Jones v. Baskin, Flaherty, Elliot and Mannino

• Decision Date: 11 April 1989
• Docket Number: Civ. A. No. 86-2533.
• Parties: John J.B. JONES, an individual, Plaintiff, v. BASKIN, FLAHERTY, ELLIOT AND MANNINO, P.C.; Philip Baskin, an individual; Raymond N. Baum, an individual; James B. Brown, an individual; Victor R. Delle Donne, an individual; Robert E. Fiorito, an individual; James J. Flaherty, an individual; Linda L. Goldston, an individual; Kenneth E. Lewis, an individual; R. Darryl Ponton, an individual; and Charles E. Wittlin, an individual, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

738 F. Supp. 937

John J.B. JONES, an individual, Plaintiff, v. BASKIN, FLAHERTY, ELLIOT AND MANNINO, P.C.; Philip Baskin, an individual; Raymond N. Baum, an individual; James B. Brown, an individual; Victor R. Delle Donne, an individual; Robert E. Fiorito, an individual; James J. Flaherty, an individual; Linda L. Goldston, an individual; Kenneth E. Lewis, an individual; R. Darryl Ponton, an individual; and Charles E. Wittlin, an individual, Defendants.

Civ. A. No. 86-2533.

United States District Court, W.D. Pennsylvania.

April 11, 1989.

John J.B. Jones, Pittsburgh, Pa., for plaintiff.

Carl H. Hellerstedt, Jr., Pittsburgh, Pa., for defendants.

MEMORANDUM OPINION

MENCER, District Judge.

This pro se action by the plaintiff, John J.B. Jones, alleges that his dismissal as an attorney from the law firm of Baskin Flaherty Elliot and Mannino, P.C. (BFEM) on March 31, 1985 violated the Age Discrimination in Employment Act (ADEA) and the Employee Retirement Income Security Act of 1974 (ERISA). The defendants have filed a motion for summary judgment with respect to the ADEA count, the ADEA conspiracy count, and the ERISA count. The defendants' motion is presently before this court.

Legal Analysis

This court has already summarized the facts of this case in its opinion issued in September, 1987, 670 F.Supp. 597, and we will not repeat that summary here. We will begin our analysis by considering the defendants' claim that Jones's ADEA claim is time barred.

ADEA Count

In Count I, Jones asserts a cause of action under the ADEA. The defendants claim that Jones failed to satisfy the procedural prerequisite of the ADEA that the plaintiff file administrative charges within the prescribed time limits.

Section 626(d) of Title 29 sets the time limits for filing an ADEA action in federal court:

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 Equal Employment Opportunity Commission. Such charge shall be filed—

(1) within 180 days after the alleged unlawful practice occurred; or,

(2) in a case to which section 633(b) of this title 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.

29 U.S.C. § 626(d). Section 633(b) provides that:

In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under State law, unless such proceedings have been earlier terminated.

29 U.S.C. § 633(b).

Thus, the U.S.C. establishes two different limitation periods depending upon whether the state has anti-discriminatory laws that apply to the claimant. In the absence of a state law addressing discrimination, the plaintiff has 180 days to file his charge with the EEOC. 29 U.S.C. § 626(d)(1). If the state does have anti-discriminatory laws, then the plaintiff has an obligation to pursue his remedies under that law, and obtains additional time to file his charges. 29 U.S.C. § 626(d)(2); Oscar Meyer & Co. v. Evans, 441 U.S. 750, 753, 99 S.Ct. 2066, 2070, 60 L.Ed.2d 609 (1979). In such a state, the plaintiff must file both the EEOC charge and the state charge within 300 days in order to preserve his federal cause of action, regardless of any state statute of limitations. Equal Employment Opportunity Comm'n v. Commercial Office Products Co., 486 U.S. 107, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988). Oscar Meyer & Co. v. Evans, 441 U.S. 750, 753, 99 S.Ct. 2066, 2070, 60 L.Ed.2d 609 (1979).

Pennsylvania has an authority whose function includes "prohibiting discrimination in employment because of age," namely the Pennsylvania Human Relations Commission (PHRC). Thus, § 633 applies to this case, and Jones must have filed an action before both the PHRC and the EEOC within 300 days of the alleged discriminatory acts in order to bring this action in federal court. Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 751 (3d Cir.), cert. denied, 464 U.S. 852, 104 S.Ct. 164, 78 L.Ed.2d 150 (1983). Oscar Meyer & Co. v. Evans, 441 U.S. 750, 753, 99 S.Ct. 2066, 2070, 60 L.Ed.2d 609 (1979).

