Clark v. Resistoflex Co., Civ. A. No. 86-135-B.

CourtUnited States District Courts. 5th Circuit. Middle District of Louisiana
Citation665 F. Supp. 1216
Docket NumberCiv. A. No. 86-135-B.
PartiesWilliam L. CLARK v. RESISTOFLEX COMPANY, et al.
Decision Date31 July 1987

665 F. Supp. 1216

William L. CLARK
v.
RESISTOFLEX COMPANY, et al.

Civ. A. No. 86-135-B.

United States District Court, M.D. Louisiana.

July 31, 1987.


665 F. Supp. 1217

G. Phillip Shuler, Donna J. Dew, New Orleans, La., for plaintiff.

Keith M. Pyburn, Jr., McCalla, Thompson, Pyburn & Ridley, New Orleans, La., for defendants.

POLOZOLA, District Judge.

This suit was filed by the plaintiff, William L. Clark, under the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"). Named as defendants in this suit are Resistoflex Company, a division of

665 F. Supp. 1218
Unidynamics Corporation and its successor Crane Resistoflex Company, a Division of Crane Co. ("Resistoflex")1 This matter is now before the court on defendant's motions for summary judgment. Resistoflex contends that plaintiff's suit under the ADEA is time barred. Resistoflex also contends that plaintiff's claim under the Employee Retirement Income Security Act, 29 U.S.C. § 1140 ("ERISA") is not supported by the law and should be dismissed

I. The Age Discrimination Claim

The plaintiff was born on August 18, 1936 and worked for Resistoflex for twenty-four years before he was terminated. At the time of his termination, plaintiff was 48 years old.

Resistoflex manufactures and distributes materials used to prevent corrosion in such items as liners in pipes, valves and fittings of various sorts which are used to carry and transport corrosive materials. Resistoflex employs sales persons to assist and support the distributors of their product. Plaintiff was terminated in March of 1985. At that time, the defendant employed three persons it classified as Regional Sales Managers: the plaintiff, who was then 48 years old; Fred Mashin, who was 50 or 51 years old; and, C. Jay Wangerin, who was 63 years old. Plaintiff was the Southern Regional Sales Manager of a territory that included Louisiana, Arkansas, Mississippi, and parts of Texas, Alabama, Georgia and Florida. The responsibility of the Regional Sales Manager was to supervise the local salesmen. The plaintiff did not have any direct sales duties. In addition to the base salary he received, he also received a commission on the sales of his district sales managers.

Two questions must be answered by this court in determining whether to grant the defendant's motion for summary judgment on the ADEA claim. First, under the criteria set forth in Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) and Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), when did the alleged discriminatory act or practice occur in order to start the 180-day limitation period for filing a claim with the Equal Employment Opportunity Commission ("EEOC")? Second, if the 180-day period expired before the plaintiff filed a claim with the EEOC, was the period tolled or interrupted for any reason.

A. When did the alleged act of discrimination occur?

The plaintiff received a telephone call on March 11, 1985 from Bruce Freed, the General Sales Manager of Resistoflex, who was plaintiff's immediate supervisor. Freed informed Clark that he was to be terminated and plaintiff's last day on the job would be Friday, March 15, 1985.2 Plaintiff does not remember all of the details of the conversation but does remember that Freed said: "I have some bad news for you ... I am going to terminate you."3 Freed's affidavit has a slightly different wording. Freed maintains that he told the plaintiff that "he was terminated."4

During the telephone conversation of March 11, 1985, plaintiff was also informed of some of the reasons why the company was terminating him.5 Plaintiff has testified that he was in a state of shock and after approximately five minutes, he did not wish to speak with Freed any longer. At plaintiff's request, the conversation

665 F. Supp. 1219
with Freed terminated and Clark was transferred to personnel in order to learn of his termination benefits.6

The plaintiff's memory of the reasons that Freed gave for his termination is sketchy at best.7 However, Freed states that he informed Clark that: (1) he was a poor role model; (2) he had used business time for leisure activities; (3) Freed had received complaints about Clark's conduct; and, (4) plaintiff resisted new procedures. Freed indicated that plaintiff was terminated for those reasons.8 Plaintiff does not deny that Freed mentioned all of the above items. Plaintiff merely states that he was in a state of shock and does not clearly remember all of the conversation. However, Clark did state that he thought age was the real reason he was terminated.9

On March 15, 1985, Clark received a letter dated March 12, 1985 from Tom Brath, personnel director, which outlined the benefits plaintiff would receive from the company.10 Clark signed the letter that day and returned it to the company.

Under the terms of the agreement contained in the letter of March 12, 1985, the plaintiff was to be given severance pay of $20,060.36, which was to be paid in 11 semi-monthly installments of $1,823.66 each. Certain health benefits were to be continued until August 31, 1985, while other health benefits would terminate on March 15. Plaintiff was fully vested in his pension plan, but the amount of his pension benefits were not disclosed in the letter.

