Aronsen v. Crown Zellerbach

• Citation: 662 F.2d 584
• Decision Date: 23 November 1981
• Docket Number: No. 78-1621,78-1621
• Parties: 27 Fair Empl.Prac.Cas. 518, 27 Empl. Prac. Dec. P 32,264 Arthur N. ARONSEN, Plaintiff-Appellant, v. CROWN ZELLERBACH, a corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 584

662 F.2d 584

27 Fair Empl.Prac.Cas. 518,

27 Empl. Prac. Dec. P 32,264

Arthur N. ARONSEN, Plaintiff-Appellant, v. CROWN ZELLERBACH, a corporation, Defendant-Appellee.

No. 78-1621.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 11, 1980.

Decided Nov. 23, 1981.

Marvin Stender, Garry, Dreyfus, McInternan, Brotsky, Stender, Herndon & Walsh, Inc., San Francisco, Cal., argued, for plaintiff-appellant; David E. Pesonen, San Francisco, Cal., on brief.

Ralph H. Baxter, Jr., Orrick, Herrington & Sutcliffe, Inc., San Francisco, Cal., argued, for defendant-appellee; James Haynes, San Francisco, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before TANG and PREGERSON, Circuit Judges, and KELLEHER, ^* District Judge.

TANG, Circuit Judge:

This is an appeal from the dismissal of an action brought under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (ADEA). On motion for summary judgment, the district court dismissed the action on the ground that Plaintiff Aronsen's "notice of intent to sue" was untimely filed with the Secretary of Labor, thus, failing to satisfy a prerequisite to suit under the ADEA. Because the determination of the date on which the unlawful act occurred is not free of factual dispute, we reverse.

I.

Plaintiff Aronsen worked as a Research Associate for Crown Zellerbach (Zellerbach) and his duties included seeking out new applications for Zellerbach goods and developing new products. He had worked for Zellerbach 28 years, his entire working life since graduating from college. By 1975, at age 52, he was earning $36,300 per year, plus benefits, bringing his total compensation to $42,500.

In his complaint, Aronsen alleged that Zellerbach terminated him solely on the basis of his age pursuant to its general plan to replace employees nearing retirement age with younger employees. Aronsen further complained that Zellerbach terminated him on April 21, 1976, and that he gave the required notice of intent to sue to the Secretary of Labor on January 19, 1977 (filed Jan. 24, 1977), about 270 days later. This asserted date is within the 300 day time period of 29 U.S.C. § 626(d)(2) but not within the 180 day period enumerated in § 626(d)(1). Affidavits and depositions in the record, however, suggest that at a meeting a year earlier, in the spring of 1975, a Zellerbach vice-president informally told Aronsen that he was being terminated. It is undisputed that after March 31, 1975, Aronsen did no regular work for the company, although he still received company paychecks. On March 31, 1976, Aronsen was officially terminated. At that time, his "regular" payments ceased and his payments for accumulated vacation benefits began, lasting until April 21, 1976, the date noted by Aronsen in his complaint as marking his termination with Zellerbach. Because the March 31, 1976 date is also within the 300 day period, the notice would have been timely filed if that were the operative date. March 31, 1975, however, is far outside the 300 day limit. As a matter of law, the district court concluded that termination, and hence the unlawful practice, occurred at a meeting on or before March 31, 1975.

At the meeting on March 31, 1975, executive vice-president Mitchell allegedly told Aronsen that he was being terminated and that Aronsen would be given a choice between either taking a demotion to another position or accepting termination and receiving Zellerbach's assistance in finding another position, while maintaining the same payroll and benefits status during the transition period. Aronsen chose the latter alternative. His transition period, originally scheduled to last six months, was extended to March 31, 1976. The March 31, 1975 meeting and "termination" were not memorialized by any formal record notifying Aronsen.

Between March 31, 1975 and March 31, 1976, Aronsen was on the payroll at his normal salary. The record does not show whether his status was changed on the company's personnel records. He did not perform his former duties, but he did retain the perquisites of his position: office, secretary, travel, and expense account. Aronsen performed one brief assignment for Zellerbach in the summer of 1975 and took outside consulting jobs, but always with the permission of vice-president Mitchell.

