Burdette v. Mepco/Electra, Inc.

• Court: U.S. District Court — Southern District of California
• Citation: Burdette v. Mepco/Electra, Inc., 673 F.Supp. 1012 (S.D. Cal. 1987)
• Decision Date: 07 April 1987
• Docket Number: Civ. No. 86-0736-E.
• Parties: Garnet C. BURDETTE, Plaintiff, v. MEPCO/ELECTRA, INC., a North American Philips Company, Defendant.

673 F. Supp. 1012

Garnet C. BURDETTE, Plaintiff, v. MEPCO/ELECTRA, INC., a North American Philips Company, Defendant.

Civ. No. 86-0736-E.

United States District Court, S.D. California.

April 7, 1987.

Gordon E. von Kalinowski, San Diego, Cal., for plaintiff.

Stephen J. Schultz, David P. Wolds, Mark T. Bennett, Merrill, Schultz & Wolds, Ltd., San Diego, Cal., for defendant.

MEMORANDUM DECISION

ENRIGHT, District Judge.

STATEMENT OF FACTS

Plaintiff Garnet Burdette is a former employee of defendant Mepco/Electra, Inc. (hereinafter "Mepco"). On March 20, 1986, after having been laid off by Mepco, Burdette filed a complaint in this court setting out causes of action for: 1) breach of contract; 2) tortious breach of the implied covenant of good faith and fair dealing; 3) age discrimination; 4) fraud and deceit; and 5) negligent misrepresentation. Mepco answered on May 28, 1986 (amended June 4, 1986), and then moved for summary judgment on March 6, 1987. This motion is currently before the court.

On October 15, 1980, Burdette was hired by Mepco, and became associated with a line which produced "current limiters" (devices designed to regulate the flow of current through electrical circuitry). Burdette apparently never signed a formal employment contract with Mepco; moreover, according to Mepco, she never asked for a contract. Burdette herself, however, asserts firmly that she was employed pursuant to a "total employment agreement." This agreement, which is the basis for Burdette's instant breach of contract claims, allegedly existed throughout Burdette's employment with Mepco. The agreement purportedly contained the following terms:

1. Burdette would be employed indefinitely —for "so long as she carried out her duties in a proper and competent manner";

2. Burdette would not be demoted, discharged or otherwise disciplined in the absence of good cause and notice;

3. Mepco would not evaluate Burdette's performance in an arbitrary and capricious manner.

The agreement was memorialized through various writings, oral representations and the parties' course of conduct. In addition, according to Burdette, it is Mepco's established policy to grant permanent or indefinite tenure to employees, so that they are permitted to work until the age of 65. Burdette further declares that "again and again during her employment" she was told that her performance was satisfactory. She relied, understandably and in good faith, on these assurances and never sought alternative employment.

Burdette was laid off by Mepco on February 15, 1985. Mepco contends that the layoff was part of a firm-wide plan to reduce overhead in the face of a drastically contracting market. According to Mepco, orders for "variable resistor trimmers"— which accounted for over 90% of Mepco's operations, but which did not directly involve the "current limiter" line on which Burdette worked—fell off by 42% during the second half of 1984. An immediate reorganization of the San Diego production facility was called for, and it was decided that layoffs would be unavoidable. Nonproduction employees would be released first, and their jobs would be integrated with the jobs of other employees. Along with four others, Burdette was laid off at this time. Mepco had determined that Burdette's "limited education and technical training did not qualify her to perform a combined job function." Mepco pointed to Burdette's recent performance reviews, which were negative, and to her "marginal" overall ability. Other employees were laid off by Mepco in June and November of 1985, and by the end of the year the total work force had been trimmed by twenty percent. Of all of the employees laid off, which included managers and engineers with up to 12 years of experience and salaries more than double that of Burdette, only Burdette has sued Mepco for wrongful termination.

