Opinion
NO. 99-CV-6555
November 6, 2003
MEMORANDUM AND ORDER
Presently before the Court is Defendant's Renewed Motion to Dismiss The Amended Complaint Pursuant To Federal Rule Of Civil Procedure 12(b)(6), (Docket No. 17), and Plaintiffs response thereto. For the following reasons, Defendant's Motion will be granted.
Background
On April 18, 1997, forty-one year-old Plaintiff Joseph G. Petty ("Petty") interviewed for a job as a chemical operator with the Defendant, Merck Company, Inc. ("Merck"). (Am. Compl. ¶¶ 11, 17.) On May 2, 1997 Merck notified Petty that he was not hired for the job because he did not meet the "Merck fit". (Id. ¶ 12.) In response to this notification, Petty wrote two letters to Merck on May 2, 1997. (Def.'s Renewed Mot. to Dismiss the Am. Compl. ("Mot. to Dismiss") at 9.) In the two letters he suggested that in Merck's decision not to hire him he had been "discriminated against". (Id. at 9, Ex. 6 Attach. A, B.)
On May 7, 1998, more than a year later, Petty filed a complaint against Merck with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC"). (Am. Compl. ¶ 6) alleging age discrimination. On October 19, 1999, Plaintiff was issued a Notice of Right to Sue by the EEOC. (Id. ¶ 7.) Petty then brought the present action seeking relief under both the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et. seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. § 951. Petty asserts that Merck is liable under the ADEA and PHRA because Merck refused to hire him based on his age. Merck contends that Petty's qualifications were the reason for its decision, not his age. (Answer ¶ 3a.) Merck moved to dismiss arguing that the time for filing this action had run and that equitable tolling was inappropriate in this instance. (Docket No. 6.) When filing their various memoranda in support of and in opposition to this Motion, both parties included affidavits that are outside the pleadings and public record. Accordingly, pursuant to Fed.R.Civ.P. 12(b) we treated that motion as one for summary judgment, but dismissed it without prejudice to give the parties reasonable opportunity to present all materials pertinent under a Fed.R.Civ.P. 56 motion for summary judgment.
The applicable section of Rule 12(b) states:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
FED. R. Civ. P. 12(b).
Legal Standard
Merck has now renewed its Motion to Dismiss. (Docket No. 17.) Although Merck has styled this filing as a Motion to Dismiss, it has again included affidavits supporting its contentions. Plaintiff's response also includes an affidavit. The purpose of a Rule 12(b)(6) motion to dismiss is to test the sufficiency of a complaint, not to resolve disputed facts or decide the merits of the case. Tracinda Corp. v. Daimlerchrysler AG, 197 F. Supp.2d 42, 53 (D. Del. 2002). In dealing with a true Rule 12(b)(6) motion a court should not dismiss a case for failure to state a claim unless the plaintiff can prove no set of facts in support of the claim that would entitle it to relief. See United States v. Marisol. Inc., 725 F. Supp. 833, 836 (M.D. Pa. 1989), see also Trump Hotels Casino Resorts. Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3rd Cir. 1998) ("A complaint should be dismissed only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiffs favor, no relief could be granted under any set of facts consistent with the allegations").
Normally, we would look only at the pleadings in deciding whether to grant a motion to dismiss. However where, as here, both sides have filed affidavits in support of their positions and neither side has objected to the use of these affidavits, we will treat the motion as one for summary judgment under Fed.R.Civ.P. 56. Cent. Contracting Co. v. Maryland Cas. Co., 367 F.2d 341, 343 (3d Cir. 1966) (citing FED. R. Civ. P. 12(b)).