Jones argues that his Complaint was timely for several reasons. First, he argues that the December 4, 1984 notice to him of his discharge was procedurally defective. He asserts that the executive committee that made the decision to discharge him was not authorized by the corporate minutes, and thus was "merely ad hoc and had no official corporate status." Therefore, he argues, its acts did not constitute official notice. Similarly, he argues that the Shareholder and Employment Agreement requires sixty days written notice and ratification by eighty percent of the board of directors before termination. Jones asserts that he did not receive written notice and that the board never voted on his termination, and implies that these procedural defects render the notice ineffective.

This court finds Jones's arguments about the technical deficiencies of his notice unavailing. On December 4, 1984, Jones received unequivocal notice that his employment was to terminate on March 31, 1985. The fact that he subsequently discovered procedural defects in that notice does not accord him the right to claim that he was not aware that he was being discriminated against. Jones did not cite any cases supporting the proposition that such technical defects in the notice would toll the statute of limitations, and this court did not discover any authority for that proposition in its research. Therefore, we find that the statutory periods began to run on December 4, 1984.

Second, Jones argues that his complaint was timely even if the court uses December 4 as the date of notice. The essence of Jones's argument is that the EEOC and the PHRC were parties to a worksharing agreement under which each organization designated the other as an authorized agent for the purposes of receiving charges. Furthermore, under the contract, the EEOC agreed to refer all age complaints to the PHRC on a weekly basis.

Jones filed his charges with the EEOC 280 days after the December 4 notice. Therefore, he argues, the court should presume that the EEOC forwarded the charges to the PHRC within one week. The charges would thus have been before the PHRC by the 287th day, and his complaint is timely. Even if the EEOC did not forward the charges, Jones argues, he should not be penalized by the EEOC's failure to follow its regulations.

We agree that, under some circumstances, it would be unjust to preclude Jones's claim based on the omission of the EEOC. For example, in Seredinski v. Clifton Precision Products Co., 776 F.2d 56 (3d Cir. 1985), the plaintiff filed a charge with the EEOC 280 days after the alleged discrimination. It was unclear from the record whether the EEOC referred the charges to the PHRC, but the court assumed that it had because, "we have previously made it clear that the failure of EEOC to follow its regulations and refer charges to an appropriate state agency for filing will not deprive complainants of their right to proceed before the EEOC." Id. at 61, n. 7. See also Gabrielle v. Barrett, Haentjens & Co., 663 F.Supp. 1187, 1191-92 (M.D.Pa. 1986) (protecting the plaintiff from the EEOC's inaction because he was pro se).

The mere fact that Jones filed with the EEOC within the 300 day limitation, however, is not sufficient to preserve his right to sue in federal court. In Jackson v. Savin Corp., 43 F.E.P. Cases 1575, 1987 WL 17007 (D.N.J.1987), the plaintiff filed a charge with the EEOC 297 days after the alleged discriminatory act. The EEOC forwarded a letter to the PHRC on day 309. The court expressed uncertainty about whether the letter constituted an actual filing with the PHRC, but held that even if it were a filing, it was untimely. Id. at 1577. The court held that Congress's intent to limit federal jurisdiction over discrimination claims would be undermined if the courts did not adhere to the 300 day limitation strictly. Id. The court did not address the EEOC's responsibility or lack thereof for referring the charges to the PHRC.

Several courts have addressed the effects of allegedly misleading or false information provided by an EEOC representative. In Schier v. Temple University, 576 F.Supp. 1569 (E.D.Pa.), aff'd and remanded, 742 F.2d 94 (3d Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985), the court considered an argument by the plaintiff that she filed her charge with the EEOC late because they had told her on the phone that she had 300 days when, in fact, she did not. The court refused to apply the equitable tolling doctrines because, as a former employee of an employment office, she had "more than average knowledge about the operating of anti-discrimination laws." Id. at 1572. Furthermore, she had retained counsel before she filed her EEOC charge. Id. See also Hamel v. Prudential Ins. Co., 640 F.Supp. 103, 105 (D.Mass.1986) (equitable tolling not available where EEOC failed to process intake questionnaire in a timely fashion because the plaintiff was represented by counsel); Keyse v. California Texas Oil Corp., 590 F.2d 45 (2d Cir.1978) (allegations of misinformation from an EEOC employee and from the plaintiff's attorney do not excuse failure to file timely charges with the EEOC when plaintiff was represented by counsel).

Conversely, in Giles v. Carlin, 641 F.Supp. 629 (E.D.Mich.1986), the plaintiff alleged that an EEOC counselor advised him to wait until his pending grievance was decided before filing charges with the EEOC. The court held that reliance by an unrepresented layperson on the advice of an...