Jackson v. Alcan Sheet & Plate

• Decision Date: 06 October 1978
• Docket Number: No. 78-CV-122.,78-CV-122.
• Citation: 462 F. Supp. 82
• Parties: Thomas A. JACKSON, Plaintiff, v. ALCAN SHEET & PLATE, Division of Alcan Aluminum Corporation, Defendant.
• Court: U.S. District Court — Northern District of New York

462 F. Supp. 82

Thomas A. JACKSON, Plaintiff, v. ALCAN SHEET & PLATE, Division of Alcan Aluminum Corporation, Defendant.

No. 78-CV-122.

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

October 6, 1978.

COPYRIGHT MATERIAL OMITTED

Shanley & Sullivan, Oswego, N. Y., for plaintiff; John T. Sullivan, Jr., Oswego, N. Y., of counsel.

Bond, Schoeneck & King, Syracuse, N. Y., for defendant; Paul M. Sansoucy, Syracuse, N. Y., of counsel.

MEMORANDUM-DECISION AND ORDER

MUNSON, District Judge.

This action was brought pursuant to Section 7(b) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(b) (hereinafter "ADEA"), by a former employee of defendant Alcan Sheet & Plate Division of Alcan Aluminum Company. Plaintiff's action was also founded on the Civil Rights Act of 1871, 42 U.S.C. § 1983.

The case is now before the Court on defendant's motion for summary judgment or dismissal under Fed.R.Civ.P. 12(b) insofar as the action is based on 42 U.S.C. § 1983, and for summary judgment or dismissal for lack of subject matter jurisdiction with respect to the ADEA action.

Plaintiff Thomas A. Jackson was notified on February 13, 1975, by his employer, Alcan Sheet & Plate ("Alcan"), to the effect that his job as a salaried scheduler was to be terminated. Plaintiff, at age 57, was the oldest of the four salaried schedulers, three of whom were retained in that position. When the notice of termination was given, plaintiff was also informed that he had the option of exercising his seniority rights to be eligible to return to an hourly production job. Plaintiff ceased performing services for Alcan on February 21, 1975. On February 28, 1975, he advised Alcan that he did not wish to exercise the proffered option to accept a lesser position; at this time, in the words of Alcan's personnel manager, plaintiff's termination became "final and irrevocable."

Plaintiff contacted Alcan's corporate offices in Cleveland, Ohio, seeking review of the company's action, and on March 11th received a reply, asking that he allow time for the company to investigate. On March 31, plaintiff was informed of the company's determination that plaintiff had been laid off in the course of a general reduction in force, in a manner procedurally consistent with others similarly situated. The March 31 letter also emphasized that the company had made every effort to allow plaintiff to assert his seniority rights in securing an alternate position.

Plaintiff filed a timely complaint with the New York State Division of Human Rights, alleging unlawful discrimination because of age. This complaint was dismissed on October 15, 1975, after investigation and attempts at mediation. On October 24, 1975, plaintiff filed a notice of appeal with the State Human Rights Appeal Board, and on December 24, 1975, filed a notice of intent to sue with the Secretary of Labor, as required by 29 U.S.C. § 626(d) as a prerequisite to commencing a civil action under the ADEA.

As a result of serious personnel shortages and a large backlog of cases, plaintiff's appeal to the State Human Rights Appeal Board was not heard until January of 1977. A decision was finally returned on August 30, 1977, affirming the dismissal originally rendered nearly two years earlier.

Plaintiff chose at this point not to seek judicial review of this decision through a proceeding in the Appellate Division as provided under Human Rights Law § 298, N.Y. Executive Law (McKinney's) but sought rather to pursue the available federal remedies. A Complaint was filed in Federal Court on March 16, 1978.

Defendant Alcan asserts in the motion here under consideration that the applicable statutes of limitation have expired with respect to plaintiff's action under both 29 U.S.C. § 626 and 42 U.S.C. § 1983. Section 7 of the ADEA, 29 U.S.C. § 626(e), incorporates the statute of limitations section (§ 6) of the Portal-to-Portal Pay Act of 1947, 29 U.S.C. § 255, which provides in relevant part:

Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act—

(a) if the cause of action accrues on or after May 14, 1947—may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued; ...

Thus, the ADEA allows, at most, three years to pass after the cause of action accrues, and then only if plaintiff can successfully plead a willful violation.

