Gay v. AVCO Financial Services, Inc., Civ. No. 90-1246 (JAF).

• Decision Date: 12 July 1991
• Docket Number: Civ. No. 90-1246 (JAF).
• Citation: 769 F. Supp. 51
• Parties: Oscar Armando Sastre GAY, Teresita Colon Resto, and the conjugal partnership formed between them, Plaintiffs, v. AVCO FINANCIAL SERVICES, INC., Defendant.
• Court: U.S. District Court — District of Puerto Rico

769 F. Supp. 51

Oscar Armando Sastre GAY, Teresita Colon Resto, and the conjugal partnership formed between them, Plaintiffs, v. AVCO FINANCIAL SERVICES, INC., Defendant.

Civ. No. 90-1246 (JAF).

United States District Court, D. Puerto Rico.

July 12, 1991.

Vicente J. Zayas-Plaza, Moreda & Moreda, San Juan, P.R., for plaintiffs.

Graciela J. Belaval, Martinez Odell Calabria & Sierra, San Juan, P.R., for defendant.

OPINION AND ORDER

FUSTE, District Judge.

Plaintiff Oscar Armando Sastre Gay was dismissed from his employment on June 30, 1989, at age sixty-one (61). He claims that the action was taken against him on the basis of his age in violation of Puerto Rico's anti-discrimination statute. Two issues are currently before us. First, plaintiff wishes to amend his complaint to include a cause of action under the Federal Age Discrimination in Employment Act. Defendant counters that plaintiff has not yet exhausted his administrative remedies and that it is now too late for him to do so. Second, defendant AVCO argues that plaintiff has failed to join a necessary party or parties whose joinder would defeat diversity. Defendant, a Delaware corporation with a primary place of business in California, argues that its subsidiaries in Puerto Rico, all Puerto Rico corporations, are necessary parties to this action since any judgment in plaintiff's favor would necessarily affect the local corporations.

Amendment of Complaint

Plaintiffs seek leave of this court to amend their complaint to include a cause of action under the ADEA, 29 U.S.C. §§ 621, 623. "To maintain a private action under the ADEA scheme, an aggrieved party must first file a complaint with the EEOC Equal Employment Opportunity Commission." Kale v. Combined Insurance Company, 861 F.2d 746 (1st Cir.1988). It is not sufficient that the party file a claim with a state agency dedicated to redressing discrimination, and no such filing can satisfy the requirement of filing with the federal agency. Powers v. Grinnell Corp., 915 F.2d 34 (1st Cir.1990); Jay v. International Salt Co., 694 F.Supp. 207 (W.D.La.1988); Burdette v. Mepco/Electra, Inc., 673 F.Supp. 1012, 15 (S.D.Cal.1987); Hall v. Ametek, Inc., 668 F.Supp. 417 (E.D.Pa. 1987). Plaintiffs in the case before us filed only with the Puerto Rico Department of Labor and Human Resources, alleging the Puerto Rico anti-discrimination statute, 29 L.P.R.A. § 146. Therefore, unless there is some procedure now for plaintiffs to file a timely claim with the EEOC, they cannot proceed with their claims before us. We will show that even under the most generous view of the matter, plaintiffs' ADEA filing is hopelessly untimely, beyond even the repair of equitable tolling.

We will assume for the sake of this opinion that Puerto Rico is what is known as a "deferral state" for purposes of the ADEA. A deferral state is one in which there exists both a law prohibiting age discrimination and a state authority available to grant or seek relief from such discrimination. 29 U.S.C. § 633. But see, Rodríguez Calderón v. Banco Santander-Puerto Rico, 671 F.Supp. 898 (D.P.R.1987) (assuming that Puerto Rico is not a deferral state where it was not a matter at issue); Lugo Garces v. Sagner International, Inc., 534 F.2d 987 (1st Cir.1976) (case decided prior to time state agency took on role of anti-discrimination investigation held that Puerto Rico was not a deferral state). We assume Puerto Rico is a deferral state because the filing deadline is more generous in a deferral state than in a non-deferral state, and we are examining the timeliness in the light most favorable to plaintiffs.

Under the deferral state scenario, plaintiffs are required to take their claim in the first instance to the relevant state agency. Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir.1990). Sixty days later, if the state has not terminated its investigation sooner, plaintiffs may then file with the EEOC. 29 U.S.C. § 633. The filing with the EEOC must take place within 300 days of the alleged discriminatory act. 29 U.S.C. § 626(d). The timeliness of the filing with the EEOC is a statute of limitations, not a jurisdictional prerequisite to suit. Kale v. Combined Insurance Co., 861 F.2d 746, 752 (1st Cir.1988). As such, it is subject to equitable modification such as equitable estoppel and equitable tolling. Id.; Hall, 668 F.Supp. at 419. A standard reason for applying the doctrine of equitable tolling has been the employer's failure to fulfill the statutory duty to post EEOC notices in the workplace advising potential claimants of their rights under the discrimination laws, which resulted in the claimant's ignorance of his or her rights. Kale, Hall, supra; Berry v. Joseph E. Seagram & Sons, Inc., 744 F.Supp. 214 (C.D.Cal.1990). The tolling ends, however, at the time that the claimant acquires actual knowledge of the fact that there is a statute outlawing age discrimination, Kale, 861 F.2d at 753, Berry, 744 F.Supp. at 217, or when he or she retains an attorney, at which time constructive knowledge of ADEA rights will be "attributed" to the claimant. Kale, 861 F.2d at 753.

