race or color. See 42 U.S.C. S 2000e-2(a)(1); 43
Pa. C.S. S 955(a). The analysis of the claims is identical.
See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313,
317 n.3 (3d Cir. 2000) (citing Jones v. School Dist. of

                               6
Philadelphia, 198 F.3d 403, 410-11 (3d Cir. 1999)). Both
statutes also establish administrative remedies and
procedures that claimants must exhaust prior to bringing a
civil action in court. See 42 U.S.C. S 2000e-5, 43 Pa. C.S.
S 962(c); see also Robinson v. Dalton, 107 F.3d 1018, 1020
(3d Cir. 1997) (holding, in Title VII case, that plaintiff must
exhaust administrative remedies prior to bringing suit in
court); Clay v. Advanced Computer Applications, Inc., 559
A.2d 917, 921 (Pa. 1989) (holding that the intended forum
for initially addressing PHRA claims is the PHRC); Bailey v.
Storlazzi, 729 A.2d 1206, 1214 (Pa. Super . Ct. 1999)
(holding that plaintiff must exhaust administrative
remedies under PHRA prior to bringing case to court). The
statutes have slightly different r equirements in terms of
timing and scope of the administrative remedy. Because
this case turns on the precise requirements of each statute,
an overview of the statutory provisions is helpful.

A. TITLE VII

Under Title VII, a charge of race discrimination in
employment must be filed with the EEOC within 180 days
of the occurrence of the alleged unlawful employment
practice. The EEOC must serve notice of the char ge on the
employer within ten days of the filing of the char ge. See 42
U.S.C. S 2000e-5(e)(1); see also Occidental Life Ins. Co. v.
EEOC, 432 U.S. 355, 359 (1977). If the complainant also
initiates a complaint with a parallel state agency, as
occurred in the instant case, the period forfiling the charge
with the EEOC is extended to 300 days from the date of the
alleged unlawful employment practice. See 42 U.S.C.
S 2000e-5(e)(1).

The EEOC is then required to investigate the charge, see
Occidental Life, 432 U.S. at 359, and the complainant must
allow a minimum of 180 days for the EEOC investigation to
proceed. See 42 U.S.C. S 2000e-5(f)(1); see also Occidental
Life, 432 U.S. at 361 (holding that a private right of action
does not arise until 180 days after a charge has been filed).
The congressional policy underlying this framework was to
resolve discrimination claims administratively through
cooperation and voluntary compliance in an infor mal,
noncoercive manner. See Occidental Life, 432 U.S. at 363;

                               7
Anjelino v. New York Times Co., 200 F.3d 73, 93 (3d Cir.
1999).

If, after 180 days, the EEOC has not resolved the charge,
it must notify the complainant, see 42 U.S.C. S 2000e-
5(f)(1), generally through the issuance of a"right-to-sue"
letter, in which the EEOC states that it sees no reason to
take action on the complaint. See Waiters v. Parsons, 729
F.2d 233, 237 (3d Cir. 1984). After 180 days, the
complainant on his own may also request a right-to-sue
letter. The EEOC must issue the letter pr omptly on request.
See 29 C.F.R. S 1601.28(a)(1). The receipt of the right-to-sue
letter indicates that a complainant has exhausted
administrative remedies, an essential element for bringing
a claim in court under Title VII. See Anjelino, 200 F.3d at
93 (citing Ostapowicz v. Johnson Bronze Co., 541 F.2d 394,
398 (3d Cir. 1976)) ("The preliminary step of the filing of the
EEOC charge and the receipt of the right to sue notification
are `essential parts of the statutory plan."'). A complainant
may not bring a Title VII suit without havingfirst received
a right-to-sue letter. See Anjelino, 200 F.3d at 87; Robinson,
107 F.3d at 1020. Nothing in the statute or the regulations,
however, requires a complainant to request a right-to-sue
letter or to bring a private suit. Nevertheless, if the
complainant does choose to bring a private action, it must
be filed within 90 days of the date on which the
complainant has notice of the EEOC's decision not to
pursue the administrative charge. See 42 U.S.C. S 2000e-
5(f)(1). The on-set of the 90-day period is generally
considered to be the date on which the complainant
receives the right-to-sue letter. See Seitzinger v. Reading
Hosp. and Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999);
Mosel v. Hills Dept. Store, Inc. v., 789 F.2d 251, 52 (3d Cir.
1986) (per curiam).

