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FICK v. CANTERBURY COAL CO.

July 11, 1983

FICK
v.
CANTERBURY COAL COMPANY



The opinion of the court was delivered by: MCCUNE

McCUNE, District Judge:

 -- This is a sex and age discrimination case. Plaintiff's complaint alleges claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ; Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. ; and the Fourteenth Amendment to the United States Constitution. For the reasons stated below, we grant the defendant's motion for summary judgment as to all claims.

 When addressing a motion for summary judgment we must determine whether there are any genuine issues as to any material facts and whether the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).

 The record shows that at the time of the activities complained of, plaintiff was a 56 year old white male with over 30 years of experience as a coal miner. The defendant is a coal mining company. On June 13, 1980, plaintiff applied for employment with the defendant. Plaintiff alleges that at that time, he also requested and was given an employment application for his daughter, but was told that the defendant did not hire female coal miners.

 Plaintiff also alleges that the defendant's supervisor was impressed with his application, and that he was told in August of 1980, that he was almost hired, but for a few days wait. The job did not materialize, however. Shortly thereafter, defendant began to hire miners who were younger than plaintiff, and allegedly, less qualified.

 Plaintiff made several trips to the defendant company inquiring about employment, but was not hired. At some time between November 12 and December 31, 1980 (See Plaintiff's Deposition at 10, 74, and 75), plaintiff confronted a member of the defendant's managing staff and stated, inter alia:

 On June 23, 1981, plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC), charging the defendant with sex and age discrimination. That same day the EEOC transferred the case to the Pennsylvania Human Relations Commission (PHRC).

 On November 24, 1981, the PHRC closed plaintiff's case without taking any action and transferred it to the EEOC. The EEOC took no action either.

 On January 29, 1982, the EEOC issued a right to sue letter.

 On April 16, 1982, plaintiff filed this action.

 We first address plaintiff's Title VII sex discrimination claim. Plaintiff alleges he was denied employment with defendant because he showed an interest in having his daughter employed as a coal miner. While plaintiff's standing to complain of sex discrimination might be questioned, defendant argues instead that this claim is barred because plaintiff failed to file his charge with the EEOC within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e). We agree.

 First, we must determine when the alleged discriminatory denial of employment occurred, or in the alternative, when the plaintiff knew or should have known it occurred. Cf. Bonham v. Dresser Industries, Inc., 569 F.2d 187, 192, 16 FEP Cases 510 (3d Cir. 1977), cert. denied, 439 U.S. 821, 18 FEP Cases 203, 58 L. Ed. 2d 113, 99 S. Ct. 87 (1978). While the record is not precise, it appears that the plaintiff knew or should have known about the alleged discrimination, at the latest, when he made the earlier quoted statement to Mr. Velesig. We cannot ascertain the exact date the statement was made. Because this is a motion for summary judgment and the plaintiff is the non-moving party, we should determine factual disputes in his favor. International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC v. Westinghouse Elec. Corp., 631 F.2d 1094, 23 FEP Cases 588 (3d Cir. 1980). We shall therefore consider plaintiff's statement to have been made on the last date possible, December 31, 1980.

 We find the 300 day issue to be directly controlled by the Supreme Court's decision in Mohasco Corp. v. Silver, 447 U.S. 807, 23 FEP Cases 1, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980). There, the Court faced an almost identical fact situation. The plaintiff had filed a Title VII religious discrimination charge with the EEOC within 300 days after the alleged discriminatory occurrence. The EEOC immediately transferred the case to the appropriate state agency. Sixty days later, ...


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