In a letter dated March 18, 1976, senior vice-president Jamieson wrote to Aronsen confirming a March 2, 1976 discussion "regarding (Aronsen's) termination of employment with Crown Zellerbach on March 31, 1976." ¹ The letter also referred to the period between March 31, 1975 and March 31, 1976 as a "terminal leave of absence with pay." In its briefs and motions, Zellerbach also described its payments to Aronsen during this period as "severance benefits." The district court relied on these characterizations, although, so far as the record shows, Zellerbach's personnel records contain no change in Aronsen's status to reflect "leave" or "severance."

The district court concluded that March 31, 1975 was the termination date based on the following factors: 1) on or by that date Aronsen was told he was being terminated; and 2) on that date his active performance of work for the company ceased. The court further ruled that Zellerbach's actions after that date did not toll the 300 day period under the equitable tolling doctrine. Accordingly, the district court dismissed the action because the notice of intent to sue was not filed within 300 days of March 31, 1975.

II.

The first issue we address concerns the length of the statutory filing period in this case. If 180 days instead of 300 days is the applicable period then we need not reach the other issues because even the occurrence dates advocated by Aronsen are beyond a 180 day period.

The ADEA requires a grievant to file a "notice of intent to sue" within 180 days of an alleged statutory violation or, in a deferral state, within 300 days. See 29 U.S.C. § 626(d)(1), (2) (1976). In Bean v. Crocker National Bank, 600 F.2d 754 (9th Cir. 1979), we construed the deferral state time requirement to require filing with the Secretary of Labor within 300 days. Id. at 757-59; see Naton v. Bank of California, 649 F.2d 691, 694 n.2 (9th Cir. 1981). Since Bean, two other circuits have decided otherwise, holding that the grievant must commence proceedings with the state agency within 180 days in order to trigger the extended 300 day federal filing period. ² Zellerbach urges us to reconsider our position and conform to the approach in these circuits. After re-examining the statute and considering intervening developments in the interpretation of the ADEA and the analogous filing periods under Title VII, however, we reaffirm Bean's holding that in deferral states ADEA grievants have 300 days to file.

Section 626(d) of the ADEA, as in effect at the time of Aronsen's suit ³ provided:

(d) No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days' notice of an intent to file such action. Such notice shall be filed

(1) within one hundred and eighty days after the alleged unlawful practice occurred, or

(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

29 U.S.C. § 626(d) (1976).

This statutory language plainly states that grievants in section 633(b) cases (i. e., complaints arising in deferral states) have 300 days to file. Unless section 633 requires a different interpretation, we see no reason to depart from the plain congressional language of section 626(d). Our decision in Bean so held, rejecting the interpretation that a grievant first must commence state proceedings within the 180 day period of section 626(d)(1) in order to qualify for the 300 day filing period of section 626(d)(2). Bean, 600 F.2d at 757-59.

Section 14(b) of the ADEA, 29 U.S.C. § 633(b) (1976), provides that in cases occurring in deferral states no suit may be brought under section 626 until 60 days after proceedings have been commenced before the state agency, unless the state proceedings had terminated earlier. ⁴ In Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), the Supreme Court held that section 633(b) required grievants in deferral states to resort to state administrative proceedings before bringing suit in federal court. Id. at 754-58, 99 S.Ct. at 2070-72. The Court also held, however, that such commencement of state proceedings for federal ADEA purposes need not be timely or effectual under state law. Id. at 758-64, 99 S.Ct. at 2072-75.

Although the Evans decision is instructive, it does not control the issue before us. Section 633(b) pertains to the relationship between commencing state proceedings in deferral states and filing a federal suit, not to the relationship between commencing state proceedings and filing a federal notice or charge with the Secretary of Labor. Nor did Evans directly address that latter relationship, except to point out that ADEA grievants may file with the state agency before, simultaneously, or even after they file notice with the Secretary of Labor. Id. at 756 & n.4, 99 S.Ct. at 2072 & n.4 (emphasis added). ⁵ Indeed, as Bean indicated, the only plausible inference to be derived from Evans is that "compliance with state time limitations must be deemed irrelevant for purposes of determining whether a complainant has 180 or 300 days to file notice of intent to sue with the Secretary." Bean, 600 F.2d at 759.

Nothing in section 633(b), therefore, requires reading section 626(d)(2) in other than a plain manner. Nor does the legislative history of section 626(d) give any reason to believe any other interpretation was intended by Congress. See Ewald v. Great Atlantic &...