Cole v. CBS, INC.

• Decision Date: 27 May 1986
• Docket Number: No. 83 Civ. 2253 (JES).,83 Civ. 2253 (JES).
• Parties: James Robert COLE, Plaintiff, v. CBS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

634 F. Supp. 1558

James Robert COLE, Plaintiff, v. CBS, INC., Defendant.

No. 83 Civ. 2253 (JES).

United States District Court, S.D. New York.

May 27, 1986.

Whitman & Ransom, New York City, for plaintiff; Louis Armand DeJoie, of counsel.

Graubard, Moskovitz, McGoldrick, Dannett & Horowitz, New York City, for defendant; Robert I. Gosseen, Douglas E. Rowe, of counsel.

SPRIZZO, District Judge:

The following constitutes the Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

BACKGROUND

Plaintiff James Robert Cole alleges that the defendant, CBS, Inc. ("CBS"), his former employer, violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634, as amended (1983), in discharging him. See Complaint ("Compl.") at ¶ 1. Specifically, Cole presents two claims, each under a separate provision of the ADEA.¹ First, Cole claims that CBS willfully discharged him solely on the basis of age in violation of 29 U.S.C. § 623(a). See Compl. at ¶ 16. Second, Cole alleges that CBS violated 29 U.S.C. § 623(d) by supplying false information to the New York State Unemployment Insurance Division ("NYSUID") "to retaliate against him for his opposition to the discriminatory acts" and "his expressed reservation of the right to file an age discrimination claim against CBS with the Equal Employment Opportunity Commission "EEOC" and the New York State Division of Human Rights." See Compl. at ¶¶ 1, 13.

CBS seeks dismissal of Cole's age discrimination claim on the ground that it is time-barred under 29 U.S.C. § 626(d). A hearing addressing this issue was held before this Court, see Tr. at 57, and post-hearing memoranda were filed.² The retaliation claim, however, was not adequately addressed by either party. Therefore, the Court, in the interest of fairness, will not address the retaliation claim at this time.

FACTS

Cole was employed by CBS for twenty-seven years. See Compl. at ¶ 7; Answer ("Ans.") at ¶ 7; Tr. at 8 (Cole's testimony). From February of 1969 through July 14, 1980, he served as the vice-president and chief operating officer ("VP/CEO") of the CBS Radio Division—CBS-Owned FM Stations ("CBS-FM"). See Compl. at ¶ 7; Ans. at ¶ 7.

Cole alleges that on July 14, 1980, J. William Grimes, the executive vice-president of the CBS Radio Division and Cole's immediate superior, see Tr. at 2-3, informed him that he was being replaced with a "younger guy." See Compl. at ¶ 8. More specifically, plaintiff alleges that Grimes told him, "I'm going to take you out of the responsibility of running the FM group and put a younger man in the job to kick ass." See Tr. at 3. CBS denies that Grimes made the statement. See Consent Pre-Trial Order ("PTO") at 9.³ Additionally, plaintiff alleges that Grimes informed Cole that he would be substantially stripped of his responsibility, but could remain on the payroll through April 2, 1982, his fifty-fifth birthday.⁴ See Compl. at ¶ 8. Grimes presented Cole with a schedule of options concerning his retirement benefits. See Tr. at 4, 28-29; Defendant's Exhibit ("Def.Ex.") 5. Cole testified that Grimes encouraged him to explore possible employment in "other divisions of CBS in the hopes of staying with CBS past his 55th birthday." See Tr. at 3, 6 (emphasis added).

Cole alleges and CBS does not deny that CBS offered Cole the use of an office and telephone until his fifty-fifth birthday. See Compl. at ¶ 8; Tr. at 30. CBS alleges that Cole remained on the payroll through April 30, 1982, the month in which Cole turned fifty-five years of age. See Ans. at ¶ 8; Def. Ex. 5; Tr. at 63. From July 14, 1980, through April 2, 1982, Cole performed no further duties for CBS. See Tr. at 18-19. Cole made use of office space and facilities provided by CBS until December 31, 1981, but removed himself from his executive office at CBS on July 14, 1980. See id. at 14, 18-19. Robert F. Hyland, III, who was in his mid-thirties, filled Cole's position as vice-president on November 24, 1980. See Compl. at ¶ 10; Tr. at 34; see also PTO at 9.

After notification of his termination, Cole alleges that he entered into "two sets of negotiations with CBS in an attempt to retain his employment after his fifty-fifth birthday." See Compl. at ¶ 9. Cole alleges that CBS was "unwilling to alter its intention to replace him with a younger person." Id. Additionally, Cole spoke with several people within CBS, including the Radio Division and other divisions, concerning employment elsewhere within the company. See Tr. at 9-14.⁵ Although he did not secure a position, Cole conceded at trial that no one within CBS discouraged him from seeking employment in a position other than his former position within the company. See id.

