Butz v. Hertz Corporation

• Decision Date: 18 January 1983
• Docket Number: Civ. A. No. 82-1980.
• Citation: 554 F. Supp. 1178
• Parties: Margaret B. BUTZ, Plaintiff, v. The HERTZ CORPORATION, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

554 F. Supp. 1178

Margaret B. BUTZ, Plaintiff, v. The HERTZ CORPORATION, Defendant.

Civ. A. No. 82-1980.

United States District Court, W.D. Pennsylvania.

January 18, 1983.

Christopher Lepore, Cooper, Lepore & Dreeland, Pittsburgh, Pa., for plaintiff.

Patrick W. Ritchey, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendant.

OPINION

COHILL, District Judge.

I. Introduction

The plaintiff, Margaret B. Butz, was an employee of the defendant, The Hertz Corporation ("Hertz"), from December 3, 1962, until September 25, 1980. In a two-count complaint filed in federal court against Hertz, Ms. Butz claims that she was terminated by Hertz on September 25, 1980, at the age of 45, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (Count I), and that Hertz breached its duty to deal with the plaintiff in a fair, just and good faith manner (Count II).

Presently before the Court is Hertz's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, a motion for summary judgment as to both counts, pursuant to Fed.R.Civ.P. 56. Hertz asserts three reasons for granting its motion: 1) Ms. Butz's claim of age discrimination under the ADEA set forth in Count I is untimely under 29 U.S.C. § 626(d); 2) because Ms. Butz refused a better paying position offered by Hertz at the time of her termination, she has no grounds to seek back pay or reinstatement; and 3) Count II, alleging a breach of a general duty of fair, just and good faith treatment, has no basis in federal or state law. Because Hertz has filed affidavits in support of its claim that Count I is untimely, we will treat that motion as a motion for summary judgment pursuant to Fed.R.Civ.P. 56(c). See Fed.R. Civ.P. 12(b). As for Count II, Hertz alleges that Ms. Butz failed to state a claim upon which relief can be granted; therefore, we will treat that motion as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).

II.

Motion for Summary Judgment

(Count I)

Ms. Butz was employed by Hertz as a switchboard receptionist on December 3, 1962. She continued in that capacity until September 25, 1980 when she was placed on "lay-off" status. See Complaint ¶ 10. On August 24, 1982, Ms. Butz filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") claiming that she was terminated because of her age. This lawsuit was commenced on September 28, 1982.

Hertz claims that we lack jurisdiction over the ADEA violation claim alleged in Count I since the charge filed with the EEOC on August 24, 1982 was untimely under 29 U.S.C. § 626(d).

29 U.S.C. § 626(d) provides in pertinent part:

(d) 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 Secretary. Such a charge shall be filed—

(1) within 180 days after the alleged unlawful practice occurred; or

(2) in a case to which section 14(b) applies referring to acts of discrimination occurring in States with fair employment practice agencies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

29 U.S.C. § 626(d).

Pennsylvania has a fair employment practice agency; therefore, the 300-day period applies.

Ms. Butz filed her charge of discrimination with the EEOC on August 24, 1982, 698 days after the date of alleged discrimination which was September 25, 1980. Thus, her charge of discrimination was clearly filed beyond the 300-day statutory period. This, however, is not sufficient to support Hertz's claim that because the filing of the charge was untimely, we lack jurisdiction over the ADEA claim.

The statutory requirement that the charge of discrimination must be filed with the EEOC within 300 days of the alleged unlawful practice is not a jurisdictional prerequisite but is merely a statute of limitations. Bonham v. Dresser Industries, Inc., 569 F.2d 187, 192 (3d Cir.1977), cert. denied 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). Since it is a statute of limitations, it is subject to possible tolling. Id. One possible way of tolling the statute is if the plaintiff establishes that she did not know of her rights under the ADEA.

29 U.S.C. § 627 provides that an employer shall post notice in its place of employment as to the existence of the ADEA and the rights thereunder. Case law has established that failure to do so on the part of a defendant employer will toll the statute of limitations found in § 626(d). See Kephart v. Institute of Technology, 581 F.2d 1287 (7th Cir.1978); Mazzare v. Burroughs Corp., 473 F.Supp. 234 (E.D.Pa. 1979). The burden is on the plaintiff to establish that the statute has been tolled. Swietlowich v. County of Bucks, 610 F.2d 1157 (3d Cir.1979). See also Fulton v. NCR Corp., 472 F.Supp. 377 (W.D.Va.1979).