Both the 180-day period for filing the administrative
complaint3 and the 90-day period for filing the court action
are treated as statutes of limitations. See Zipes v. Trans
World Airways, Inc., 455 U.S. 385, 393 (1982) (likening
requirement of timely filing of administrative charge to
statute of limitations); Figueroa v. Buccaneer Hotel Inc., 188
_________________________________________________________________

3. Or the 300-day period if there is a parallel state filing.

                               8
F.3d 172, 176 (3d Cir. 1999) (same with respect to time for
bringing court action after receipt of right-to-sue letter). We
have strictly construed the 90-day period and held that, in
the absence of some equitable basis for tolling, a civil suit
filed even one day late is time-barred and may be
dismissed. See Figueroa, 188 F .3d at 176. In our review of
this case, we must keep in mind, however, that the statute
of limitations does not begin to run unless and until there
is "final agency action," such as the issuance of a right-to-
sue letter. See Waiters, 729 F .2d at 237. Without that final
agency action, the complainant has not exhausted his
administrative remedies and cannot bring suit. See
Anjelino, 200 F.3d at 87.

B. THE PHRA

The PHRA similarly requires that claims be brought first
to an administrative agency, the PHRC, which has exclusive
jurisdiction over the claim for a period of one year in order
to investigate and, if possible, conciliate the matter. See
Clay, 559 A.2d at 920 (quoting Lukus v. W estinghouse Elec.
Corp., 419 A.2d 431, 455 (Pa. Super. Ct. 1980)). A
complainant may not file an action in court for a period of
one year. See Clay, 559 A.2d at 921; 43 Pa. C.S. S 962(c)(1).
If the PHRC does not resolve the administrative charge
within one year, the commission must notify the
complainant that he may bring an action in the Court of
Common Pleas. See 43 Pa. C.S. S 962(c)(1); see also Snyder,
566 A.2d at 1240 (holding that where a complainant has
not had her grievance resolved by the PHRC within one
year of filing, she could pursue another course, namely, an
action in the judicial system). Importantly, and unlike
under Title VII, notice of the right to sue is not required in
order to bring the PHRA action. Instead, after one year has
elapsed, a complainant may bring a court action r egardless
of whether or not he has received a letter fr om the PHRC.
See Snyder, 566 A.2d at 1240. No case law suggests,
however, that a complainant must bring the civil action
then or at any later time.

Moreover, the PHRA does not limit the time, after receipt
of the one-year notice, within which a civil action must be
brought. The statute does provide that any civil action must

                               9
be filed within two years after notice from the PHRC that it
is closing the complaint. See 43 Pa. C.S.S 962(c)(2).4 The
PHRC one-year notice is not, however, the equivalent of
notice that the PHRC is closing the complaint. A r eview of
the notice sent to Burgh illustrates this point. The letter
states that Burgh was not required to file suit in court, that
the Commission was continuing to process the case and
would make every effort to resolve it as soon as possible,
and that only if Burgh filed a complaint in state court
would the PHRC dismiss the complaint.

C. IS THERE A GAP IN THE TITLE VII LIMITA TIONS
       PERIODS

The District Court granted summary judgment on
Burgh's Title VII claim, applying the Pennsylvania two-year
statute of limitations to Title VII as a gap-filler and running
the limitations period from the date on which Burgh could
have requested a right-to-sue letter fr om the EEOC. Under
this application of limitations, the court found Bur gh's
claim to be untimely.

It is well-established that, if Congress has cr eated a
cause of action and not specified the period of time within
which a claim must be asserted, a court may infer that
Congress intended state limitations periods to apply and
may borrow such periods and engraft them onto the federal
statute. See Occidental Life, 432 U.S. at 367; see also id.
(citing, inter alia, Runyon v. McCrary , 427 U.S. 160, 179-82
(1976) (state limitations period applies to Civil Rights Act of
1866, 42 U.S.C. S 1981) and O'Sullivan v. Felix, 233 U.S.
318 (1911) (same as to Civil Rights Act of 1871, 42 U.S.C.
S 1983)). We have borrowed two-year personal injury
_________________________________________________________________

4. This provision was added to the PHRA in 1991. Some courts had held
prior to the amendment that Pennsylvania's two-year statute of
limitations for personal injury, 42 Pa. C.S. S 5524(7), applied to PHRA
claims. See Raleigh v. Westinghouse Elec. Corp., 550 A.2d 1013, 1014
(Pa. Super. Ct. 1988); see also Long v. Board of Educ. of City of
Philadelphia, 812 F. Supp. 525, 534 (E.D. Pa.) (relying on Raleigh in
dismissing as time-barred PHRA claims that wer e not brought within two
years of the plaintiff's receipt of notice of her right to sue), aff'd 8
F.3d
811 (3d Cir. 1993) (mem.).

