Nogar v. Henry F. Teichmann, Inc.

• Decision Date: 21 November 1985
• Docket Number: Civ. A. No. 84-1301.
• Citation: 640 F. Supp. 365
• Parties: James H. NOGAR, Plaintiff, v. HENRY F. TEICHMANN, INC., Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

640 F. Supp. 365

James H. NOGAR, Plaintiff, v. HENRY F. TEICHMANN, INC., Defendant.

Civ. A. No. 84-1301.

United States District Court, W.D. Pennsylvania.

November 21, 1985.

COPYRIGHT MATERIAL OMITTED

S.J. Hayden and Robert N. Peirce, Jr., Murovich, Peirce & Stamp, and James R. Duffy, Pittsburgh, Pa., for plaintiff.

David A. Luptak, Meyer, Unkovic & Scott, Pittsburgh, Pa., for defendant.

MEMORANDUM OPINION

COHILL, Chief Judge.

Presently before us is Defendant's Motion for Summary Judgment in above captioned action. Plaintiff's Complaint alleges one count of age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1982), one count of age discrimination under the Pennsylvania Human Rights Act ("PHRA"), 43 P.S. §§ 951-963 (Purdon 1965 & Supp.1984), and three counts under Pennsylvania common law. The latter four counts are before us on the basis of pendent jurisdiction. Since we find Plaintiff's age discrimination claim under the ADEA without merit, we will decline jurisdiction over Plaintiff's pendent state claims.

Facts

Plaintiff's claims arise from his discharge from Defendant company after 17 years of service. He was hired on May 1, 1965 and over the years served as Technical Service Representative, Manager of Technical Services, Salesman in both the Domestic and International areas and finally as International Sales Manager. Affidavit of James H. Nogar, at ¶ 2. On May 28, 1982, Plaintiff was laid off and advised that, if he was not recalled within 90 days he should consider the lay-off to be permanent. At the same time, he was informed that the reason for his lay-off was a down-turn in business. Id., at ¶ 5; Affidavit of Archie L. McIntyre, at ¶ 9.

On October 21, 1982, Plaintiff withdrew his pension funds, which act, he maintains, terminated his employment status.

On March 29, 1983, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") citing August 26, 1982, 90 days from the date of his lay-off, as the date of the most recent or continuing discrimination against him by the Defendant. Plaintiff never filed a charge with the Pennsylvania Human Rights Commission ("PHRC"). Deposition of James H. Nogar at ¶ 42. However, pursuant to a work-sharing agreement, the EEOC transmitted the charge to the PHRC on March 31, 1983. Pretrial stipulation at ¶ II.

Plaintiff claims that Defendant posted no notices advising employees of the existence of or the provisions of the ADEA as required by the Act. See 29 U.S.C. § 627. Even so, he claims no knowledge of facts which would have supported such a claim until March 25, 1983 when E. Mason Ashby, an employee in Defendant's International Sales Department, informed him that younger employees were not laid off. Affidavit of James H. Nogar, at ¶¶ 7 & 8.

Defendant argues that Plaintiff failed to file his charge with the EEOC in a timely manner. Alternately, Defendant argues that Plaintiff was laid off as a result of sales downturns producing net losses, and not due to his age.

Summary Judgment

When considering a motion for summary judgment, the Court must determine if there are material facts in dispute. In so doing, the Court must view all facts in the light most favorable to the non-moving party. Sun Refining and Marketing Co. v. Rago, 741 F.2d 670, 673 (3d Cir.1984). The burden is on the moving party to show that no genuine issue of material fact exists. Fed.R.Civ.P. 56; Wolk v. Sakes Fifth Avenue, Inc., 728 F.2d 221 (3d Cir.1984).

Timeliness of Charge Filed

A charge of discrimination must be timely filed with the EEOC prior to the initiation of an action in federal court. Love v. Pullman, 404 U.S. 522, 523, 92 S.Ct. 616, 617, 30 L.Ed.2d 679 (1972). Under the ADEA, two different time limits are applied to determine when the charge must be filed with the EEOC depending on whether or not the unlawful practice occurred in a deferral state: If the unlawful practice occurred in a nondeferral state, the complainant must file within 180 days; but if it occurred in a deferral state, the time limit is extended to 300 days. 29 U.S.C. § 626(d). Pennsylvania is a deferral state. See Seredinski v. Clifton Precision Products Co., 776 F.2d 56 (3d Cir.1985); Butz v. Hertz Corp., 554 F.Supp. 1178, 1180 (W.D.Pa.1983) (Cohill, J.); Cutwright v. General Motors Corp., 486 F.Supp. 590, 592-93 (W.D.Pa.1980).

