Equal Employment Opportunity Commission ("EEOC"). Id., ¶ 61,
Ex. 37. On 20 July 1989 Miller filed the Complaint alleging
discrimination under the EPA, ADEA, New Jersey Law Against
Discrimination, ("NJLAD"), N.J.Stat.Ann., 10:5-1 et seq., and
the New Jersey Conscientious Employee Act, N.J.Stat.Ann.
34:19-1 et seq. Complaint. On 21 November 1989 Miller filed an
Amendment to Complaint alleging discrimination under Title VII.
On 29 June 1990 Beneficial moved for partial summary judgment
to dismiss Count Five of the Complaint alleging a violation of
the New Jersey Conscientious Employment Act. On 24 July 1990
Count Five of the Complaint was dismissed for lack of pendant
jurisdiction. Letter-Opinion and Order, filed 24 July 1990.
Beneficial moves for dismissal pursuant to Fed.R.Civ.P. 12(b)
on the ground that Miller's claims are barred by the statute of
limitations. In the event any claims are not time barred,
Beneficial moves for summary judgment pursuant to Fed.R.Civ.P.
56 on the ground that there is no genuine issue of material
fact. Beneficial argues it had justified business reasons for
not promoting Miller and for not paying Miller the same annual
base salary as her predecessor Walsh. Moving Brief, 34-39;
Reply Brief, 28-34.
A. Motion to Dismiss
Beneficial has moved to dismiss all Counts of the Complaint
pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that the
Complaint is time barred by the statute of limitations. Because
dismissal under Rule 12(b)(6) results in a determination on the
merits at an early stage in the plaintiff's cause, the
plaintiff is afforded the safeguard of having all its
allegations taken as true and all reasonable factual inferences
drawn in its favor. Wisniewski v. Johns-Manville Corp.,
759 F.2d 271, 273, (3d Cir. 1985); Mortensen v. First Fed. Sav. &
Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). "[A] complaint
should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of
facts in support of its claim which would entitle it to
relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
101-02, 2 L.Ed.2d 80 (1957). Accord Cruz v. Beto, 405 U.S. 319,
321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Angelastro v.
Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985),
cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274
When making a determination under Rule 12(b)(6), the court
cannot consider matters outside the pleadings. In this case,
the parties have submitted affidavits in connection with the
motion of Beneficial. When either or both parties present
extraneous material as part of their motion or opposition, the
court has the discretion to accept the extraneous material and
convert the Rule 12(b)(6) motion to one for summary judgment
pursuant to Fed.R.Civ.P. 56. Fed.R.Civ.P. 12(b);*fn20 Rose v.
Bartle, 871 F.2d 331, 339-40 (3d Cir. 1989); Elysian Fed. Sav.
Bank v. First Interregional Equity Corp., 713 F. Supp. 737, 740
(D.N.J. 1989); 5 C. Wright & A. Miller, Federal Practice and
Procedure § 1366 at 678 (West 1969 & Supp. 1989).
In this case, the affidavits submitted by Beneficial and
Miller directly impact upon the substantive issues raised by
the motion to dismiss. Because affidavits have been submitted
in support of and in opposition to the Rule 12(b)(6) motion,
and because each side has had an opportunity to address a Rule
56 motion, the motion is converted to a motion for summary
judgment. Elysian Fed., 713 F. Supp. at 740. Accordingly, the
motion will be treated as a summary judgment motion in its
B. Summary Judgment Standard of Review
To prevail on a motion for summary judgment, the moving party
must establish "there is no genuine issue as to any material
fact and that [it] is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). The present task is to determine whether
disputed issues of fact exist, but a district court may not
resolve factual disputes in a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106
S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); see Nathanson v.
Medical College, 926 F.2d 1368, 1380 (3d Cir. 1991) (Summary
judgment may not be granted "if there is a disagreement over
what inferences can be reasonably drawn from the facts even if
the facts are undisputed."). All evidence submitted must be
viewed in a light most favorable to the party opposing the
motion. Boyle v. Governor's Veterans Outreach & Assistance
Center, 925 F.2d 71, 75 (3d Cir. 1991); Weldon v. Kraft, Inc.,
896 F.2d 793, 797 (3d Cir. 1990); see Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
1356, 89 L.Ed.2d 538 (1986); Todaro v. Bowman, 872 F.2d 43, 46
(3d Cir. 1989); Joseph v. Hess Oil, 867 F.2d 179, 182 (3d Cir.
1989). "`Any "unexplained gaps" in material submitted by the
moving party, . . . if pertinent to material issues of fact,
justify denial of a motion for summary judgment.'"
Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502 (3d
Cir. 1990) (quoting O'Donnell v. United States, 891 F.2d 1079,
1082 (3d Cir. 1989)).
