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December 23, 1981

Gordon B. ALLEN, Plaintiff,
COLGATE-PALMOLIVE COMPANY, James F. Flood, William W. Kneebone, Joseph H. Maday and Ralph A. Champlin, Defendants

The opinion of the court was delivered by: HAIGHT


This is an action brought to redress alleged violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Plaintiff, a former employee of defendant Colgate-Palmolive Company ("Colgate"), claims that he was both demoted and forced into early retirement on account of his age. The case is presently before the Court on defendants' motion for summary judgment in their favor dismissing the complaint or for partial summary judgment, and on plaintiff's cross-motion for an order compelling discovery.


 The following facts appear from the affidavits and exhibits submitted on the motion.

 Plaintiff Gordon Allen was employed by Colgate from April 1937 until February 28, 1977. Originally employed as a clerk in the mailroom, plaintiff eventually became a salesperson for Colgate, and, in 1962, attained the position of District Manager, Personal Care Products Division, Northeast Region. In mid-1972, following a nationwide reorganization of Colgate's sales structure, plaintiff was demoted to the position of Area Manager. Plaintiff's base salary was not diminished as a result of the demotion, but it appears that his total remuneration, including potential bonuses and anticipated retirement benefits, was reduced.

 The record has not been developed fully with respect to plaintiff's performance as an Area Manager; the only contemporaneous job evaluation presently before the Court is plaintiff's 1975 Performance Review, signed by defendants Flood and Maday, which states that plaintiff was "(n)on-promotable due to age." Exhibit 2 to Affidavit of Gordon Allen, sworn to February 14, 1980. Plaintiff remained an Area Manager until October 1976, when he was informed that effective January 1, 1977, he would once again be demoted with no diminishment in base salary, this time to the position of salesperson. Plaintiff was then sixty years of age.

 The demotion never took effect. Instead, plaintiff began discussing with Colgate personnel the possibility of retiring early in lieu of demotion. In late December 1976, plaintiff took some vacation days; in early January 1977, he allegedly became ill and submitted a physician's note to excuse his absence from work for two weeks. Approximately two months passed, however, without plaintiff returning to Colgate. During this time, plaintiff received an Area Manager's base salary and commissions. Finally, plaintiff was given the following choice: return to work as a salesperson; take a leave of absence without pay from Colgate; or retire early. Plaintiff chose the latter option, although in a letter to Maday dated March 7, 1977, he expressed his opinion that his retirement was forced by Colgate. Exhibit E to Affidavit of Frank J. Borges, Colgate Director of Compensation Administration and Employee Services, sworn to December 20, 1979. Plaintiff retired effective March 1, 1977, from the position of Area Manager. Since his retirement, he has been receiving substantial retirement benefits pursuant to the Colgate-Palmolive Company Employees Retirement Income Plan as Amended Effective January 1, 1977 (the "Plan"). The pertinent provisions of that Plan were in effect prior to the enactment of the ADEA.

 On June 23, 1977, plaintiff filed the requisite notice of intent to sue with the United States Department of Labor ("DOL"). In the notice, which named Colgate as a potential defendant but omitted any mention of the individual defendants named herein, plaintiff alleged that his demotions and "involuntary early retirement" were prompted by age discrimination. On September 1, 1977, the DOL notified plaintiff of his right to sue Colgate. That same day, plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR"), naming as respondents all defendants named herein except defendant Champlin. On May 29, 1978, the NYSDHR notified plaintiff that it found probable cause to believe that respondent had engaged in the discriminatory acts complained of. On February 28, 1979, the instant complaint was filed. Defendant Champlin has not yet been served. The complaint in essence alleges that, at the time of his first demotion in 1972, his second demotion in 1976, and his "termination" on March 1, 1977, plaintiff was the victim of willful age discrimination on the part of defendants, which resulted in lost wages and benefits, as well as pain and suffering and other injury. With respect to his departure from Colgate, plaintiff asserts that his early retirement was not a product of his choice at all, but was in fact the practical equivalent of a constructive discharge from Colgate. Plaintiff contends that the foregoing constitutes a prima facie violation of § 4(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1).

