Wagner v. Sperry Univac, Div. of Sperry Rand Corp., Civ. A. No. 77-1066.

• Decision Date: 06 September 1978
• Docket Number: Civ. A. No. 77-1066.
• Citation: 458 F. Supp. 505
• Parties: Peter J. WAGNER v. SPERRY UNIVAC, DIVISION OF SPERRY RAND CORPORATION.
• Court: U.S. District Court — Eastern District of Pennsylvania

458 F. Supp. 505

Peter J. WAGNER v. SPERRY UNIVAC, DIVISION OF SPERRY RAND CORPORATION.

Civ. A. No. 77-1066.

United States District Court, E. D. Pennsylvania.

September 6, 1978.

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Norman Ashton Klinger, Norristown, Pa., for plaintiff.

William H. Brown, III, Paul R. Lewis, Philadelphia, Pa., for defendant.

OPINION

LUONGO, District Judge.

Peter J. Wagner filed the complaint in this action on March 24, 1977. All three counts of the complaint allege that defendant Sperry Univac, which formerly employed Wagner, unlawfully discriminated against him on the basis of his age by refusing to grant his requests for transfers, by later terminating his employment, and by failing to reinstate him. Count I alleges violations of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976), as amended by Age Discrimination in Employment Act Amendments of 1978, Pub.L. No. 95-256, 92 Stat. 189. Count II alleges violations of the Pennsylvania Human Relations Act, Pa.Stat.Ann. tit. 43, §§ 951-963 (Purdon 1964 & Supp.1978). Count III alleges violations of Wagner's employment contract with Sperry Univac. Presently before me is Sperry Univac's motion for partial summary judgment on count I of the complaint, and for summary judgment on counts II and III. See generally Fed.R. Civ.P. 56. For the reasons hereafter stated, I conclude that Sperry Univac is entitled to partial summary judgment on count I, that count II should be dismissed for lack of subject-matter jurisdiction, and that Sperry Univac's motion should be denied with respect to count III.

THE FACTS

On a motion for summary judgment, of course, the court must view the evidence in the light most favorable to the party opposing the motion. Bishop v. Wood, 426 U.S. 341, 347 n. 11, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1975); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). With that admonition in mind, the essential facts in this case may be summarized as follows. Peter J. Wagner was hired by Sperry Univac's predecessor¹ in October of 1952. N.T. 22; Volz Affidavit ¶ 3. At that time, he was twenty-five years old. He began as a mechanical technician, and he received successive promotions approximately every two-and-a-half years. During his first ten or twelve years with Sperry Univac, Wagner attended Drexel University in the evenings, and he received a bachelor's degree in Mechanical Engineering in June of 1964. Wagner was then made a mechanical engineer, and, after completing a training program at Sperry Univac, he was assigned to the Blue Bell, Pennsylvania plant, where he worked at designing memory drums and memory discs for particular computer systems manufactured by Sperry Univac. In December of 1967, he became a senior mechanical engineer, and in 1972, he was made a principal engineer. During this period, Wagner received salary increases approximately every twelve or eighteen months. N.T. 52-3, 59.

In February of 1974, while Wagner was assigned to a tape transport development project, Sperry Univac cancelled that project. N.T. 78, 89. Wagner was then assigned to an "OEM" (Original Equipment Manufacturers) project that was aimed at purchasing tape transport development from other manufacturers. N.T. 77, 89; Coffey Affidavit ¶¶ 3, 4. Several months later, Sperry Univac began laying off workers at its Blue Bell plant. N.T. 54, 95-96. Sperry Univac ultimately decided to transfer most activities related to tape technology to its Bristol, Tennessee plant, and Wagner was informed in December of 1974 that he would probably be laid off by the end of March, 1975. N.T. 96-97. None of the personnel connected with the "OEM" project at Blue Bell were transferred to the Bristol plant.² N.T. 190.

During the period preceding Wagner's ultimate termination, the personnel department at Sperry Univac made efforts to find another job for him. These efforts are described in the affidavit of Sperry Univac's personnel director:

"Such assistance included circulating Wagner's Professional Staff Data Sheet (a detailed resume of his activities with Univac since his hire) among all departments which could have had a need for his type of services, preparing resumes, offering leads for jobs with other companies, arranging interview for possible job openings with Univac, and offering any other assistance Mr. Wagner might have requested."

Volz Affidavit ¶ 6.

Shortly before Wagner's last day at Sperry Univac, he was offered a position comparable to the one he held at that time. However, this position was at Sperry Univac's plant in Utica, New York, and Wagner turned down the offer. N.T. 112-14; Coffey Memorandum, Exhibit 1 to Defendant's Answers to Interrogatories (Document No. 7).

