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EEOC v. BARRETT

February 19, 1988

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
v.
BARRETT, HAENTJENS & CO.


William J. Nealon, Jr., Chief United States District Judge.


The opinion of the court was delivered by: NEALON

WILLIAM J. NEALON, JR., CHIEF UNITED STATES DISTRICT JUDGE

 Currently before the court is defendant's motion for summary judgment based on the running of the applicable statute of limitations. For the reasons that follow, the court will permit the parties to present additional information prior to ruling on the motion.

 Background

 Plaintiff, the Equal Employment Opportunity Commission (EEOC), filed this action on November 2, 1987 pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sections 621-634, "to correct unlawful employment practices on basis of age and to make whole Thomas Casagrande, Charles Woodring, Norbert Wersinger and Oliver Eisenhower." See document 1 of record, at p. 1. The four named employees were discharged on February 2, 1984 and were allegedly replaced by younger employees. See document 4 of record, Exhibits A, B, C, and F. Plaintiff alleges that the employees were discharged from their jobs because of their ages. See document 1 of record, at p. 1.

 Defendant filed a motion for summary judgment on December 4, 1987. See document 3 of record. Defendant contends that "plaintiff did not file the complaint within the statute of limitations as required for a violation of the ADEA, and the tolling for conciliation does not make the complaint timely." See id. at p. 3. Plaintiff filed a brief in opposition to defendant's motion on December 21, 1987, and defendant filed a reply brief on January 8, 1988. See documents 4 and 5 of record, respectively. This matter is now ripe for disposition.

 Discussion

 When examining a motion for summary judgment, the court must view all facts in the light most favorable to the party opposing the motion. Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981). If there exists a genuine issue as to any material fact, summary judgment must be denied. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citing 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure section 2725, at pp. 93-95 (1983). In addition, summary judgment will not lie if the dispute about a material fact is "genuine," that is, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In opposing a motion for summary judgment, a party may not rest on the allegations in his complaint. Instead, the party must present evidentiary affidavits or risk having the undisputed statements contained in the movant's affidavits taken as true. See Fed.R.Civ.P. 56(c); see also Sierra v. Lehigh County Pennsylvania, 617 F. Supp. 427, 429 (E.D. Pa. 1985).

 The ADEA incorporates the statute of limitations contained in the Portal-to-Portal Pay Act. See 29 U.S.C. section 626(e)(1). Section 6 of the Portal-to-Portal Pay Act provides as follows:

 
Any action . . . to enforce any cause of action . . . may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.

 29 U.S.C. section 255(a). The ADEA further provides that the statute of limitations will be tolled "for the period during which the [EEOC] is attempting to effect voluntary compliance with requirements of this chapter through informal methods of conciliation, conference, and persuasion . . ., but in no event for a period in excess of one year." 29 U.S.C. section 626(e)(2).

 In its brief in opposition to defendant's summary judgment motion, plaintiff makes three main arguments. First, plaintiff argues that Congress did not intend that the one year period of conciliation could be ended prematurely by an employer's intransigence, but instead intended that the tolling period remain in effect for one full year after conciliation is invoked. Second, plaintiff alleges that the actual period of conciliation in this case was sufficient to make this action timely. Last, plaintiff contends that the complaint is timely under a continuing violation theory. These arguments will be addressed in seriatim.

 Plaintiff first argues that Congress intended that the tolling period remain in effect for one full year after conciliation is invoked. Both the statute and the case law that interprets it belie this argument. Section 7(e)(2) provides as follows:

 
For the period during which the Equal Employment Opportunity Commission is attempting to effect voluntary compliance with requirements of this chapter through informal methods of conciliation, conference, and persuasion pursuant to subsection (b) of this section, the statute of limitations as provided in section 255 of this title shall be tolled, but in no event for a period in excess of one year.

 29 U.S.C. section 626(e)(2). The courts that have interpreted this section have rejected the contention "that the tolling period ends only when the EEOC sends a letter to a potential defendant stating that conciliation has failed and otherwise runs for an automatic one year after conciliation begins." Equal Employment Opportunity Comm. v. Colgate-Palmolive Co., 586 F. Supp. 1341, 1345 (S.D.N.Y. 1984); see also Vuksta v. Bethlehem Steel Corp., 540 F. Supp. 1276, 1280 n.13 (E.D. Pa. 1982), aff'd, 707 F.2d 1405 (3d Cir. 1983), cert. denied, 464 U.S. 835, 104 S. Ct. 121, 78 L. Ed. 2d 119 (1983); Pfister v. Allied Corp., 539 F. Supp. 224, 227 (S.D. N.Y. 1982); EEOC v. State of Kansas, 28 Fair Empl. Prac. Cas. (BNA) 1036, 1038 (D. Kan. 1982).

 Plaintiff cites no case authority in support of its position. Instead, it relies exclusively on the legislative history of the Act. As stated by plaintiff,

 
There is not one word in the legislative history of the Amendments to the ADEA that manifests the intention, either expressly or impliedly, that it would be left to the employer, to determine when conciliation had ended. Were such the intention of Congress, there would have been no reason to establish a time limit for the settlement process because the employer could be counted upon ...

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