                               10
limitations periods from the states and imposed them in
both S 1981 claims, see Zubi v. AT&T Corp., 219 F.3d 220,
222 (3d Cir. 2000), and S 1983 claims. See Nelson v. County
of Allegheny, 60 F.3d 1010, 1012 (3d Cir . 1995). Where,
however, Congress explicitly provides a limitations period in
the text of the statute, that period is definitive. There is no
need to borrow a state period. See Holmber g v. Armbrecht,
327 U.S. 392, 395 (1946).

Contrary to the Borough's arguments, T itle VII is not a
statute without a limitations period. Congress did provide a
statutory limitations period for employment discrimination
claims; in fact, Congress provided two periods. First, a
complainant has 180 days from the occurr ence of the
alleged unlawful employment practice within which to bring
a discrimination charge before the EEOC, see 42 U.S.C.
S 2000e-5(e)(1), or 300 days where ther e has been cross-
filing with a state agency under state law. See 42 U.S.C.
S 2000e-5(e)(1). Second, a complainant has 90 days from
receipt of the right-to-sue letter to bring an action in court.
See 42 U.S.C. S 2000e-5(f)(1); see also Seitzinger, 165 F.3d
at 239; Mosel, 789 F.2d at 252. Both periods have been
treated as statutes of limitations. See Zipes, 455 U.S. at
393; Figueroa, 188 F.3d at 176. The latter limit is strictly
enforced and a delay of even one day will bar a claim. See
Figueroa, 188 F.3d at 176.

These two periods together represent the congressional
determination of the relevant and pr oper time limitations
under Title VII. The imposition of an additional limitations
period is inconsistent, and indeed in direct conflict, with
the plain language of the federal statute. Ther e is no gap to
fill and thus no need to import a state limitations period as
a gap-filler. The statute by its ter ms establishes the two
appropriate time requirements that a complainant must
satisfy in order to bring a timely claim.

Furthermore, the two-year limitations period urged by
the Borough would conflict with the timetables established
in Title VII. See Occidental Life, 432 U.S. at 368-69 & n.23.
For example, in the most basic case, if a complainant
requests and receives a right-to-sue letter exactly 180 days
after he files his EEOC charge, the statute gives him 90
days to bring his action in court, see 42 U.S.C. S 2000e-

                               11
5(f)(1), while the borrowed state limitations period would
give him two full years (640 additional days) tofile his
action. To complicate matters further, a complainant would
have no guidance as to which limitations period controlled.
In the instant case, Burgh unquestionably satisfied the
timing requirements established by the text of the statute:
He received the right-to-sue letter on December 1, 1998,
and filed his civil action on February 26, 1999, 87 days
later. There is no time period pr ovided in the statute that
Burgh failed to satisfy.

The Borough recognizes this conflict but nonetheless
argues that the borrowed state limitations period should
apply here, relying on a decision fr om the Middle District of
Pennsylvania, Rode v. Dellarciprete , 646 F. Supp. 876 (M.D.
Pa. 1986), aff'd in part, vacated in part , 845 F.2d 1195 (3d
Cir. 1988). But the Borough misr eads Rode. In Rode, the
District Court dismissed a S 1983 claim as untimely under
a borrowed state two-year limitations period. See Rode, 646
F. Supp. at 882. But the court did not dismiss the Title VII
claim as untimely. In fact, a careful r eview of Rode shows
that the District Court found plaintiff's T itle VII allegations
were not barred by laches, as alleged by defendants, since
defendants had not shown that the delay had caused them
any prejudice. See id. at 883.

