Catlett v. Owens-Illinois, Inc.

• Decision Date: 13 July 1978
• Docket Number: No. 75CV592-S.,75CV592-S.
• Citation: 454 F. Supp. 358
• Parties: John D. CATLETT et al., Plaintiffs, v. OWENS-ILLINOIS, INC., Defendant.
• Court: U.S. District Court — Western District of Missouri

454 F. Supp. 358

John D. CATLETT et al., Plaintiffs, v. OWENS-ILLINOIS, INC., Defendant.

No. 75CV592-S.

United States District Court, W. D. Missouri, S. D.

July 13, 1978.

Gary T. Nelms of Prewitt, Jones & Karchmer, Springfield, Mo., for plaintiffs.

Ransom A. Ellis, Jr., of Ellis & King, Springfield, Mo., Thomas L. Dalrymple, Charles R. Leech, Jr., Toledo, Ohio, for defendant.

ORDER SETTING CASE FOR TRIAL AND RULING ON PENDING MOTIONS

COLLINSON, District Judge.

This case involves seven claims of age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. (1970). Seven individual plaintiffs have joined their claims under the provisions of Rule 20(a), Fed.R.Civ.P.¹ The case was set for trial in April, 1977, but was continued upon application of both sides. This case will now be set for trial commencing August 7, 1978. The Court will attempt to schedule a pretrial conference prior to that date and will notify the attorneys of the exact date when a time becomes available.

The issue of plaintiff John White's capacity to join in this case has been at issue for some time. Defendant filed a motion for summary judgment on White's age claim on July 29, 1976, contending that the action was time barred under the provisions of 29 U.S.C. § 626(d). That section of the ADEA provides:

(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 . . . receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

Upon receiving a notice of intent to sue, the Secretary shall promptly notify all persons named therein as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.

By order entered December 27, 1977, the Court directed the parties to meet and attempt to stipulate facts relevant to this motion in view of the Supreme Court's action in Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), aff'd by an equally divided Court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977). The parties later informed the Court that they were unable to reach such a stipulation of facts and, on March 1, 1978, the Court, among other things, directed the parties to file narrative statements of facts which they intended to prove regarding the issues raised by defendant's motion. In that order, the Court denied defendant's motion since there were disputed facts. However the Court did not rule on plaintiff White's capacity to join in this case. On March 20, 1978, the Court set an evidentiary hearing on this question for April 13, 1978. A hearing was held on that date. Meanwhile, the parties were preparing and filing the previously ordered narrative statements and supplemental briefs. This question has now been fully briefed by both sides, the Court has heard evidence on the issue and it is now ready for a decision. There are now no disputed facts material to this issue. Upon consideration of all the evidence and arguments presented by the parties, the Court holds that the claim of plaintiff John H. White is not barred by the above quoted section of the ADEA and that he is a permissible plaintiff in this case.

White worked as a foreman at the Lily Division of Owens-Illinois at Springfield, Missouri from 1958 until his discharge on February 6, 1975. On that date, he was notified that his employment would be terminated as of February 28, 1975. He performed no work after receiving the notice and continued to draw full salary until the end of the month.² Mr. White testified that he considered the discharge to be permanent. (Tr. 3.).³ Several other salaried supervisory employees, including the other six plaintiffs in this case, were given notice on that date also.

Following his discharge, White and his son set up a machine shop so that he would have a job and some income. (Tr. 4, 17, 21). A few days after the firings, he asked his wife to contact the Wage and Hour Division of the Department of Labor and to inform them that he believed he was fired because of his age. (Tr. 4, 21). Mrs. White went to the offices of the Wage and Hour Division in Springfield but Mr. Ralph Marshall, the Division's local representative, was not there. (Tr. 21). The next day, Mrs. White called Mr. Marshall and relayed to him her husband's belief that age was involved in his discharge. Marshall was very discouraging and conveyed the impression to Mrs. White that although he had heard of the discharges, there was probably nothing that could be done unless there was proof that the company was replacing the former employees with younger workers. (Tr. 22). Neither plaintiff nor his wife was aware of any filing deadlines for claims under the ADEA and Marshall did not inform Mrs. White of the 180-day rule. (Tr. 6). Mrs. White reported the substance of her conversation with Marshall to plaintiff. (Tr. 5). Plaintiff never had any personal contact with the Department of Labor within 180 days after his discharge. (Tr. 5, 10). The sole contact on his behalf was the telephone call to Mr. Marshall by Mrs. White. (Tr. 19). White did not pursue his belief that he was a victim of age discrimination because of Marshall's pessimistic evaluation of the situation. (Tr. 23).

