SENDALL v. Boeing Helicopters

• Citation: 827 F. Supp. 325
• Decision Date: 16 July 1993
• Docket Number: Civ. A. No. 92-4789.
• Parties: Herbert G. SENDALL, Plaintiff, v. BOEING HELICOPTERS, A DIVISION OF THE BOEING COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

827 F. Supp. 325

Herbert G. SENDALL, Plaintiff, v. BOEING HELICOPTERS, A DIVISION OF THE BOEING COMPANY, Defendant.

Civ. A. No. 92-4789.

United States District Court, E.D. Pennsylvania.

July 16, 1993.

Stephen G. Console, Mark S. Scheffer, Philadelphia, PA, for plaintiff.

Martin J. Black, Dechert, Price & Rhoads, Philadelphia, PA, for defendant.

MEMORANDUM

ROBRENO, District Judge.

Plaintiff voluntarily retired from the employment of defendant at age 62 after approximately twenty-nine years of service. Two years after his retirement, he brought this action alleging age discrimination. Defendant has counterclaimed, charging that plaintiff disclosed defendant's proprietary information, appropriated trade secrets, and generally breached his duty of loyalty to defendant.

Defendant has moved for summary judgment on plaintiff's claims and for partial summary judgment on count one of its counterclaim. For the reasons set forth below, summary judgment is GRANTED in favor of defendant on plaintiff's claims, and partial summary judgment is DENIED as to count one of defendant's counterclaim.

I. BACKGROUND

Plaintiff Herbert G. Sendall ("Sendall") worked as a compensation manager for defendant Boeing Helicopters ("Boeing") from 1961 until his voluntary retirement on November 1, 1990 at age 62.¹ In the course of his duties, he had access to defendant's personnel information including the employment history and wages and salaries of defendant's employees generally and of those of his own department specifically.

Sometime during the 1980s, plaintiff became dissatisfied with his compensation. He believed that in certain years he should have been entitled to larger annual raises than the defendant had awarded him. In fact, for two of these years he had received no raise at all. Plaintiff suspected that his salary adjustments were below those of younger managers because defendant was according preferential treatment to younger employees. His belief that he was being unfairly treated was, in part, grounded upon his review of some of the personnel records to which he had access in the course of discharging his duties as a compensation manager of defendant.

Plaintiff aired those grievances with certain supervisors and upper-level managers of defendant. Apparently dissatisfied with the pace or the result of these discussions, on September 25, 1990, plaintiff filed a complaint with the Pennsylvania Human Relations Commission ("PHRC") alleging age discrimination in violation of the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.Stat. Ann. §§ 951-963 (1991). The PHRC referred the charge to the Equal Employment Opportunity Commission ("EEOC") for dual filing, and the EEOC filed the charge on November 21, 1990. The EEOC chose not to investigate the charge; the PHRC did investigate the charge but concluded that the evidence was insufficient to substantiate the allegation of discrimination. On August 17, 1992, plaintiff filed this action alleging in Count I age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1985) and, in Count II, age discrimination in violation of the PHRA. Defendant has moved for summary judgment on both counts of plaintiff's complaint.

Defendant's counterclaim against plaintiff stems from plaintiff's alleged misappropriation of defendant's confidential employment information. On or about March 10, 1981, plaintiff and defendant executed a written contract entitled Proprietary Information and Invention Agreement (the "Agreement"). Defendant alleges in Count I of the counterclaim that plaintiff breached the Agreement through personal retention and unauthorized use and disclosure of defendant's proprietary information. In Counts II and III, defendant claims that the same conduct constitutes misappropriation of its trade secrets and breach of his duty of loyalty, respectively. Defendant has moved for partial summary judgment with respect to liability on Count I of the counterclaim.

I will first address defendant's motion for summary judgment on plaintiff's claims of age discrimination, after which I will discuss defendant's motion for partial summary judgment on Count I of the counterclaim.