On April 13, 1982, Cole filed charges with the EEOC, alleging that his termination was based solely on his age. See Compl. at ¶ 4; Def. Ex. 1. On March 23, 1983, Cole commenced this action against CBS, asserting jurisdiction under 29 U.S.C. § 626(c) and 28 U.S.C. § 1331. See Compl. at ¶ 3. Cole seeks damages for lost earnings (including bonuses, pension, and other benefits), liquidated damages provided by section 626(b), and costs and attorney's fees. See Compl. at 5-6. Venue is properly asserted, and is not disputed. See PTO at 2.

DISCUSSION

I. STATUTE OF LIMITATIONS

The issue before the Court is whether plaintiff has filed this action "within 300 days after the alleged unlawful practice occurred...." See 29 U.S.C. § 626(d)(2).⁶ The parties disagree as to the date on which the alleged unlawful practice occurred. CBS contends that Cole's cause of action accrued on July 14, 1980, the day Grimes terminated Cole's vice-presidency. See PHM, supra note 6, at 4. Cole argues that his cause of action accrued on April 2, 1982, his fifty-fifth birthday, which was the day he finally left CBS' employ, because the notice of discharge given on July 14, 1980, was not clear and unequivocal. See, e.g., PTO at 5; see also Pl. 12/5/83 Ltr., supra note 2, at 6.

The Supreme Court has held that the timeliness of a discrimination claim is measured from the time the employee receives a reasonable notice of a final decision regarding termination, not from when the actual discharge takes place. See Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981) (per curiam) (employee's "reasonable notice" of discharge cannot extend the filing period), reh'g denied, 454 U.S. 1166, 102 S.Ct. 1042, 71 L.Ed.2d 322 (1982); Delaware State College v. Ricks, 449 U.S. 250, 257-58, 101 S.Ct. 498, 503-04, 66 L.Ed.2d 431 (1980) (the "mere continuity of employment ... is insufficient to prolong the life of a cause of action for employment discrimination") (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977)).

Ricks and Chardon were not age discrimination cases,⁷ but their holdings have been applied to ADEA claims. See, e.g., O'Malley v. GTE Service Corp., 758 F.2d 818, 820 (2d Cir.1985); Miller v. Int'l Telephone and Telegraph Corp., 755 F.2d 20, 23 (2d Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 148, 88 L.Ed.2d 122, reh'g denied, ___ U.S. ___, 106 S.Ct. 552, 88 L.Ed.2d 479 (1985); Pfister v. Allied Corp., 539 F.Supp. 224, 226 (S.D.N.Y.1982).

The Court concludes that the oral notification received by the plaintiff from his supervisor on July 14, 1980 was phrased in unequivocal terms and was intended to be a final decision concerning the plaintiff's employment as VP/CEO at CBS-FM.⁸ Cf. 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. Therefore, the statute of limitations began to run on July 14, 1980. The plaintiff's discrimination charge was filed with the EEOC on April 13, 1982, approximately 600 days after the alleged unlawful employment practice occurred. Accordingly, under 29 U.S.C. § 626(d)(2), the plaintiff's cause of action is time-barred. Cf. Chardon, supra, 454 U.S. at 8, 102 S.Ct. at 29; Ricks, supra, 449 U.S. at 257-62, 101 S.Ct. at 503-06.

Plaintiff seeks to distinguish both Ricks and Chardon. Cole asserts that while termination of plaintiff's employment in Ricks was a "`delayed, but inevitable' consequence of the denial of tenure," see Pl. 12/5/83 Ltr., supra, at 3 (citing Ricks, 449 U.S. at 258, 101 S.Ct. at 504), CBS' termination of his employment was not inevitable, but "contingent," because he was given the opportunity to remain at CBS if he found other employment within the company. See id. This argument is not persuasive, in light of Cole's own testimony. See, e.g., Tr. at 3, 21, 22, 27.

Grimes' oral notice to Cole was certainly sufficient to trigger the applicable limitations period; it clearly and unambiguously indicated that CBS had reached a final termination decision with respect to Cole and his position as VP/CEO in its Radio Division. Cf. Leite v. Kennecott Copper Corp., 558 F.Supp. 1170, 1174 (D.Mass.), aff'd, 720 F.2d 658 (1st Cir.1983).⁹ The fact that CBS held out the hope that he might be able to obtain other employment at CBS did not in any way detract from the unequivocal nature of his termination from that position.

Cole's reliance upon Verschuuren v. Equitable Life Assur. Soc. of U.S., 554 F.Supp. 1188 (S.D.N.Y.1983), is misplaced. In that case, the notice of termination was contingent upon no other position being found for plaintiff. See Verschuuren, supra, 554 F.Supp. at 1190, 1190 n. 1. Here, it was not. Nor is it of consequence that here, unlike Verschuuren, the notice of termination was oral, not written. See Leite, supra, 558 F.Supp. at 1174 (and cases cited therein). It is also significant that in Verschuuren, the termination letter stated:

"Please be assured that every reasonable effort will be made to place you in a position elsewhere in the Equitable between now and September 8, 1981. Beginning immediately the services of ... an experienced career counseling firm, will be available to you."

See id. (emphasis added).

CBS undertook no such...