Van Atta v. Kal-Aero, Inc.

• Decision Date: 28 January 1983
• Docket Number: No. G82-51 CA1.,G82-51 CA1.
• Parties: Juanita M. VAN ATTA, Plaintiff, v. KAL-AERO, INC., a Michigan corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

555 F. Supp. 912

Juanita M. VAN ATTA, Plaintiff, v. KAL-AERO, INC., a Michigan corporation, Defendant.

No. G82-51 CA1.

United States District Court, W.D. Michigan, S.D.

January 28, 1983.

Pinsky, Smith & Soet, By H. Rhett Pinsky, Grand Rapids, Mich., for plaintiff.

Brown, Colman & DeMent, P.C. By Loyal A. Eldridge, Kalamazoo, Mich., for defendant.

OPINION RE: MOTION FOR SUMMARY JUDGMENT

HILLMAN, District Judge.

Plaintiff brings suit for alleged violations of her rights under the Age Discrimination in Employment Act hereinafter the "ADEA", 29 U.S.C. §§ 621-34, under Michigan's Elliott-Larsen Civil Rights Act the Act, M.C.L.A. §§ 37.2101-37.2804, and under Michigan common law for alleged breach of an employment contract. Jurisdiction for the federal claim is asserted under 29 U.S.C. § 626(c) and (d), and 28 U.S.C. §§ 1331, 1343(4). Plaintiff claims that the state law claims may be heard in this court on the basis of pendent jurisdiction under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Presently before the court is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56.

Plaintiff began working as an avionics part manager for defendant Kal-Aero, Inc. "Kal-Aero" sometime in July of 1977. Plaintiff claims that her work was satisfactory at all times. On February 25, 1981, plaintiff was discharged by defendant. At that time she was 62 years of age. Plaintiff alleges that her age was the determining factor in her discharge. Defendant claims that plaintiff's termination was lawful under both state and federal law.

Defendant advances two bases for summary judgment. First, defendant claims that plaintiff may not bring suit in federal court because her action is time-barred under 29 U.S.C. § 626(d) as plaintiff did not timely file her charge of age discrimination with the Michigan Department of Civil Rights. Defendant argues that because plaintiff did not file with the state agency in time, the charge she eventually filed with the federal enforcement agency, the EEOC, is also time-barred. Defendant argues next that because summary judgment as to plaintiff's federal claim is warranted, the court lacks a basis to assert pendent jurisdiction over plaintiff's related state law claims. For the reasons set forth below, defendant's motion is denied.

To warrant summary judgment, the moving party bears the burden of establishing the non-existence of any genuine issue of fact that is material to a judgment in his favor. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Articles of Device ... Diapulse, 527 F.2d 1008 (6th Cir.1976). If no genuine issue as to any material fact is established and the moving party is entitled to a judgment as a matter of law, summary judgment may be granted. Smith v. Hudson, 600 F.2d 60 (6th Cir.1979); Chavez v. Noble Drilling Co., 567 F.2d 287 (6th Cir.1978).

In determining whether or not there are issues of fact requiring trial, "the inferences to be drawn from the underlying facts contained in the affidavits, attached exhibits, and depositions must be viewed in a light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Bohn v. Aluminum and Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir.1962). Furthermore, summary judgment may be inappropriate where contradictory inferences may be drawn from undisputed facts. United States v. Diebold, supra. In making this determination, the court must make reference to the entire record, and all well-pleaded allegations are to be accepted as true. Daco Corp. v. Good-year Tire and Rubber Co., 523 F.2d 389 (6th Cir.1975).

I. TIMELINESS OF PLAINTIFF'S SUIT UNDER THE ADEA

The parties do not dispute that plaintiff was terminated on February 25, 1981. Nor is it disputed that she did not file her charge of age discrimination with the Michigan Department of Civil Rights until November 3, 1981, 251 days after her termination by defendant. Plaintiff then filed her charge of age discrimination with the EEOC two days later, or 253 days after having been terminated. The timeliness of plaintiff's suit depends upon whether her claim is governed by the extended filing provisions of 29 U.S.C. § 626(d)(2).

