Peterson v. Insurance Co. of North America

• Decision Date: 15 November 1994
• Docket Number: D,No. 764,764
• Citation: 40 F.3d 26
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 1385, 65 Empl. Prac. Dec. P 43,415 Ernest PETERSON, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA and Cigna Corporation, Defendants-Appellees. ocket 93-7641.
• Court: U.S. Court of Appeals — Second Circuit

Page 26

40 F.3d 26

67 Fair Empl.Prac.Cas. (BNA) 1385,

65 Empl. Prac. Dec. P 43,415

Ernest PETERSON, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA and Cigna Corporation Defendants-Appellees.

No. 764, Docket 93-7641.

United States Court of Appeals Second Circuit.

Argued Jan. 12, 1994.

Decided Nov. 15, 1994.

Philip S. Ross, New York City (Agnes C. McKeon, Lilly Sullivan Purcell Barkan & Junge, P.C., New York City, of counsel), for plaintiff-appellant.

Gregory B. Tobin, Philadelphia, PA (James M. Lloyd, Law Offices of Joseph W. Conklin, New York City, of counsel), for defendants-appellees.

Before: MINER and MAHONEY, Circuit Judges, and RESTANI, Judge. ^*

MAHONEY, Circuit Judge:

Plaintiff-appellant Ernest Peterson appeals from a judgment entered June 1, 1993 in the United States District Court for the Southern District of New York, Robert L. Carter, Judge, that granted summary judgment in favor of defendants-appellees Insurance Company of North America and Cigna Corporation (collectively "ICNA") and dismissed Peterson's complaint. Peterson claimed that he had been terminated in violation of the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), 29 U.S.C. Sec. 621 et seq. His complaint was dismissed on the basis that he had failed to bring his action before the statute of limitations expired. See Peterson v. Insurance Co. of N. Am., 822 F.Supp. 1040 (S.D.N.Y.1993) (opinion supporting judgment).

Peterson contends on appeal that the district court erred in holding that: (1) the Age Discrimination Claims Assistance Act, Pub.L. No. 100-283, 102 Stat. 78 (1988), as amended, Pub.L. No. 101-504, 104 Stat. 1298 (1990) (the "ADCAA"), reprinted in 29 U.S.C.A. Sec. 626 historical and statutory note (Supp.1994), was unavailable to Peterson to extend the limitations period; and (2) Peterson could not amend his complaint to allege nonwillful discrimination, which would have entitled him to rely on the ADCAA.

For the reasons that follow, we reverse.

Background

From December 13, 1970 until October 28, 1987, Peterson worked for ICNA as a casualty underwriter. In December 1986, Peterson advised ICNA that he intended to retire because he felt that his work was not appropriately recognized in performance reviews or with promotions and raises, even though ICNA had assigned him an extra workload because of his qualifications and experience. Peterson changed his mind, however, after ICNA promised him both a raise and a reduced work week, an arrangement that was to last indefinitely. According to Peterson, the arrangement also included a promise for a second raise in June 1987, a lighter workload, and a support staff. He claims that ICNA repudiated the agreement by allowing his workload to increase, and (in June 1987) refusing to give him the promised raise and demanding that he resume working a full five-day week. Peterson submitted his letter of resignation on October 28, 1987.

On February 1, 1988, Peterson filed a charge with the Equal Employment Opportunity Commission (the "EEOC") alleging that ICNA had forced him to resign because of his age. By letter dated February 19, 1988 (the "February 1988 Letter"), the EEOC informed Peterson that:

The EEOC has received the above-referenced age discrimination charge and we have transferred the charge to the [New York State Division of Human Rights] for investigation. By virtue of this action, the charging party's private suit rights under the Federal Age Discrimination in Employment Act (ADEA) have been preserved. The New York State Division of Human Rights will be investigating this charge in accordance with procedures established by the Commission. Although the Commission does not plan to investigate this charge, we will assure that the charge has been resolved in the appropriate manner and we may take further action at our discretion if we do not consider the agency's processing appropriate.

.... The ADEA provides that an individual may file suit in federal court upon the expiration of 60 days from the charge filing date noted above notwithstanding any action by the Commission or the state/local agency. It is important to note that a law suit must be filed in Federal District Court under the Age Discrimination in Employment Act within 2 years from the date of the adverse employment action (3 years in the case of willful violation).

The EEOC then sent Peterson a second letter dated July 25, 1988 (the "July 1988 Letter"), which stated:

As you are aware, your charge of employment discrimination has been filed with this office.... This letter is to notify you of the time limits which apply to private lawsuits under the Age Discrimination in Employment Act (ADEA).

