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EEOC v. BARRETT

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


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

MEMORANDUM AND ORDER

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 to end conciliation before the enforcement bureau had obtained "unfounded concessions" from it.

 See document 4 of record, at p. 10.

 While the court finds the legislative history surrounding the amendments to the Act to be inconclusive, the following passage is informative:

 

Various courts have held that the failure to comply with the conciliation requirement in section 7(b) requires dismissal of the lawsuit. Some courts have gone so far as to say that conciliation is a "jurisdictional prerequisite" to bringing a lawsuit under the Act. . . .

 

It is the committee's intent that the conciliation requirement in section 7(b) should not be so rigidly applied . . . The claim of discrimination ought to be decided on the merits through litigation in the event conciliation process fails.

 

In order to assure that such resolution on the merits will occur, the legislation provides that the statute of limitations will be tolled during conciliation carried out pursuant to section 7(b).

 

It is the intent of this amendment to prevent those who have violated the Act from delaying and postponing conciliation and thereby possibly avoiding liability.

 Senate Comm. on Human Resources, Age Discrimination in Employment Act Amendments of 1978, S.Rep. No. 95-493, 95th Congr., 2nd Sess. 1, reprinted in 1978 U.S. Code Cong. & Admin. News 504, 516; see also 123 Cong. Rec. 34,317 (1977) ("My amendment would give the parties up to 2 additional years1 to resolve their differences in informal negotiations. That is probably more time than will be needed in most instances ") (emphasis added). These statements, while not resolving the issue, support the conclusion that the statute of limitations is not automatically tolled for the entire one year period.

 Plaintiff next argues that, even if plaintiff is not entitled to a tolling of the statute of limitations for one year in all circumstances, the conciliation that did take place sufficiently tolled the statute to make the present suit timely. Given the present state of the record, the court is unable to decide this issue. The court will therefore permit the parties to file supplemental affidavits.

 The parties do not contest the fact that the cause of action accrued on February 2, 1984. *fn2" See document 3 of record, at p. 3; document 4 of record, at p. 2. Defendant assumes arguendo "that plaintiff will be able to sustain its burden of proof as to its allegation of a willful violation," see document 3 of record, at p. 3, thus making applicable the three year statute of limitations. See 29 U.S.C. sections 255(a), 626(e)(1). The suit was filed on November 2, 1987. See document 1 of record. Thus, in order for this suit to be timely, the period of conciliation must have been at least 273 days in length. *fn3"

 The conciliation process begins upon the issuance of a letter of violation by plaintiff. See document 4 of record, Exhibit G (letter of violation); see also H. Conf. Rep. No. 95-950, 95th Cong., 2nd Sess. 13, reprinted in 1978 U.S. Code Cong. & Admin. News 504, 528 ("The conferees agree that it is appropriate for the tolling of the statute of limitations to begin when the Department of Labor states, in a letter to the prospective defendant(s), that it is prepared to commence conciliation pursuant to section 7(b) of the act"); Equal Employment Opportunity Comm. v. Colgate-Palmolive Co., 586 F. Supp. at 1343-1345. Here, a letter of violation was issued on July 8, 1986. Thus, for the suit to have been timely filed, conciliation must have continued through April 7, 1987.

 Exhibit 2 to defendant's motion for summary judgment, see document 3 of record, is a letter from defendant's counsel to Rae T. Balaban, an investigator for the EEOC, dated February 3, 1987. The letter reads, in pertinent part, as follows:

 

During our phone conversation in which I informed you of the Gabrielle settlement, you informed me that the EEOC was now interested in discussing settlement in connection with other persons, unnamed, (I assume you mean Woodring, Wersinger, and Casagrande), notwithstanding the fact that the only people who filed charges were Ancharski and Gabrielle.

 

You have never raised the possibility of settlement of "claims" of these other people to me before this week. I indicated to you that I could not immediately respond to your question of settlement since I have no knowledge of the parameters of EEOC's demands or their alleged demands and I had never discussed the issue with my client.

 

I have spoken to the President of the company today and we are unwilling to pay any moneys to these persons who have not filed their own charges. I am really surprised that you are pursuing this matter. . . .

 

In any event, we do not intend to make any offer for the other persons, so you can advise your superiors that we are not interested in commencing any conciliation discussions on this matter.

 Exhibit 3 to the same document is an affidavit from defendant's counsel. She states the following: "After I sent the February 3, 1987, letter to the EEOC, I had no further substantive discussions about conciliating the claims of Messrs. Casagrande, Woodring, Wersinger, or Eisenhower with any member of the EEOC staff." See document 3 of record, Exhibit 3, at p. 2, para. 3.

 Plaintiff, in turn, attached an affidavit from Balaban. She states the following:

 

2. Some time in the middle of February, 1987, Dona Kahn called me to ask the status of the Gabrielle case as it related to the class members. At this time I discussed possible settlement for the class with her. She wanted to know how much back pay would be involved. I told her I would find out where the file was and call her back. I called Christopher Bullard, an attorney assigned to this case, who informed me that the file had already been sent to Washington, D.C. for review.