Although the summary judgment hurdle is a difficult one to
overcome, it is by no means insurmountable. As the Supreme
Court has stated, once the party seeking summary judgment has
pointed out to the court the absence of a genuine issue of
its opponent must do more than simply show that
there is some metaphysical doubt as to the
material facts. . . . In the language of the Rule,
the non-moving party must come forward with
`specific facts showing that there is a
genuine issue for trial.' . . . Where the record
taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no
`genuine issue for trial.'
Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56 (emphasis
in original, citations and footnotes omitted). In other words,
the inquiry involves determining "`whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail
as a matter of law.'" Brown v. Grabowski, 922 F.2d 1097, 1111
(3d Cir. 1990) (quoting Anderson v. Liberty Lobby, 477 U.S. at
251-52, 106 S.Ct. at 2511-12), cert. denied, ___ U.S. ___, 111
S.Ct. 2827, 115 L.Ed.2d 997, 59 U.S.L.W. 3837 (1991).
The Supreme Court elaborated on the summary judgment standard
in Anderson v. Liberty Lobby: "If the evidence [submitted by a
party opposing summary judgment] is merely colorable . . . or
is not significantly probative . . . summary judgment may be
granted." 477 U.S. at 249-50, 106 S.Ct. at 2510-11 (citations
omitted). The Supreme Court went on to note in Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986):
"One of the principal purposes of the summary judgment rule is
to isolate and dispose of factually unsupported claims or
defenses, and we think it should be interpreted in a way that
allows it to accomplish this purpose." Id. at 323-24, 106 S.Ct.
at 2553-54 (footnote omitted).
Once a case has been made in support of summary judgment, the
party opposing the motion has the affirmative burden of coming
forward with specific facts evidencing a need for trial. See
Fed.R.Civ.P. 56(e); see also Maguire v. Hughes Aircraft Corp.,
912 F.2d 67, 72 (3d Cir. 1990) (non-moving party may not rest
upon mere allegations); Schoch v. First Fidelity
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (neither
unsupported allegations in pleadings and memoranda of law nor
conclusory allegations in affidavits will establish genuine
issue of material fact); Hozier v. Midwest Fasteners, Inc.,
908 F.2d 1155, 1165 (3d Cir. 1990) (cannot create issue of fact
merely by questioning credibility of movant's
witnesses; circumstantial evidence may raise issue of fact);
Aronow Roofing Co. v. Gilbane Building Co., 902 F.2d 1127, 1128
(3d Cir. 1990) ("summary judgment will be granted where the
non-moving party fails to `establish the existence' of an
element essential to the case"); Carlson v. Arnot-Ogden
Memorial Hosp., 918 F.2d 411, 413 (3d Cir. 1990) ("nonmoving
party must adduce more than a mere scintilla of evidence in its
favor") (quoting Williams v. Borough of West Chester,
891 F.2d 458, 460 (3d Cir. 1989).
C. Statute of Limitations
1. EPA and ADEA Claims
Claims arising under the EPA must be "commenced within two
years after the cause of action accrued, except that a cause of
action arising out of a willful violation may be commenced
within three years after the cause of action accrued. . . ."
29 U.S.C. § 255(a). The ADEA incorporates by reference the statute
of limitations provided in the EPA. See 29 U.S.C. § 626(e)(1)
("Section 255 and 259 of this title shall apply to actions
under this chapter.").*fn21
"[T]he proper focus [in an employment discrimination suit] is
on the time of the discriminatory act, not the point at which
the consequences of the act become painful." Chardon v.
Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981)
(emphasis in original). "Mere continuity of employment, without
more, is insufficient to prolong the life of a cause of action
for employment discrimination." Delaware State College v.
Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503-04, 66 L.Ed.2d 431
(1980). Accordingly, the court must determine when the alleged
discriminatory act occurred. If the alleged discriminatory act
is a "continuing violation" the statute of limitations accrues
on the date of the last occurrence of the discrimination rather
than the first. Bronze Shields, Inc. v. New Jersey Dept. of
Civil Serv., 667 F.2d 1074, 1081 (3d Cir. 1981), cert. denied,
458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384 (1982); Miller
v. Aluminum Co. of America, 679 F. Supp. 495, 499 (W.D.Pa.
a. Continuing Violation
When confronted with a continuing violation claim, the first
step is to determine the timeliness of the claim. Erdmann v.
Board of Educ., 541 F. Supp. 388, 392 (D.N.J. 1982). The
district court must "identify precisely the `unlawful
employment practice' of which [plaintiff] complains." Bronze
Shields, 667 F.2d at 1083 (quoting Delaware College, 101 S.Ct.
at 503). The Third Circuit has stated:
To prevail on a continuing violation theory,
however, the plaintiff must show more than the
occurrence of isolated or sporadic acts of
intentional discrimination. The preponderance of
evidence must establish that some form of
intentional discrimination against the . . .
[plaintiff] was the company's `standard operating
Jewett v. International Telephone and Telegraph Corp.,