Mull v. Arco Durethene Plastics, Inc.

• Decision Date: 28 November 1984
• Docket Number: No. 80 C 3074.,80 C 3074.
• Parties: E. Kingsley MULL, Plaintiff, v. ARCO DURETHENE PLASTICS, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

599 F. Supp. 158

E. Kingsley MULL, Plaintiff, v. ARCO DURETHENE PLASTICS, INC., Defendant.

No. 80 C 3074.

United States District Court, N.D. Illinois, E.D.

November 28, 1984.

Roger L. Price, Philip C. Stahl, Michael A. Kahn, Reuben & Proctor, Chicago, Ill., for plaintiff.

Ronald Wilder, Marci Eistenstein, Patricia Dondanville, Schiff, Hardin & Waite, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

On January 16, 1980, plaintiff E. Kingsley Mull instituted the present action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626, alleging that ARCO Polymers, defendant's statutory predecessor, had demoted and forced him into early retirement on account of his age. As discovery progressed, ARCO learned that Mull had been involved in multi-million real estate ventures which had interfered with his performance while working for ARCO. Defendant also learned that Mull had carried on an extensive consulting business on the side with several of ARCO's subcontractors from which he received over $300,000 in payments. ARCO's discovery of these matters led not only to counterclaims against Mull and the subcontractors, but also to Mull's filing for personal bankruptcy and a federal indictment to which Mull pled nolo contendere and accepted three years probation. The matter is now before the court on the motion of the defendant for summary judgment. For the reasons stated below, the motion is granted.

I

This summary judgment motion, consistent with the litigation that spawned it, has a protracted history. On July 7, 1981, ARCO filed a motion for partial summary judgment on the ground that plaintiff's claims relating to his demotion were time-barred for failure to file with the EEOC within 180 days of learning about his demotion. See 29 U.S.C. § 626(d). For discovery-related reasons, the motion did not become fully briefed until August 23, 1982, at which time ARCO filed for full summary judgment in light of new deposition testimony indicating that Mull knew of his impending termination more than 180 days before the date of his EEOC filing.

Because of the plaintiff's subsequent bankruptcy filing, a briefing schedule was not set on the motion until December, and the original briefing schedule went unobserved. On September 21, 1983, the trustee in bankruptcy informed the court of his intent to prosecute the case, and a new briefing schedule was established a short while thereafter. Again, however, plaintiff failed to adhere to the schedule, and the court on April 10, 1984 ordered the trustee to respond by June 11, 1984. The trustee filed his response on June 22, 1984, and the matter finally became fully briefed on July 20, 1984.

II

In contrast to the proceedings which it occasioned, the facts underlying ARCO's summary judgment motion are relatively straightforward. On April 19, 1979, plaintiff was informed by Robert Kauffman, his supervisor, that he was to be removed from his position as Business Manager of ARCO's Chicago Plant, effective May 14, 1979. Kauffman at that time presented Mull with two options: either accept a coordinator's job in Philadelphia or take early retirement. On April 24, 1979, William K. Allshouse, Manager of Headquarters Employee Relations, sent plaintiff a letter enclosing retirement figures calculated on the basis of a June 1, 1979 retirement date.

On April 27, 1979, plaintiff wrote a memorandum to Kauffman requesting reconsideration of the latter's decision. Kauffman never responded in writing. However, on May 2, Kauffman and Allshouse met with plaintiff. At this meeting, Mull explored with Kauffman and Allshouse the possibility of remaining in Chicago to perform the coordinator's job. Kauffman, however, insisted that the job could only be done in Philadelphia. Mull agreed to review that Philadelphia decision as soon as his wife could make a trip to Philadelphia with him. In the meantime, Mull would be put on special assignment in Chicago after his removal from the business manager's job.

At his first deposition, Mull denied any discussion as to how long this special assignment would continue (First Deposition at 84-85). At his second deposition, however, Mull admitted that the assignment was temporary — only to last to the end of the year or until such time as he accepted the Philadelphia offer — and that his only option for a permanent job with ARCO was to move to Philadelphia (Second Deposition at 1421, 1430, 1441).

