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TYSON v. SUN REF. & MKTG. CO.

November 21, 1984

MARJORIE TYSON, LOUISE DAVIS AND GLADYS BABCOCK
v.
SUN REFINING AND MARKETING COMPANY



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 Presently before me is defendant Sun Refining and Marketing Company's ("Sun") motion for reconsideration or clarification of the May 15, 1984 order of this court which denied its motion for summary judgment. Although I find no reason to reconsider that decision, I will use this opportunity to set forth a more complete analysis of the issues presented by defendant's summary judgment motion.

 Plaintiffs in this employment discrimination case allege that they were the victims of sex discrimination while employed at the Sun Marcus Hook refinery. All of the plaintiffs are long-term employees of that facility. They allege that they were denied promotion to the positions of permanent shift foremen and temporary shift foremen, and were denied overtime pay as a result of the discriminatory practices of Sun. In its motion for summary judgment, Sun argued on a number of grounds that plaintiffs could not prevail. It argued that plaintiffs were time barred from asserting claims based on a number of the alleged acts of discrimination. Sun also contended that there exist no genuine issue of material fact with regard to the merits of plaintiffs' claims. For the reasons set forth below, I find that there is no reason to reconsider my rejection of these arguments.

 Timeliness

 Defendant alleges that plaintiffs' claims are at least partly time barred. Plaintiffs filed charges with the Equal Employment Opportunity Commission ("EEOC") in March, 1978. They rely in their complaint on incidents that occurred as far back as 1966. Defendant asserts that all reliance on events occurring more than 180 days prior to the filing of the charges is time barred. See Bronze Shields, Inc. v. New Jersey Dep't of Civil Serv., 667 F.2d 1074, 1080 n.14 (3d Cir. 1981) (180 day statute of limitations applies in Title VII case where charges first brought to EEOC). Plaintiffs contend that their reliance on events occurring before 180 days before March, 1978 is appropriate under a "continuing violation" theory.

 It is axiomatic that in order to state a claim under Title VII, a plaintiff must first file timely charges of discrimination. Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). Under 42 U.S.C. ยง 2000e-5(e), charges must be filed within 180 days after the allegedly unlawful employment practice took place. The courts have, however, long recognized an exception to this rule in cases in which the plaintiff has alleged a "continuing violation" of the Act. To proceed under this theory, plaintiffs must show "a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitation] period." Valentino v. United States Postal Service, 218 U.S. App. D.C. 213, 674 F.2d 56, 65 (D.C. Cir. 1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (Supp. 1979).

 In determining the timeliness of plaintiffs' claims I must first identify the "unlawful employment practice" of which plaintiffs complain. Delaware State College v. Ricks, 449 U.S. 250, 257, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980); Bronze Shields at 1083. Read in the light most favorable to plaintiffs, their claim is that Sun engaged in a systematic practice of denying promotion opportunities and other benefits of employment to plaintiffs because of their sex. They have identified a number of specific manifestations of this pattern in their complaint. These include the denial of the opportunity to be promoted to the position of permanent shift foremen, the denial of the opportunity of becoming temporary shift foremen, and the discriminatory administration of overtime benefits.

 Defendant claims that plaintiff cannot, given the facts of this case, proceed under a continuing violation theory. Sun makes this argument by dividing plaintiffs' entire case into three related cases: one challenging the selection of permanent shift foremen, the second challenging the selection of temporary shift foremen, and the third challenging the administration of overtime pay at the Marcus Hook refinery. If one accepts this initial assumption, then Sun's arguments do indeed appear to be substantial. I think, however, that it is incorrect to take that first step.

 In general, courts have been more receptive to claims of continuing violations when advanced in connection with denials of promotions or transfers than in many other contexts. See, e.g., Patterson v. American Tobacco Co., 586 F.2d 300 (4th Cir. 1978); Muka v. Nicolet Paper Co., 20 Empl. Prac. Dec. (CCH) P30, 265 (E.D. Wis. 1979); Jacobs v. Bd. of Regents, 473 F. Supp. 663, 668 (S.D. Fla. 1979); Miller v. Miami Prefabricators, 438 F. Supp. 176 (S.D. Fla. 1977); Corbin v. Pan American World Airways, 432 F. Supp. 939 (N.D. Cal. 1977).

 In Serpe v. Four-Phase Systems, Inc., 718 F.2d 935, 937 (9th Cir. 1983), the court, in discussing the plaintiffs attempt to assert a continuing violation theory in a case involving refusal to transfer *fn1" stated:

 
But, where there is a systematic policy of discrimination, the rule, with respect to employees who remain employed but claim that their status has been adversely affected by the discriminatory policy, is as follows:
 
An employer charged with maintaining an unlawful transfer system, for example, may argue that the plaintiff did not apply for a transfer within the statutory time limits preceding the filing and therefore has no cause for complaint. This issue is often resolved by theorizing that a challenge to systematic discrimination is always timely if brought by a present employee, for the existence of the system deters ...

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