Drez v. ER Squibb & Sons, Inc.

• Citation: 674 F. Supp. 1432
• Decision Date: 30 November 1987
• Docket Number: Civ. A. No. 86-2176-S.
• Parties: J. Donald DREZ, Plaintiff, v. E.R. SQUIBB & SONS, INC., Dennis W. White, and Norman E. Ferzoco, Defendants.
• Court: U.S. District Court — District of Kansas

674 F. Supp. 1432

J. Donald DREZ, Plaintiff, v. E.R. SQUIBB & SONS, INC., Dennis W. White, and Norman E. Ferzoco, Defendants.

Civ. A. No. 86-2176-S.

United States District Court, D. Kansas.

November 30, 1987.

COPYRIGHT MATERIAL OMITTED

Fred W. Phelps, Jr., Phelps Chartered, Topeka, Kan., for plaintiff.

J. Steven Pigg, Fisher, Patterson, Sayler & Smith, Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

I. INTRODUCTION

Before the court are the parties' post-trial motions. Plaintiff brought this action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1982), for unlawful age discrimination and retaliation. On August 24, 1987, the jury determined that defendant had not discriminated against plaintiff (who remains employed with defendant) on the basis of age, but it found that defendant had retaliated against plaintiff because of the latter's having filed a charge of discrimination with the Equal Employment Opportunity Commission. The jury awarded no monetary damages, but it found that the retaliation was a result of willful conduct by the defendant. Because of the unique posture of this verdict, both sides have moved for post-trial relief.

II. DEFENDANT'S MOTIONS

A. Judgment Notwithstanding the Verdict

The court will first address defendant's motions. Defendant has moved for judgment notwithstanding the verdict on two issues: (1) plaintiff's failure to fulfill procedural prerequisites for the prosecution of an age discrimination claim; and (2) the lack of sufficient evidence to support the jury's verdict concerning retaliation. Preliminarily, defendant objects to plaintiff's utilization of affidavits by his attorneys as proof that plaintiff filed complaints with the appropriate state agencies and was subsequently denied relief by those agencies. Defendant disputes the manner of proof but not the fact itself. Defendant's argument is not well taken. The complaints were either filed or not; the court will certainly accept affidavits to establish this fact. Unless defendant has some evidence to the contrary, this is not an issue.

Defendant next argues that plaintiff failed to timely file a complaint with the appropriate state agencies. Section 14(b) of the ADEA (29 U.S.C. § 633(b)) provides that in the case of an alleged unlawful practice occurring in a state that has a law (1) prohibiting discrimination in employment because of age and (2) authorizing a state authority to grant and seek relief from such discriminatory practice (a "deferral state"), no suit may be brought under the ADEA before the expiration of 60 days after proceedings have been commenced under state law, unless such proceedings have been earlier terminated. In the present case, discriminatory acts allegedly occurred in Texas and New Jersey, both of which have laws prohibiting age discrimination and qualify as deferral states.

The court in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979) determined that resort to administrative remedies by claimants in states with agencies empowered to remedy age discrimination is mandatory, and a federal suit may not be brought unless the claimant has first commenced a proceeding with the appropriate state agency. Id. at 755-56, 99 S.Ct. at 2071-72. The Court found that the ADEA permits concurrent rather than sequential state and federal administrative jurisdiction, so that there is no requirement that the state filing come first. In fact, even after his federal age discrimination claim has been filed, a plaintiff may yet comply with section 14(b) by simply filing a signed complaint with the appropriate state agency. Meanwhile, the federal suit will be stayed (as long as the federal suit was timely filed) pending dismissal or other final action by the state agency. Id. at 756-65, 99 S.Ct. at 2071-76. Noncompliance with a state statute of limitations does not affect the ability of the plaintiff to pursue his federal cause of action. Id. at 759-63, 99 S.Ct. at 2073-75.

Notwithstanding the above, defendant argues that even though the ADEA permits the state complaint to be filed outside the state statute of limitations, the state administrative complaint must be filed within the 300-day limitation set forth in 29 U.S.C. § 626(d)(2):

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 —

....

(2) in a case to which section 14(b) 29 U.S.C. § 633(b) applies, 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.