Moreover, other courts of appeals have r ejected the
argument that state statutes of limitations should be
borrowed in Title VII cases. The Ninth Circuit held that the
time limits for filing a charge with the EEOC and for giving
notice to the employer of that charge "ar e a Congressionally
established statute of limitations" and ther e is no basis
under the statute to import a different period from state
law. See Kirk v. Rockwell Int'l Corp., 578 F .2d 814, 819 (9th
Cir. 1978). Concurring specially, Judge Hufstedler stated
that "Title VII's time provisions fully define the steps which
must be taken by a Title VII litigant to pr eserve his or her
right to sue. State statutes of limitations ar e not borrowed
because there is no gap to fill." Id. at 824. The Sixth Circuit
reached the same conclusion in Draper v. United States
Pipe and Foundry Co., 527 F.2d 515, 522 (6th Cir. 1975),
noting the specific time periods for filing a charge with the
EEOC and for commencing a civil action after r eceipt of the

                               12
right-to-sue letter, and holding that "T itle VII establishes its
own statute of limitations, and state law is irr elevant in
determining whether a private individual has lost his right
of action under Title VII through the passage of time."

We can also derive guidance from our decision in Waddell
v. Small Tube Prods., Inc., 799 F .2d 69 (3d Cir. 1986), a
case involving procedural delays similar to those in the
instant case. In Waddell, the plaintiff filed a failure-to-
rehire charge with the PHRC in February 1977; this charge
was referred to the EEOC for cross-filing in March 1977. In
April 1977, the PHRC dismissed the charge and notified the
plaintiff, but not the EEOC, of that dismissal. The PHRC
did not send any notification to the EEOC until November
1981, more than 4 years later. In the meantime, the
plaintiff wrote two letters to the EEOC inquiring about his
case, the first in April 1977, the second in September 1977.
In May 1983, the plaintiff learned that he could request a
right-to-sue letter, which he did; he r eceived the letter in
June 1983 and brought suit in August 1983, within 90
days of receipt of the letter. The issue then was whether the
plaintiff's claim should be barred by the equitable doctrine
of laches, based on the plaintiff's failur e to diligently pursue
his claim, either administratively or by seeking a right-to-
sue letter at an earlier time. See id. at 74-75. We ultimately
remanded the case to the District Court to determine
whether the defendant had established the elements of a
laches defense. See id. at 79-80. Ther e is, however, no
mention in Waddell of any statute of limitations; nor is
there any suggestion that the plaintiff had violated a
statutory limitations period -- either federal or state-- in
bringing his civil action more than seven years after filing
the administrative charge and almost six years after his last
letter to the EEOC.

We note, finally, that the limitations scheme provided for
in Title VII is consistent with Congress's intent that most
complaints be resolved through the EEOC rather than by
private lawsuits. See Occidental Life, 432 U.S. at 366
(discussing Senate Report). Congress's concer n that the
"fair operation" of Title VII required a time limitation was
focused on when a charge was filed with the EEOC and a
defendant received notice of that charge. Id. at 371. The

                               13
"benchmark, for purposes of a statute of limitations, is not
the last phase of the multistage scheme, but the
commencement of the proceeding before the administrative
body." Id. at 372. Title VII establishes a clear period of 180
days following the alleged unlawful employment decision to
file an administrative charge with the EEOC (or parallel
state agency) and to provide notice of the char ge to the
defendant ten days later. See 42 U.S.C. S 2000e-5(e)(1). This
notice gives the defendant the opportunity to gather and
preserve evidence in anticipation of court action. See
Occidental Life, 432 U.S. at 372-73. Statutes of limitations
exist, in part, to ensure such notice to the adversary. See
Barnes v. The Am. Tobacco Co., 161 F .3d 127, 151-52 (3d
Cir. 1998) ("The theory [of statutes of limitations] is that
even if one has a just claim it is not unjust to put the
adversary on notice to defend within the period of
limitation.") (citations omitted).

Congress wanted cooperation and voluntary compliance
to be the primary means of resolving claims in an informal
and noncoercive manner. See Occidental Life, 432 U.S. at
367-68; Anjelino, 200 F.3d at 93 (holding that the statutory
plan of Title VII was aimed at correcting discrimination
through informal administrative conciliation). This goal of
resolving problems by conciliation is better met by enacting
a limitations period for filing a court action that runs from
the receipt of the right-to-sue letter at the end of the
administrative process rather than from the date of the
unlawful employment practice.