You indicate in your charge that the date of the alleged discriminatory act is ______. The ADEA provides that any person aggrieved may sue for recovery of back pay, and [sic] equal amount as liquidated damages, appropriate make-whole relief, attorney's fees and court costs or injunctive relief so long as a charge is filed with EEOC within 300 days of the alleged discrimination and so long as the lawsuit is filed within two years of the alleged discrimination (this statute of limitations is extended to three years if the violation is proven to be willful ).

In order for you to protect your right to pursue a lawsuit. [sic] You must file a complaint in court before the two year statute of limitations has run, which is ______. You may wish to consult a private attorney to discuss your rights and the procedures for filing a lawsuit under the ADEA.

Emphasis and blanks in original.

By letter dated May 30, 1990 (the "May 1990 Letter"), the EEOC advised Peterson that:

If you wished to file a private action under the ADEA in federal district court, you should have done so within two (2) years of the date of the alleged discriminatory act. Proof that the alleged violation was willful may extend this filing period to three (3) years. We advised you of this two (2) year statute of limitations under the ADEA shortly after you filed your charge.

Based upon our records, unless you have already filed a private ADEA action in federal district court, you may have lost that right. This is because the two (2) year statute of limitations period for filing such action has lapsed. Based on this the EEOC is administratively closing the federal aspects of your complaint. The EEOC's closure of the case does not affect your rights under state law. There is no similar statute of limitations under the law enforced by the [New York State Division of Human Rights ("NYSDHR") ]. Under state law, NYSDHR will continue processing your age discrimination complaint under applicable state procedures.

Finally, by letter dated December 7, 1990, the EEOC advised Peterson of the enactment of the ADCAA, its application to "certain age discrimination charges which were not resolved within applicable limitations periods," and the EEOC's identification of Peterson's "charge as one which may be affected by ADCAA." The EEOC further advised that if the ADCAA was applicable to Peterson's case, it would extend the deadline for Peterson to commence suit to January 26, 1992.

On January 17, 1992, Peterson brought this action against ICNA, alleging that ICNA had constructively discharged him due to his age in willful violation of the ADEA, and also asserting a state law claim for breach of contract. ICNA moved for summary judgment, claiming, inter alia, that the limitations period had expired and that the ADCAA did not extend the period. The district court granted the motion and dismissed Peterson's complaint, accepting ICNA's argument regarding the statute of limitations and the ADCAA, and ruling sua sponte that Peterson could not amend his complaint to allege a nonwillful violation of the ADEA. See Peterson, 822 F.Supp. at 1042-44.

This appeal followed.

Discussion

The parties agree that the limitations period in a constructive discharge case accrues upon the date that the employee gives notice of resignation, October 28, 1987 in Peterson's case. Therefore, absent the ADCAA, Peterson would have been required to bring his complaint for a willful violation of the ADEA no later than October 28, 1990, and a complaint for a nonwillful violation no later than October 28, 1989. See 29 U.S.C. Secs. 626(e)(1), 255(a).

Congress enacted the ADCAA after finding that the EEOC had failed to timely process charges filed under the ADEA, causing many persons who filed such charges to lose their right to bring a civil action. ADCAA Sec. 2. The ADCAA extends the limitations period for persons who meet specified statutory criteria to 450 days from the date of the enactment of the 1990 amendments to the ADCAA, November 3, 1990; i.e., to January 26, 1992. ADCAA Sec. 3(b)(2). Peterson filed this action nine days before the extended period expired.

As applicable in this case, the ADCAA provides:

(a) Extension.--Notwithstanding section 7(e) of [the ADEA] (29 U.S.C. Sec. 626(e)), a civil action may be brought under section 7 of such Act by the Commission or an aggrieved person, during the applicable extension period [i.e., prior to January 26, 1992] if--

....

(1)(B) with respect to the alleged unlawful practice on which the claim in such civil action is based, a charge was timely filed under such Act with the Commission after April 6, 1985.

(2) the Commission did not, within the applicable period set forth in section 7(e) ...

(B) notify such person, in writing, of the disposition of such charge and of the right of such person to bring a civil action on such claim[.]

....

(3)(B) with respect to a claim described in paragraph (1)(B) the statute of limitations applicable under such section 7(e) runs after April 6, 1988, but before the expiration of the 180-day period beginning on [November 3, 1990].

(4) a civil action on such claim was not brought by the Commission or such person before the running of the statute of limitations.

ADCAA Sec. 3(a).

There...