Solimino v. Astoria Federal Sav. and Loan Ass'n

• Decision Date: 31 May 1989
• Docket Number: No. 85 Civ. 0555.,85 Civ. 0555.
• Citation: 715 F. Supp. 42
• Parties: Angelo J. SOLIMINO, Plaintiff, v. ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant.
• Court: U.S. District Court — Eastern District of New York

715 F. Supp. 42

Angelo J. SOLIMINO, Plaintiff, v. ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant.

No. 85 Civ. 0555.

United States District Court, E.D. New York.

May 31, 1989.

Joseph J. Gentile, Long Island City, N.Y., for plaintiff.

Michael S. Cecere, Jackson, Lewis, Schnitzler & Krupman, New York City, for defendant.

MEMORANDUM AND ORDER

GLASSER, District Judge:

In this action brought under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., defendant moves pursuant to Fed.R.Civ.P. 56(b) for summary judgment on the grounds that (1) the action is time-barred, and (2) plaintiff is administratively estopped from proving his case. For the reasons stated below, the court grants defendant's motion on the latter ground.

FACTS

Plaintiff joined defendant Astoria Federal Savings & Loan as a teller in October 4, 1945. On March 5, 1982, he was terminated. By that time, he was 63 years old and had reached the position of Vice President of the Mortgage Origination Department.

Plaintiff filed a formal charge of age discrimination with the federal Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights (DHR) on March 18, 1982. DHR held an investigative hearing on November 29, 1982. DHR dismissed the complaint on January 25, 1983, and the State Human Rights Appeal Board affirmed on May 30, 1984.

On July 29, 1983, prior to the Appeal Board's affirmance, plaintiff brought an action in New York State Supreme Court for New York County, naming as defendants several officers and employees of the defendant, the defendant's law firm, and two employees of the DHR. Justice Dontzin construed the complaint as alleging causes of action for wrongful termination of employment, prima facie tort, perjury and conspiracy, and dismissed the entire complaint as against the non-DHR defendants, pursuant to N.Y.Civ.Prac.L. & R. § 3211(a)(7), for failure to state a cause of action. Solimino v. Drewitz, No. 22074/83 (Sup.Ct.N.Y.Co. April 16, 1984). Subsequently, Justice Myers dismissed the complaint as against the DHR defendants pursuant to N.Y.Civ.Prac.L. & R. § 3211(a)(7) for failure to state a cause of action. Solimino v. Drewitz, No. 22074/83 (Sup.Ct.N. Y.Co. May 10, 1984). The Appellate Division affirmed both rulings. Solimino v. Drewitz, 111 A.D.2d 602, 489 N.Y.S.2d 439 (1st Dep't 1985).

On February 21, 1985, plaintiff filed this action, alleging that defendant had begun to discriminate against him on the basis of age after he turned 56 by denying him salary increases and promotions and by promoting younger people over him, and that defendant had terminated him because of his age.

DISCUSSION

I. STATUTE OF LIMITATIONS

The ADEA's statute of limitations, 29 U.S.C. § 626(e)(1), incorporates by reference the statute of limitations contained in 29 U.S.C. § 255(a), which states in relevant part that an action is

forever barred unless 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.

For the purposes of this motion only, defendant concedes the applicability of the three-year limitations period based on a "willful violation" of the ADEA.

Plaintiff claims that his cause of action accrued on the date he was terminated, March 5, 1982, so that his filing of the complaint on February 21, 1985 was timely. However, the case law uniformly rejects this contention. Rather, plaintiff's cause of action accrued on the date he was notified of his impending termination. Russo v. Trifari, Krussman & Fishel, Inc., 837 F.2d 40, 42 (2d Cir.1988); Shockley v. Vermont State Colleges, 793 F.2d 478, 481 (2d Cir.1986); Miller v. International Telephone & Telegraph Corp., 755 F.2d 20, 24 (2d Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985); Pfister v. Allied Corp., 539 F.Supp. 224 (S.D.N.Y. 1982); E.E.O.C. v. Kimberly-Clark Corp., 531 F.Supp. 58 (N.D.Ga.1981).¹

The parties agree that plaintiff was notified of his impending termination in a meeting with defendant's president, Henry Drewitz, which occurred sometime soon after a meeting of defendant's board of directors held on Wednesday, February 17, 1982.²

However, a factual dispute exists over whether plaintiff's meeting with Drewitz occurred on the Thursday or Friday after the board meeting (February 18 or 19, 1982), in which case the action is time-barred, or on the following Monday (February 22, 1982), in which case the action is timely-filed.

