Lopez v. Bulova Watch Co., Inc., Civ. A. No. 83-0585S.

Citation582 F. Supp. 755
Decision Date19 March 1984
Docket NumberCiv. A. No. 83-0585S.
PartiesJean LOPEZ, Arleen Deery, Alice Platt, Eleanor Kilbane, Agnes Waitonis, Ruth Lambert, Theresa Lopes, Jeannette Gallant, Jessie Skinner, Lucille Cecere, Lester Murray, Sal Terracciano, Harold Soderland, and Joe Zompa, Plaintiffs, v. BULOVA WATCH COMPANY, INC. d/b/a American Watch Case Co., a New York Corporation, Defendant.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island

COPYRIGHT MATERIAL OMITTED

Lovett, Morgera, Schefrin & Gallogly, Ltd., Marc B. Gursky, Aram R. Schefrin, Catherine A. Gibran, Providence, R.I., for plaintiffs.

Jackson, Lewis, Schnitzler & Krupman, Gregory I. Rasin, Diane K. Rembleske, New York City, Levy, Goodman, Semonoff & Gorin, Richard J. Israel, Barbara I. Cohen, Providence, R.I., for defendants.

Richard K. Willard, Asst. Atty. Gen., Carolyn Kuhl, Deputy Asst. Atty. Gen., Douglas Letter, Stephen Hart, Dept. of Justice, David L. Slate, Gen. Counsel, Philip B. Sklover, Assoc. Gen. Counsel, Vincent Blackwood, Asst. Gen. Counsel, Jeffrey C. Bannon, Staff Atty., E.E.O.C., Washington, D.C., Lincoln C. Almond, U.S. Atty., Everett C. Sammartino, Asst. U.S. Atty., Providence, R.I., for E.E.O.C. and U.S., amici curiae.

OPINION AND ORDER

SELYA, District Judge.

I. The Battleground

Advancing both federal and state grounds, the plaintiffs, former employees of the defendant Bulova Watch Company, Inc. (Bulova), have filed an action which challenges the termination of their employment status. Their complaint contains four statements of claim. The federal law count alleges a violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (ADEA). The remainder, all brought as pendent state law claims, include a cause of action in fraud, one for breach of an express or implied employment agreement, and a third for breach of an implied covenant of good faith and fair dealing.1 While the complaint is not a model of clarity, all of the plaintiffs' remonstrances apparently arise out of a now-defunct employment relationship between them and Bulova; and more specifically, out of Bulova's unilateral decision abruptly to sever that bond.

The litigation is presently before the court on Bulova's motion to dismiss.2 The court has received both preliminary and post-argument briefs from the parties; and, having transmitted notice to the United States Attorney for this district of the defendant's challenge to an act of Congress, see Local Rule 27,3 the court has had the benefit of a joint memorandum, focusing solely on the ADEA claim, filed by the Equal Employment Opportunity Commission (EEOC) and the United States as amici curiae.

The gauntlet which Bulova throws down in response to the plaintiffs' age discrimination count proclaims, in essence, that this claim should be dismissed for want of subject matter jurisdiction because the plaintiffs failed to comply with certain statutory prerequisites prior to the commencement of suit. But, this distillation of Bulova's position belies its sophisticated logodaedalus. Some explication is required.

When enacted, the ADEA vested enforcement authority in the Secretary of Labor and provided, in relevant part, 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 ... within one hundred and eighty days after the alleged unlawful practice occurred....

Pub.L. No. 90-202, § 7(d), 81 Stat. 602, 605 (1967) (current version codified at 29 U.S.C. § 626(d)). In 1978, this section was amended to reflect, inter alia, the transfer of enforcement authority from the Secretary of Labor to the EEOC:

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 Commission. Such a charge shall be filed ... within 180 days after the alleged unlawful practice occurred....

Pub.L. No. 95-256, § 4(b)(1), 92 Stat. 189, 190 (1978) (codified at 29 U.S.C. § 626(d)). The amended version was in force at all times relevant to the origin and assertion of the plaintiffs' discrimination charge against Bulova. And, there is no dispute but that the plaintiffs complied in a timely fashion with these amended filing requirements.

