Rhone. The court will, at this time, assume a three year statute of limitations, although the court notes that the EEOC must prove wilfulness at trial in order to conclusively determine the applicable statute of limitations. Clarke was dismissed December 2, 1983. Defendant argues that three years plus a three month tolling period would extend the statute of limitations to March 2, 1987. Defendant maintains that the EEOC complaint was filed six months too late.
Plaintiff contends that conciliation did not terminate on December 8, 1986. Plaintiff points out that the letter of December 8, 1986 indicates that the charge was referred to the Legal Department "for further consideration as part of our conciliation process." (Plaintiff's Exhibit 8) (emphasis added). The letter goes on to say "to date we have been unable to effectuate an agreement for this charge but we are still interested in receiving a suitable proposal." (Emphasis added). These statements do not indicate a termination of conciliation, rather they indicate that the EEOC continues to be open to any voluntary settlement suggestions by the defendant. The letter sent by the EEOC to the defendant in EEOC v. Colgate-Palmolive Co., 586 F. Supp. 1341 (S.D.N.Y. 1984), conveyed a different message. That letter noted that the defendant had failed to provide requested information or to respond to proposals and stated that if the defendant did not provide specific responses the file would be referred to the legal department with a recommendation that legal action begin. Id. at 1334. This letter, in conjunction with the court papers submitted by the EEOC which stated that as of the date of the letter the EEOC viewed conciliation efforts as having failed, led the court to conclude that the EEOC was no longer seeking conciliation after the letter at issue was sent. Id. at 1344-5. In the case now before the court the December 8, 1986 letter does not contain any statement that conciliation attempts are being terminated nor has the EEOC stated that as of the date of the letter it considered attempts to conciliate over. The court finds that it does not at this time have sufficient evidence before it to determine that as of December 8, 1986 the EEOC had terminated its conciliation process and that the tolling period had ended. The fact that defendant did not respond to the December 8, 1986 letter with a new proposal for a settlement with the EEOC, does not necessarily mean the conciliation period was brought to a close. Furthermore, conciliation efforts began by the EEOC continued with Mr. Clarke's attorney. The court will deny defendant's motion for summary judgment on the ground that claims regarding discrimination against Clarke are barred by the statute of limitations. The court will sign plaintiff's order.
This matter having been brought before the Court upon the motion of Defendant, Rhone-Poulenc, Inc., for summary judgment and to dismiss the Complaint and the Court having considered the papers submitted and the arguments of counsel and for other good cause appearing for the entry of this order:
IT IS on this 20th day of January, 1988,
ORDERED that defendant Rhone-Poulenc, Inc.'s, motion for summary judgment and to dismiss the complaint is denied.
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