Since plaintiff ceased working for Alcan more than three years before the filing of his Complaint, but maintained contacts with his former employer for approximately seven months from the date of termination so as to potentially make his action timely, the determination of the event which triggered the accrual of plaintiff's cause of action is of primary importance.

Plaintiff asserts that the continuance of a financial relationship with Alcan, involving the accrual of pension benefits and the withholding of money for bond purchases through September, 1975, constitutes a sufficient on-going employment relationship so that there was no actual termination until these benefits incident to employment had ceased. Alternatively, plaintiff suggests that the March 31, 1975 letter from Alcan's headquarters refusing to remedy the termination procedure marked the point at which the termination became final according to plaintiff's reasonable expectation. Thus the fact that the company's initial reply on March 11 asked plaintiff to "allow necessary time to explore the matter" should estop the company from asserting that the employment relationship had terminated prior to March 31.

It has become well established since the Supreme Court's decision in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), that a cause of action accrues when plaintiff knows or has reason to know of the injury which is the basis for the action.

Cases decided under the ADEA have been consistent in holding that the cause of action accrues on the date when the employer violates the employee's rights by discharging him on the basis of age. The date of discharge is generally determined to be the date upon which the employee ceases to perform services for the employer. Davis v. R.J.R. Foods, Inc., 420 F.Supp. 930, 931 n.1 (S.D.N.Y.1976), aff'd w/o op., 556 F.2d 555 (2d Cir. 1977); Bonham v. Dresser Industries, Inc., 424 F.Supp. 891, 895-96 (W.D. Pa.1976); Monroe v. Penn-Dixie Cement Corp., 335 F.Supp. 231, 233-34 (N.D.Ga. 1971). For example, in a case where the employee was unlawfully discharged on January 4, but was fraudulently induced by his employer on October 7 to accept early retirement and forego his ADEA rights on the employer's representation that he would be hired as a consultant, the cause of action was held, nevertheless, to have accrued on January 4. Ott v. Midland-Ross Corp., 523 F.2d 1367, 1369 (6th Cir. 1975).

Plaintiff in the present case received notice of his impending termination on February 13, 1975, and ceased performing services for Alcan on February 21. It is undisputed that February 21 was the last day plaintiff worked for Alcan, and, absent other factors warranting calculation from a later date, the Court must conclude that the statute of limitations began to run from February 21, 1975.

There is some authority for the proposition that, where the employer shows clear intent to dispense with the services of an employee, timeliness of a suit under the ADEA is measured from the date after which services are no longer accepted. Payne v. Crane, 560 F.2d 198 (5th Cir. 1977). By this reasoning, plaintiff's discharge could be determined to have occurred on February 28, 1975, when he finally refused his option for an alternate position, and from which date Alcan was no longer willing to accept plaintiff's services. The Court, however, hesitates to find that the actual discharge occurred at this time, since to do so would have the potential effect of discouraging employers from granting an extension of time during which terminated employees may come to a reasoned decision as to available options.

Similarly, the fact that plaintiff continued to receive benefits until September, 1975, cannot be said to prolong the actual period of employment so as to affect the accrual of plaintiff's cause of action. The "unlawful practice" under the ADEA occurs on the date of actual discharge of the employee even though he may receive severance payments thereafter. Doski v. M. Goldseker Co., 539 F.2d 1326, 1328 n.3 (4th Cir. 1976); Bonham v. Dresser Industries, supra. A logical extension of plaintiff's reasoning would equate the receipt of pension benefits by a retired employee with continued employment. Davis v. R.J.R. Foods, Inc., supra. To allow the cause of action to accrue from the termination of benefits incident to employment would have the undesirable effect of discouraging employers from granting such benefits to terminated employees.

With regard to plaintiff's assertion that his final termination did not occur until his receipt of the March 31, 1975 letter from Alcan's headquarters, it is the Court's determination that this letter was merely a refusal to remedy the prior allegedly discriminatory practice. As such, it is not relevant to the accrual of plaintiff's cause of action. If the period of limitations ran from the date on which the employer refused to remedy a prior unlawful practice under the Act, the period of limitations could be extended indefinitely at the option of the person allegedly discriminated against. Ott v. Midland-Ross Corp., 523 F.2d at 1369.

The cessation of plaintiff's work for Alcan, on February 21, 1975, constituted...