Watlington v. University of Puerto Rico

• Decision Date: 05 November 1990
• Docket Number: Civ. No. 89-0022 (JP).
• Citation: 751 F. Supp. 318
• Parties: Francisco WATLINGTON, Plaintiff, v. UNIVERSITY OF PUERTO RICO, Defendant.
• Court: U.S. District Court — District of Puerto Rico

751 F. Supp. 318

Francisco WATLINGTON, Plaintiff, v. UNIVERSITY OF PUERTO RICO, Defendant.

Civ. No. 89-0022 (JP).

United States District Court, D. Puerto Rico.

November 5, 1990.

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COPYRIGHT MATERIAL OMITTED

José L. Rivero, Moreda & Moreda, San Juan, P.R., for plaintiff.

Rubén T. Nigaglioni, Ledesma, Palou & Miranda, Hato Rey, P.R., for defendant.

OPINION AND ORDER

PIERAS, District Judge.

The Court has before it various post-trial motions including defendant's Rule 50 Motion for Judgment Notwithstanding the Verdict (judgment n.o.v.). This is an age discrimination case filed by Francisco Watlington pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"). Mr. Watlington alleged that the University of Puerto Rico ("UPR") failed to renew his full-time teaching contract and also rejected his job application for a position in the Geography Department because of his age. The case proceeded to trial, and on April 4, 1990, the Jury returned a $75,000 verdict in favor of the plaintiff, concluding that the defendant had willfully discriminated against the plaintiff on the basis of his age.

After thoroughly reviewing the parties' legal memoranda and the evidence submitted to the jury, we grant defendant's motion under Rule 60(b) related to the plaintiff's failure to comply with the ADEA statute. We deny defendant's motion for judgment notwithstanding the verdict as to the non-renewal of the full-time teaching contract and grant the motion as to the October 4, 1987 advertised position and the back pay award. Plaintiff's request for reinstatement is denied.

I. TIME BAR AND FAILURE TO COMPLY WITH STATUTORY CONDITION PRECEDENT

Defendant claims that the plaintiff failed to file a charge with the Equal Opportunity Employment Commission ("EEOC") within 180 days after the act of illegal discrimination occurred and that the complaint should have been dismissed due to his failure to file timely the EEOC charge. Even if the EEOC charge was timely filed, defendant contends that the complaint was filed more than two years after the act of discrimination, and that plaintiff failed to establish at trial that the University willfully violated his rights. Therefore, because of this failure to prove willfulness, the applicable ADEA statute of limitations was two years rather than three years for a willful ADEA violation, and the complaint was time barred. Furthermore, defendant argues that plaintiff never amended his charge before the EEOC and the Puerto Rico Department of Labor, and that his second claim of discrimination as to the October 4, 1987 position advertised in the "convocatoria"¹ is consequently time barred.

Defendant originally argued this point as part of its judgment n.o.v. and then amended its request in the form of motion under Rule 60 of the Federal Rules of Civil Procedure. In the initial stages of this case, the Court denied defendant's request for an extension of time to file its summary judgment based on this point. Subsequently, defendant filed a reconsideration on October 3, 1989, which defendant claims was neither granted nor denied. However, a perusal of the docket reveals that this Reconsideration was denied on October 6, 1989. See Docket # 38, entered on October 11, 1989. In response to defendant's reconsideration motion, plaintiff filed an Opposition and Motion to Strike Affirmative Defenses which was neither granted nor denied. See Docket # 31, entered on October 10, 1989. After the denial of the defendant's reconsideration, the defendants filed a "Reply to Opposition to Defendant's Request for Reconsideration ... and/or Counter Motion for Summary Judgment" on October 10, 1989. See Docket # 37, entered on October 11, 1989. This Counter Motion for Summary Judgment was neither granted nor denied. Therefore, we consider defendant's request proper under Rule 60(b)(1) and (6), which provide that the Court may relieve a party from a final judgment, order, or proceeding for reason of mistake, inadvertence, surprise, or excusable neglect, ((b)(1)), or for any other reason justifying relief ((b)(6)). See Scola v. Boat Frances R., Inc., 618 F.2d 147, 154, 155-56 (1st Cir.1980) (construing "any other reason" to mean "extraordinary circumstances"). Although plaintiff claims that the defendant is not entitled to request the Court to consider these arguments because it failed to present them as a defense at trial, defendant preserved this defense in its answer and in the Pretrial Order. See Federal Deposit Ins. Corp. v. Ramirez-Rivera, 869 F.2d 624, 627 (1st Cir.1989); accord Brooks v. Monroe Systems for Business, Inc., 873 F.2d 202, 205 (8th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989). Thus, we use our discretion to entertain the motion, see, e.g., Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1989); Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28-29 (1st Cir. 1988), and conclude that the circumstances in this case justify the Court's consideration of defendant's statute of limitations arguments. Cf. United States v. Belanger, 598 F.Supp. 598, 601 (D.Me.1984) (relief granted under Rule 60(b): defendant filed motion prior to expiration of time for appeal, and trial court was in position to correct its own error).

