Sprott v. Avon Products, Inc.

• Decision Date: 01 October 1984
• Docket Number: No. 81 Civ. 2589 (RO).,81 Civ. 2589 (RO).
• Citation: 596 F. Supp. 178
• Parties: Gilbert A. SPROTT, Plaintiff, v. AVON PRODUCTS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

596 F. Supp. 178

Gilbert A. SPROTT, Plaintiff, v.AVON PRODUCTS, INC., Defendant.

No. 81 Civ. 2589 (RO).

United States District Court, S.D. New York.

October 1, 1984.

Ted M. Rosen, Great Neck, N.Y., for plaintiff.

Breed, Abbott & Morgan, New York City, for defendant; Eric M. Nelson, Noah Nunberg, New York City, of counsel.

OPINION AND ORDER

OWEN, District Judge.

Plaintiff, a former managerial employee of defendant, alleges violations of the Age Discrimination in Employment Act, the New York State Human Rights Law, tortious, wrongful and abusive discharge and breach of contract.Defendant has, by summary judgment and otherwise, moved for dismissal of all claims.

PlaintiffGilbert Sprott was hired as Chief Control Chemist by defendantAvon Products, Inc. in 1960.Sprott left his prior employment to obtain a manufacturing management position which he perceived offered greater advancement possibilities.Furthermore, he was attracted to the advertised "family attitude" heavily stressed as an attractive aspect of employment at Avon and was confident he could there build a secure future.Avon clearly encourages longevity in employment which was expressed to Sprott by various officers many times and its employment manual reads:

RECOGNITION OF SERVICE:

The company recognizes and appreciates long and faithful service by its associates, and realizes the value of skill, knowledge and judgment gained through years of experience.Long service contributes to an associate's standing in the company and is appropriately recognized.

Over the years, Sprott advanced in the company to the point where, in 1978, Sprott was promoted from a position in Research and Development in New York to general manager of Avon's new manufacturing facility in Mansfield, Massachusetts.Needless to say, this was expected to be long term and Sprott was advised to sell his house in New Jersey and move his family.However, in less than a year, on April 30, 1979, Sprott was summoned to New York and informed that he was being removed from his managerial position.Sprott states that this came as a shock to him, and that he had no warning that his work was being viewed with concern.Contemporaneous memoranda by Sprott's supervisors, on the other hand, paint a picture of major problems created by Sprott's indecisiveness as a manager — a picture which, if true, was clearly foreshadowed by a number of Sprott's earlier annual written management appraisals.In any event, after fruitless consideration of other possible placements in Avon, it was suggested that he take early retirement, which could be done at 55.At the time of these events, Sprott was 54.The following month, May, 1979, Sprott spoke with an Equal Employment Opportunity Commission attorney in Washington to obtain basic information about age discrimination laws and began reading articles in newspapers and scientific and business journals on that topic.Sprott contacted a New York attorney for advice in litigation options.The lawyer continued to advise Sprott on his litigation strategy until Sprott hired local counsel to pursue his claim in court.

In any event, in June 1979, two months after his removal as a manager, Howard Johnson, an Avon vice president wrote Sprott, describing Avon's intention to create a sinecure for him in New York which, having no responsibilities or duties, would give Sprott full time to search for employment elsewhere.After conferring with his attorney, Sprott accepted this and agreed with some reservations and dissatisfactions to receive retirement benefits commencing May 31, 1980.

In response to Sprott's reservations and dissatisfactions, in October and November 1979, Johnson sent Sprott further letters reformulating some provisions of the June letter retaining, however, the provision of employment in name only followed by early retirement.Sprott forwarded these letters to his lawyer, along with a note, dated October 19, 1979, reading:

We are close to the 180 days limit to bring private suit (about Nov. 1).Can an extension of that period be obtained?If yes, could you do so?Should I bring suit now or wait further?"

Subsequently, Sprott and his lawyer conversed by telephone.Sprott says he was informed by his lawyer that the limitations period in which a charge had to be filed would be measured from Sprott's last day of employment, May 31, 1980.His lawyer also wrote him contemporaneously

I would reiterate the fact that you have not been terminated nor have you left Avon, and your termination or your final date will be, if necessary, May 31, 1980.That is, of course, to protect yourself against the statute of limitation problem we discussed.¹

Sprott retired from Avon on May 31, 1980.Some time afterward he retained litigation counsel and filed a complaint of age discrimination with the EEOC and the New York State Dept. of Human Rights on August 13, 1980.

