Borowski v. Vitro Corp., Civ. No. JFM-85-600.

• Decision Date: 01 May 1986
• Docket Number: Civ. No. JFM-85-600.
• Citation: 634 F. Supp. 252
• Parties: Walter BOROWSKI v. VITRO CORP., et al.
• Court: U.S. District Court — District of Maryland

634 F. Supp. 252

Walter BOROWSKI v. VITRO CORP., et al.

Civ. No. JFM-85-600.

United States District Court, D. Maryland.

May 1, 1986.

COPYRIGHT MATERIAL OMITTED

George Beall, Miles & Stockbridge, Baltimore, Md., for plaintiff.

George W. Johnston, Venable, Baetjer and Howard, Baltimore, Md., for defendant.

MEMORANDUM

MOTZ, District Judge.

This action was initially instituted by plaintiff pro se in the United States District Court for the Northern District of New York. Plaintiff alleged that he had been wrongfully treated in his employment because of his age. Defendants moved to transfer the action to this Court and the motion was granted. Defendants then filed a motion to dismiss. After a hearing on the motion, this Court concluded that because of the complexity of the issues presented plaintiff should be represented by counsel. At the request of the Court plaintiff's present counsel reviewed the case and, after meeting with plaintiff, agreed to represent him.¹

Plaintiff then moved to file an amended complaint. The proposed amended complaint contains one count under the ADEA, one count under ERISA and four counts alleging state law claims of breach of contract, interference with contractual relations, fraud and deceit and intentional infliction of emotional distress. Defendants have opposed plaintiff's motion for leave to amend, or, in the alternative, moved to dismiss the amended complaint for failure to state any claims upon which relief can be granted. On April 18, 1986, a hearing was held.

The Allegations in the Amended Complaint

The facts as alleged in the proposed amended complaint are as follows:

Plaintiff worked at defendant Vitro Laboratories from November 26, 1973 to March 19, 1982. During that period he received an unbroken chain of positive performance appraisals, together with accompanying increases in salary. However, in January 1982, defendant Williams, the group supervisor of plaintiff in Vitro's management services division, ordered section leaders within that division to "get rid of the dead wood" under their supervision. As a result of those instructions, plaintiff was put on a transfer list and was told that if efforts to place him in another department failed, he would be laid off on March 19, 1982. Before being laid off plaintiff identified an open position in another department for which he was qualified but, after having applied for that position and being informed that his application had been accepted and that an interview had been scheduled, he was told that the position had been "administratively cancelled." On March 19th he was laid off.

On March 18, 1982, defendant Gormley wrote a letter to plaintiff, in response to previous correspondence, advising plaintiff that Vitro would actively compare his qualifications with the requirements of all future job openings in an effort to find an acceptable position for him. From March 19, 1982 until the end of June 1982, plaintiff made several telephone inquiries to Vitro's personnel department but received no communications in return regarding the possibility of reinstatement. He also sought employment positions with other employers but was unsuccessful.

In mid-June 1982 plaintiff retained an attorney to prosecute a claim against Vitro. Plaintiff advised his attorney that his paramount objective was to obtain reinstatement to his former position or a comparable job at Vitro. Plaintiff's attorney contacted Vitro and within two weeks plaintiff was offered reemployment.

On July 6, 1982, plaintiff went back to work at Vitro. He was placed as a staff specialist in a department in which he had not worked before and was assigned tasks which varied significantly from those which he had previously performed. He was not adequately trained by Vitro for his new position. Nevertheless, through his own initiative he learned his new job and performed all aspects of it in a manner which met or exceeded performance standards. In August 1982, in accordance with company policy, his performance was evaluated and although he was not given a copy of his written appraisal, he was advised that he was performing at least satisfactorily in all respects. An eighty day evaluation of plaintiff's performance, which should have been performed in accordance with company policy, was not performed.

Plaintiff was thereafter hospitalized with a pinched nerve in his spine. While in the hospital, he was given a copy of a performance appraisal dated January 26, 1983, which detailed numerous alleged performance deficiencies. Plaintiff did not believe that this evaluation was fair or accurate and wrote to defendant Winfrey in protest. On March 14, 1983, plaintiff received his annual salary review action form which, because of his January 26, 1983 performance appraisal, indicated that he would receive only a small increase in salary. On the same day, plaintiff wrote a letter to Winfrey requesting that the company reconsider its decision. Upon receiving no response plaintiff wrote to Winfrey again on April 29, 1983, detailing the substance of his salary grievance. Plaintiff finally received a reply dated May 24, 1983, denying his request for reconsideration.