On May 11, 1979, Kauffman circulated a memorandum announcing that, effective May 14, Mull would cease to be Business Manager and would be reporting to Kauffman on special assignment. The same memo announced that Mr. Carl Gomes was "temporarily" assigned to the position of Acting Business Manager. In his second deposition, plaintiff testified that he understood this memorandum to distinguish between the "temporary" assignment given Gomes and the "special" assignment which he had received, and that he assumed his new assignment to be, if not of indefinite duration, at least a stepping stone to a permanent job. Mull testified that he knew of several people who had gone on from special assignments to permanent jobs, but that he knew of no one who was retained on special assignment indefinitely (p. 1498). Mull admitted, however, that he never discussed the duration of the new assignment with either Kauffman or Allshouse (p. 1436, 1495-96), and that his current understanding of his prospects for continued employment was "optimistic" given what had had been told at the May 2 meeting (p. 1442).

In June 1979, plaintiff decided not to move to Philadelphia and informed Alls-house of this fact. Plaintiff received further special assignments from Kauffman, several of which involved long-range projects. Given the nature of his work, plaintiff continued to assume that he would remain with ARCO on a permanent basis, but did not discuss this fact with either Kauffman or Allshouse.

On November 28, 1979, plaintiff was called to Allshouse's office to discuss his retirement sign-up. Plaintiff argued that he was not prepared to retire, and would have to review these things with his attorney. On December 6, 1979, the defendant sent plaintiff written notification that he would be terminated on December 31. Such written notice of discharge was standard company policy. Plaintiff's last day of work was December 31, 1979. On January 16, 1980, he filed both his EEOC charges and also a charge with the Attorney General of the State of Illinois.

III

An age discrimination suit may not be filed in district court unless the plaintiff has filed a charge with the EEOC within 180 days from the date the alleged discriminatory act occurred. 29 U.S.C. § 262(d)(1).¹ In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), the Supreme Court held that the similar 180 day period under Title VII begins to run on the date the employer's discriminatory decision is made and communicated to the plaintiff, not when the consequences of the decision become final. In Ricks, a college professor claimed he had been discriminatorily denied tenure. No EEOC complaint was filed, however, until after the professor's one year "terminal" contract had run out, well over 180 days from the time his tenure was denied. The Court held that the complaint was time-barred, since the only discriminatory act alleged was the tenure decision: "mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Id. at 257, 101 S.Ct. at 504.

In Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1982), the Court followed Ricks to hold that a § 1983 suit challenging politically motivated firings was time-barred for failure to file within the applicable limitations period of one year. Again, the Court measured the period from the time notice of termination was given, and not when employment had ceased. The Court noted that the plaintiffs had alleged no "illegal acts subsequent to the date on which the decisions to terminate were made," thereby suggesting that plaintiffs could not circumvent the rule of Ricks simply by claiming that the termination itself was unlawful. Id. at 8, 102 S.Ct. at 29. As it had in Ricks, the Court stressed that the "proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful." Id. (emphasis in original). The Court also noted that the plaintiffs "were afforded reasonable notice" of their termination and therefore could not argue for an extension of the filing date. Id.

In the present case, plaintiff was notified of his demotion on April 19, 1979, and was unequivocally told on May 2, 1979 that he would be discharged as of the end of 1979 unless he chose to move to Philadelphia. Although plaintiff has equivocated and contradicted himself at times as to whether the termination date was mentioned, the court finds no genuine issue of material fact as to what was actually said at the meeting.² Under the Ricks decision, the 180 day period of § 626(d)(1) would therefore begin to run on April 18 for the demotion claims and no later than May 2, the date on which Mull received notice of his impending termination, for the discharge-related claims. Since Mull did not file until January 1980, it follows that his claims are time-barred under a strict adherence to Ricks and Chardon.

The Ricks decision has been applied to ADEA cases, see, e.g., Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir.1983), and plaintiff does not argue otherwise. The plaintiff does argue, however, that the Ricks decision is inapplicable to the present case because the oral notice given Mull in the spring of 1979 was not in accordance with standard ARCO policy requiring written notice. Second, plaintiff contends that Ricks represents a new rule of law which should not be given retroactive effect. Finally, plaintiff...