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February 6, 1981

Alfred PIRONE, Plaintiff,
The HOME INSURANCE COMPANY, Defendant. Daniel F. GUTHRIE, Plaintiff, v. The HOME INSURANCE COMPANY, Defendant. Vito V. FERRARA, Plaintiff, v. The HOME INSURANCE COMPANY, Defendant. Charles A. BARKER, Jr., Plaintiff, v. The HOME INSURANCE COMPANY, Defendant

The opinion of the court was delivered by: CARTER

Plaintiffs, Alfred Pirone, Daniel Guthrie, Vito Ferrara, and Charles Barker, Jr., have brought these four actions against their former employer, the Home Insurance Company, which terminated their employment in April, 1978. Plaintiffs, who are all between the ages of 40 and 65, allege that age was a significant factor in their terminations, and that by terminating them defendant violated the federal ban on age discrimination. Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The precise circumstances surrounding their terminations need not be recited at length, but it should be noted that Pirone, Guthrie and Ferrara were all advised of their fate at the same meeting on April 14, 1978. Barker was advised of his termination a week later on April 21, 1978. It is a disputed factual issue between the parties whether the terminations were caused by necessary staff reductions, or whether defendant's claimed need to reduce staff was a pretext for firing based on other motives, including age. All four employees were summarily discharged without advance notice. Pirone had been employed by the Home Insurance Company for thirty-four years. Guthrie, Ferrara and Barker had acquired sufficient seniority that each was within two years of having his employer-provided pension vest.

Defendant now moves for summary judgment, pursuant to Rule 56, F.R.Civ.P., on two alternative grounds: each plaintiff's alleged failure to provide a timely, written charge to the Department of Labor, as required by § 626(d) of the ADEA, and the merits of the cases themselves. Defendant's motion is denied at this time with respect to all four plaintiffs, although for reasons which this opinion will make clear, Pirone's case now stands on a different footing from those of Guthrie, Ferrara and Barker. In all four cases there are sufficient factual issues in doubt to make resolution of the merits on a summary judgment motion inappropriate. In Pirone's case we now hold that suit is not barred by any procedural default, but for Guthrie, Ferrara and Barker we hold only that the issue of a procedural bar cannot be decided without a separate evidentiary hearing, to be held prior to trial on the merits.

Procedural Issues

 The issue of timely, written notice to the Department of Labor is problematic for all four plaintiffs, although the nature of the problem varies by individual. Section 626(d) provides in pertinent part that:

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed
... within 300 days after the unlawful practice occurred. *fn1"
Pirone contends that he filed two written charges with the Department of Labor. The second is uncontested, but was not filed until March 2, 1979, 322 days after his notice of termination. The first consisted of an interview of Pirone on April 17, 1978, reduced to writing by Stanley Friedman, Assistant Area Director of the Department of Labor's Wage and Hour Division for its Manhattan office. Pirone has submitted a copy of this writing which mentions Home Insurance Company by name and specifically charges it with age discrimination. Although Friedman did not at the time consider his writing to be a "written charge" filed on Pirone's behalf, he neglected to inform Pirone that any additional contact with the Department was necessary to preserve his right to sue. Pirone's continuing interest in preserving his right is demonstrated by his two attempts to file complaints with the New York State Division of Human Rights ("SDHR"), one immediately following his meeting with Friedman, and the second on September 5, 1978. Prior to the expiration of the 300-day period Home Insurance Company was notified of Pirone's allegations against it, and the Department of Labor attempted to conciliate the matter.
Taken together the above would suffice to toll the 300-day limitations period, see discussion infra at 1288-1290, so that the charge filed March 2, 1979, could then be considered timely. A letter of December 13, 1978, to Pirone from Norman Bromberg, Friedman's immediate superior, renders such tolling unnecessary. Bromberg's letter states:
This is to acknowledge receipt of the information you furnished us about the practices by the Home Insurance Co., 59 Maiden Lane, New York, N.Y., which you believe to be unlawful under the Age Discrimination in Employment Act, (ADEA)....
We are considering your complaint of 11/27/78 as a "charge" under the Act. Thus, unless you advise otherwise, the employer will be advised that you have filed the charge and conciliation will be begun.
It would appear that the literal requirements of § 626(d) were satisfied by a third charge which escaped Pirone's memory, and which he neglected to mention in his initial pleadings.
Guthrie's case and Ferrara's case present factual circumstances which are similar for the two cases. Both filed detailed written charges with the Department of Labor after the expiration of the 300-day period. Guthrie's was sent on April 5, 1979, and Ferrara's on April 6, 1979; thus the two were late by 56 and 57 days, respectively. Prior to this time neither had any direct contact with the Department of Labor, although both are mentioned in the written record of Pirone's April 17, 1978 interview as employees aggrieved of the same action as Pirone. Guthrie and Ferrara now contend that Pirone's interview reduced to writing constituted their charges as well as Pirone's. Alternatively, they argue that the 300-day limitations period should be tolled, so that their subsequent charges will be considered timely. Their situation is rendered poignant by the fact that although they notified the SDHR in time to have their cases considered, the latter did not apprise them of the need to sign and verify a formal complaint until after the state one-year limitation period had expired. Thus, the federal forum is now the only tribunal in which their cases can be heard on the merits.
Barker's situation is also problematic. On May 10, 1978, approximately three weeks after his discharge, Barker sent a letter to both of his Senators in which he stated:
I would like to call your attention to a practice by a major corporation which appears to be a violation of the pension reform act... I was formerly an ...

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