The opinion of the court was delivered by: KNAPP
Defendant Western Electric Company has moved to dismiss, or in the alternative for summary judgment in this action brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"); the Vocational Rehabilitation Act, 29 U.S.C. § 793 et seq. and New York Executive Law § 296 et seq. All plaintiffs charge that they were involuntarily retired by Western Electric in violation of the ADEA. Plaintiff Langman additionally charges that he was retired due to a disability in violation of the Rehabilitation Act. According to plaintiffs, the facts leading to the foregoing charges are:
In 1975 Western Electric began a program designed to reduce the number of its employees in New York. As part of this program certain departments were relocated and employees were evaluated in order to determine which employees should be laid off or retired.
When the program began, plaintiffs were all employed as engineers at Western Electric's Corporate Engineering Division in New York City.
In July 1976 plaintiffs were each evaluated "marginal." Langman and Taubenschlag had never previously been rated so poorly. Plaintiff Philactos had been so rated in 1974 when he was asked to retire. However, between 1974 and July, 1976 his performance had been rated "good."
In late October and early November, 1976 plaintiffs were all demoted to Engineering Associates. Langman was also transferred to a different department.
On January 3, 1977, the plaintiffs were each advised that their employment would be terminated effective February 28, 1977. On that date each plaintiff's employment was terminated and each was compelled to accept involuntary retirement. Under Western Electric's pension plan, any employee who has been with the company for thirty years may be retired at the company's discretion. On the date of their retirement, Langman and Philactos were fifty-eight years of age and Taubenschlag was fifty-seven.
The plaintiffs allege that when Western Electric decided to reduce the number of employees in New York it determined to keep its younger employees, and terminate the older. It is plaintiffs' contention that Western Electric's ratings of their performance, their demotions, and their involuntary retirements were the result of their age rather than any poor performance.
On January 3, 1977 Philactos filed a complaint with the U. S. Secretary of Labor. Langman filed his complaint on April 8, 1977 and Taubenschlag filed on June 16, 1977. Each of the three complaints alleged that the grievant had been fired because of his age and that therefore the grievant believed he had been a victim of age discrimination.
On February 11, 1977 Philactos filed a verified complaint with the New York State Division of Human Rights in which he charged Western Electric with age discrimination. Taubenschlag filed a written complaint on October 6, 1977. Langman attempted to file his complaint with the New York State Division of Human Rights on June 21, 1977. However, according to Langman, he was told at the Hauppauge office that since he had already filed with the Department of Labor, it was improper to file with the State of New York.
On November 30, 1978 plaintiffs requested that the Department of Labor confirm their rights to sue under the ADEA. On January 17, 1979 the Department issued such a notice.
According to the affidavit of plaintiff's attorney, David L. Fox, he was notified during a telephone conversation with a representative of the Labor Department that the Department was conducting negotiations but that these efforts had up until that point been unsuccessful.
Western Electric's motion to dismiss or for summary judgment on plaintiffs first and second claims (the ADEA claims) raises the following three questions: (1) Did plaintiffs file a "notice of intent to sue" within three hundred days of the alleged violation? (2) Did plaintiff Langman meet the jurisdictional prerequisite of filing a complaint with the New York State Division of Human Rights before instituting this federal action? (3) Was the discretionary ...