Summary judgment is appropriate "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). The party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the non-moving party's legal position. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The burden then shifts to the nonmoving party who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The nonmoving party . . . cannot `rely merely upon bare assertions, conclusory allegations or suspicions to support its claim," Townes v. City of Philadelphia, No. Civ. A. OO-CV-138, 2001 WL 503400, *2 (E.D. Pa. May 11, 2001) (quoting Fireman's Ins. Co. v. DeFresne, 676 F.2d 965, 969 (3d Cir. 1982)). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. See Celotex, 477 U.S. at 324. When deciding a motion for summary judgment, the court must construe the evidence and any reasonable inferences therefrom in the non-movant's favor. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the non-moving party."Anderson, 477 U.S. at 248.
Discussion
Defendant moves for summary judgment contending that Petty has missed the proper time for filing a discrimination complaint, and that equitable tolling of the statute of limitations is not appropriate. (Mot. to Dismiss at 2.) Addressing first the question of whether Petty timely filed his claim of discrimination, an ADEA action "may not be commenced unless a charge of unlawful discrimination is filed with the EEOC within 300 days of the alleged unlawful practice." Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1411 (3d Cir. 1991) (citing 29 U.S.C. § 626(d)). In this case it does not matter whether the "unlawful practice" was the interview on March 18, 1997, or the rejection Petty received on May 2, 1997. It is clear that from either of these dates, three hundred days had passed before the Plaintiff filed his complaint with the EEOC.
We need not go through a lengthy discussion of whether Plaintiff also missed the deadline for filing with the Pennsylvania Human Relations Commission. Under 29 U.S.C. § 626(d) and 29 U.S.C. § 633(b), Pennsylvania is a so called "referral" state. See Colgan, 935 F.2d at 1414 (citing Mohasco Corp. v. Silver, 447 U.S. 807, 816 (1980).
Since the statute of limitations expired before Plaintiff filed his claim, his claim will only survive if equitable tolling is appropriate.See Bonham v. Dresser Indus., Inc., 569 F.2d 187, 192-93 (3d Cir. 1978) (holding that 180-day requirement for filing is construed as a statute of limitations rather than a jurisdictional bar and thus can be "subject to tolling or similar equitable modifications."). As the Supreme Court has stated, "[t]ime requirements in lawsuits between private litigants are customarily subject to `equitable tolling.'" Becton Dickinson and Co. v. Wolckenhauer, 215 F.3d 340, 345 (3d Cir. 2000) (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990)). "[E]quitable tolling maybe appropriate if (1) the defendant has actively misled the plaintiff, (2) if the plaintiff has `in some extraordinary way' been prevented from asserting his rights, or (3) if the plaintiff has timely asserted his rights mistakenly in the wrong forum." Becton, 215 F.3d at 345 (quotingKocian v. Getty Ref. Mktg. Co., 707 F.2d 748, 753 (3d Cir. 1983)).
Equitable tolling has been held to apply in some instances where plaintiff has missed the time period for filing a claim under the ADEA.See Bonham, 569 F.2d at 192-93 (discussing Congress' intent in enacting the legislation and suggesting that the ADEA should be "liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment."). Specifically, equitable tolling has been held to apply in situations where the employer failed to post the notices required by the ADEA, and as a result plaintiff only became aware of his rights after the expiration of the statute of limitations. See Callowhill v. Allen-Sherman-Hoff Co. Inc., 832 F.2d 269, 272 (3d Cir. 1987) ("[a]n employer's neglect to post the notices required by 29 U.S.C. § 627 will toll the running of the period for filing the administrative charges, at least until the `aggrieved person seeks out an attorney or acquires actual knowledge of his rights under the Age Discrimination in Employment Act") (quoting Bonham, 569 F.2d at 193). Though equitable tolling maybe available to save a discrimination claim, "[p]laintiffs have the burden of establishing the facts necessary to justify equitable tolling."Byers v. Follmer Trucking Co., 763 F.2d 599, 601 (3dCir. 1985).
29 U.S.C. § 627 provides, "every employer . . . shall post and keep posted . . . upon its premises a notice to be prepared or approved by the Secretary setting forth information as the Secretary deems appropriate to effectuate the purposes of this chapter." The posting requirement was "undoubtedly created because Congress recognized that the very persons protected by the Act might be unaware of its existence." Bonham, 569 F.2d at 193.