However, in September, 1975, White learned that Lily had hired some new supervisors. This caused him to renew his interest in pursuing a claim of age discrimination. (Tr. 7-8). He attended a meeting later that month with the other plaintiffs in this case and learned for the first time that he had to give notice of his intent to sue within 180 days of the alleged unlawful act. (Tr. 7). He contacted an attorney and filed his notice on October 31, 1975, the date this suit was filed.⁴

The Department of Labor had begun an investigation of the February discharges at the Lily plant soon after they occurred. Mr. Richard Scarborough testified on defendant's behalf at the hearing on April 13, 1978. He stated that Mr. Marshall first appeared at the Lily plant on March 24, 1975 and that nobody knew that he was coming. (Tr. 28). Although no names were mentioned, Marshall announced that he was there to investigate the possibility of age discrimination in connection with the reduction in salaried employees. (Tr. 29). Marshall stated that it was against Department policy to divulge whether or not a claim had been filed with the Department by any particular individual. Scarborough knew that the visit concerned the February firings generally. (Tr. 37, 43). Marshall requested certain information regarding the firings and the reasons for the reduction. (Tr. 30-31). Scarborough reported Marshall's visit to the plant manager, Mr. Walter Campbell. (Tr. 32). The visit was also reported to the Division Personnel Department in Toledo, Ohio. (Tr. 37). Campbell was specifically informed that Marshall was investigating the possibility of age discrimination. (Tr. 33). Scarborough told Campbell that the investigation concerned the February firings generally. (Tr. 33).

Marshall returned to the Lily plant on April 1, 1975. Apparently, the requested information was not ready because Marshall left and returned to the plant on April 7, 1975. (Tr. 33). On that visit, Marshall was given the personnel folders of all terminated employees. White's folder was among those turned over. (Tr. 34, 43). He was also given access to the company's production records and employment figures of all departments affected by the February firings, including the P. B. & Cone Department where White was formerly employed as foreman. (Tr. 35). Scarborough talked with Marshall and they discussed the individuals affected by the February firings, including White. (Tr. 35, 44). Again, Marshall's investigation was reported to Campbell, the plant manager, and to the company's corporate headquarters in Toledo, Ohio. (Tr. 37).

The next visit Marshall made at Lily did not occur until August 8, 1975. By that time, four of the named plaintiffs and one other discharged employee had filed notices of intent to sue under the ADEA. At this meeting between Marshall and Scarborough, there was no discussion of reemployment or any other attempt at conciliation of the claim of any specific individual. (Tr. 38). These two met again a week later, on August 15, 1975. This meeting was in response to notices filed by two other plaintiffs in this case. The possibility of reemployment of these two was discussed at this time but no discussion was made concerning the other persons who had contacted the Wage and Hour Office. (Tr. 39). These two meetings in August, and the prior investigation of Lily, led to a series of three meetings between Marshall and the company in September.

Marshall returned to the Lily plant on September 16, 17 and 18, 1975. The entire first visit was spent reviewing the personnel folders of all employees discharged on February 6, 1975. Marshall stated that he was trying to determine if there was any reason for the Department to become further involved. (Tr. 40). White's personnel folder was among the ones examined by Marshall. (Tr. 40).

As noted previously, White sent his formal notice of intent to sue on October 31, 1975, and it was brought to Lily's attention on November 4, 1975. (Tr. 41). The point that must be emphasized in this case is that the factual circumstances surrounding the claims of these seven plaintiffs differ from the circumstances contemplated by the enforcement structure of the ADEA. Under the provisions of 29 U.S.C. § 626, the first act of prosecution is notification of the Department of Labor of intent to sue. Thereafter,...