The opinion of the court was delivered by: SHAPIRO
In this age discrimination action, defendant has moved for summary judgment in accordance with Fed.R.Civ.P. 56(b) on Count I of plaintiff's complaint. Because plaintiff failed to file his administrative claim timely, defendant's motion is granted.
Plaintiff Jesse Hall was 59 years old when he was informed on July 18, 1984, that he was being terminated from his position as a manufacturing engineer at Hunter Spring, a division of defendant Ametek, Incorporated ("Ametek"). Hall had worked for Ametek's Schutte & Koerting Division ("S & K") from July, 1967 until he was terminated there on March 16, 1968. With the assistance of the Industrial Relations Manager at S & K, Hall then secured a position with Ametek's Hunter Spring division. On January 30, 1986, Hall filed a charge of age discrimination with the Pennsylvania Human Relations Commission arising out of his termination on July 18, 1984; this charge was referred to the EEOC for dual filing. This civil action was commenced on July 2, 1986.
Defendant has filed for summary judgment on two grounds. Defendant first asserts that plaintiff's action is barred by the EEOC statute of limitations. 29 U.S.C.A. § 626 (West 1985). Second, defendant argues that Hall cannot satisfy his burden of proof that his discharge was motivated by age discrimination.
Summary judgment is proper:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). On a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party and determine whether the movant has carried its burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. All reasonable inferences from the evidentiary record are drawn in favor of the non-moving party. See, e.g., EEOC v. Zippo Manufacturing Co., 713 F.2d 32, 34-35 (3d Cir. 1983); Goclowski v. Penn Central Transportation Co., 571 F.2d 747, 751 (3d Cir. 1977). When a proper motion for summary judgment is made, the trial court must make "the threshold inquiry of determining whether there is the need for a trial -- whether in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, U.S. at , 106 S. Ct. at 2511, 91 L. Ed. 2d at 213. The inquiry is the same in essence on a motion for summary judgment as on a motion for directed verdict, namely, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. U.S. at , 106 S. Ct. at 2512, 91 L. Ed. 2d at 214.
The Age Discrimination in Employment Act ("ADEA") requires that a discrimination charge be timely filed with the EEOC prior to the initiation of an action in federal court. See Love v. Pullman, 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972). In a "deferral state,"
such as Pennsylvania, plaintiff must file his charge of age discrimination with the EEOC within 300 days from the date of the unlawful employment practice. See Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980); Seredinski v. Clifton Precision Products Co., 776 F.2d 56 (3d Cir. 1985); 29 U.S.C.A. § 626(d)(2).
The 300-day filing requirement is not a jurisdictional prerequisite to suit under ADEA but is subject to equitable tolling. See Bonham v. Dresser Industries, 569 F.2d 187 (3d Cir. 1977), cert. denied, 439 U.S. 821, 58 L. Ed. 2d 113, 99 S. Ct. 87 (1978); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982) (filing of timely charge with the EEOC not jurisdictional prerequisite to suit under Title VII).
It is uncontested that plaintiff did not file his charge with the EEOC within the 300-day period. However, plaintiff argues that the time period should be equitably tolled because of defendant's failure to place plaintiff on notice of his rights under ADEA as required by 29 U.S.C.A. § 627 (West 1985).
The burden of proof is on defendant to prove that the time requirements were not met. Where that burden is met, the plaintiff has the burden of establishing that equitable tolling is justified. See Byers v. Follmer Trucking Co., 763 F.2d 599, 600-01 (3d Cir. 1985); Swietlowich v. County of Bucks, 610 F.2d 1157, 1162 (3d Cir. 1979). The time period may be tolled when a plaintiff is induced by an employer not to file, when plaintiff did not know or should not have known of the allegedly discriminatory act, or when plaintiff is not on notice of his rights under ADEA. See Byers, 763 F.2d at 600-01; Hart v. J. T. Baker Chemical Corp., 598 F.2d 829, 833-34 (3d Cir. 1979).
Title 29 U.S.C.A. § 627 requires every employer to "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 the Commission deems appropriate to effectuate the purposes" of ADEA. Failure to post notice will toll the time period for filing an administrative claim. See Byers, 763 F.2d at 600-01; Butz v. Hertz Corporation, 554 F. Supp. 1178, 1181 (W.D. Pa. 1983).
Defendant has filed affidavits in support of its motion for summary judgment. Two of those affidavits, those of Howard Becker and James J. Walsh, Jr., defendant's employees, state that notices were posted as required by 29 U.S.C.A. § 627. Becker's affidavit avers that his responsibilities as Industrial Relations Manager for Ametek's S & K division include ensuring that all required notices are posted and remain on the bulletin boards; it avers that three bulletin boards are maintained, that notices posted include "Equal Opportunity is the Law," containing information required by ADEA, that Becker periodically ...