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CORY v. SMITHKLINE BECKMAN CORP.

March 28, 1984

MARY CORY
v.
SMITHKLINE BECKMAN CORPORATION



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 Following her discharge by defendant SmithKline Beckman Corporation, plaintiff Mary Cory filed a complaint with the Equal Employment Opportunity Commission. She subsequently instituted this action. Her amended complaint alleges violations of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (ADEA), the Pennsylvania Human Rights Act, 43 P.S. §§ 951 et seq. (PHRA), breach of an oral employment contract and an implied covenant to deal fairly and in good faith, and intentional infliction of emotional distress. The case is now before the Court on defendant's motion for summary judgment on all counts. For reasons discussed below the motion is denied.

 F.R.C.P. 56 provides that summary judgment may be granted when there is "no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Plaintiff has submitted extensive exhibits to substantiate her position that summary judgment is not appropriate.

 Mary Cory began to work at SmithKline Beckman in January 1957. She continued that employment, with the exception of a two-year stay in a convent, until she was fired in March, 1982. Until November, 1981, by which time the events she complains of were underway, Cory received ratings of good to excellent at her performance reviews. She was only a few credits away from a college degree.

 In November, 1978, she began to apply for a promotion through defendant's job posting system. She was unsuccessful, and those chosen for the posted jobs were younger than she. They were also under 40 years of age. On January 20, 1979, Mary Cory turned 40. Except for a period of illness in 1979, she continued to apply for promotions. In March of 1980 she accepted a lateral transfer within her department.

 Cory first lodged a complaint with the EEOC in June, 1980. Shortly after receiving a second lateral transfer, this time to a new department, she withdrew the complaint.

 Her relationship with her new supervisor deteriorated, and she once again applied for a transfer. In November of 1981 she received her first unfavorable performance rating. On January 11, 1982 she was formally warned that she had three months to improve her performance and that she could be discharged at any point during those three months. She was fired on March 1, 1982, and filed the instant action approximately three months thereafter.

 I. Age Discrimination Charges - Counts 1 and 4

 SmithKline vigorously asserts that Cory is attempting to pursue her June 1980 charge which she withdrew in January of 1981. It asserts that she received the desired transfer and that her withdrawn complaint is a nullity. In addition, SmithKline argues plaintiff may not rely on any discriminatory acts occurring more than three hundred days prior to the charge filed on June 8, 1982, which is at issue here.

 Fairly construed, Cory's complaint asserts in part that her difficulties and ultimate discharge were the result of her having filed the 1980 charge with the EEOC. Retaliation by an employer against an employee for engaging in the protected activity of filing an EEOC complaint is forbidden by ADEA. 29 U.S.C. § 623(d). This portion of Cory's complaint was clearly timely filed.

 More difficult is whether this is the sort of case in which the continuing violation theory can be used, but I need not resolve that issue at this time. Many of plaintiff's job bids were clearly denied prior to the 300-day period; however, plaintiff clearly has made allegations which, if believed, would establish ADEA violations within the limitations period. In addition to the allegation that she was discharged in retaliation for filing an EEOC complaint plaintiff has alleged at least two refusals to promote her within the limitations period.

 Even if refusals to promote occurring prior to the 300-day period cannot form the basis for plaintiff's claim such events could be admissible as background evidence if plaintiff first establishes a violation within the 300-day period. *fn1" Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 760 (9th Cir. 1980); Wajda v. Penn Mutual Life Insurance, 528 F. Supp. 548, 563 (E.D. Pa. 1981). Thus plaintiff's 1979, 1980, and early 1981 job bids may be considered as background evidence in ruling on defendant's motion for summary judgment.


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