Wagner was laid off on March 28, 1975. Sperry Univac prepared an "Employee Status and Change Notice." Exhibit V-1 to Volz Affidavit. This form reflects that Wagner was laid off, but that he remained eligible for rehire. "Pursuant to Univac's layoff procedure, he was given an additional two weeks pay in lieu of notice of his termination, as well as accrued vacation benefits." Volz Affidavit ¶ 5. Thus, Wagner received a paycheck for the two-week period ending April 11, 1975.

For "several months" after his layoff, Wagner believed that he "would be called back to duty" with Sperry Univac. Wagner Affidavit ¶ 5. He was "aware of other employees who had been laid off and called back to duty in other positions or under other job titles." Id. ¶ 7. Moreover, Wagner "had numerous conversations in person and by telephone with Univac's representatives aimed at his being called back to duty." Id.

On September 26, 1975, Wagner filed with the Secretary of Labor a written notice of his intent to sue Sperry Univac under the Age Discrimination in Employment Act. Exhibit W-3 to White Affidavit. The Department of Labor's Area Director for the Philadelphia area wrote to Sperry Univac that same day, relating the fact that Wagner had filed this notice, and stating that one of its compliance officers would visit Sperry Univac in the near future to begin the informal conciliation process that the Department pursues in all age discrimination cases. Exhibit W-1 to White Affidavit.

On November 13, 1975, Wagner filed a formal complaint with the Pennsylvania Human Relations Commission. Exhibit W-7 to White Affidavit. This complaint alleged that Sperry Univac had discriminated against Wagner on the basis of his age in its decision to lay him off and in its refusal to reinstate or rehire him.

On November 26, 1975, Wagner was interviewed at Sperry Univac and offered a position as a mechanical engineer at the company's plant in Dorval, Canada. Sigg Memorandum, Exhibit 2 to Defendant's Answers to Interrogatories (Document No. 7). Although the salary at this position would have been the same as his exit salary, Wagner turned down this offer. N.T. 115, 139.

On January 8, 1976, Wagner wrote to the Area Director of the Department of Labor, reiterating his intent to sue Sperry Univac under the Age Discrimination in Employment Act. Exhibit W-4 to White Affidavit. This letter referred in passing to Wagner's earlier notice of intent to sue.

By letter dated May 18, 1976, Sperry Univac offered Wagner a job as mechanical engineer at the Blue Bell plant. Exhibit 9 to Defendant's Answers to Interrogatories (Document No. 7). The salary at this position would have been substantially less than Wagner's exit salary, and Wagner turned down the position. In his reply letter to Sperry Univac, dated May 27, 1976, Wagner mentioned his "age discrimination charges" that were pending before both the Department of Labor and the Pennsylvania Human Rights Commission. Wagner stated his belief that Sperry Univac was under a duty to reinstate him at a salary comparable to his exit salary. The letter concluded: "If a suitable offer to return to Sperry Univac is not forthcoming, having exhausted every informal channel, I have retained an attorney and am prepared to file suit . . ." Exhibit 10 to Defendant's Answers to Interrogatories (Document No. 7). Subsequently, on March 24, 1977, Wagner filed this complaint.

WAGNER'S CLAIM UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT

As I noted earlier, Count I of the complaint alleges that Sperry Univac's actions with respect to Wagner violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976), as amended by Age Discrimination in Employment Act Amendments of 1978, Pub.L.No.95-256, 92 Stat. 189. The Act itself "broadly prohibits arbitrary discrimination in the workplace based on age." Lorillard v. Pons, 434 U.S. 575, 577, 98 S.Ct. 866, 868, 55 L.Ed.2d 40 (1978); see 29 U.S.C. § 623(a) (1976). Jurisdiction over this claim is conferred by 28 U.S.C. § 1331(a) (1976).

Sperry Univac argues that it is entitled to partial summary judgment on the ground that Wagner failed to comply with a procedural requirement embedded in the Act's complex enforcement provisions. See generally Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978); Comment, Procedural Prerequisites to Private Suit Under the Age Discrimination in Employment Act, 44 U.Chi.L.Rev. 457 (1977). At issue here is the notice-of-intent-to-sue requirement of section 7(d) of the Act, 29 U.S.C. § 626(d) (1976).³

Section 7(d) provides in pertinent part:

"No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days' notice of an intent to file such action. Such notice shall be filed —

(1) within one hundred and eighty days after the alleged unlawful practice occurred, or

(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the

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