The last paragraphs of the letter agreement contain the heart of the agreement as far as Resistoflex is concerned. Under the agreement plaintiff was prohibited from communicating any "proprietary information" in any form to any other party. If this obligation was violated, the company had the right to terminate the agreement. Another paragraph stated that all other benefits of employment were terminated and any unused vacation time would be included in plaintiff's last paycheck.

It is clear that the plaintiff signed the letter agreement under Brath's signature on March 15, 1985, the plaintiff's last day of work.

It is now settled law that a cause of action accrues in the age discrimination context when the adverse employment decision is made and communicated to the employee. Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981); Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Elliot v. Group Medical and Surgical Service, 714 F.2d 556, 563 (5th Cir.1983); McWilliams v. Escambia School Board, 658 F.2d 326, 328 n. 1 (5th Cir.1981); Hammock v. American Pad and Paper Co., 41 F.E.P. Cases 1598, 1599 (E.D.Wis.1986) Available on WESTLAW, DCT database. Even if employment continues after notice, the time period begins to run from the date of notice. Chardon, supra, 454 U.S. at 8; 102 S.Ct. at 29; Ricks, supra, 449 U.S. at 257-58; 101 S.Ct. at 503-04. The proper focus under the Ricks rationale is on the time of the act of discrimination and not when the consequences of that act become most painful. Ricks, supra, 449 U.S. at 258; 101 S.Ct. at 504.

A review of the facts presented to the court reveals that the decision to terminate the plaintiff was communicated to the plaintiff on March 11, 1985.11 The fact that plaintiff was employed until the 15th of March does not effect the accrual of the cause of action. Plaintiff was on notice that adverse employment action had been

665 F. Supp. 1220
taken against him when he received the phone call from Freed on March 11

In opposition to defendant's motion for summary judgment, the plaintiff argues that this March 11, 1985 notice was not clear and unequivocal. Plaintiff claims this lack of clear notice coupled with the fact that the company had threatened to terminate him in the past made his status with the company unclear. The plaintiff asserts that the letter of March 15 should be considered the termination date since it was not until that time that the plaintiff knew for certain that he was terminated.

This court finds plaintiff's argument untenable. The relevant inquiry by the court is not on the subjective state of mind of the plaintiff,12 but rather on the sufficiency of the notice plaintiff received. Freed did not tell the plaintiff that he "might" terminate or that he was "thinking of" terminating plaintiff's employment. Instead, Freed told the plaintiff that he was going to terminate the plaintiff.13 It is clear that at this point a decision had been reached by the company to discharge the plaintiff. If any act of discrimination occurred, it occurred before the phone call of March 11. The affidavit of Brath clearly states that while no approval was needed from his department, he did discuss the termination of plaintiff before March 11 with Freed and Rovdane, the president of the company, and any approval necessary was given at that time.14 Again, it is clear that the decision was made before the call of March 11 and that this telephone call served as the notice which started the period for filing a claim with the EEOC.

It is not necessary for this court to find that the defendant's decision to terminate the plaintiff was irrevocable. Only the fact that the decision to terminate was made is relevant. In other words, the fact that the plaintiff may be successful in changing the minds of those who dismissed him or may have some other course of action to persuade the company to reverse its decision does not change the fact that an act of discrimination had occurred. Such a possibility does not suggest that the decision to terminate is in any way tentative. Ricks, supra, 449 U.S. at 261; 101 S.Ct. at 505-06. Such a possibility is "a remedy for a prior decision, not an opportunity to influence that decision before it is made." Ricks, supra, Id. Therefore, the 180 days is not tolled during the existence of such a possibility.

The court has carefully studied the decisions rendered in the Ricks and Chardon cases. The language of these cases convinces this court that since the decision to terminate was made and unequivocally communicated to the plaintiff on March 11, 1985, the period for filing a claim with...

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3 cases
  • Clark v. Resistoflex Co., a Div. of Unidynamics Corp., 87-3611
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 14 Septiembre 1988
    ...a claim which he has abandoned on appeal. On August 17, 1987, the district court granted summary judgment for Resistoflex on all counts. 665 F.Supp. 1216. The court held Clark's ADEA claim time-barred because he had failed to file his charge with the EEOC within the 180-day period required ......
  • DeMoranville v. Specialty Retailers, Inc., 14-94-00624-CV
    • United States
    • Court of Appeals of Texas
    • 17 Agosto 1995
    ...expected to return to work when she was capable. The decision to terminate appellant was not definite. In Clark v. Resistoflex Co., 665 F.Supp. 1216, 1218-19 (M.D.La.1987), the court held that the date of the last act of discrimination was the date that the employee was told he was going to......
  • Barnes v. Hillhaven Rehab. & Convalescent Center, Civ. No. 1:87-cv-619-ODE.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • 15 Febrero 1988
    ...on the time of the act of discrimination and not when the consequences of that act become most painful." Clark v. Resistoflex Company, 665 F.Supp. 1216, 1219 (M.D.La.1987), citing Ricks, supra, 449 U.S. at 258, 101 S.Ct. at The record reflects the following facts regarding the date Mrs. Bar......

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