Slenkamp v. Borough of Brentwood

Decision Date11 March 1985
Docket NumberCiv. A. No. 84-65.
Citation603 F. Supp. 1298
PartiesArthur H. SLENKAMP, Plaintiff, v. BOROUGH OF BRENTWOOD, Defendant.
CourtU.S. District Court — Eastern District of Pennsylvania

Joseph S. Hornack, Abes & Begler, Pittsburgh, Pa., for plaintiff.

Joseph J. Bosick, Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for defendant.

OPINION

COHILL, District Judge.

The Complaint in this case, filed by Plaintiff against the Borough of Brentwood (the "Borough"), a suburb of Pittsburgh, alleges violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA") in connection with a Borough ordinance setting a mandatory retirement age of 65 for its police officers. Defendant has moved for summary judgment on three different grounds: 1) statute of limitations; 2) failure to timely file with the Equal Employment Opportunity Commission ("EEOC"); and 3) a Bona Fide Occupational Qualification ("BFOQ") defense.

FACTS

Plaintiff was the Chief of Police of the Borough from 1958 until May 31, 1981, the month he reached the mandatory retirement age of 65. Plaintiff alleges that he was told at a Police Committee meeting of the Borough Council in March 1981 of his required retirement at the end of May. The Committee, in response to Plaintiff's oral request for reconsideration, allegedly reviewed the request, but issued an official denial at an April 21, 1981 public meeting of the Borough Council.

Plaintiff did not file a charge of age discrimination with the Pennsylvania Human Relations Commission. On March 2, 1982, Plaintiff filed a charge with the Equal Employment Opportunity Commission. The Complaint in this case was filed on September 12, 1984.

Summary Judgment

Rule 56 provides, in part, that summary judgment shall be granted only

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c).

When considering a motion for summary judgment, the court must determine if there are material facts in dispute and must view the facts in the light most favorable to the nonmoving party. Goclowski v. Penn Central Transp. Co., 571 F.2d 747, 751 (3d Cir.1977). The moving party has the burden of establishing that no genuine issue of fact exists. Butz v. Hertz Corp., 554 F.Supp. 1178, 1181 (W.D.Pa.1983).

A. Statute of Limitations

A suit alleging a nonwillful violation of the ADEA must be brought "within two years after the cause of action has accrued." 29 U.S.C. § 626(e)(1). The statute of limitations for willful claims is three years. Id. The ADEA employs the term "willful" in two contexts. One, the statute of limitations provision, extends the limitations period to three years when a violation is "willful." See 29 U.S.C. § 626(e)(1) (incorporating 29 U.S.C. § 255(a) of the Portal-to-Portal Act). The second provides that liquidated damages shall be payable only in case of "willful" violations. 29 U.S.C. § 626(b). While Congress provided that the rights created by the ADEA were to be enforced in accordance with the powers, remedies and procedures of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219 (1976), it declined to adopt the mandatory liquidated damages portion of section 16(b) of the FLSA. See TWA v. Thurston, ___ U.S. ___, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985).

Defendant argues that summary judgment is appropriate because the action was filed more than two years after the alleged discriminatory act and because the violation alleged is not "willful" so as to extend the statute of limitations to three years. In so arguing, Defendant urges us to adopt a different standard for "willful" when considering statute of limitations than for liquidated damages issues.

We believe two inquiries are necessary to decide this issue: 1) the appropriate standard for "willfulness" under section 626(e)(1); and 2) whether summary judgment is appropriate under that standard and the facts of this case.

Defendant urges us to consider cases construing the statute of limitations contained in 29 U.S.C. § 255(a) and argues that the appropriate standard is "whether the employer knew the ADEA was in the picture." See Defendant's Brief, at 4 (citing Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139 (5th Cir.1971), cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 219 (1972)). In support of its motion, Defendant has submitted identical affidavits of two Borough Council members, James Joyce and Earl Swanson. These affidavits stated that it never occurred to either council member that the mandatory retirement age of 65 might violate any laws prohibiting age discrimination, and that it never occurred to the Borough Council that the ADEA might be implicated as a result of the retirement policy. See Defendant's Memorandum, Ex. 2, 3. Defendant argues that summary judgment is appropriate because under Defendant's proposed standard, the Borough had no knowledge that the ADEA was "in the picture." Id. at 4.

