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June 10, 1981

Elbert T. HOVEY, Plaintiff,

The opinion of the court was delivered by: NICKERSON


On July 28, 1978 defendant terminated plaintiff's employment as chief accountant after six and one-half years on the job. Plaintiff was then sixty-two years old. He later filed this action alleging that his termination was in violation of the Age Discrimination in Employment Act of 1967 ("Act"), 29 U.S.C. § 623(a)(1), and a tortious abusive discharge under common law.

Defendant now moves under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint on the grounds that the claims under the Act are barred by the statute of limitations and that the allegations of an abusive discharge do not state a claim under New York law.

 For purposes of the motion the court regards the material allegations of the complaint as admitted and construes the complaint liberally in favor of plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1848, 23 L. Ed. 2d 404 (1969).

 The complaint alleges in substance as follows. Defendant hired plaintiff in December 1971 as chief accountant. During his six and one-half years of employment plaintiff received several salary increases and maintained an unblemished work record. In the first week of June 1978, Chris Aspinall, defendant's director of financial operations, falsely criticized plaintiff's work, and thereafter suggested, under threat of plaintiff's dismissal, that he accept a $ 7,000 reduction in his $ 22,000 per year salary. When plaintiff refused, Aspinall asked him to submit his resignation by July 1, 1978. The deadline was later extended to July 28 but when plaintiff then refused to resign he was terminated. His termination was willful and based on his age, in part to reduce the cost of funding pension benefits. Plaintiff was replaced by a person less than thirty years old.

 About July 31, 1978 plaintiff filed charges with the United States Secretary of Labor alleging age discrimination in violation of the Act. By letter dated August 11, 1978 the Secretary of Labor acknowledged receipt of the charge. On June 19, 1979 the Department of Labor advised plaintiff that its efforts to conciliate his claim were unsuccessful and that he was free to pursue independent legal action. Plaintiff filed this action on November 25, 1980.

 On August 9, 1978 plaintiff filed a formal written complaint with the New York State Executive Department, Division of Human Rights, charging that he was discharged from his job because of his age. On October 21, 1980 the Division of Human Rights issued a Determination After Investigation finding probable cause to believe that defendant discriminated against plaintiff on the basis of age.

 I. The Statute of Limitations.

 The general statute of limitations for actions under the Act is two years from the date the action accrues, but claims arising out of willful violations may be brought within three years after the action accrues. 29 U.S.C. § 626(e)(1) incorporating 29 U.S.C. § 255(a). The claim in this case accrued on July 28, 1978, the date of plaintiff's alleged termination. Jackson v. Alcan Sheet & Plate, 462 F. Supp. 82, 85 (N.D.N.Y.1978). The complaint was filed on November 25, 1980, two years and four months later.

 The allegations that defendant willfully violated the Act are not merely conclusory and are sufficient to bring the action within the three year statute of limitations. Plaintiff alleges that he had an unblemished employment record, that defendant contrived falsely to criticize his work and then fired him after he rejected a $ 7,000 cut in pay, and that defendant replaced him in the position with a person in his twenties, in part to save pension costs. These allegations sufficiently state a willful violation of the Act.

 However, if the action is timely within the three year but not the two year statute, plaintiff may recover only for willful violations. Thus, plaintiff argues that he filed within the two year statute because it was tolled from the date plaintiff's charge was filed with the Secretary of Labor August 11, 1978 to the date plaintiff was informed that the Secretary's efforts at conciliation were unsuccessful June 19, 1979.

 Section 626(e)(2) of Title 29 of the United States Code provides:

For the period during which the Secretary is attempting to effect voluntary compliance with requirements of this chapter through informal methods of conciliation, conference, and persuasion pursuant to subsection (b) of this section, the statute of limitations as provided in section 255 of this title shall be tolled, but in no event for a period in excess of one year. (Emphasis supplied).

 The last sentence of section 626(b) recites that "before instituting any action under this section," the Secretary shall attempt to eliminate the discriminatory practices alleged and seek a settlement through informal negotiation. Section 626(d) provides that no civil action may be commenced by an individual until sixty days after the filing of the charge with the ...

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