The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
This action was brought pursuant to Section 7(b) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(b) (hereinafter "ADEA"), by a former employee of defendant Alcan Sheet & Plate Division of Alcan Aluminum Company. Plaintiff's action was also founded on the Civil Rights Act of 1871, 42 U.S.C. § 1983.
The case is now before the Court on defendant's motion for summary judgment or dismissal under Fed.R.Civ.P. 12(b) insofar as the action is based on 42 U.S.C. § 1983, and for summary judgment or dismissal for lack of subject matter jurisdiction with respect to the ADEA action.
Plaintiff Thomas A. Jackson was notified on February 13, 1975, by his employer, Alcan Sheet & Plate ("Alcan"), to the effect that his job as a salaried scheduler was to be terminated. Plaintiff, at age 57, was the oldest of the four salaried schedulers, three of whom were retained in that position. When the notice of termination was given, plaintiff was also informed that he had the option of exercising his seniority rights to be eligible to return to an hourly production job. Plaintiff ceased performing services for Alcan on February 21, 1975. On February 28, 1975, he advised Alcan that he did not wish to exercise the proffered option to accept a lesser position; at this time, in the words of Alcan's personnel manager, plaintiff's termination became "final and irrevocable."
Plaintiff contacted Alcan's corporate offices in Cleveland, Ohio, seeking review of the company's action, and on March 11th received a reply, asking that he allow time for the company to investigate. On March 31, plaintiff was informed of the company's determination that plaintiff had been laid off in the course of a general reduction in force, in a manner procedurally consistent with others similarly situated. The March 31 letter also emphasized that the company had made every effort to allow plaintiff to assert his seniority rights in securing an alternate position.
Plaintiff filed a timely complaint with the New York State Division of Human Rights, alleging unlawful discrimination because of age. This complaint was dismissed on October 15, 1975, after investigation and attempts at mediation. On October 24, 1975, plaintiff filed a notice of appeal with the State Human Rights Appeal Board, and on December 24, 1975, filed a notice of intent to sue with the Secretary of Labor, as required by 29 U.S.C. § 626(d) as a prerequisite to commencing a civil action under the ADEA.
As a result of serious personnel shortages and a large backlog of cases, plaintiff's appeal to the State Human Rights Appeal Board was not heard until January of 1977. A decision was finally returned on August 30, 1977, affirming the dismissal originally rendered nearly two years earlier.
Plaintiff chose at this point not to seek judicial review of this decision through a proceeding in the Appellate Division as provided under Human Rights Law § 298, N.Y. Executive Law (McKinney's) but sought rather to pursue the available federal remedies. A Complaint was filed in Federal Court on March 16, 1978.
Defendant Alcan asserts in the motion here under consideration that the applicable statutes of limitation have expired with respect to plaintiff's action under both 29 U.S.C. § 626 and 42 U.S.C. § 1983. Section 7 of the ADEA, 29 U.S.C. § 626(e), incorporates the statute of limitations section (s 6) of the Portal-to-Portal Pay Act of 1947, 29 U.S.C. § 255, which provides in relevant part:
Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act
(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 three years after the cause of action accrued; . . .
Thus, the ADEA allows, at most, three years to pass after the cause of action accrues, and then only if plaintiff can successfully plead a willful violation.
Since plaintiff ceased working for Alcan more than three years before the filing of his Complaint, but maintained contacts with his former employer for approximately seven months from the date of termination so as to potentially make his action timely, the determination of the event which triggered the accrual of plaintiff's cause of action is of primary importance.
Plaintiff asserts that the continuance of a financial relationship with Alcan, involving the accrual of pension benefits and the withholding of money for bond purchases through September, 1975, constitutes a sufficient on-going employment relationship so that there was no actual termination until these benefits incident to employment had ceased. Alternatively, plaintiff suggests that the March 31, 1975 letter from Alcan's headquarters refusing to remedy the termination procedure marked the point at which the termination became final according to plaintiff's reasonable expectation. Thus the fact that the company's initial reply on March 11 asked ...