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MARINO v. AMTRAK

October 14, 1986

MARY E. MARINO, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK), Defendant



The opinion of the court was delivered by: LEISURE

LEISURE, District Judge:

Plaintiff Mary E. Marino ("Marino") has brought suit against the National Railroad Passenger Corporation ("Amtrak") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Marino, a secretary employed by Amtrak, claims that she was discriminatorily denied a promotion to the position of Senior Secretary in the Amtrak Corporate Communications Department.

 On March 23, 1982, Marino filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination on the basis of age and retaliation in connection with her failure to obtain the senior secretary position. On July 8, 1983, the EEOC mailed copies of its Determination *fn1" and Right to Sue Notice ("Notice") to Marino, Murray B. Schneps, Esq. ("Schneps") -- Marino's counsel at the EEOC proceedings -- and Amtrak. It is undisputed that the Notices were sent by certified mail, return receipt requested, to the parties.

 This action was commenced by Marino in the United States District Court for the Eastern District of New York on October 12, 1983. Subsequently, the action was transferred to this Court on Amtrak's motion. This matter is now before the Court on Amtrak's motion for summary judgment declaring that this Court lacks subject matter jurisdiction because Marino failed to file this action within 90 days after her receipt of the right to sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1).

 FACTUAL BACKGROUND

 For the purpose of ruling on Amtrak's motion for summary judgment, this Court need only examine the facts regarding the statute of limitations issue.

 It is undisputed that the EEOC mailed its Notice to Amtrak, Marino, and Schneps on July 8, 1983. It is also agreed that Amtrak received its copy of the Notice on July 11, 1983. It is further agreed that Yvonne Saleme, Marino's friend, and M.C. Vern, an unidentified individual, signed receipts, dated July 13, for the Notices sent to Marino, and Schneps, respectively. It cannot be argued that there were indeed more than 90 days between July 13, 1983 and October, 12, 1983, when the action was filed.

 Amtrak claims that these undisputed facts are sufficient to deprive this Court of subject matter jurisdiction pursuant to 42 U.S.C. § 2000e-5(f)(1). Before evaluating this argument it is first necessary to introduce some additional facts.

 Marino states that she is employed on a full time basis. Consequently, she is rarely at home when the mail is delivered. Marino claims that a day or two after receiving notice from her postman -- indicating his unsuccessful attempts to deliver the certified letter -- she asked her friend, Ms. Saleme, to go to the post office and pick up the letter for her. According to Marino, Ms. Saleme picked up the Notice on July 20, 1983, and delivered it to Marino that evening.

 Schneps also claims he did not receive his Notice until July 20. He notes that the envelope in which the Notice as contained was stamped as received by his office on July 20.

 To explain the factual inconsistency between plaintiff's position and the post office receipt, Schneps and Marino contend that the July 13, 1983 stamp refers to the date the post office received the Notices and not the day Schneps and Marino received them.

 LEGAL DISCUSSION

 On a motion for summary judgment, the court's purpose is not to try issues of fact, but rather to determine whether or not there are material issues of fact to be tried. Burroughs Wellcome Co. v. Commercial Union Ins. Co., 632 F. Supp. 1213, 1217 (S.D.N.Y. ...


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