In Oscar Mayer, the court did not have the occasion to consider this argument. Defendant cites several authorities for the proposition that both the federal lawsuit and the state administrative complaint must be filed within 300 days of the alleged unlawful employment practice. See Van Atta v. Kal-Aero, Inc., 555 F.Supp. 912, 916 (W.D.Mich.1983) ("In the present case, plaintiff's federal claims are timely because they were presented to both the state and federal agencies in compliance with section 626(d)(2)"); B. Schlei & P. Grossman, Employment Discrimination Law 101 (Supp. 1983-1985) ("The state proceeding is mandatory and must be initiated within the time limitation set by Section 626(d)(2).") The court respectfully disagrees.

By its terms, section 626(d)(2) governs only the timeliness of the charge filed with the Secretary of Labor. In Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the court dealt with the question of whether a federal statute setting a deadline on the filing of a charge of employment discrimination (42 U.S.C. § 2000e-5(e)) mandates the same deadline for filing with a state agency in a deferral state. The Court stated the following:

Congress included no express requirement that state proceedings be initiated by any specific date in the portion of the subsection that related to time limitations in deferral States.... We do not believe that a court should read in a time limitation that Congress has not seen fit to include ..., at least when dealing with "a statutory scheme in which lawmen, unassisted by trained lawyers initiate the process."

Mohasco Co., 447 U.S. at 816 n. 19, 100 S.Ct. at 2492 n. 19 (quoting Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972)). The court requires no other support than this in overruling defendant's argument, especially in light of the noted similarity between Title VII and the ADEA. See Equal Employment Opportunity Comm'n v. Wyoming, 460 U.S. 226, 229-33, 103 S.Ct. 1054, 1056-58, 75 L.Ed.2d 18 (1983).

Defendant also contends that the evidence was legally insufficient to support a verdict in plaintiff's favor on the issue of retaliation. In a separate motion not presently under discussion, defendant itself points to evidence adduced at trial establishing that, after plaintiff filed his charge of discrimination, one of defendant's supervisory personnel dictated a memorandum to plaintiff's file stating that plaintiff was an "absolute moron." The trial included other evidence concerning harassment, criticism, and confrontation on the job after the charge was filed.

The ADEA makes it unlawful for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age. 29 U.S.C. § 623(a)(1). This language is identical to Title VII's prohibition against discrimination on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). In a recent Supreme Court decision, Meritor Sav. Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), this statutory language was interpreted in regard to workplace harassment. The Court first determined that this language was not limited to economic or tangible discrimination, stating that the phrase "terms, conditions, or privileges or employment" evidences a congressional intent "`to strike at the entire spectrum of disparate treatment.'" 477 U.S. at ___, 106 S.Ct. at 2404, 91 L.Ed.2d at 58 (quoting Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 707 n. 13, 98 S.Ct. 1370, 1375 n. 13, 55 L.Ed.2d 657 (1978)). The Court stated the following:

In concluding that so-called "hostile environment" (i.e., non quid pro quo) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.

477 U.S. at ___, 106 S.Ct. at 2405, 91 L.Ed.2d at 59. Although the Court cited the foregoing proposition in the context of sexual harassment, in the same discussion the Court noted that this principle applied to race and national origin discrimination as well. There is no sound reason why this court should interpret identical statutory language in the context of age discrimination any differently. See also Schoen v. Consumers Untied Group, Inc., 670 F.Supp. 367 (D.D.C.1986) (WESTLAW, Allfeds file); Mead v. United States Fidelity & Guaranty Co., 442 F.Supp. 114, 135 (D.Minn.1977) (illegal retaliatory conduct can include selective surveillance and monitoring); Equal Employment Opportunity Comm'n v. Union Bank of America, 12 Fair Empl. Prac. Cas. (BNA) 527 (D.Ariz. 1976) (retaliatory acts include creating animosities). Of course, the harassment must be sufficiently severe or pervasive to alter the employee's employment and create an abusive working environment, 477 U.S. at ___, 106 S.Ct. at 2406, 91 L.Ed.2d at 60, but the court believes that plaintiff's evidence was sufficient for the jury to find such harassment.

Based on the foregoing, defendant's argument concerning the sufficiency of evidence on...