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A federal judge has found that a former employee for Springfield Township, Pa., may pursue some of his claims in a race discrimination suit against the township, while others were barred by the statute of limitations. U.S. District Judge Bruce W. Kauffman permitted only some portions of Clarence Brockington’s Section 1983, Title VII and Pennsylvania Human Relations Act race discrimination claims against Springfield Township to continue when he partially denied the township’s motion for summary judgment. Kauffman found that Brockington’s claims based on the township’s failure to promote him to one position were statutorily time-barred because the claims were filed more than 300 days after the failure to promote occurred. Claims alleging discriminatory treatment occurring after Brockington’s subsequent promotion to a different position, however, were “separate and distinct” from the earlier discrimination, wrote Kauffman. Therefore, those claims survived Springfield Township’s motion for summary judgment, as they represented “an ongoing unlawful employment practice,” and, accordingly, were not time-barred. Brockington, an African-American male, began working as a trash man for Springfield Township’s Refuse Department in 1971, later became a trash truck driver, returned as a sweeper operator, and by 1974, had moved on to the highway department as a laborer on the road crew. During his tenure on the road crew, Brockington was made acting assistant foreman for almost a year, although neither his job title nor his pay changed during that time. When the position of foreman opened, Brockington claimed that his supervisors told him that he “couldn’t get the … foreman’s job” so his “best bet was to go back on the trash truck.” A white male became foreman. At this point, Brockington returned to driving for the refuse department and was paid the same salary. From approximately 1985 to 1989, Brockington asked his supervisor to place him on the road crew, and in 1989 complained of discrimination to the township manager, claiming that there were no blacks on the road crew because the supervisor “didn’t want to hire blacks for the road crew.” In 1989, Brockington was promoted to the position of equipment operator for the highway department, which he still holds. Brockington then complained of discriminatory conduct within the public works department several times between 1989 and 2000. Specifically, Brockington claimed he was assigned the dirtiest jobs, was required to put the truck away while other white workers were idle, and was “digging all the time.” Additionally, Brockington alleged that other people in his department joked of this practice and that the word “nigger” was commonly used within the public works department. Upon one of the employee’s receipt of a written warning for using racial slurs, both the employee and Brockington attended a seminar on preventing racial and sexual harassment in the workplace. Brockington then brought suit against Springfield Township alleging violations of Section 1983, Title VII and the PHRA. Under Title VII, he alleged he was subject to a racially hostile work environment and that he suffered disparate treatment as a result of his race. After Brockington sued, Springfield Township maintained that Brockington’s claims were statutorily time-barred, that he failed to produce sufficient evidence to support his hostile work environment and disparate treatment claims under Title VII and his Section 1983 claims, and that his Section 1983 claims were subsumed by his Title VII claims. Kauffman addressed each of these arguments in turn. Kauffman agreed with the township that Brockington’s claim regarding the township’s failure to promote him from 1985 to 1989 were time-barred. Under Title VII, Kauffman noted, a plaintiff must file a charge of employment discrimination with the Equal Employment Opportunity Commission within 300 days if he initially filed a charge with a state or local agency, such as the Pennsylvania Human Relations Commission. Because Brockington did not file his discrimination complaint until Aug. 8, 1999, well past the 300 days from the 1989 failure to promote, Kauffman found that Brockington’s claim was time-barred. Kauffman pointed out, however, that “events occurring outside the statutory limitations period can form the basis of a Title VII claim so long as the untimely incidents represent an ongoing unlawful employment practice.” To determine whether Brockington could prevail on the “continuing violation theory,” Kauffman applied what he called the leading case on the theory, the 5th U.S. Circuit Court of Appeals’ 1983 ruling in Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971. The Berry test, which the 3rd Circuit has followed, Kauffman noted, focuses on whether the violations constituted the same type of discrimination, whether the alleged acts were recurring or more isolated in nature, whether the nature of the violations should have triggered an employee’s awareness of the need to assert his or her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. Kauffman found under these factors that Brockington’s pre-1989 claims of the township’s failure to promote were “separate and distinct” from the alleged discriminatory conduct, including racial slurs and dirty assignments, from 1989 forward, as the two claims address different types of conduct. Additionally, Kauffman noted, Brockington was aware of the first instance of discrimination in 1989 when he was not promoted and complained to his superiors. He could have filed a claim at that time. Therefore, Kauffman concluded, Brockington can recover only for the post-promotion conduct from 1989 forward. As to Springfield Township’s sufficiency of evidence claims, Kauffman found that Brockington indeed presented sufficient evidence to raise a genuine issue of material fact under Brockington’s hostile work environment and disparate treatment Title VII claims and his Section 1983 claims. Citing Brockington’s allegations that the word “nigger” was used within the department, that people often make fun of Brockington for being assigned the dirtiest jobs and that Brockington’s fellow workers testified that Brockington was assigned the dirtiest jobs, Kauffman found Brockington provided sufficient evidence to avoid summary judgment on claims that he was treated differently because of his race. Kauffman also allowed Brockington’s Section 1983 claims against the township to continue, as a plaintiff may bring both a Section 1983 and Title VII claim so long as the defendant’s conduct violates both Title VII and a separate constitutional right. Noting that although Brockington did not specify a substantive basis for his Section 1983 claim, Kauffman assumed that it must be grounded on the equal protection clause of the 14th Amendment. In determining that Brockington’s Section 1983 claim was not time-barred, Kauffman noted that the same continuing violation theory that applies in Title VII claims applies to Section 1983 claims as well, and, accordingly, allowed Brockington’s claim to go forward. Kauffman also permitted Brockington’s PHRA claim to continue, as such claims are analyzed under Title VII jurisprudence.

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