 

3. Within the next few days I called Dona Kahn back to inform her that the case had been sent to Washington with a recommendation for litigation for the class.

 

4. I talked to her about conciliation for the class again and said I couldn't compute the back pay because the file was in Washington, D.C. but if she was interested in settling for the class, I would call Washington and have them return the file to me. She told me not to do this yet because she would have to speak to Mr. Haentjens first about settlement.

 

5. Within a week or so, I heard from her that he wasn't interested in settling the class.

 See document 4 of record, Exhibit I, at pp. 1-2, paras. 2-5. Reading this in the light most favorable to plaintiff, the non-moving party, the conciliation process terminated near the end of February 1987. As stated previously, conciliation would have had to have continued through April 7, 1987. Since conciliation seemingly ended approximately five weeks too early, the present suit was filed approximately five weeks too late.

 In its opposing brief, however, plaintiff makes certain allegations that are not contained in the accompanying affidavits. For example, plaintiff's brief contains the statement that Balaban believed conciliation remained open because of the Ancharski and Gabrielle settlements and because she and defense counsel had a conversation about settlement after the February 3, 1987 letter, near the end of February. See document 4 of record, at pp. 14-15. In addition, the brief states that Balaban told Kahn that she would remain available to conciliate the case at the time of their last conversation near the end of February of 1987. See id. at p. 15. If Balaban actually made such a statement, plaintiff's counsel should know that it belongs in the affidavit, under penalty of perjury, and not obscured by way of argument in a brief.

 Given that these statements are not contained in an affidavit, it would be within the province of this court to simply ignore them. See Helmich v. Kennedy, 796 F.2d 1441, 1443 (11th Cir. 1986); Moorhead v. Millin, 542 F. Supp. 614, 617 (D. V.I. 1982); Sims v. Mack Truck Corp. 488 F. Supp. 592, 597 (E.D. Pa. 1980) (citing Tunnell v. Wiley, 514 F.2d 971 (3d Cir. 1975)) ("Self-serving statements of fact in a party's brief, not in proper affidavit form, may not be considered in determining if a genuine issue of material fact exists"). The court, on the other hand, may require the parties to file supplemental affidavits. See, e.g., Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980); Season-All Industries, Inc. v. Turkiye Sise ve Cam Fabrikalari, 425 F.2d 34 (3d Cir. 1970). Here, the latter alternative will be employed.

 Within fifteen (15) days from the date of this Order, plaintiff may, if it desires, file a supplemental affidavit from Rae Balaban or some other interested party that specifically addresses the factual allegations made in plaintiff's brief. The affidavit must be made under oath or in accordance with 28 U.S.C. section 1746. It should also address what, if any, steps were taken regarding conciliation, assuming Balaban made the statement to Kahn near the end of February of 1987 that she would remain available to conciliate the case. Defendant will be given ten (10) days following plaintiff's submission to file a responsive supplemental affidavit, if it so desires.

 Plaintiff's final argument is that this suit is timely under the theory of a continuing violation. See document 4 of record, at pp. 16-17. Relying on Equal Employment Opportunity Comm. v. Westinghouse Electric 725 F.2d 211 (3d Cir. 1983), cert. denied, 469 U.S. 820, 105 S. Ct. 92, 83 L. Ed. 2d 38 (1984), plaintiff argues that defendant "had set forth on an illegal policy of eliminating the positions of older employees", which policy did not end until April 2, 1984, when Neil Gabrielle was discharged. See id. at p. 16. According to plaintiff, "if the statute of limitations in this case did not begin to run until April 2, 1984 and conciliation was terminated by Kahn's letter of February 3, 1987, then the complaint is timely." Id. Again, the court must reject plaintiff's argument.

 According to the Supreme Court in Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S. Ct. 498, 504, 66 L. Ed. 2d 431 (1980), to determine the timeliness of an EEOC complaint, a court must "identify precisely the 'unlawful employment practice' of which [plaintiff] complains." Here, plaintiff clearly identifies the employment practice of which it complains in its complaint, which reads as follows:

 

STATEMENT OF CLAIMS

 

7. Since at least February 1, 1984 the Defendant Employer has engaged in unlawful employment practices at its Hazleton, Pennsylvania facility in violation of Section 4(a) of the ADEA, 29 U.S.C. Section 623(a) by discharging Thomas Casgrande [sic], Charles Woodring, Norbert Wersinger and Oliver Eisenhower from their jobs because of their age.

 

8. The effect of the policies and practices complained of above has been to deprive Thomas Casagrande, Charles Woodring, Norbert Wersinger and Oliver Eisenhower of equal employment opportunities and otherwise adversely affect their status as employees because of age.

 

9. The unlawful practices complained of above were and are willful within the meaning of the ADEA.

 See document 1 of record, at p. 3, paras. 7-9; see also id. at p. 1. No mention is made of the subsequent discharge of Neil Gabrielle, nor is the action brought on behalf of the four named employees and all employees similarly situated. Cf. Westinghouse Electric Corp., 725 F.2d at 220 (suit filed on behalf of "Paul Meola, Jane Doe, Richard Roe, and other similarly situated employees"). Thus, plaintiff's argument "cannot be squared with the allegations of the complaint. " Delaware State College v. Ricks, 449 U.S. at 257, 101 S. Ct. at 504, 66 L. Ed. 2d 431.