Defendant seeks summary judgment contending that Plaintiff has not established that the doctrine of equitable tolling applies in this case. Defendant has provided the Court with the affidavits of four employees three of whom shared the responsibility to ensure that the subject notices were posted. Each of these employees state unequivocally that they personally saw the notices properly posted during the time in question. (Mot. to Dismiss at Ex. 2 "Workman Aff," Ex. 3 "Patton Aff," Ex. 4 "Hoeger Aff.".) These affidavits clearly demonstrate that the required notices were, in fact, prominently posted in the building where Plaintiff was interviewed in areas where they would have been seen by Plaintiff.
Plaintiff has responded with four affidavits (three of his own, and one of a Mr. Frash). Defendant argues that because none of these affidavits specifically states that the, "affiant observed the bulletin boards in the lobby and stairwell and that the notices were not there," Plaintiff has failed to show the existence of a genuine dispute as to whether Merck had notices properly posted. (Mot. to Dismiss at 20-21.)
Summary judgment has been denied based upon equitable tolling where the plaintiff has produced evidence that raises a dispute about the existence of such signs. See Bonham, 569 F.2d at 193. In Bonham, faced with a motion for summary judgment, the plaintiff maintained "that he was unaware of the rights conferred upon him by the ADEA," and he produced affidavits stating that the employer "never posted any signs on its premises advising employees of the existence of the Act, or at least that he never saw any posted." Id. The Third Circuit affirmed the denial of summary judgment, holding that the "employee has got be given an opportunity to demonstrate the existence of any equitable factors which may have a bearing the operation of the . . . statute of limitations." Id. Seven years later, in Byers the Third Circuit was faced with a similar set of facts. 763 F.2d at 600-01. In Byers the district court had held an evidentiary hearing to determine if equitable tolling was applicable. Id. In support of their motion for summary judgment, the defendants introduced evidence that it had a practice of "routinely inspecting its terminals for compliance with federal labor laws," and the district court found that this "gave rise to the inference" that the defendant had complied with the ADEA requirements even though there was no definitive testimony. Id. at 601. Though some of the plaintiffs testified that they had never seen the postings, the court granted summary judgment because it found this testimony "discredited by prior inconsistent deposition statements and by their admissions on rebuttal that they either did not remember or did not pay much attention to whether the required notices had been posted." Id.
Although the cases of Bonham and Byers suggest a conflict concerning what evidence will preclude the grant of summary judgment in these situations, cases decided after Byers have consistently indicated that, "a plaintiff must actually testify that he or she observed the bulletin board and the notices were not there. . . . It is not sufficient for a plaintiff to merely deny any knowledge whether such a notice was hung where defendant claims or anywhere else." Ahamaddiva v. Westinghouse Elec. Corp., Civ. A. No. 91-2468, 1992 WL 246087, at * 6 (E.D. Pa. Sept. 17, 1992); see also Hall v. Ametek. Inc., 668 F. Supp. 417, 420 (E.D. Pa. 1987) ("In order to create a genuine issue of fact whether notices were posted where defendant has submitted affidavits that the posting occurred, plaintiff must actually testify that he observed the bulletin boards and the notices were not there.");Butz v. Hertz Corp., 554 F. Supp. 1178, 1182 (W.D. Pa. 1983) ("The mere assertion that she [defendant] had no knowledge of such poster or never saw the poster does not raise an issue of fact, therefore, cannot toll the statute.").