Defendant relies principally upon the Charge of Discrimination form which plaintiff filed with the EEOC and the New York State Division of Human Rights on March 18, 1982—no more than a month after the meeting with Drewitz. On that form, plaintiff put down February 18, 1982 as the "date most recent or continuing discrimination took place." Below that line of the form, in the narrative portion, plaintiff stated "I have been given a notice of termination on February 18, 1982." The form was signed under penalty of perjury.

During the investigatory hearing before the State Division of Human Rights on November 29, 1982 — over nine months after the Drewitz meeting — Drewitz testified that the meeting occurred on February 19, 1982. Tr. 27-28. Solimino's testimony conflicted in several respects with Drewitz's, but did not contradict Drewitz's recollection regarding the date. Id., 29-30. However, Solimino later referred to a meeting with Drewitz — apparently the same meeting —as having occurred on a Monday afternoon. Tr. 66.³ The first Monday after the February 17, 1982 board meeting was February 22, 1982. If that date or any date thereafter were correct, the action would be timely-filed.

Unlike the foregoing evidence, the rest of plaintiff's evidence on the statute of limitations issue dates from a time after this suit was filed, so that plaintiff's statements may reflect an awareness that his entire lawsuit was in danger of being dismissed as untimely.

At his December 1, 1988 deposition in connection with this lawsuit, Solimino steadfastly maintained that the meeting with Drewitz occurred on Monday, February 22, 1982 (Solimino Dep. 112, 117), although he also affirmed that every statement made on his Charge of Discrimination form was correct. Solimino Dep. 85-86.⁴

Finally, in connection with this motion, plaintiff has submitted his own affidavit and that of his wife. The affidavits allege that the meeting with Drewitz occurred on Monday, February 22, 1982.

In considering this motion for summary judgment, "the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987) (citations omitted). Summary judgment is inappropriate where, as here, a factual dispute exists as to the accrual date of a cause of action, and resolution of that dispute will determine whether or not the action is time-barred. Telectronics Proprietary, Ltd. v. Medtronic, Inc., 687 F.Supp. 832, 844 (S.D.N.Y.1988). See also Helm v. South African Airways, No. 84 Civ. 5404, 1987 WL 13195 (S.D.N.Y. June 25, 1987) (1987 U.S.Dist. LEXIS 5671) (in action under ADEA, fact dispute over date action accrued precluded summary judgment on statute of limitations grounds); Hawley v. L.B. Smith, Inc., No. 82 Civ. 6372-CSH, 1985 WL 334 (S.D.N.Y. Feb. 25, 1985) (LEXIS, Genfed library, Dist. file) (same); United States v. Becker, No. 86 Civ. 3946, 1989 WL 34048 (S.D.N.Y. April 4, 1989) (1989 U.S. Dist. LEXIS 3227) (fact dispute over date on which tax assessment was made precluded summary judgment on statute of limitations grounds).

Accordingly, this ground for defendant's motion is rejected.

II. ADMINISTRATIVE ESTOPPEL

Defendant argues that the unreviewed⁵ decision of the New York State Division of Human Rights ("DHR") denying plaintiff's age discrimination claim has preclusive effect in this federal court action. Plaintiff disputes this, and argues alternatively that even if this were true, the DHR hearing did not meet constitutional standards of due process and therefore provides no basis for administrative estoppel.

The court agrees that the DHR hearing, although unreviewed by the state courts, has preclusive effect in this federal court action.

No Supreme Court or Second Circuit opinion deals with the question whether a state agency's unreviewed rejection of an age discrimination claim has preclusive effect in a subsequent federal court action brought under the ADEA. However, two Courts of Appeal have dealt expansively with the issue, reaching opposite conclusions. Duggan v. Board of Education of East Chicago Heights, 818 F.2d 1291 (7th Cir.1987) (unreviewed agency decision not preclusive); Stillians v. State of Iowa, 843 F.2d 276 (8th Cir.1988) (unreviewed agency decision preclusive).⁶

The conflicting rulings in Stillians and Duggan reflect divergent interpretations of the Supreme Court's decision in University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). Elliott held that an unreviewed state agency determination was not binding on a federal court with respect to a Title VII claim, but was binding with respect to a claim under 42 U.S.C. § 1983.

As to the Title VII claim, the Court's holding turned on a Title VII provision, 42 U.S.C. § 2000e-5(b), requiring the EEOC to give "substantial weight" to prior state proceedings. The Court noted that "it would make little sense for Congress to write such a provision if state agency findings were entitled to preclusive effect in Title VII actions in federal court." Id., 478 U.S. at 795, 106 S.Ct. at 3225 (citing Kremer v. Chemical Construction Corp., 456 U.S. 461, 470 n. 7, 102 S.Ct. 1883, 1891 n. 7, 72...