 Westinghouse Electric Corp., the only case that plaintiff cites in support of its continuing violation theory, is distinguishable from the present case. There, the court stated as follows:

 

A denial of Layoff Income and Benefits (LIB) could not occur until an employee was eligible to apply for LIB and until the claim was denied due to eligibility for early retirement. An employee did not have an enforceable demand until the claim was denied. . . . As stated earlier, to be eligible for LIB, an employee had to have been laid off as a result of plant closing. Thus, this case is in a different factual setting than Ricks. Although the alleged unlawful practice was the adoption and implementation of the policy, a cause of action could not accrue until the discrimination manifested itself by virtue of the policy actually being applied to individual employees at the time of the plant closing through individual LIB claim rejections. In this case, the plant closed on April 1, 1977. Thus, at the earliest, the statute begins to run as of that date. An April 1, 1977 starting date makes this action timely if a three-year statute applies.

 Westinghouse Electric Corp., 725 F.2d at 219 (citations omitted); cf. Laffey v. Northwest Airlines, Inc., 185 U.S. App. D.C. 322, 567 F.2d 429, 473 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086, 98 S. Ct. 1281, 55 L. Ed. 2d 792 (1978) ("A severing of the employment relationship ordinarily terminates a discrimination against the severed employee, and activates the time period for filing charges with the Commission concerning any violation which occurred at separation or which may have been continuing up to the date thereof. To hold otherwise would effectively read the timely-filing requirement out of the statute"). In the present case, a cause of action for Casagrande, Woodring, Wersinger, and Eisenhower clearly accrued on February 2, 1984, the date their services were terminated. Assuming that conciliation ended on February 3, 1987, a February 2 starting date makes this action untimely.

 Finally, the court concludes that defendant's actions cannot be deemed "continuing." "To be considered continuing in nature, . . . the discrimination may not be limited to isolated incidents but [must] pervade[] a series or pattern of events which must continue within the filing period." Milton v. Weinberger, 207 U.S. App. D.C. 145, 645 F.2d 1070, 1076 (D.C. Cir. 1981) (quoting Laffey v. Northwest Airlines, Inc., 567 F.2d at 473). Here, Neil Gabrielle filed a charge of discrimination with plaintiff on December 29, 1984. See document 4 of record, Exhibit C. None of the four employees named in plaintiff's complaint filed a similar charge. The maximum time period for filing a charge with the EEOC is 300 days. See 29 U.S.C. section 626(d)(2). In the 300 days preceding Gabrielle's filing, the only allegedly discriminatory act revealed by the record is the discharge of Gabrielle himself. If the four individuals named in the present complaint are considered, there are only two discrete acts of alleged discrimination, the terminations on February 2, 1984 of Casagrande, Wersinger, Woodring, Eisenhower, and Ancharski, *fn4" and the termination of Gabrielle on April 2, 1984. This hardly constitutes a pervasive series or pattern of events within the filing period. See Milton v. Weinberger, supra; Laffey v. Northwest Airlines, Inc., supra.

 It is important to note that the four named individuals in the present complaint are not attempting to join a suit filed by Ancharski or Gabrielle, the only employees to have filed charges with the EEOC. Cf. Anderson v. Montgomery Ward & Co., 631 F. Supp. 1546 (N.D. Ill. 1986) ("individuals who fail to file timely EEOC charges may join an ADEA action brought by similarly situated plaintiffs if at least one plaintiff's timely EEOC charge is sufficient to notify the employer and the EEOC of the circumstances surrounding the additional claims, and if those seeking to join could have filed their own timely EEOC charges at the time the plaintiff's charge was filed"); Fressell v. AT&T Technologies, Inc., 35 Fair Empl. Prac. Cas. (BNA) 658 (N.D. Ga. 1984) (employees whose ADEA charges were not filed within 100 days after employer promoted younger employees may not rely on timely charges filed by two other employees). Both Ancharski and Gabrielle previously filed suit in this court, and both cases were settled prior to trial. See Gabrielle v. Barrett, Haentjens & Co., 663 F. Supp. 1187 (1987) (Nealon, C.J.); Ancharski v. Barrett, Haentjens & Co., No. 84-1731 (M.D. Pa. closed July 31, 1985) (Caldwell, J.). Here, the named employees are attempting to save their action by arguing a continuing violation and by latching on to Gabrielle's timely EEOC filing. Under the facts of this particular case, the court will not permit them to do so.

 An appropriate Order will enter.

 ORDER

 Now, this 19th day of February, 1988, in accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:

 

(1) Within fifteen (15) days from the date of this Order, plaintiff may file a supplemental affidavit from Rae Balaban or some other interested party that specifically addresses the factual allegations contained in plaintiff's brief as well as what steps were taken regarding conciliation following Balaban 's alleged statement to Kahn near the end of February 1987 that she would remain available to conciliate the case.

 

(2) Defendant may, within ten (10) days following plaintiff's submission, file a responsive supplemental affidavit.


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