Fulton v. NCR Corp.

• Decision Date: 13 June 1979
• Docket Number: Civ. A. No. 78-0116(D).
• Citation: 472 F. Supp. 377
• Parties: Roscoe Franklin FULTON, Plaintiff, v. NCR CORPORATION, Defendant.
• Court: U.S. District Court — Western District of Virginia

472 F. Supp. 377

Roscoe Franklin FULTON, Plaintiff, v. NCR CORPORATION, Defendant.

Civ. A. No. 78-0116(D).

United States District Court, W. D. Virginia, Danville Division.

June 13, 1979.

COPYRIGHT MATERIAL OMITTED

Gary L. Bengston, Danville, Va., for plaintiff.

Michael W. Smith, Christian, Barton, Epps, Brent & Chappell, Richmond, Va., for defendant.

MEMORANDUM OPINION

DALTON, District Judge.

This action is brought under the Age Discrimination in Employment Act (ADEA), as amended, 29 U.S.C. § 621 et seq. Plaintiff, Roscoe Franklin Fulton, had been employed by defendant NCR Corporation in its Danville, Virginia office. NCR terminated Fulton's employment on May 5, 1975. Fulton was sixty years of age at the time. On the same day, NCR also discharged two other Danville employees, George C. Coates and Woodie L. Smith. They too filed suit in this court under the ADEA. Judge Williams found that Coates and Smith had been the victims of discrimination by NCR in violation of the Act, and, in 1977, awarded those plaintiffs substantial damages. See Coates v. National Cash Register Company, 433 F.Supp. 655 (W.D. Va.1977).

Plaintiff Fulton, however, did not proceed with the dispatch of his compatriots. He first contacted his lawyer, the same attorney who had ably represented Smith and Coates, through his (Fulton's) wife in February of 1978. Fulton, through his attorney, first gave formal written notice to the Secretary of Labor of his intent to sue NCR for illegal age discrimination on March 13, 1978. He filed suit in this court on August 23, 1978.

Defendant has moved to dismiss this action on two grounds: First, plaintiff failed to file his notice of intent to sue NCR with the Department of Labor within 180 days of the alleged unlawful practice (Fulton's discharge), thereby failing to comply with the requirements of Section 7(d) of the ADEA, 29 U.S.C. § 626(d), for bringing suit under that statute. Second, plaintiff failed to file his complaint in this court until more than three years after his cause of action accrued. Thus, defendant argues, this action is barred by the applicable statute of limitations as set out in Section 7(e) of the ADEA and Section 6 of the Portal-to-Portal Act of 1947, 29 U.S.C. §§ 626(e), 255.

I. Timeliness of Notice to Secretary of Labor.

As first enacted, Section 7(d) of the ADEA provided that,

"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, . . ."¹

Plaintiff concedes that he did not file such a formal notice until long after the 180 day period had expired. Nevertheless, he asserts that he gave informal, oral notice to the Secretary that he had been discriminatorily fired within 180 days of his separation from NCR, and that this "notice" suffices to comply with the law.

Plaintiff appeals to the Age Discrimination in Employment Act Amendments of 1978 ADEAA, Pub.L. 95-256, 92 Stat. 189, which was enacted April 6, 1978. Section 4(b) of the ADEAA amended the applicable portion of Section 7(d) to read as follows:

"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; . . ."

Section 4(b) also provides that the above amendment "shall take effect with respect to civil actions brought after the date of enactment of the ADEAA." 92 Stat. 190-91. Since this civil action was not brought until August 23, 1978, the amended statute applies to this case by its own terms, notwithstanding that plaintiff's grievance, his oral "notice" and even his formal written notice all preceded the enactment of the amendment.

Nevertheless, this amendment will not rescue plaintiff from his dilemma. Prior to the enactment of the 1978 Amendments, there may have been some question whether oral notice of an intent to sue would satisfy the statutory requirements. See Reich v. Dow Badische Co., 575 F.2d 363 (2d Cir. 1978), particularly the dissenting opinion of Judge Feinberg at 374. Any doubt about the necessity of a written charge should be dispensed by the enactment of the Amendments, however. The Conference Committee approving these Amendments reported,

This change in language is not intended to alter the basic purpose of the notice requirement, which is to provide the Department with sufficient information so that it may notify prospective defendants and to provide the Secretary with an opportunity to eliminate the alleged unlawful practices through informal methods of conciliation. Therefore, the conferees intend that the "charge" requirement will be satisfied by the filing of a written statement which identifies the potential defendant and generally describes the action believed to be discriminatory.