We have found no cases which discuss the standard for "willfulness" specifically as it relates to § 626(e)(1) of the ADEA. The more hotly-debated issue in ADEA cases in recent years has been the definition of "willfulness" as used in § 7(b) of the Act, providing for liquidated damages. 29 U.S.C. § 626(b). The Supreme Court recently decided this issue, holding that an employer acts "willfully" so as to be subject to liquidated damages under § 7(b), if it "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." TWA v. Thurston, ___ U.S. at ___, 105 S.Ct. at 624, 83 L.Ed.2d at 536. In so holding, the Court rejected a more expansive "in the picture" standard urged by Respondents in reliance on cases construing § 255(a). Id. at ___, 105 S.Ct. at 625, 83 L.Ed.2d at 537. Thus, Thurston also overrules the even more expansive standard of the Third Circuit, which held that an employer acts "willfully" for purposes of § 7(b) if the violation was "intentional, knowing or voluntary as distinguished from accidental and it is used to characterize conduct marked by careless disregard whether or not one has the right to act...." Wehr v. Burroughs, 619 F.2d 276, 283 (3d Cir.1980). See also Avtex Fibers, Inc. v. McDowell, 740 F.2d 214 (3d Cir.1984), cert. granted, vacated and remanded for consideration in light of TWA v. Thurston, ___ U.S. ___, 105 S.Ct. 1159, 84 L.Ed.2d 312 (1985).

The Supreme Court stated, in Thurston, that "even if the `in the picture' standard were appropriate for the statute of limitations, the same standard should not govern a provision dealing with liquidated damages." ___ U.S. at ___, 105 S.Ct. at 625, 83 L.Ed.2d at 537. The Court then noted that the Courts of Appeals are divided over whether Congress intended the willfulness standard to be identical for determining liquidated damages and for purposes of the limitations period. Id. n. 21 (comparing Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1113 (4th Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981) (standards identical) with Kelly v. American Standard, Inc., 640 F.2d 974, 979 (9th Cir.1981) (standards different)).

The position of the Third Circuit is unclear on this point. As the court noted in Kneisley v. Hercules, Inc., 577 F.Supp. 726 (D.Del.1983), "the Wehr court stated that its definition of willfulness under the ADEA's liquidated damage provision was identical to the statute of limitations' definition in section 255, and its holding was limited to ADEA's liquidated damages provision." Id. at 737. See also id. at 738 (speculating as to whether Third Circuit would adopt uniform or different tests with regard to statute of limitations section and liquidated damage section). We do not believe, after Thurston, that Wehr is controlling on the question we now consider.

We hold, for the following reasons, that the two standards should be uniform and, thus, apply to § 626(e)(1) the standard set forth in Thurston for § 7(b) of the ADEA. Second, we hold that the determination of "willfulness" is a matter of fact, and, on the record before us, inappropriate for summary judgment.

B. A Uniform Standard for "Willfulness"

In considering the standard for "willfulness" under § 7(b) of the ADEA, courts have relied, in part, on cases construing the FLSA statute of limitations provision. See, e.g., Wehr v. Burroughs, 619 F.2d 276, 282-83 (3d Cir.1980) (citing Hodgson v. Hyatt, 318 F.Supp. 390 (N.D.Fla.1970) (defining "willful" for FLSA statute of limitations)). In Wehr, the Third Circuit adopted the FLSA statute of limitations definition of "willful" as "knowing and voluntary," and applied it to § 7(b) of the ADEA. See Wehr, 619 F.2d at 283. Other courts also looked to the FLSA, but differed as to the definition of "willful." See, e.g., Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1113-14 (4th Cir.) (instruction governed by experience under FLSA appropriate for ADEA, standard is whether employer knows or has reason to know that conduct is governed by ADEA), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981); EEOC v. Prudential Savings & Loan Ass'n, 741 F.2d 1225, 1233-34 (10th Cir.1984) (adopting FLSA definition of "willfulness" for § 7(b) of ADEA; standard is whether employer was, or should have been, cognizant of appreciable possibility that employees were covered by statutory provisions); cert. granted, vacated and remanded in light of TWA v. Thurston, ___ U.S. ___, 105 S.Ct. 896, 83 L.Ed.2d 913 (1985). But see Kelly v. American Standard, Inc., 640 F.2d 974, 979-80 (9th Cir.1981) (distinguishing FLSA statute of limitations cases which require knowledge of implications under the FLSA and adopting Third Circuit standard of "knowing and voluntary" for § 7(b)). Cf. TWA v. Thurston, ___ U.S. at ___, 105 S.Ct. at 624, 83 L.Ed.2d at 536 (noting and adopting standard of cases imposing criminal...

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