Section 626(d) of the ADEA provides:

"No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed—

(1) within 180 days after the alleged unlawful practice occurred; or

(2) in a case to which section 633(b) applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State Law, whichever is earlier."

Section 633(b) in turn states:

"In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated...."

Section 633(b) affects the timing of proceedings in states known as "deferral" states. A deferral state is one that provides a state law equivalent to the ADEA. DePriest v. Seaway Food Town, Inc., 543 F.Supp. 1355 (E.D.Mich.1982). In such states an aggrieved person must first present a claim to the state agency. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979). By reason of the Elliott-Larsen Act, M.C.L.A. §§ 37.2201-37.2804, Michigan is a deferral state. DePriest v. Seaway Food Town Inc., supra. The timeliness of plaintiff's suit then depends upon whether she complied with the requirements of section 633(b). If this is so, then she may be entitled to the extended filing times provided by section 626(d)(2).

The Elliott-Larsen Act does not specify when charges of age discrimination must be filed with the state. As authorized by the Act, however, the state agency has ruled that, to be timely, charges must be filed with the state agency within 180 days of the allegedly discriminatory act. M.C.L.A. § 37.2602; Administrative Code 1969 R 37.4(6). Because plaintiff did not file her charge with the Michigan agency until 251 days after her allegedly discriminatory termination, her charge, defendant claims, was not timely filed with the state agency. Plaintiff has purportedly failed to comply with the requirements of section 633(b) of the ADEA. As a result, defendant claims, plaintiff is not entitled to file under the extended time limits of section 626(d)(2), but is instead governed by subsection one of that section. Because plaintiff filed her charge with the EEOC 73 days after the 180-day deadline fixed by section 626(d)(1), she is barred from bringing a civil suit under the ADEA.

The crucial question is whether filing with the Michigan Department of Civil Rights after its deadline bars plaintiff's civil suit. Analysis of this question should begin with consideration of Oscar Mayer & Co. v. Evans, supra.

In Evans, the Supreme Court held that, at least where the state statute of limitations was shorter than the 180 days allotted by section 626 of the ADEA, a grievant is not required to "commence state proceedings within time limits specified by state law." Id. at 753, 99 S.Ct. at 2070. The grievant in Evans had failed to file with the appropriate state agency in a deferral state; the defendant there argued that the grievant could not remedy his omission, and that the claim was jurisdictionally barred from federal court. In holding that the grievant could remedy his failure to file with the state agency, the Court stated that:

"there is no requirement that, in order to commence state proceedings and thereby preserve federal rights, the grievant must file with the State within whatever time limits are specified by state law. Rather, use of the word `commenced' strongly implies the opposite—that state limitations periods are irrelevant—since, by way of analogy, under the Federal Rules of Civil Procedure even a time-barred action may be `commenced' by the filing of a complaint."

Id. at 759, 99 S.Ct. at 2073.

Evans differs factually from the case at bar in that there, unlike the instant case, the state statute of limitations was shorter than the federal rule. The rationale of the case is nonetheless controlling. In essence, Evans seeks to give full effect to the law passed by Congress. Congress designed the ADEA so people could exercise both state and federal rights when they co-exist. That is why Congress allowed for "deferral" states, and why Congress gave deferral state grievants more time in which to file their federal claims. Oscar Mayer & Co. v. Evans, supra at 762, 99 S.Ct. at 2074.

Evans essentially prevents state statutes of limitation from having the double effect of determining not only when state claims become stale, but also when a federal right may be exercised.

The same result will be reached in the instant case if plaintiff's federal claim is not barred because her state claim is stale. Nor, as in Evans, will the state limitations rule be nullified. Plaintiff's claim may be time-barred for purposes of relief under state law. However, when a court finds that a federal claim is not stale because the state claim was time-barred, the state claim is not being revived. Thus, the state limitations rule, and the purposes it embodies, are not impaired. The federal rule and its goals are also left unaffected. Consequently, as in Evans, exercise of both state and federal rights is harmonized.

The Supreme Court's summary reversal of two Circuit Court opinions also sheds light on the role played by state statutes of limitations. Ciccone v....