For all the above reasons, we conclude that there is no
gap in Title VII that requires the grafting on to it of any
state limitations period. Burgh's Title VII claim, filed within
the statutory period of 90 days from receipt of the right-to-
sue letter from the EEOC, was timely filed and may go
forward.

D. IS THERE A GAP IN THE PHRA LIMITA TIONS
       PERIODS

We turn now to Burgh's PHRA claim. This involves an
issue of state law, requiring us, as a federal court sitting in
diversity on this claim, to apply state substantive law,

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statutory and decisional as interpreted by the highest court
of the state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938); McKenna v. Pacific Rail Serv., 32 F.3d 820, 825 (3d
Cir. 1994). In the absence of a reported decision on point by
the Pennsylvania Supreme Court, we must look to the
decisions of the intermediate appellate courts for guidance.
See McKenna, 32 F.3d at 825. In the absence of guidance
from the state supreme court or any inter mediate appellate
courts, we must predict how the state supr eme court would
resolve this issue if it were befor e that court. See
Nationwide Ins. Co. v. Resseguie, 980 F.3d 226, 229 (3d
Cir. 1992).

In its opinion, the District Court conflated T itle VII with
the PHRA in applying the one-year period after filing the
administrative complaint as the accrual of the time to file
suit. The court held that the limitations period on the PHRA
claim began running one year after Burgh hadfiled the
administrative charge, on December 8, 1995, because at
that point Burgh had exhausted his administrative
remedies and could have brought his claim in court. The
court held that this period for bringing a court action
expired two years later.5

Like Title VII, the PHRA establishes two limitations
periods: first, the administrative charge must be filed by a
complainant with the PHRC within 180 days of the alleged
discrimination, see 43 Pa. C.S. S 959(h); second, a court
action must be filed within two years of the date that the
PHRC gives the complainant notice of the closing of the
administrative complaint. See 43 Pa. C.S.S 962(c)(2). As in
Title VII, these periods represent the complete legislative
determination as to the appropriate timing provisions
under the PHRA. There is no basis for a court, particularly
_________________________________________________________________

5. As it did on the Title VII claim, see supra note 2, the District Court
calculated the PHRA dates improperly. The court started the clock on the
PHRA claim on March 20, 1996, one year after the EEOC charge was
filed. The court stated that this was to give the plaintiff the benefit of
all
reasonable factual inferences. But thefiling of the EEOC charge is
irrelevant to any limitations period under the PHRA. If the District Court
was correct that the PHRA limitations period began to run one year after
the filing of the PHRC charge, the clock would have expired on December
8, 1997.

                               15
a federal court sitting in diversity, to engraft any additional
limitations periods as gap-fillers. There ar e no statutory
gaps to be filled.

As we note in footnote 4, the Pennsylvania Superior
Court in Raleigh v. Westinghouse Elec. Corp., 550 A.2d
1013, 1014 (Pa. Super. Ct. 1988), did apply the
Pennsylvania two-year personal injury statute of limitations
to bar plaintiff's claim. Raleigh, however, was decided in
1988, prior to the 1991 amendments to the PHRA that
added the two-year limitations period from the dismissal of
the administrative complaint now contained in S 962(c)(2).
Because Raleigh is inconsistent with S 962(c) as amended,
we will not follow it. We similarly decline to follow our
dictum in Northview Motors, Inc. v. Chrysler Motors Corp.,
227 F.3d 78, 90-91 (3d Cir. 2000), which cited Raleigh in
stating that Pennsylvania's two-year personal injury
limitations period applies to PHRA claims. Finally, we
disapprove the District Court decisions in Onibokun v.
Berks County Children and Youth Servs. , Civ. No. 98-4402,
1999 WL 681697 (E.D. Pa. 1999) and Long v. Boar d of
Educ. of City of Philadelphia, 812 F. Supp. 525, 534 (E.D.
Pa. 1993),6 both of which applied the two-year limitations
period to PHRA claims, running from the date of the
plaintiff's receipt of the right-to-sue letter.

