(11th Cir. 1982); Cuffy v. Getty Refining & Marketing Co., 648 F. Supp. 802, 808 (D. Del. 1986).
Similarly, where a plaintiff can produce evidence of a continuing violation of his or her rights under the civil rights acts, the limitations periods for bringing actions thereunder may be tolled. See, e.g. : Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980). The principle underlying the continuing violation theory is that the plaintiff demonstrate a pattern or practice of discrimination that has continued into the present. To successfully argue a continuing violation theory, the plaintiff will have to show a present violation, i.e. one within the statute of limitations period that is reasonably related to previous discriminating acts that, standing alone, would be barred by the statute of limitations. Carr v. Town of Dewey Beach, 730 F. Supp. 591, 604 (D. Del. 1990); Cuffy v. Getty Refining & Marketing Co., 648 F. Supp. 802, 809-810 (D. Del. 1986). Stated otherwise, to establish a continuing violation, the plaintiff must show a substantial nexus between the time-barred acts and the timely-asserted acts. In determining whether such a nexus exists, the courts have considered instructive such factors as the subject matter of the discrimination, the frequency of the occurrences and the degree of permanence of the violation (i.e. if the violation should trigger an employee's awareness of his/her rights under the statute). Robinson v. Caulkins Indiantown Citrus Co., 701 F. Supp. 208, 211 (S.D. Fla. 1988) citing Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), and Milton v. Weinberger, 207 U.S. App. D.C. 145, 645 F.2d 1070, 1077 (D.C. Cir. 1981). See Also : Hood v. New Jersey Dept. of Civil Service, 680 F.2d 955, 958 (3rd Cir. 1982); Chung v. Pomona Valley Community Hospital, 667 F.2d 788 (9th Cir. 1982).
Finally, in appropriate cases, statutes of limitations in employment discrimination cases may be equitably tolled. Equitable tolling of a limitations period is available when the defendant has actively misled the plaintiff respecting the cause of action or where his own acts or omissions have lulled the plaintiff into foregoing prompt attempts to vindicate his rights. Miller v. Beneficial Management Corp., 977 F.2d 834, 844 (3rd Cir. 1992); Williams v. Army and Air Force Exchange Service, 830 F.2d 27, 30 (3rd Cir. 1987).
Applying these principles to the case now before us, it is of course noteworthy that while the Plaintiff last worked as a receiving manager in August, 1989 and, in fact last worked for Sears on August 31, 1989, he did not file his Title VII EEOC claim until November 20, 1991. Likewise, Plaintiff did not file this civil action until November 9, 1992. What's more, there are no allegations in the complaint nor is there anything in the limited record of this case to suggest that Mr. Clark was the victim of a continuing violation or that Sears actively misled or lulled him into foregoing his pursuit of his rights and/or legal remedies for a possible violation of his rights. This Court thus agrees with the Defendant's argument that neither the continuing violation nor the equitable tolling doctrines are available to provide this Plaintiff relief from the above-referenced statutes of limitations.
This finding notwithstanding, we nevertheless cannot grant Defendant's motion to dismiss. According to paragraphs 14-17, the Plaintiff did not know nor did he have any reason to know that a significant wage disparity existed between himself and his successor until June, 1991, when he was anonymously supplied with copies of Sears' payroll summaries for 1989. Because we believe that, at least on the present record, a reasonable jury could find that Mr. Clark did not know and could not have known of the disparity in compensation between himself and Anthony Barile until June of 1991, judgment is not appropriately entered in Defendant's favor at this time. See : Miller v. Beneficial Management Corp., supra, at 843. Defendant's 12(b)(6) motion is therefore denied in its entirety and Defendant shall be directed to file its answer to the complaint.
An appropriate order is appended hereto.
ORDER - March 30, 1993, Filed
AND NOW, this 29th day of March, 1993, upon consideration of Defendant's Motion to Dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6), it is hereby ORDERED that the Motion is DENIED in accordance with the rationale set forth in the foregoing Memorandum Opinion.
Defendant is DIRECTED to file its Answer to the Complaint within ten (10) days of receipt of this order. See: Fed.R.Civ.P. 12(a).
BY THE COURT:
J. CURTIS JOYNER, J.
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