In a deferral state, the complainant must allow the state agency 60 days to take action on his charge before he files suit in a federal district court. 29 U.S.C. § 633(b). Although there are similarities between the limitations periods in Title VII and the ADEA, see Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed. 609 (1979), they differ significantly with regard to the 60-day deferral period. Under Title VII, the claimant must file a charge with the state agency 60 days before filing with the EEOC, see 42 U.S.C. § 2000e-5(c), thus the 300-day limitation period is effectively cut to 240 days unless the state proceedings are terminated in less than 60 days. Mohasco Corp. v. Silver, 447 U.S. 807, 814, 100 S.Ct. 2486, 2491, 65 L.Ed.2d 532 (1980); Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1211 (3d Cir.1984). Under the ADEA, however, the federal court and not the EEOC must defer to the state so the 240-day rule does not apply. Seredinski, 776 F.2d at 61. A claimant under the ADEA may file simultaneously with the state agency and the EEOC without raising a deferral problem. Id.

Where a claimant files initially with the EEOC rather than the state agency, the EEOC must refer the charges to the state agency. 29 C.F.R. § 1601.13 (1985). The EEOC referral entitles the claimant to the 300-day extended filing period provided in § 626 even though filing is untimely under state law. Id. at 10-11; Howze, 750 F.2d at 1210 (citing Mohasco, 447 U.S. at 815-16, 100 S.Ct. at 2491-92); 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) (citing Davis v. Calgon Corp., 627 F.2d 674, 675 (3d Cir.1980) (per curiam), cert. denied, 449 U.S. 1101, 101 S.Ct. 897, 66 L.Ed.2d 827, reh'g denied, 450 U.S. 971, 101 S.Ct. 1494, 67 L.Ed.2d 623 (1981)).

Under Pennsylvania law, for example, a claimant must file a charge with the PHRC within 90 days. 42 Pa.Stat.Ann. § 959 (Purdons Supp.1977). Under the ADEA, a claimant has 300 days to file a charge in a deferral state. Since the state statute can not shrink the filing period set by federal law, a claim filed with the PHRC 300 days after the unlawful practice allegedly occurred must be deemed timely for federal purposes even though it is untimely for state purposes. See Bonham v. Dresser Indus. Inc., 569 F.2d 187, 194 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978).

In order to determine when the 300-day period should begin to run, we must establish the date on which the alleged unlawful employment practice occurred.

Although no simple rule can be formulated which will deal adequately with all factual situations, where unequivocal notice of termination and the employee's last day of work coincide, then the alleged act will be deemed to have occurred on that date, notwithstanding the employee's continued receipt of certain employee benefits such as periodic severance payments or extended insurance coverage.

Id. at 191 (emphasis added, citations omitted).

May 28, 1982, the day Plaintiff was laid off, was undisputedly Plaintiff's last day of work. However, Plaintiff argues that his lay off was only temporary at that time and would not become permanent for 90 days. Hence, Plaintiff argues that he was not unequivocally terminated until at least 90 days after his last day of work. Alternately, Plaintiff characterizes his lay off as a "continuing violation" also delaying the onset of the 300-day period.

The law in this circuit is clear that a lay off, no matter the condition under which it was made or the likelihood of recall, becomes permanent for the purposes of determining when termination occurred under § 626 or § 633 at the time of the initial layoff. Cutright, 486 F.Supp. at 593; Mazzare v. Burroughs Corp., 473 F.Supp. 234, 238 (E.D.Pa.1979); Wagner v. Sperry Univac, 458 F.Supp. 505, 512 (E.D. Pa.1978), aff'd, 624 F.2d 1092 (3d Cir.1980).

Where an employee ... receives notice that he is being laid off but that he remains eligible for rehire, he has received "unequivocal notice of termination" notwithstanding the possibility that he will be rehired in the future.

* * * * * *

Once an employee is laid off, his present status is no longer uncertain; any uncertainty is confined to his future employment status.

Wagner, 458 F.Supp. at 512. Hence, we cannot agree with Plaintiff's characterization of the lay off as temporary or continuing and thereby delay the running of the 300-day period.

We note that several other circuits concur with our treatment of a lay off as a final termination and similarly refuse to apply the concept of "continuing violation" where no claim of failure to rehire was made. See, e.g., Miller v. International Telephone and Telegraph Corp., 755 F.2d 20, 25 (2d Cir.1985), Lawson v. Burlington Industries, Inc., 683 F.2d 862 (4th Cir.) cert. denied, 459 U.S. 944, 103 S.Ct. 1395, 74 L.Ed.2d 201 (1982); Thomas v. E.I. DuPont de Nemours & Co., 574 F.2d 1324 (5th Cir.1978); Griffin v. Pacific Maritime Assoc., 478 F.2d 1118 (9th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973).

Having determined that the 300-day period began to run on May 28, 1982, and having determined that Plaintiff did not file a charge with the EEOC until March 29, 1983, we must conclude that Plaintiff's claim is time-barred.

Plaintiff argues that certain equitable considerations tolled the running of the filing period. Specifically, Plaintiff claims that 1) Defendant failed to post notice of employee rights under the ADEA notice as required...