House Conf. Report No. 95-950, March 14, 1978, p. 12, 1978 U.S.Code Cong. and Admin.News, p. 534 (emphasis added).

Congress intended by this amendment to remove from discriminatees the burden placed by some courts² of using the magic language "I intend to sue," when filing notice of his grievance with the Secretary of Labor. Nevertheless, Congress did not intend to relieve complainants of the burden of filing a written notice. The wisdom of this requirement is proved by the evidence proffered in the present case. Plaintiff Fulton testified by deposition that he first communicated with Mr. Stanley L. Johnson of the Department of Labor office in Cincinnati, Ohio by means of answers to a written questionnaire sent by Johnson to former NCR employees and received by him, Fulton states to the best of his recollection, in the summer or fall of 1975. (Tr. 5). In completing the questionnaire Fulton described the circumstances of his release from NCR: that NCR had reduced his sales territory from seven counties to two, had stopped sending Fulton demonstration equipment, had refused to train him in the use of modern electronic equipment, took away from Fulton his largest buyers, raised his sales quota from $10,000/month to $17,000/month and then fired him for failing to meet this quota.³ Fulton concluded his response with the rhetorical question, "Do you think they fired me because I didn't do the job or because of my age?" After making this response, Fulton states that his wife called Johnson "about every three or four weeks to see what he could do," but that he himself did not talk with Johnson until early in 1977. (Tr. 13-14).

Johnson, however, in answer to joint interrogatories, states that to the best of his ability to recollect, he did not send a survey questionnaire to Fulton until December of 1976, along with several questionnaires sent to employees who had been terminated from NCR's Marketing Division. He recalls speaking with Mrs. Fulton by phone in early 1977 and sending her various pamphlets having to do with the ADEA. Johnson recalls that Mrs. Fulton was advised that the Wage and Hour Division of the Labor Department was investigating NCR to determine if there was a pattern and practice of Age Discrimination in the Marketing Division. She was also advised, he recalls, that her husband could file a complaint if he wished, but that Fulton never lodged a complaint against NCR and, consequently, Johnson did not notify NCR that Fulton had complained. Neither party has submitted a copy of the completed questionnaire, but copies of the Fulton's long distance telephone charges supplied by plaintiff do not reveal a call to Cincinnati until January of 1977. A total of seven calls were made to Johnson between then and February of 1978.

This evidence reveals that because of the informal nature of the correspondence between the Fultons and Johnson, the one written reply to the Labor Department's form questionnaire and seven phone calls, NCR was never timely notified that Fulton was alleging a claim.⁴ "This notice had neither the content nor the clarity of expressed purpose needed to fulfill its statutory office. If so uncertain a notice could be thought sufficient, the result could often be obscure protractions and confusion in proceedings that are intended to be quickly prosecuted, while restoration to employment with minimal derangement of the affairs of employer and employee can still be seen as possible." Reich v. Dow Badische Co., supra, at 368. Furthermore, because no written charge exists there is no way to substantiate Fulton's claim that he gave any notice at all within 180 days of his release on May 5, 1975. What evidence there is would place Fulton's response to the questionnaire more than one year after the expiration of the 180 day period.

The court must conclude that plaintiff failed to comply with the 180 day notice requirements of Section 7(d), in either its original or amended forms. Therefore, unless plaintiff can show reasons for which 180 day period should be held tolled, defendant's motion to dismiss on this ground must be granted. The issue of equitable tolling is addressed later in this opinion.

II. Timeliness of Filing Suit in This Court.

The combined provisions of Title 29, U.S.C. §§ 626(e) and 255(a) prescribe a statute of limitations of two years after accrual of a cause of action under the ADEA, "except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." 29 U.S.C. § 255(a).

Section 4(c)(1) of the ADEAA provided an amendment to these provisions as well. A new paragraph (2) was added to Section 7(e) of the ADEA, providing,

(2) For the period during which the Secretary is attempting to effect voluntary compliance with requirements of this Act through informal methods of conciliation, conference, and persuasion pursuant to subsection (b), the statute of limitations

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