Burdette has sued, of course, because she views the events attendant to her termination in a quite different light. According to Burdette, her termination was motivated by age discrimination. That is, Burdette was laid off under the pretense of a firm-wide belt-tightening and her job was "combined" with that of a young man of considerably fewer years. (Burdette was 48 at the time and the successor to her duties was in his thirties.) Burdette has declared in her opposition to this motion that the current limiter line on which she worked was not suffering from a rollback in orders, but rather that the operation was expanding. Moreover, she notes that, unlike the other employees laid off with her, she worked in a production capacity. Finally, Burdette asserts that even as late as the month of her layoff she was told by her supervisor that she was "doing a good job."

After having been laid off, Burdette filed a charge of discrimination with the California Department of Fair Employment and Housing ("DFEH"). Burdette alleged that her termination was based on her medical condition at the time. On July 26, 1985, the DFEH issued a notice that Burdette's case would be closed in light of her election to pursue relief through judicial action. The instant complaint was filed on March 20, 1986. It sets out the facts and causes of action described above and then petitions for damages for loss of earnings, deferred compensation, other employment benefits, punitive damages, and costs of suit. It also seeks reinstatement of Burdette to her former position and a permanent injunction against Mepco's future unlawful practices.

DISCUSSION

I. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56(c) a court may grant summary judgment where the pleadings, depositions, admissions and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In a recent discussion of this standard, the Supreme Court stated that summary judgment must be entered against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed. 2d 265 (1986). A party opposing summary judgment bears the duty to produce specific evidence which shows the existence of a triable issue of fact. Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983).

The party moving for summary judgment bears the burden of proving that there is no genuine issue of material fact and that judgment may be entered as a matter of law. International Union of Bricklayers & Allied Craftsmen Local Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir.1985). Once that burden has been met, however, the opponent must answer with factual allegations revealing a genuine dispute of fact. Id. A dispute over a material fact is "genuine," according to a recent Supreme Court pronouncement, if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If a nonmoving party's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Id. at 2511. Furthermore, the "substantive evidentiary standards that apply to the case" must guide a judge in determining whether a factual dispute requires submission to a jury. Id. at 2514. The Court in Anderson, supra, went on to point out that "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 2511.

II. Mepco's Arguments

In constructing its argument for summary judgment, Mepco addresses each of Burdette's causes of action individually. For the sake of convenience, Mepco's approach and order will be followed below.

A. ADEA Claim

One of the bases for Burdette's third claim for relief is the Age Discrimination in Employment Act ("ADEA"), codified at 29 U.S.C. §§ 626(b) and (c). Burdette alleges that Mepco "discriminated against her on the basis of age...." She also alleges that she filed a timely charge of discrimination with the California DFEH and that on July 29, 1985 she received a "Notice of Case Closure" from the DFEH because she had elected to pursue judicial redress.

Mepco argues that Burdette's filing with the DFEH is insufficient to support an ADEA claim, and that because Burdette did not file an age discrimination claim with the Equal Employment Opportunity Commission ("EEOC"), she has failed to exhaust her administrative remedies. Section 626(d) of Title 29 requires that a charge be filed with the EEOC before a civil suit may be brought: "No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission." See Dempsey v. Pacific Bell Co., 789 F.2d 1451, 1452 (9th Cir.1986). And failure to exhaust remedies bars a private suit under the ADEA. Grywczynski v. Shasta Beverages, Inc., 606 F.Supp. 61, 66 (N.D.Cal.1984).

Moreover, the bringing of a suit sooner than 60 days after filing with the EEOC is a jurisdictional defect which warrants the dismissal of a faulty complaint. In Dempsey, supra, the Ninth Circuit for the first time addressed the issue of whether the 60-day requirement is jurisdictional. Noting the purpose for the 60-day conciliation period—namely, that the EEOC be allowed an initial, non-litigious opportunity to resolve an employment dispute —the court held that the requirement is jurisdictional. The court went on to point out that, in the interest of equity, the limitations periods of section 626(d) could be tolled if a complainant's delay resulted from excusable ignorance and did not prejudice the defendant employer. But this would merely allow a late claim to be brought before the EEOC;...