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BOMBERGER v. CONSOLIDATED COAL CO.

December 7, 1985

DONALD R. BOMBERGER, Plaintiff,
v.
CONSOLIDATED COAL COMPANY and CONOCO, INC., Defendants



The opinion of the court was delivered by: COHILL

 COHILL, C.J.

 Presently before us is Defendants' Motion for Summary Judgment on the Plaintiff's age discrimination claim brought under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1982)(hereinafter "ADEA"). Plaintiff's complaint also alleges one count of breach of contract under Pennsylvania Common Law.

 Defendants state, and Plaintiff admits, that Plaintiff was given oral notice of termination on or before January 25, 1982 by E. O. Obermiller, Plaintiff's supervisor. However, Plaintiff alleges that Obermiller told him that he would be granted a "stay of termination until December 31, 1982" if he would complete and submit a "Request for early retirement" form. See Deposition of Donald R. Bomberger, at PP. 37-38. On or about February 22, 1982, Plaintiff in fact sent such a form to Obermiller. Id. at P.34.

 On February 1, 1983, Plaintiff filed a charge of age discrimination with the Equal Employment Opportunity Commission (hereinafter "EEOC"). Some 372 days thus passed between Plaintiff's oral notice of termination and the filing of his charge with the EEOC. Defendants argue that Plaintiff failed to timely file his charge with the EEOC.

 Plaintiff does not assert that the alleged unlawful employment practice occurred on some date later than January 25, 1982 or dispute the fact that he did not timely file his charge. Rather, he argues only that the doctrine of equitable tolling should apply since no notice of his rights under the ADEA was posted in the area in which he worked from the time he was notified of his impending termination until his last day of work. Affidavit of Plaintiff in Opposition to Defendants' Motion for Summary Judgment, at para. 3.

 When considering a motion for summary judgment, the Court must determine if there are material facts in dispute. In so doing, the Court must view all facts in the light most favorable to the non-moving party. Sun Refining and Marketing Co v. Rago, 741 F.2d 670, 673 (3d Cir. 1984). The burden is on the moving party to show that no genuine issue of material fact exists. Fed. R. Civ. P. 56; Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221 (3d Cir. 1984).

 A charge of discrimination must be timely filed with the EEOC prior to the initiation of an action in federal court. Love v. Pullman, 404 U.S. 522, 523, 92 S. Ct. 616, 617, 30 L. Ed. 2d 679 (1972). Under the ADEA, two different time limits are applied to determine when the charge must be filed with the EEOC depending on whether or not the unlawful practice occurred in a deferral state. If the unlawful practice occurred in a nondeferral state, the complainant must file within 180 days; but if it occurred in a deferral state, the time limit is extended to 300 days. 29 U.S.C. § 626(d). Pennsylvania is a deferral state. See Seredinski v. Clifton Precision Products Co., 776 F.2d 56 (3d Cir. 1985); Butz v. Hertz Corp., 554 F. Supp. 1178, 1180 (W.D. Pa. 1983)(Cohill, J.); Cutright v. General Motors Corp., 486 F. Supp. 590, 592-593 (W.D. Pa. 1980).

 The 300-day period begins to run on the date when the unlawful employment practice occurred. In this case, the alleged unlawful employment practice occurred on January 25, 1982 when Obermiller informed Plaintiff that his services were no longer required. See Slenkamp v. Borough of Brentwood, 603 F. Supp. 1298, 1303 (W.D. Pa. 1985) (Cohill, J.)(citing Chardon v. Fernandez, 454 U.S. 6, 70 L. Ed. 2d 6, 102 S. Ct. 28 (1980) (per curiam); Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1978). Since a charge was not filed with the EEOC until February 1, 1983, this case is clearly barred by the 300-day time limit absent some equitable consideration.

 Equitable tolling may be applied in appropriate circumstances to preserve a claim which otherwise would be time-barred since the filing requirement of the ADEA has been characterized as a statute of limitations rather than a jurisdictional requirement. Bonham v. Dresser Industries, 569 F.2d 187, 193 (3d Cir. 1977); Butz, 554 F. Supp. at 1180-81. The burden of proving facts to justify application of the doctrine of equitable tolling rests with the Plaintiff. Byers v. Follmer Trucking Co., 763 F.2d 599, 600-01 (3d Cir. 1985) (per curiam)(citing Swietlowich v. County of Bucks, 610 F.2d 1157, 1162 (3d Cir. 1979)); Butz, 554 F. Supp. at 1181.

 An employer's failure to post notice of an individual's rights as required by 29 U.S.C. § 627 will toll the running of the 300-day period "at least until such time as the aggrieved person seeks out an attorney or acquires actual knowledge of his rights under the ADEA." Bonham, 569 F.2d at 193; Slenkamp, 603 F. Supp. at 1303.

 Section 627 provides as follows:

 
Every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice to be prepared or approved by the Equal Employment Opportunity Commission setting forth information as the ...

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