On August 17, 1983, plaintiff filed a charge of discrimination with the EEOC. In September 1983 he received another negative evaluation from Vitro. On November 28, 1983, believing that there was nothing he could do to be treated in a fair and non-discriminatory manner, he submitted his resignation as of December 2, 1983.

I.

Defendants challenge plaintiff's ADEA claim on the grounds that it is untimely and that it exceeds the scope of the charge which plaintiff filed with the EEOC, both in the broadening of the matters alleged and in the addition of individual defendants. The Court finds that the claim is untimely and therefore does not reach the issues of scope.²

Plaintiff filed his charge with the EEOC on August 17, 1983, 191 days after the occurrence of the last act of discrimination (the January 26, 1983 performance appraisal) which he alleges in his charge. Two days later the EEOC transmitted the charge to the Montgomery County Human Relations Commission. Plaintiff had not himself filed a charge with any state or local agency.³ Maryland law requires that a claim of employment discrimination be filed within 180 days of the alleged unlawful act.

Timely State Filing

The threshold—and in this Court's view the dispositive—issue presented is whether in order to benefit from the 300 day filing limitations actions period provided by 29 U.S.C. section 626(d)(2), a claimant must file a timely claim under state law. This issue (and the similar issue under Title VII) is one on which there is a clear division in the authorities. In this District some judges have held that a timely state filing is necessary to trigger the 300 day period, see Green v. Anchor Hocking Corp., Civil Action R-79-1862 (D.Md. March 16, 1982) (Ramsey, J); Mobley v. Acme Markets, Inc., 473 F.Supp. 851, 857 (D.Md.1979) (Harvey, J.), while other judges have held an untimely state filing will suffice. See Haller v. Butler Shoe Corp., 595 F.Supp. 998 (D.Md.1984) (Northrop, J.); Soble v. University of Maryland, 572 F.Supp. 1509 (D.Md.1983) (Miller, J.). The Fourth Circuit has expressly reserved ruling on the issue. See Dixon v. Westinghouse Electric Corp., 787 F.2d 943, 946 n. 3 (4th Cir.1986). The courts' uncertainty is traceable to inartful statutory language and an ambivalence in pertinent decisions of the Supreme Court.⁴

The filing of a timely state charge is not expressly made a condition to the availability of the extended 300 day filing period in section 626(d)(2). Language in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), can be cited for the proposition that this is conclusive: "We will not attribute to Congress an intent to add to ... the explicit requirements of section 626(d)(2)." 99 S.Ct. at 2075. However, the Iowa statute involved in Oscar Mayer contained a limitations period of 120 days, which is 60 days less than the 180 day period which Congress had prescribed as proper for the assertion of discrimination claims. 29 U.S.C. section 626(d)(1); 42 U.S.C. section 2000e-5(e). The Court held that a state cannot diminish the federal right by decreasing the filing period to one shorter than provided by federal law. However, the Court also suggested that a state could avoid the bypassing of its administrative agencies by establishing an 180 limitations period of its own (and providing for a tolling of that period by the filing of a timely federal charge). 99 S.Ct. at 2076 n. 11. Further, in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 2496-97, 65 L.Ed.2d 532 (1980), the Court indicated that the most straightforward reading of the administrative filing limitations provision of Title VII is that a state charge must be filed within 180 days even though the 180 day period is not expressly required by the statute.

This Court believes that the sounder view is that a timely state filing is a prerequisite for the availability of the 300 day federal filing period under the ADEA or Title VII (provided that the state limitations period is at least 180 days.)⁵ This conclusion is compelled by the very purpose of the extended filing period. Congress intended to give complainants an additional 120 days to file their federal claim after first pursuing their state claim, not to allow "complainants in some states ... to proceed with less diligence than those in other states." Mohasco Corp. v. Silver, 100 S.Ct. at 2494, from Moore v. Sunbeam Corp., 459 F.2d 811, 825 n. 35 (7th Cir. 1972).

Moreover, while it might appear at first blush that the remedial nature of the ADEA and Title VII argue in favor of allowing the extended filing period in all cases, in fact the reverse is true. The requirement that complainants file a timely state charge is the key to making the administrative limitations provisions of the two...