Under the ADEA, no civil action may be commenced by an individual until sixty days after a charge alleging unlawful discrimination has been filed with the EEOC. The EEOC charge must be filed within 180 days after the alleged unlawful practice occurred. 29 U.S.C. § 626(d)(1) (1985). The EEOC, upon receipt of such charge, must promptly notify all persons named in the charge as prospective defendants and must also attempt to eliminate any allegedly discriminatory practice through informal conciliation methods. 29 U.S.C.A. § 626(d). Courts have consistently dismissed parties in an ADEA action when these statutory procedures have not been followed. See, e.g., Michelson v. Exxon Research and Engineering Co., 808 F.2d 1005, 1009 (3d Cir.1987) (failure to file writing sufficient to constitute charge resulted in summary judgment for defendant); Jay v. International Salt Co., 694 F.Supp. 207, 208 (W.D.La.1988), aff'd on other grounds, 868 F.2d 179 (5th Cir.1989) (failure to file any charge pursuant to § 626(d) requirements entitled defendant to summary judgment). However, these statutory conditions precedent do not constitute jurisdictional prerequisites and are therefore subject to equitable modification. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (Title VII condition precedent is not jurisdictional); Calderón v. Banco Santander-Puerto Rico, 671 F.Supp. 898 (D.P.R. 1987) (180 day period ADEA provides for filing EEOC charge is not jurisdictional requirement).

Generally, a cause of action in an age discrimination case accrues when the employee receives notice of the discriminatory act, not the date when the decision becomes effective. Shockley v. Vermont State Colleges, 793 F.2d 478, 481 (2nd Cir. 1986) (citing Chardón v. Fernández, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981); Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)). In the Delaware State College v. Ricks, a Title VII case involving a professor's denial of tenure, the Supreme Court held that the plaintiff's cause of action accrued when he was notified by the Board of Trustees of its final decision that he was denied tenure. 449 U.S. at 261, 101 S.Ct. at 505-06, 66 L.Ed.2d at 442-443. Later on, Chardón v. Fernández, a political discrimination case in which several non-tenured administrators in the Puerto Rico Education Department were terminated, the Court emphasized that "the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful," 454 U.S. at 8, 102 S.Ct. at 29 (emphasis in original), so that the plaintiffs' cause of action accrued when they were informed by letter that their appointments would terminate on a specific date.

Defendant argues that Mr. Watlington learned of the nonrenewal of his full-time service contract as early as August or September of 1986, and not later than November of 1986. Although the plaintiff had reason to believe he might not have been offered the full-time service contract before January of 1987, it was not until January 7, 1987, when Professor Méndez finally offered plaintiff the three-course contract, that plaintiff was "clearly informed" that he would not receive the four-course teaching scheduling he had originally signed up for in August of 1986. In an ADEA case, although the notice of adverse employment decision need not be a formal written form in order to trigger the limitations period, Leite v. Kennecott Copper Corp., 558 F.Supp. 1170, 1174 (D.Mass. 1983), the termination occurs when the employer announces a final decision, and not during a "pre-announcement time when the worker reasonably might know that his job is in jeopardy." Allen v. American Home Foods, Inc., 658 F.Supp. 451, 452, (N.D.Ind. 1987) (citations omitted). Thus, Mr. Watlington's EEOC charge, filed on May 6, 1987, see Plaintiff's Exhibit 20, was timely filed within 180 days after January 7, 1987, when he was clearly informed that his full-time service contract would not be renewed.

Defendant also argues that the plaintiff's complaint was filed beyond the two-year limitation period. Under the ADEA, a cause of action must be commenced within two years after it accrues, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. 29 U.S.C. § 626(e) (referring to 29 U.S.C. § 255 statute of limitations provision). Because the plaintiff's action accrued on January 8, 1987, and the complaint was filed on January 9, 1989, plaintiff's complaint was timely filed. Moreover, because we uphold the jury's finding of willfulness, se...