Sprott's principal claim is pursuant to the Age Discrimination in Employment Act. 29 U.S.C. § 621 et seq.Avon argues that this claim is time-barred because Sprott failed to file his complaint with the EEOC within 300 days of the alleged unlawful discrimination, as required by 29 U.S.C. § 626(d)(2).²

The parties agree, and it is now pronounced in Supreme Court rulings in Delaware State College v. Ricks,449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431(1980)andChardon v. Fernandez,454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6(1981), that the limitation period of 300 days begins to run when the employee is notified of the allegedly discriminatory employment decision.³Under this rule, Sprott's claim is time-barred, for he knew in May 1979 that he would be terminated a year later and he immediately suspected age discrimination, as evidenced by his research and correspondence with an EEOC attorney and his own attorney.Sprott, however, urges two theories to avoid his claim being barred.First, he contends that because he filed his complaint prior to the said Supreme Court rulings in Delaware State College and Chardon,⁴ these rulings should not be applied "retroactively" as to him.Alternatively, he contends that equitable tolling of the limitations period is appropriate here.

As to retroactive application of a Supreme Court pronouncement, the Court in Chevron Oil v. Huson,404 U.S. 97, 106-7, 92 S.Ct. 349, 355, 30 L.Ed.2d 296(1971) stated:

In our cases dealing with the nonretroactivity question, we have generally considered three separate factors.First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.Second, it has been stressed that "we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation."Finally, we have weighed the inequity imposed by retroactive application, for "where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the `injustice or hardship' by a holding of nonretroactivity."(Citations omitted.)

Sprott urges that an analysis of the facts under the Chevron factors mandates nonretroactivity of the restrictive rule of Delaware State College.I note that the Court of Appeals in the First Circuit rejected a similar argument in Fernandez v. Chardon,681 F.2d 42(1982) on an analysis that I conclude applies here.Thus, to decline to apply a Supreme Court pronouncement to a similar pre-existing fact situation, that ruling must have overruled clear past precedent or must have been an issue of first impression.Neither of these criteria are met here.No uniform clear precedent existed in the Second Circuit.At best the Court of Appeals had two lines of cases turning on the last day services were performed which triggered the commencement of the period of limitation.

Thus, Egelston v. State University College at Geneseo,535 F.2d 752, 755(2d Cir.1976)andNoble v. University of Rochester,535 F.2d 756(2d Cir.1976), decided together, had, as stated in Egelston, the following rationale:

Appellant's discharge was consummated only when she left her employer, and ... she alleges that the discrimination against her was not an isolated act, but rather constituted a part of her employer's continuing policy to deny women access to its upper echelons.⁵

535 F.2d at 755.

On the other hand, Davis v. R.J.R. Foods, Inc.,420 F.Supp. 930(S.D.N.Y.1976), affirmed without published opinion, 556 F.2d 555(2nd Cir.1977), and decided after Egelston and Noble, held that the period of limitation began with the last day of service following the notification of termination, even though salary and other benefits might continue to be paid for some time thereafter.The District Court's statement, thereafter affirmed, was:

By his own admission plaintiff's services for defendant ceased on June 6, 1972.Although he continued to receive his salary and other benefits until October 6, this in no way prolongs his actual employment....A logical extension of Davis' reasoning would equate the receipt of pension benefits by a retired employee with continuous employment.Such a proposition is patently without foundation.

420 F.Supp. at 931, fn. 1.⁶

To similar effect at the time of Sprott's filing was Jackson v. Alcan Sheet and Plate,462 F.Supp. 82, 85(N.D.N.Y.1978):

Cases decided under the ADEA have been consistent in holding that the cause of action accrues on the date when the employer violates the employee's rights by discharging him on the basis of age.The date of discharge is generally determined to be the date upon which the employee ceases to perform services for the employer.Davis v. R.J.R. Foods, Inc.,420 F.Supp. 930, 931 n. 1(S.D.N.Y.1976), aff'd w/o op. 556 F.2d 555(2d Cir.

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