Moon v. Aeronca, Inc.

• Decision Date: 23 June 1982
• Docket Number: No. C-3-81-329.,C-3-81-329.
• Parties: Albert A. MOON, Plaintiff, v. AERONCA, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

541 F. Supp. 747

Albert A. MOON, Plaintiff, v. AERONCA, INC., et al., Defendants.

No. C-3-81-329.

United States District Court, S. D. Ohio, W. D.

June 23, 1982.

Roger B. Turrell, Dayton, Ohio, for plaintiff.

Lawrence J. Barty, Cincinnati, Ohio, for defendant Aeronca, Inc.

Ray E. Schmidt, Dayton, Ohio, for defendant Local Union 2535.

DECISION AND ENTRY ON PENDING MOTIONS; PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OVERRULED; DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT SUSTAINED; TERMINATION ENTRY

RICE, District Judge.

Plaintiff Albert A. Moon has brought this suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and seeks declaratory, injunctive, and monetary relief from the Defendants, Aeronca, Inc. (Aeronca), and Local Lodge 2535 of the International Association of Machinists and Aerospace Workers (the "union"). Three motions are currently pending before this Court, to wit:

1) Plaintiff's motion for summary judgment (doc. # 13);

2) the Union's motion for summary judgment (doc. # 15); and

3) Aeronca's motion for summary judgment (doc. # 16).

Based on the arguments advanced by counsel in written memoranda, and upon an examination of the materials submitted both in support of and in opposition to the above motions, the Court overrules Plaintiff's motion for summary judgment, and sustains the motions for summary judgment filed by the Defendants.

I. PROCEDURAL BACKGROUND

Most, though not all of the facts in this case are undisputed, and can be gleaned through a review of pleadings, memoranda, and other material in the record.

Defendant Aeronca owns a manufacturing plant in Middletown, Ohio. The Union represented, at all times relevant to this case, the production and maintenance employees at the plant, pursuant to a collective bargaining agreement which ran from July 19, 1976, to July 18, 1979. (doc. # 15, ex. 4). Said agreement provided, inter alia, for a system of seniority for the employees, id., Art. 12, that employees "shall cease to have seniority of any kind" upon reaching age sixty-five (65), id., Art. 13.1(B), and that persons removed from the seniority list "shall be deemed to have quit ...." Art. 13.2.

Plaintiff, born on August 10, 1911 (amended complaint, ¶ 3), sought employment at Aeronca early in 1978. He was interviewed by Elane Berumen who, at the time, was an employment supervisor at Aeronca. Ms. Berumen told him that he could not be hired, since he was over the age of 65 (Plaintiff being 66 at the time). Deposition of Elane Berumen, doc. # 14, pp. 7-9. However, Ms. Berumen heard shortly thereafter that the mandatory retirement age had been raised,¹ and after conferring with her superior, Frank Sciutto, she arranged to have Plaintiff hired, on May 15, 1978. Id.

Although there is no dispute that Plaintiff performed his work as a welder in a satisfactory manner, he was nevertheless terminated by Aeronca on June 16, 1978. Lewis Slatton, president of the Union, spoke to Mr. Sciutto, telling him that if Aeronca were going to hire workers over the age of 65, like Mr. Moon, the Union would not acquiesce in Aeronca retiring current employees when they reached that age. Deposition of Lewis Slatton, doc. # 15, ex. 3, pp. 9-13. Plaintiff was terminated shortly after this conversation. The parties dispute whether the termination was a result of Aeronca "caving in" to Union "pressure", and to what extent (if any) the terms of the collective bargaining agreement were a factor in the decision.

Plaintiff thereafter, from 1978 through September of 1980, continued to seek employment at Aeronca. He claims to have called the Aeronca employment office a number of times during that period but, save for the first call, did not identify himself nor mention his age. Deposition of Albert Moon, doc. # 15, ex. 2, pp. 24-29. Plaintiff also claims to have called the local offices of the Equal Employment Opportunity Commission (EEOC) and the Ohio Civil Rights Commission (OCRC) in the summer of 1978, to complain of age discrimination, but said he was given the "run-around". Id., pp. 40-41. Plaintiff filed a charge of discrimination with the EEOC on March 19, 1981 (amended complaint, ¶ 7), and filed his ADEA suit in this Court on June 18, 1981.

The original complaint properly invoked the jurisdiction of this Court, pursuant to 29 U.S.C. § 626(c), and alleged that Plaintiff was discharged, and not again hired by Aeronca, because the collective bargaining agreement prohibited employment after age 65. The amended complaint, filed by leave of this Court, made virtually identical allegations, but simply stated that Plaintiff was discharged, and not re-employed, due to his age, and made no mention of the collective bargaining agreement.

II. DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT ARE SUSTAINED

Under Fed.R.Civ.P. 56, Defendants' motions for summary judgment can only be sustained when the movant conclusively demonstrates, based on the pleadings, affidavits, and other material on record, that there exist no genuine issues of material fact, all evidence and inferences drawn therefrom having been construed in the light most favorable to the party opposing the motion. Fed.R.Civ.P. 56(c); Atlas Concrete Pipe, Inc. v. Au & Son, Inc., 668 F.2d 905, 908 (6th Cir. 1982); Heheman v. E.W. Scripps Co., 661 F.2d 1115, 1127 (6th Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 2272, 73 L.Ed.2d 1286 (1982). With these standards in mind, the Court now considers the reasons advanced in support of the motions for summary judgment filed by the Defendants. Since the reasons advanced by each Defendant are virtually identical, said motions will, for convenience, be considered together.

A. TIMELINESS OF FILING DISCRIMINATION CHARGE WITH THE EEOC

The ADEA prohibits any employer from refusing to hire, or discharging, any individual because of his age. 29 U.S.C. § 623(a). Age discrimination by a labor organization, such as the Union herein, is also prohibited. § 623(c). On April 6, 1978 (before most of the actions relevant to this case), the prohibitions in the ADEA became "limited to individuals who are at least 40 years of age but less than 70 years of age." § 631(a).

Plaintiffs under the ADEA must follow certain time constraints, as follows:

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, or

(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

29 U.S.C. § 626(d).

Plaintiff herein concedes that he did not file a charge with the EEOC² until March 21, 1981. He also concedes that the EEOC filing was untimely, whether measured by the 180-day or the 300-day period set forth in § 626(d),³ for the allegedly discriminatory discharge and refusal to rehire in 1978. At best, Plaintiff's EEOC filing was only timely for some or all of the calls he allegedly made to Aeronca in 1980.

Plaintiff also points out, however, that the Sixth Circuit has held that the filing requirements in § 626(d) of the ADEA are subject to equitable tolling. Wright v. State of Tennessee, 628 F.2d 949 (6th Cir. 1980) (en banc). Equitable factors are present in the case herein, Plaintiff contends, so as to excuse the failure to timely file with the EEOC (with respect to the events in 1978 and 1979).

This Court agrees that consideration of equitable factors is appropriate herein. However, Plaintiff's request that this Court toll the requirements of the ADEA, for said reasons, is not well taken. In Wright, the Court suggested that a review of the factors taken into account in Abbott v. Moore Business Forms, Inc., 439 F.Supp. 643 (D.N. H.1977), would be appropriate. 628 F.2d at 953. The Abbott Court found that five factors were applicable:

1. lack of actual notice of the filing requirements;

2. lack of constructive knowledge;

3. diligence in pursuing one's rights;

4. absence of prejudice to the defendant; and

5. plaintiff's reasonableness in remaining ignorant of the notice requirement.

439 F.Supp. at 646.

Applying these factors to the instant case reveals that equitable tolling is not appropriate. With regard to the first factor, Plaintiff admitted in his deposition, with laudable candor, that he was aware of the ADEA and the timely procedural requirements of the same. Deposition at pp. 20, 42-43. He also admits that he saw the ADEA poster, required to be displayed on an employer's premises by statute, 29 U.S.C. § 627, and regulation, 29 C.F.R. § 1627.10 (1981), which describes in detail employment practices prohibited by the ADEA, and the necessity for promptly filing written charges with the relevant enforcement agency.⁴ Thus, Plaintiff did have notice of the ADEA requirements, and the second and fifth factors, concerning constructive notice and ignorance of notice, need not be addressed.

Nor do the facts indicate that Plaintiff pursued his rights with diligence. As previously noted, Plaintiff admits that he made only a few phone calls to Aeronca over nearly a three-year period (before filing with the EEOC, and filing suit in this Court). Deposition at pp. 24-29. Plaintiff also alleges that he called the local EEOC and OCRC offices, but got the "run-around" from them. The personnel at those offices, he says, never wrote or called him back, as they said they would. Id. at 40-41. However, merely speaking (or attempting to speak) with officials at those offices does not constitute notice of a desire to file suit, or justify tolling of time periods under the ADEA. Woodard v. Western Union Telegraph Co., 650 F.2d 592 (5th Cir. 1981); Hays v. Republic Steel Corp., 531 F.2d 1307, 1312 (5th Cir....