In the case sub judice, Ms. Butz denies any knowledge of the existence of an ADEA poster, and she also claims that she was never personally informed of such rights. Therefore, she argues that the statute of limitations has been tolled. We have found no statutory or case law which places a duty upon an employer to personally tell each employee of the ADEA and the rights thereunder. Therefore, Ms. Butz's claim of no personal information has no merit and cannot toll the 300-day period. As for the existence or non-existence of an ADEA poster, Hertz claims that such a poster was displayed in the main office building where Ms. Butz worked since at least 1972; therefore, Hertz argues that the statute of limitations has not been tolled, and its motion for summary judgment must be granted. Both parties have filed affidavits to support their claims.

Pursuant to Fed.R.Civ.P. 56(c), a federal court will grant summary judgment only

"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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."

When considering a motion for summary judgment, a court must view the facts in the light most favorable to the non-moving party. Goclowski v. Penn Central Transportation Company, 571 F.2d 747, 751 (3d Cir.1977). The movant has the burden of establishing that no genuine issue of fact exists. Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 848 (3d Cir.1974).

Hertz filed four affidavits from various employees in support of its motions for summary judgment. Each affidavit said, in effect, that an ADEA poster was hung on a bulletin board in the open office area in the main office building above the desk of Lilly Cercone, the city manager's secretary. See Campbell Affidavit ¶ 3; Smith's Affidavit ¶ 3; Kovalcik Affidavit ¶ 3; Wright's Affidavit ¶ 3.

In opposition to Hertz's motion for summary judgment, Ms. Butz filed an affidavit which provides in pertinent part:

"Plaintiff denies any knowledge of the existance sic of any ADEA poster being posted in the office of Lilly Cercone or anywhere else in the building during the nearly eighteen years she was employed by the Defendant."

Butz's Affidavit, ¶ 4.

After carefully reviewing each party's affidavits, we find that the affidavits do not conflict, therefore, there is no genuine issue of fact.

In their affidavits, Hertz's employees cite a specific location where the ADEA poster was allegedly hung; on the bulletin board above Lilly Cercone's desk. In response, Ms. Butz's affidavit merely denies any knowledge of such a poster being hung in Ms. Cercone's office or anywhere else in the building. Had she affirmed that she looked at the bulletin board above Ms. Cercone's desk and the poster was not there, then a genuine issue of fact would exist; i.e., was the poster on the bulletin board in Ms. Cercone's office? See Johnston v. Pittsburgh Press Co., 26 FEP Cases 913 (W.D.Pa.1981). As it stands, Ms. Butz's testimony amounts essentially to "I never saw the poster" rather than "I saw the bulletin board and the poster was not there." The mere assertion that she had no knowledge of such a poster or never saw the poster does not raise an issue of fact, therefore, cannot toll the statute. Downie v. Electric Boat Division, 504 F.Supp. 1082 (D.Conn. 1980). See also Gibbs v. Pepsico, Inc., 25 FEP Cases 661 (E.D.Mich.1981).

Even after considering the affidavits in the light most favorable to the plaintiff, we find that Ms. Butz failed to meet her burden to establish the equitable consideration that would justify tolling the 300-day statute of limitation; therefore, the ADEA claim is untimely and we grant Hertz's motion for summary judgment as to Count I. Since Count I has been dismissed due to untimeliness, we need not consider Hertz's second argument that Ms. Butz has no basis for relief under the ADEA.

III.

Motion to Dismiss

(Count II)

Count II of Ms. Butz's complaint states in part:

"The defendant, The Hertz Corporation, as the employer of the plaintiff, Margaret B. Butz, owed the plaintiff a duty to conduct its employment dealings with the plaintiff in a fair, just and good faith manner, without discrimination or harassment of any sort."

Complaint ¶ 20. Ms. Butz did not allege any new, specific facts to support this allegation.

Hertz filed a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) on the basis that a general duty of fair dealing without discrimination does not exist in either federal or state law.

For purposes of a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff and the allegations are considered to be true. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969). See also Hochman v. Board of Education of Newark, 534 F.2d 1094 (3d Cir.1976). The complaint must be liberally construed in favor of the plaintiff. Id. The motion to dismiss...