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MADAN GAUTAM v. FIRST NATL. CITY BANK

December 22, 1976

MADAN GAUTAM, Plaintiff,
v.
FIRST NATIONAL CITY BANK, Defendant



The opinion of the court was delivered by: CONNER

MEMORANDUM AND ORDER

 CONNER, D.J.:

 The subject of the above-captioned pro se action, instituted under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., is an alleged employment discrimination unlawfully based on national origin. Plaintiff, an East Indian, founds his claim for damages and other relief upon defendant's 1974 rejection of his application for employment. Defendant has moved to dismiss, pursuant to Rule 12(b)(6) F.R.Civ.P., on the ground that the instant action is barred by the terms of Section 706(e), 42 U.S.C. § 2000e-5(e).

 At the outset, it must be noted that the parties' submissions on the present motion are addressed to factual matters extending well beyond the terse recitals in the amended complaint at bar. So far as they are relevant to the issue now under contest, the parties' affidavits and exhibits will not be excluded from present consideration. Accordingly, defendant's motion, notwithstanding its label, has been effectively converted into an application for summary judgment under Rule 56 F.R.Civ.P. See Rule 12(b) F.R.Civ.P.

 The standards against which such a motion must be measured are as rigorous as they are familiar. Thus, on a Rule 56 motion, a Court is obliged to resolve any ambiguity -- and to draw all reasonable inferences -- in favor of the party against whom summary judgment is sought. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). Moreover, as Rule 56(c) expressly prescribes, summary judgment may be granted only if "there is no genuine issue as to any material fact." Therefore, in the assay of a Rule 56 motion, it is the office of the Court not to adjudicate issues of fact but rather to ascertain only whether such issues exist. Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975); Empire Electronics Co. v. United States, 311 F.2d 175, 179 (2d Cir. 1962). And it is the moving party's burden to demonstrate the absence of material facts genuinely in dispute. Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Furthermore, a Court must take pains to assure that a claim is not lost to an uncounselled plaintiff merely because the facts that give it substance and context are not artfully disclosed. Cf. Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Jackson v. Statler Foundation, 496 F.2d 623, 625-26 (2d Cir. 1974).

 I.

 So far as is relevant here, the undisputed facts are as follows. On May 16, 1974, plaintiff visited defendant's Professional Recruitment Office in the hope of securing a position with defendant. After a brief exchange with a personnel officer, plaintiff submitted his resume for defendant's consideration and left the premises. After the passage of several months without response from defendant, plaintiff once again submitted his resume through a mailed application for employment. The application was received by defendant's personnel office on August 7, 1974. On that same day, a letter of reply was mailed to plaintiff, advising that, "[Upon] reviewing our present personnel needs in the light of your interests and background, we have come to the reluctant conclusion that we cannot, at this point, encourage you in your employment search."

 On October 18, 1974, plaintiff filed a verified complaint with the New York State Division of Human Rights, charging defendant with unlawful discrimination and citing as the basis for that charge defendant's August 7, 1974 rejection of his application for employment. On December 6, 1974, the state commission issued a "Determination and Order after Investigation," dismissing the complaint in the absence of probable cause to support plaintiff's charge that defendant's refusal to hire him constituted an unlawful discriminatory employment practice. That determination was affirmed by the New York State Human Rights Appeal Board, in a Decision and Order dated June 30, 1975 and received by plaintiff in January 1976.

 On February 23, 1976, plaintiff filed with the Equal Employment Opportunity Commission [the EEOC] a charge that, in essence, echoed his complaint before the state commission; through apparent oversight, the EEOC did not notify defendant of the charge pending against it or, for that matter, of its ultimate disposition. On March 29, 1976, the EEOC issued its Determination, which consisted of the conclusions that (1) "the timeliness, deferral and all other jurisdictional requirements" under Title VII had been satisfied and (2) there was not "reasonable cause to believe that the charge" lodged by plaintiff was true. Within ninety days from receiving notification of the EEOC Determination, *fn1" plaintiff filed his complaint in this district.

 II.

 Defendant's motion rests on the Section 706(e) prescription that,

 
"in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, [ a ] charge [under 42 U.S.C. § 2000e-5] shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier * * *." (emphasis added). *fn2"

 As noted above, plaintiff filed his charge with the EEOC on February 23, 1976. Defendant urges that the allegedly "unlawful employment practice" for which plaintiff has sought redress from the state and federal agencies, as well as from this Court, occurred no later than August 7, 1974, with defendant's rejection of plaintiff's application for employment, i.e., more than three hundred days before the filing of plaintiff's Title VII charge with the EEOC. Plaintiff counters with the assertion that the accused discrimination has continued from 1974 to the present and that the limitation bar proposed by defendant is therefore inapplicable to this case. For the reasons discussed below, this Court is impelled to the conclusion that the claim herein, however characterized by plaintiff himself, was not timely filed with the federal agency.

 Precedent instructs us, to be sure, that a discriminatory employment practice, policy, or device that exerts a continuous force, resulting in a present impact at the time of an EEOC filing, tolls the running of the Section 706(e) limitation period and may thus preserve a Title VII claim that would otherwise be stale. See, e.g., Egelston v. State University College at Genesco, 535 F.2d 752 (2d Cir. 1976); Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478 F.2d 979 (1973); Bartmess v. Drewrys U.S.A. Inc., 444 F.2d 1186 (7th Cir.), cert. denied, 404 U.S. 939, 30 L. Ed. 2d 252, 92 S. Ct. 274 (1971); Kohn v. Royall, Koegel & Wells, 59 F.R.D. 515 (S.D.N.Y. 1973), appeal dismissed, 496 F.2d 1094 (2d Cir. 1974). Indeed, the suspension of the limitation period by force of an alleged continuing discrimination is perhaps "particularly applicable in cases involving discriminatory failure to hire * * * [,] for in such circumstances, 'it would seem to be a needless, futile gesture to require [the] plaintiff to make a formal reapplication for the ...


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