As mentioned above, to rebut Defendant's affidavits, Plaintiff has provided three of his own affidavits and one affidavit of a former Merck employee. In Plaintiffs most recent affidavit dated March 31, 2003, he states unequivocally that "there were no ADEA or PHRA posting notices in the lobby area or any area where the interview process took place," and that "[t]here were no ADEA or PHRA postings in the corridor or the stairwell where I was briefly taken by Defendant." (PL's Mem. of Law in Opp. to Def.'s Renewed Mot. to Dismiss the Am. Compl. ("Opp. to Mot. to Dismiss 2") at Ex. A ¶¶ 4-5.) In his prior affidavit of March 3, 2000, Plaintiff stated more generally that, "[d]uring the entire interview process, no notices relating to my rights under federal or state discrimination laws were posted by Merck at the interview site." (Pl.'s Mem. of Law in Opp. to Def.'s Mot. to Dismiss Pl.'s Am. Compl. ("Opp. to Mot. to Dismiss 1") at Ex. B ¶ 4.) It is significant, however, that in his affidavit dated April 13, 2000, Plaintiff stated that "[d]uring my wait in the lobby area, I did not notice any ADEA or PHRA postings," and "I do not recall seeing any ADEA or PHRA postings in the corridor or the stairwell where I was briefly taken by the Defendant." (Pl.'s Sur-Reply Mem. in Opp. to Def's Mot. to Dismiss Pl.'s Am. Compl. ("Pl.'s Sur-Reply") at Ex. B ¶¶ 3-4.) The only other evidence that the Plaintiff provides is the affidavit of Charles Frasch, a former security guard at the Danville facility. Mr. Frasch was employed at this facility from 1984 until March, 1998 and states that "[d]uring my tenure of employment at Merck Danville site, no EEOC or PHRA posting existed in the main lobby entrance where job applicants were gathered to be interviewed." (Pl.'s Sur-Reply at Ex. A ¶¶ 3-6.)
Plaintiffs affidavits suggest that the required notices were not posted. Nevertheless, we are compelled to conclude that Plaintiff has not carried the "burden of establishing the facts necessary to justify equitable tolling". Plaintiffs first affidavit dated March 3, 2000, makes the generalized statement that there were no posters at the interview site. Plaintiffs second affidavit dated April 13, 2000, states that he did not "notice" and did not "recall" posters being in the places suggested by Defendant's affidavits. Finally, in his last affidavit dated March 31, 2003, Plaintiff states that there were no postings in the specific locations suggested by Defendants. One wonders how Plaintiff could state in April of 2000 that he did not "notice" posters or "recall" seeing posters and then three years later state flatly that there were no posters. In any event, Plaintiff has not satisfied the requirements ofAhamaddiva and Hall. None of Plaintiff's affidavits include any statement indicating that the affiant looked at the partition in the lobby, as well as the glass-enclosed display case at the base of the stairway, and in neither place were there any of the required notices.
We note also that in Plaintiffs last two affidavits he stated that his attention was focused on the directions that he was receiving from his escort.
Defendant has provided detailed affidavits from four different employees stating that they personally saw notices posted at that time and in the locations at issue. In deciding a motion for summary judgment the court must construe the evidence and any reasonable inferences therefrom in the non-movant's favor, Anderson, 477 U.S. at 255. However, Plaintiff has the burden of establishing the facts necessary to justify equitable tolling. Byers, 763 F.2d at 601; see also Boos v. Runvon, 201 F.3d 178, 185 (2d Cir. 2000) (finding that the burden lies on the plaintiff to justify equitable tolling even when motion for summary judgment is brought by defendant.) Based upon Ahamaddiya andHall we are compelled to conclude that Plaintiff has failed to satisfy his burden of raising a genuine issue of material fact concerning the appropriateness of equitable tolling. Under the circumstances, we will grant Defendant's motion for summary judgment.
An appropriate Order follows:
ORDER
AND NOW, this ___ day of November, 2003, upon consideration of Defendant's Motion To Dismiss The Amended Complaint Pursuant To Federal Rule Of Civil Procedure 12(b)(6) (Doc. No. 6) and all papers filed in support thereof and in opposition thereto, it is ORDERED that Defendant's Motion is GRANTED.IT IS SO ORDERED.