Summary
In Zagars v. Gettysburg College, 446 F. Supp. 1178, 1178-79 (M.D.Pa. 1978), summary judgment for defendant was denied because plaintiff's affidavit alleged that she was repeatedly refused a promotion "which she was originally promised."
Summary of this case from Goldman v. Sears, Roebuck Co.Opinion
Civ. A. No. 76-1307.
March 29, 1978.
Ronald M. Katzman, Goldberg, Evans Katzman, Harrisburg, Pa., for plaintiff.
H. Lee Roussel, J. Thomas Menaker, McNees, Wallace Nurick, Harrisburg, Pa., for defendant.
MEMORANDUM
Plaintiff brings suit against her employer pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging discrimination on account of national origin.
Defendant initially moved to dismiss on two grounds: 1) failure to file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the last alleged discriminatory act, as required by 42 U.S.C. § 2000e-5(e); and 2) failure to file suit within 90 days of receipt of a Notice of Right to Sue from the EEOC, as provided by 42 U.S.C. § 2000e-(5)(f)(1). In a memorandum and order dated May 11, 1977, we held that the filing of suit was timely. As Defendant had submitted an affidavit in support of its motion to dismiss, we treated the motion as one for summary judgment pursuant to Fed.R.Civ.P. 12(b)(6), 56, and afforded Plaintiff an opportunity to file opposing affidavits on the question of the timeliness of the filing of her charge with the EEOC.
In an affidavit filed May 23, 1977, Plaintiff alleges that, although the pattern of discrimination against her began shortly after she was hired in 1958, it has continued to the present, with repeated refusals by Defendant to promote her to the position which she was originally promised. The most recent such refusal is alleged to have occurred in June of 1973. Since Plaintiff filed her charge with the EEOC in September of 1973, this allegation, if proved, will establish the timeliness of the suit. Thus, it is apparent that Plaintiff has raised sufficient issue of fact to defeat Defendant's motion for summary judgment.
The motion for summary judgment will be denied.