In September, 1980, shortly after the new manager's arrival, plaintiff went to speak with his new boss and recount the promise he had received from the previous manager. At that time, the new manager asked plaintiff to refrain from filing any claim with the EEOC until the matter could be worked out.
Where an employer has actively misled a plaintiff, causing him to delay in asserting his rights, the plaintiff will be entitled to an equitable tolling of the limitations period. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982); Kocian v. Getty Refining & Marketing Co., 707 F.2d 748 (3d Cir. 1983). There is no question, on the evidence viewed most favorably to plaintiff, that plaintiff received two promises which induced him to refrain from filing a claim with the appropriate agency. The only question is whether plaintiff's delay between those two promises, was so unreasonable in length as to justify summary judgment for defendant. We cannot on this record say that it does.
Plaintiff's superior promised him redress for the alleged discriminatory practice, but tied its timing to the occurrence of a separate event, the completion of the department's new offices. Plaintiff chose to wait patiently for that event, relying on the promise of redress. The closer the building came to completion, the closer plaintiff's promotion seemingly came. Nothing in this record indicates that plaintiff was unjustified in relying on his superior's promise, or that sometime in his year of patient waiting he should have recognized the illusory promise for what it was.
Consequently, we cannot hold as a matter of law that plaintiff is not entitled to equitable tolling of the limitations period. This is not to say that the issue is closed. It will be necessary for the court to hear the evidence on this issue prefatory to any trial of the merits in order to decide whether the plaintiff is indeed entitled to equitable tolling.
For the reasons stated above, defendant's motion for summary judgment is denied. The court will set a pre-trial schedule in an appropriate order.
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