Wanamaker v. Columbian Rope Co.

• Citation: 713 F. Supp. 533
• Decision Date: 19 May 1989
• Docket Number: No. 88-CV-1135.,88-CV-1135.
• Parties: Giles A. WANAMAKER, Plaintiff, v. COLUMBIAN ROPE COMPANY, George T. Metcalf and Richard W. Cook, Defendants.
• Court: U.S. District Court — Northern District of New York

713 F. Supp. 533

Giles A. WANAMAKER, Plaintiff, v. COLUMBIAN ROPE COMPANY, George T. Metcalf and Richard W. Cook, Defendants.

No. 88-CV-1135.

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

May 19, 1989.

Edward A. Kiley, Rochester, N.Y., for plaintiff.

Hancock & Estabrook, Syracuse, N.Y., for defendants; David E. Peebles, of counsel.

MEMORANDUM-DECISION AND ORDER

McCURN, Chief Judge.

On May 9, 1989, the court heard oral argument on a variety of motions made by defendants, Columbian Rope Company ("CRC"), George T. Metcalf, and Richard W. Cook. Following constitutes the court's decision in that regard.

FACTUAL BACKGROUND

Prior to March, 1987, plaintiff had been employed as a vice president, general counsel and secretary of the defendant CRC. It is undisputed that on October 31, 1986, plaintiff was informed that he would be terminated effective June, 1987; at that time he was 54 years old. According to defendants, the reason for that termination was "part of an overall economic retrenchment which resulted, over a period of time, in the company going from a workforce of 70 salaried and 250 hourly employees in 1981 to 19 and 80, respectively, in its manufacturing and sales operation in 1987." Defendants' Memorandum of Law at p. 2-3. Plaintiff avers and defendants do not dispute that defendant, George Metcalf, CRC's Chairman of the Board during the relevant time frame, expressly told plaintiff that he was not terminated for cause. Wanamaker Affidavit (4/4/89) at par. 28.

While still in the employ of CRC, on March 2, 1987, plaintiff wrote a memo to CRC stating, in part:

After research and consultation with counsel expert in the area, it is my belief that the action taken by directors to terminate my employment as explained to me violates the federal Age Discrimination in Employment Act as well as the New York Human Rights Law.

I respectfully request that the directors reconsider and reverse their decisions regarding my employment.

Id., Ex. 2 thereto. Upon receipt of that memo, CRC's Board voted to remove plaintiff effective March, 1987. By letter from defendant Metcalf, plaintiff was so advised and the following reason was given:

Your memorandum has placed the Board in an awkward position. It is difficult to imagine how you can discharge your fiduciary responsibilities as Secretary and General Counsel having implied a possible claim against the Company. Given the foregoing, the Board feels that it would be a disservice to the shareholders if it were to allow you to continue as an officer and counsel of the Company.

Id., Ex. 3. Despite plaintiff's termination becoming effective earlier than originally anticipated, he continued to receive salary and benefits through June, 1987, as CRC originally agreed to provide. In addition, thereafter plaintiff's salary and benefits were extended for an additional three months beyond June, 1987 at 70% of his previous rate of pay.

Plaintiff eventually commenced the present action making a variety of claims, perhaps the most significant being his claims based upon defendants' alleged violations of the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff makes two claims under that Act; specifically he claims that defendants' violated the ADEA when they discharged him and that his early dismissal in March, 1987 was retaliatory, also in violation of the Act. Although not articulated as such, apparently plaintiff's discharge theory is that even though CRC did not hire someone to fill plaintiff's position of general counsel after his termination, it continued to use Hancock & Estabrook, as it had done prior to plaintiff's departure, to handle some of CRC's legal needs; and the partner, defendant Richard Cook, who rendered many of those legal services was approximately 37 years old when plaintiff was discharged. Therefore, plaintiff's theory seems to be that defendant Cook is his "replacement" for purposes of ADEA analysis.

PROCEDURAL BACKGROUND

On approximately September 1, 1987, plaintiff filed with the Federal Equal Employment Opportunity Commission ("EEOC") a "Charge of Discrimination" against CRC. In that charge, plaintiff alleged that he was dismissed on the basis of age and that the request to leave in March, 1987 was simply an act of retaliation. Even though there is no place on the standard form charge for requesting that it not be filed with the SDHR, the following was typed in bold face type at the top of the charge form:

Please do NOT file with NYS Div. of Human Rights, per discussion 8/24/87

That request was initialed by plaintiff. See, id. According to Ethel Titchener, a Human Rights Specialist with the SDHR, in accordance with "regular procedures" of the SDHR and the EEOC, as evidenced by the date stamp thereon, the Federal Contact Unit ("FCU") of the SDHR "received" plaintiff's EEOC charge on September 3, 1987. Titchener Affidavit (3/17/89) at par. 3 and Ex. A thereto (emphasis added).