Unlike Title VII, the PHRA limitations period for bringing
suit, S 962(c)(2), does not run from the date of receipt of the
letter from the PHRC one year after filing, but from the date
of notice that the PHRC closed the complaint. Mor eover, the
PHRC one-year letter does not automatically close the
complaint and trigger S 962(c)(2), as a r eview of the March
18, 1996, letter to Burgh illustrates. That letter provided
that the "Commission is continuing to process your case,
and we will make every effort to resolve it as soon as
possible. If we are not notified otherwise, we will assume
that you want the Commission to continue handling your
case." The PHRC informed Burgh that it would close his
complaint only if he filed an action in court. Furthermore,
_________________________________________________________________

6. The Borough relies on the fact that we summarily affirmed the District
Court in Long. See 8 F.3d 811 (3d Cir. 1993) (mem.). However, such a
summary affirmance is not precedential and not binding on this panel.

                               16
there is nothing in the record to indicate that the PHRC
ever closed Burgh's administrative char ge. Thus, the
S 962(c)(2) two-year period never began to run on Burgh's
state claim.

Nor under the PHRA was Burgh ever requir ed to
commence litigation. The District Court relied on the
Pennsylvania Superior Court decision in Snyder v.
Pennsylvania Ass'n of Sch. Retirees, 566 A.2d 1235 (Pa.
Super. Ct. 1989) and the Middle District of Pennsylvania
decision in Rogers v. Mount Union Borough by Zook, 816 F.
Supp. 308 (M.D. Pa. 1993), to conclude that Bur gh could
have brought suit on the one-year anniversary of the filing
of the administrative claims and the limitations clock
started on that date. In Snyder, 566 A.2d at 1242, the
Superior Court held that a plaintiff could pr oceed into
court, even absent the issuance of a right-to-sue notice, on
a discrimination charge that had been br ought before the
PHRC and had remained there for at least one year. In
Rogers, 816 F. Supp. at 316, the court cited Snyder for the
proposition that the lack of issuance of a right-to-sue notice
does not bar the civil action on the grounds of failure to
exhaust.

Both cases are distinguishable. In both, the plaintiffs had
gone to court without having received right-to-sue notices
and, in both, the courts were addressing and rejecting the
defendants' argument that the claims should be dismissed
because the plaintiffs had failed to exhaust administrative
remedies. Both courts held that the expiration of the one-
year period in S 962(c)(1) was sufficient exhaustion under
the statute. These cases stand for the proposition that a
PHRA plaintiff may, after one year , with or without a letter
from the PHRC, forego the administrative process and bring
his discrimination claim in court.

Neither case, however, stands for or supports the
proposition that a plaintiff must do so on pain of losing that
claim to a rigid statute of limitations. In fact, we can predict
that a more appropriate view of Pennsylvania law would
hold that a plaintiff should not be required to cut short the
administrative process in favor of litigation. This prediction
is supported by the legislative policy underlying the PHRA,
as discussed by the Pennsylvania Supreme Court in Clay,

                               17
supra. The Supreme Court held that the state legislature
intended "that the PHRC would bring to bear particular
expertise in handling discrimination cases." Clay, 559 A.2d
at 919. The legislature sought to create an administrative
scheme that would ensure maximum use of the PHRC's
expertise in the area of unlawful discrimination. See id. at
920 (quoting Lukus, 419 A.2d at 455). The PHRC is granted
exclusive jurisdiction for one year in order to carry out its
expert function. See Clay, 559 A.2d at 920 (quoting Lukus,
419 A.2d at 455); see also Clay, 559 A.2d at 921 (holding
that parties were restrained from judicial recourse for a
period of one year after bringing an administrative charge).
It follows that the policy underlying the PHRA, like the
policy underlying Title VII, is to per mit the administrative
process to continue to completion and to allow the PHRC
adequate time to resolve the case, rather than having the
plaintiff cut short that process and r esort to litigation.

We conclude, therefore, that the limitations period for
Burgh to bring his PHRA action did not begin to run on the
one-year anniversary of the filing of his PHRC claim.
Because the PHRC never closed the administrative
complaint, the limitations period on his PHRA claim never
started. The state claim was timely filed and may go
forward.

IV. CONCLUSION

For the foregoing reasons, the statute of limitations did
not lapse either on Burgh's Title VII claim or on his PHRA
claim; both claims are timely and both may go forward. We
will reverse the order of the District Court granting
summary judgment in favor of the Borough and r emand
this matter to the District Court for further pr oceedings
consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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