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ROTH v. NAVAL AVIATION SUPPLY OFFICE

January 24, 1978

PAUL ROTH
v.
NAVAL AVIATION SUPPLY OFFICE and UNITED STATES NAVY



The opinion of the court was delivered by: LUONGO

 This Title VII action by a federal employee is presently before me on the Government's motion for summary judgment. For the reasons hereafter stated, I conclude that summary judgment should be entered for the Government.

 Paul Roth, an employee of the Naval Aviation Supply Office in Philadelphia and a Seventh Day Adventist, was passed over for a promotion in 1975 because of his stated unwillingness to work on Saturdays. On April 11, 1975, Roth filed a formal Complaint of Discrimination with the Navy. See generally 5 C.F.R. § 713.211-.222 (1977). On March 11, 1976, the Department of the Navy issued a final decision on Roth's complaint, in which the Secretary of the Navy found that Roth had been "denied proper consideration in the disputed promotion because of [his] religious beliefs." Memorandum of Law in Support of Defendants' Motion for Summary Judgment, Exhibit B, at 4. The Secretary further stated:

 
"By separate correspondence, your employing activity is being requested to give you priority consideration for promotion to the next available GS-5 position for which you are qualified. If your religious beliefs are found by your employer to preclude your selection and/or promotion, he is also being requested to document the reasons supporting that decision which demonstrate the inability to accommodate your beliefs, and to furnish this Office with those reasons." Id. (Emphasis supplied.)

 Finally, the Secretary described Roth's right of appeal under 42 U.S.C. § 2000e-16(c) (Supp. V 1975), including the fifteen-day limitations period for filing an appeal with the Civil Service Commission's Appeals Review Board (ARB), and the thirty-day limitations period for filing a civil action in district court. See generally 5 C.F.R. § 713.281-82 (1977). Roth took no appeal from the Secretary's decision.

 On June 18, 1976, Roth was referred for consideration for another GS-5 position. He received "priority consideration" for this position, in accordance with the Secretary's decision, but the selection panel recommended that Roth be rejected as unqualified. Roth's unwillingness to work on Saturdays was not a consideration in reaching this decision, as the job entailed only a Monday-to-Friday work week. On August 10, 1976, Roth received a letter stating that the panel's recommendation would be followed.

 On November 12, 1976, Roth's attorney filed with the ARB an appeal from the Secretary's decision of March 11. Although he acknowledged that the appeal was untimely, he requested that it be considered nevertheless because the delay stemmed from misleading explanations of Navy procedures (including the meaning of "priority consideration") given to him by Navy personnel. The ARB replied, in a letter dated November 29, that it could consider Roth's untimely appeal only upon a showing that Roth "was prevented by circumstances beyond his control from filing a timely appeal," and that it would consider any information submitted by December 15 in resolving that question. Memorandum of Law in Support of Defendants' Motion for Summary Judgment, Exhibit G, 1-2. Neither Roth nor his attorney submitted any further information to the ARB.

 On March 17, 1977, the ARB notified Roth's attorney that the November 12, 1976 appeal was rejected as untimely. Because it had received no response to its letter of November 29, the ARB acted based on "the information of record." Memorandum of Law in Support of Defendants' Motion for Summary Judgment, Exhibit H, at 2. The ARB concluded that no showing had been made that would justify a waiver of the fifteen-day limitations period for an appeal from the Secretary's decision of March 11, 1976. On April 21, 1977, Roth's attorney filed the complaint in this Title VII action. 42 U.S.C. § 2000e-16 (Supp. V 1975). He contends that this was timely since it was within thirty days of his receipt of the ARB's letter of March 17. Memorandum in Derogation of Defendants' Motion for Summary Judgment, at 2.

 The Government takes the position that it is entitled to summary judgment, inasmuch as Roth flouted the limitations periods -- fifteen days for taking an appeal to the ARB and thirty days for filing a Title VII action -- governing appeals *fn1" from the Secretary's final decision of March 11, 1976. Roth, on the other hand, urges that his failure to observe these limitations periods stemmed from multiple misleading interpretations of Navy procedures given to his attorney by Navy personnel, and that, "[whether] the form be estoppel or a constructive extension of the time allowed for filing appeals, the defendant should not be permitted to benefit from their [sic] own actions which delayed the filing." Memorandum in Derogation of Defendants' Motion for Summary Judgment, at 4.

 Rule 56(c) provides in pertinent part:

 
"The judgment sought shall be rendered forthwith if 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 a judgment as a matter of law."

 "The law is clear that one who moves for a summary judgment has the burden of demonstrating that there is no genuine issue of fact." Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824 (3d Cir. 1951), quoted with approval in Ettinger v. Johnson, 556 F.2d 692, 696 (3d Cir. 1977). For the purposes of a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the motion. Bishop v. Wood, 426 U.S. 341, 347, 48 L. Ed. 2d 684, 96 S. Ct. 2074 n.11 (1976); United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Thus, if the party opposing the motion alleges facts in his complaint that are supported by affidavits or other evidence, those facts must be taken as true in ruling on the motion. First Nat'l Bank of Cincinnati v. Pepper, 454 F.2d 626, 629 (2d Cir. 1972). The party opposing the motion, however, may not rest solely on the allegations contained in his complaint. Federal Rule 56(e) provides in pertinent part:

 
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

 See Sound Ship Building Corp. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir.), cert. denied, 429 U.S. 860, 50 L. Ed. 2d 137, 97 S. Ct. 161 (1976); Williams v. McAllister Bros., Inc., 534 F.2d 19, 23-24 (2d Cir. 1976); Season-All Indus., Inc. ...


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