The sticking point, however, as Bulova views it, is that the transfer of authority from the Secretary of Labor to the EEOC was invalid. That transmogrification was effected by President Carter through Reorganization Plan No. 1 of 1978 (Plan), 43 Fed.Reg. 19807, 92 Stat. 3781, reprinted in 1978 U.S.Code Cong. & Ad.News 9799, as part of a full-court press to consolidate federal equal employment initiatives in a single agency. The Plan was promulgated pursuant to authority seemingly granted to the President by Congress in the Reorganization Act of 1977,4 Pub.L. No. 95-17, 91 Stat. 29 (codified at 5 U.S.C. §§ 901 et seq.) (Reorganization Act). The Reorganization Act contains a "one-House legislative veto" provision, which allows any presidential reorganization plan to become effective within sixty days unless either the House or the Senate passes a resolution condemning it.5 Because of this veto provision, Bulova argues, the Act is unconstitutional under the recent United States Supreme Court decision in Immigration and Naturalization Service v. Chadha, ___ U.S. ___, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); ergo, the supposed transfer of authority was invalid. Thus, according to the defendant's logic, the plaintiffs were required, as a prerequisite to suit, to file notice with the Secretary of Labor (as opposed to the EEOC). They did not do so. Consequently, Bulova concludes, the court lacks subject matter jurisdiction, and the plaintiffs' ADEA claim must be dismissed.

In contrast to the rococo structure of their ADEA thesis, Bulova's arguments in support of dismissal of the state claims are comparatively mundane. Bulova first avers that inasmuch as the federal claim must be dismissed, the court should cut loose the pendent state claims as well. It also contends that the plaintiffs have failed to plead fraud with the requisite specificity. Third, Bulova asserts that the state claims should be struck down in their entirety because, albeit stated as three separate causes of action, this trio of hortations represents, at bottom, a single effort to seek redress for the termination of an employment-at-will relationship, a cause of action which Rhode Island law has not recognized. And finally, Bulova maintains that the state claims should be dismissed for want of a fiduciary relationship between an employer and its employees.

II. The ADEA Claim

While novel to this circuit, the precise issue raised by Bulova as to the plaintiffs' age discrimination claim has, in the roiling wake of Chadha, recently been addressed —with varying results—by district courts in other circuits. See, e.g., EEOC v. Westinghouse Electric Corp., No. 83-1209, (W.D.Pa. Jan. 5, 1984) (order granting defendant's motion to dismiss); EEOC v. City of Memphis, 581 F.Supp. 179 (W.D.Tenn.1983) (order denying defendant's motion to dismiss); EEOC v. Jackson County, No. 83-1118 (W.D.Mo. Dec. 13, 1983) (order denying defendant's motion to dismiss); Muller Optical Co. v. EEOC, 574 F.Supp. 946 (W.D.Tenn.1983) (order denying plaintiffs' motion for preliminary injunction); EEOC v. Allstate Insurance Co., 570 F.Supp. 1224 (S.D.Miss.1983) (defendant's motion for summary judgment granted). And, a solitary court of appeals has lately spoken to the subject. See EEOC v. Hernando Bank, 724 F.2d 1188 (5th Cir.1984) (summary judgment in favor of defendant vacated). One point of general agreement which emerges from the spate of neoteric caselaw and from the inevitable post-Chadha commentary6 is that the Court has, at the very least, cast grave doubt over any and all legislation containing a one-House veto provision.7 Indeed, though the sweep of Chadha may be narrowed in the future, its apparent scope is extremely broad.8

The underlying litigation in Chadha involved a challenge to the one-House veto provision of the Immigration and Nationality Act (INA).9 Acting under that section, the House of Representatives had vetoed an executive branch decision to suspend deportation hearings against Jagdish Rai Chadha, an alien whose visa had expired.10 Before reaching the constitutionality of the veto provision, the Court determined that the provision was susceptible to amputation from the remainder of the INA; and therefore, that only the disputed section would be impacted by a ruling of unconstitutionality. The Court explained that "the invalid portions of a statute are to be severed `"unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not."'" Chadha, 103 S.Ct. at 2774, quoting Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976), quoting Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062 (1932). The presence of a severability clause in the INA raised the presumption that Congress did not intend the act as a whole to fall in the event that any part was held invalid. Chadha, 103 S.Ct. at 2774. The veto provision was further presumed severable because the INA, in the absence of the offending section, was "`fully operative as a law.'" Id. at 2775, quoting Champlin Refining, 286 U.S. at 234, 52 S.Ct. at 564. The Court determined that, insofar as the legislative history of the INA seemed to conduce to a contrary result, it was insufficient to rebut the presumption of severability.

Using fairly expansive language, the Court went on to hold that the one-House veto was unconstitutional under the bicameralism clauses, U.S. Const., art. I, § 1, and § 7, cl. 2, and under the presentment clauses, id. at § 7, cls. 2, 3. The Court characterized these clauses as "integral...

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