In the case at bar, the last date a discriminatory act is alleged to have taken place was June 30, 1987, when plaintiff Oscar Armando Sastre Gay was dismissed. Plaintiff filed with the state agency on November 23, 1987. Therefore, on or after January 22, 1988, sixty days after the filing with the state, plaintiff could have filed with the EEOC. The deadline for filing with the EEOC was April 26, 1988, threehundred days after the discriminatory act. Assuming, however, that a case for equitable tolling could be made (we note that plaintiffs provide us with no such facts), such tolling would, at the outside limit, run until plaintiffs obtained counsel for the instant suit. This matter was filed on February 16, 1990. Even if we assume that plaintiffs retained counsel on the very day the suit was filed, the tolling period would end on February 16, 1990, at which time knowledge of rights under the act must be imputed to the plaintiffs. Three-hundred days from February 16, 1990 takes us to December 14, 1990.

If plaintiffs' attorneys had counseled plaintiffs to file with the EEOC at any time within the three-hundred day period following the filing of this suit, (any time on or before December 14, 1990), they might now have had a tolling argument which we could recognize as sufficient to excuse an otherwise late filing, but at this point there is no way in which plaintiffs can cure the deficiency. We see no reason to allow plaintiffs to amend their complaint to include an ADEA claim only to then have the matter dismissed.

Plaintiffs argue that the Age Discrimination Claims Assistance Act of 1990, Public Law 101-504, § 2, Nov. 3, 1990, 104 Stat. 1298, somehow saves their action. 29 U.S.C. § 626 (Note). It does not. That amendment only extended the court filing deadline for claims which had been timely filed with the federal EEOC, where the federal EEOC failed to process the claim past the court filing deadline. It has no applicability to any claimant who did not file with the EEOC. It does not extend the EEOC filing deadline. Plaintiffs argue that the amendment applies to them since the state agency sat on their claim and did not act until August 1, 1989. First, the amendment is very specific as to whom it applies, and state filers are not included. Second, plaintiffs did not have to wait until the state agency had completed its investigation. They had only to wait sixty days from filing his state claim, at which time they were entitled to file with the EEOC and thereby fulfill the requirement.

Plaintiffs' motion for leave to amend the complaint is denied.

Failure to Join Necessary Party Whose Joinder Would Be Fatal to Diversity

Defendant alleges that at least one Puerto Rico corporation, one of its whollyowned subsidiaries, is an indispensable party under Rule 19, but whose joinder will defeat diversity. We start by examining the corporate structure involved in this case.

A total of five AVCO corporations operated in Puerto Rico at the time of the actions relevant to this suit, three of them Puerto Rico corporations and two foreign corporations. AVCO Financial Services Inc., the defendant, is a Delaware Corporation with a principal place of business in California (hereinafter, "AVCO Delaware"). AVCO Delaware is authorized to do business in Puerto Rico and in fact operates several branch offices in Puerto Rico. AVCO Delaware is also the ultimate parent corporation for the other four AVCO corporations operating in Puerto Rico. The other foreign corporation, (a subsidiary of AVCO Delaware), is AVCO Financial Services of Puerto Rico, Inc. (also a Delaware corporation). AVCO Delaware's three wholly-owned subsidiaries operating in Puerto Rico are three Puerto Rico corporations, AVCO Financial Services of San Juan ("AVCO San Juan"), AVCO Financial Services of San Sebastián, Inc. ("AVCO San Sebastián"), and AVCO Financial Services of Santurce, Inc. ("AVCO Santurce"). All five corporations operating in Puerto Rico are controlled by a central office located in San Juan. Employment decisions are made by persons employed in the San Juan central office, in conjunction with and with the consultation of the AVCO Caribbean and Gulf regional office in Florida. (Although it is not stated, it appears clear from context that the Florida office is a unit of the defendant, and actions taken by the Florida office are directly attributable to AVCO Delaware). AVCO Delaware pays the salaries of the employees at its subsidiary corporations directly.

Until November of 1985, plaintiff Oscar Armando Sastre Gay was employed at Metro Finance Co., a small financial services corporation operating in Puerto Rico. In November of 1985, all of Metro's stock was sold to AVCO Delaware. Plaintiffs claim that AVCO Delaware became the formal successor to Metro, and therefore became plaintiff's formal employer after the sale. D...