When plaintiff filed his charge with the EEOC, a Worksharing Agreement was in effect between the EEOC and the SDHR. Peebles Second Supplemental Affidavit (5/1/89) at par. 3 and Ex. A. thereto. The stated purpose of that agreement is "to provide individuals with an efficient procedure for obtaining redress for their grievances under the relevant State and Federal Laws." Id., and Ex. A thereto at p. 1, par. I. With respect to charges received by the EEOC, the Worksharing Agreement expressly provides:

EEOC will refer to the FEP Agency SDHR copies of all ADEA co-jurisdictional charges (verified complaints) received by EEOC. Such referrals will be made in order to protect the private action rights of charging parties under ADEA and the Human Rights Law. Each charge will be accepted by the FEP agency SDHR as a verified complaint. The FEP Agency SDHR will notify complainant in writing that the investigation of the complaint will be made by the EEOC and the FEP Agency SDHR will base its determination on the facts elicited by the EEOC.

Id., Ex. A. thereto at p. 1 par. II(a).

On October 28, 1988, the EEOC's district director issued a determination finding that, based upon the evidence, plaintiff had not established an ADEA violation when it originally decided to terminate him. The EEOC district director did find, however, that CRC engaged in retaliation in violation of the ADEA when it forced plaintiff to leave its employ in March, 1987, several months earlier than his originally anticipated termination date.

In addition to making those findings, the district director outlined the procedures to be followed with respect to any future processing of plaintiff's charge. The director specifically advised:

If Charging Party plaintiff wishes to pursue his claim in court under the ADEA, the lawsuit must be brought within two years of the alleged discriminatory act of October 31, 1986 for his notification of termination and of March 5, 1987 for the act of retaliation or within three years in cases of willful violation(s). Please be advised that Charging Party's lawsuit must be brought within these timeframes whether or not he requests a review of this determination. Id. That determination was transmitted by FAX machine and sent certified mail return receipt requested to attorneys for the parties. As he was entitled to do, plaintiff sought and obtained EEOC review of the district director's determination. On December 9, 1988, the EEOC issued a determination upholding, in all respects, the determination made by the district director.

On October 28, 1988, plaintiff attempted to commence this action by filing a complaint with the clerk of the court. The complaint was delivered to the court clerk on that date, and defendants do not dispute that. It was not actually filed, however, until November, 1, 1988. The reason for that delay in filing was that the clerk's office returned the complaint on October 28, 1988, for failure to pay the statutorily required $120.00 filing fee. See Peebles Reply Affidavit (4/14/89) at par. 5, and Ex. A thereto.

There are five causes of action set forth in plaintiff's amended complaint. As previously mentioned, the first two are based upon alleged violations of the ADEA, arising out of plaintiff's discharge and the March, 1987 dismissal. Plaintiff also explicitly alleges three pendent state common law causes of action based upon defamation, intentional infliction of emotional distress, and breach of an implied covenant of good faith and fair dealing. Although plaintiff included a claim based upon a violation of the New York Human Rights Law ("HRL"), N.Y.Exec.Law § 290 et seq. (McKinney 1982 and Supp.1989), in his original complaint, such claim is not expressly set forth in his amended complaint; but plaintiff does incorporate by reference in his amended complaint some paragraphs of the original complaint which refer to the HRL. In addition, in his opposition papers, plaintiff states that the "primary" causes of action are based upon alleged violations of the ADEA and the HRL. Plaintiff's Memorandum of Law at p. 1. Thus, the court construes plaintiff's amended complaint as also stating a cause of action under the HRL.

Defendants are now moving to dismiss plaintiff's amended complaint for a host of reasons, which will be addressed separately herein.

DISCUSSION

I. Statute of Limitations

One of the reasons urged by defendants for dismissing plaintiff's ADEA claims is that those claims are purportedly barred by the statute of limitations. The statute of limitations for an ADEA action is borrowed from the Fair Labor Standards Act. See 29 U.S.C. § 626(e)(1). That statute provides, in pertinent part:

a) if the cause of action accrues on or after May 14, 1947-may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within

...