II. DISCUSSION

A. Standard for Summary Judgment.

Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The Court must accept the nonmovant's allegations as true, and resolve conflicts in the nonmovant's favor. Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). The moving party bears the initial burden of pointing out the absence of genuine issues of material fact, but summary judgment should be granted against a party that fails to show "the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). If there is no genuine issue of fact that the claim of the nonmoving party is time-barred as a matter of law, the moving party is entitled to summary judgment. See, e.g., Lorance v. AT & T Technologies, 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989) (affirming summary judgment for time-barred Title VII claim).

B. Plaintiff's Claims of Age Discrimination.

Defendant contends that no genuine issues of material fact exist and that summary judgment is appropriate on plaintiff's claims of age discrimination for two reasons. First, defendant argues that the claims are barred as a matter of law because under both the ADEA and the PHRA, plaintiff failed to file the requisite administrative claims with the PHRC and the EEOC, respectively, in a timely fashion. Second, defendant argues that plaintiff has failed to meet his burden of establishing a prima facie case of discrimination or, alternatively, has failed to produce evidence to support a reasonable inference that Boeing's reasons for deciding the amounts of his raises were pretextual. Because the Court agrees with defendant's first argument, I need not address its second contention.

1. Plaintiff's ADEA Claim.

Federal law provides that in a state that has a law prohibiting age discrimination in employment, such as Pennsylvania's PHRA, prior to commencing an action under the ADEA, a potential claimant must first file a charge with the EEOC "within 300 days after the alleged unlawful practice occurred." 29 U.S.C. § 626(d)(2);²see also 29 U.S.C. § 633(b); 43 Pa.Stat.Ann. §§ 951-963. As noted above, plaintiff filed a complaint with the PHRC on September 25, 1990, the PHRC referred the charge to the EEOC for dual filing, and the EEOC filed the charge on November 21, 1990.

In this action, plaintiff alleges that from 1985 through his retirement in 1990, defendant discriminated against him because his salary adjustments were smaller by percentage than younger employees, or in some cases, that he received no adjustment at all while younger employees did. It was defendant's practice at all relevant times to award salary adjustments, if at all, on a yearly basis.³ Prior to his filing the complaint with the PHRA on September 25, 1990, the most recent of the alleged discriminatory salary adjustments was the 1989 annual adjustment,⁴ of which plaintiff received notice on October 20, 1989, at the latest.⁵ See Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980) (holding that time period for filing analogous Title VII charge with the EEOC commenced when the alleged discriminatory decision was made and communicated to claimant, rather than when the effects of the decision were felt). Therefore, the latest that the 300 day period for filing a charge with the EEOC would have expired is August 16, 1990.

Given that plaintiff did not file the initial complaint with the PHRA until September 25, 1990, there is no issue of fact that the EEOC charge was filed more than 300 days after plaintiff learned of the alleged unlawful decision on October 20, 1989. See 29 U.S.C. § 626(d)(2). The issue is whether, despite the absence of a genuine issue of fact as to the timing of the filing, the defendant is nevertheless not entitled to judgment as a matter of law by application of the judicially crafted doctrines of "continuing violation" or "equitable tolling."

"To establish a continuing violation, plaintiff must show `a series of related discriminatory acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system before or during the limitation period.'" Thakkar v. Provident Nat'l Bank, Civil Action No. 90-3907, 1991 WL 274827, *2, 1991 U.S. Dist. LEXIS 18753, at *5-6 (E.D.Pa. Dec. 17, 1991) (quoting Tyson v. Sun Ref. & Mktg. Co., 599 F.Supp. 136, 138 (E.D.Pa.1984)).

Plaintiff seeks to bring his claim under the rubric of a "continuing violation" by claiming that the discriminatory acts of which he complaints occurred not when he was notified of his annual adjustments, but instead every time he was paid subsequent to the notification of the adjustments. Put simply, plaintiff contends that each and every payment made pursuant to an alleged discriminatory raise constitutes a new violation for purposes of computing the time for filing a charge with the administrative agency. In support of his argument, plaintiff relies upon Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), and Nealon v. Stone, 958 F.2d 584 (4th Cir.1992). His reliance is misplaced, as both of those cases involved claims for unequal pay for similar work.

Plaintiff here challenges discrete annual decisions...