 On the instant motion for summary judgment, defendants claim that even if plaintiff had been forced to retire early because of his age, plaintiff was nevertheless retired pursuant to the terms of a bona fide retirement plan. Thus, according to defendants, the conduct at issue falls within the exemption to the proscriptions of the ADEA set forth in § 4(f)(2) of the Act, 29 U.S.C. § 623(f)(2), as that subsection existed at the time plaintiff retired, or, at least, that defendants had a good faith belief that it did. Second, defendants contend that the complaint should be dismissed as time-barred. Third, they argue that plaintiff's claim for compensatory damages other than those for lost wages and benefits is not cognizable under the ADEA; that, because plaintiff was paid his full base salary until he retired, he would be entitled to neither lost wages nor lost benefits if defendants prevail on the issue of the § 4(f) (2) defense; and that, as a consequence, plaintiff's claim for liquidated damages fails as well. Finally, the individual defendants assert that, because they were not named in the notice of intent to sue, the Court lacks subject matter jurisdiction over the complaint as against them; defendant Champlin cites as an additional jurisdictional defect plaintiff's failure to name him in the complaint filed with the NYSDHR.

 Following the order adopted by the parties in their briefs, I address first these arguments, and then turn to plaintiff's cross-motion to compel discovery.


 A. § 4(f)(2) Defense

 Section 4(a) of the ADEA renders it

"unlawful for an employer-
"(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1).

 The Act, however, does not make every early retirement unlawful. Rather, prior to the 1978 amendments to the ADEA, § 4(f)(2) provided in pertinent part:

"It shall not be unlawful for an employer...
"(2) to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual...." 29 U.S.C. § 623(f)(2). *fn1"

 Thus, an employer seeking to establish that its conduct falls within the § 4(f) (2) exemption must prove three elements: *fn2" (1) that, in retiring its employee, it was "[observing] the terms of (2) a "bona fide" retirement plan (3) which is not a "subterfuge to evade" the purposes of the ADEA. Smart v. Porter Paint Co., 630 F.2d 490, 493 (7th Cir. 1980); see United Airlines, Inc. v. McMann, 434 U.S. 192, 98 S. Ct. 444, 54 L. Ed. 2d 402 (1977).

 In the case at bar, the latter two elements are not seriously disputed. The Colgate Retirement Plan pursuant to which plaintiff is receiving benefits is bona fide in that it in fact "exists and pays substantial benefits," Brennan v. Taft Broadcasting Co., 500 F.2d 212 (5th Cir. 1974); Smart, supra, 630 F.2d at 494; Marshall v. Atlantic Container Line, 18 Fair Empl.Prac.Cas. 1167, 1173-74 (S.D.N.Y.1978), motion reconsidered, 470 F. Supp. 71 (S.D.N.Y.1979); in plaintiff's case, he is presently receiving more than $ 1400 monthly. Furthermore, since the Plan was adopted prior to enactment of the ADEA, it cannot, by definition, be a subterfuge to evade the purposes of the ADEA. McMann, supra, 434 U.S. at 203, 98 S. Ct. at 450. At issue in this case is whether Colgate "observe(d) the terms" of its retirement plan when it retired plaintiff in 1977. *fn3"

 Defendants assert that the first element of the § 4(f)(2) defense-that the employer "observe the terms" of a plan-is a simple one, satisfied where, as defendants contend is the case here, the plan permits involuntary retirement at the option of the employer, and the employee is not merely discharged, but receives substantial post-retirement benefits. See, e.g., Marshall v. Hawaiian Telephone Co., 575 F.2d 763 (9th Cir. 1978); Zinger v. Blanchette, 549 F.2d 901 (3d Cir. 1977), cert. denied, 434 U.S. 1008, 98 S. Ct. 717, 54 L. Ed. 2d 750 (1978). Plaintiff urges that the requirement is more complex, and that the plan at issue must mandate involuntary retirement, as was the case in McMann, or, at the least, that the retirement itself should be based on reasons in addition to the employee's age. See, e.g., Cowlishaw v. Armstrong Rubber Co., 450 F. Supp. 148 (E.D.N.Y.1978); Hannan v. Chrysler Motors Corp., 443 F. Supp. 802 (E.D.Mich.1978). See generally, Havelick v. Julius Wile Sons & Co., Inc., 445 F. Supp. 919 (S.D.N.Y.1978). I need not resolve these issues, however, because I find that the terms of the Colgate Plan neither mandate early retirement nor provide for it at the employer's option, and that in fact the relevant terms of the Plan disavow any connection between the Plan and involuntary retirement at Colgate's option.

 The Colgate Plan provides for a "normal retirement date," which is defined in Article V ("Retirement Dates"), P 1, as "the first of the month next following the Member's sixty-fifth birthday"; for continued employment after the normal retirement date, which, under Article V, P 2, may be requested by Colgate under specified conditions; and for early retirement. Pursuant to Article V, P 3, "[an] active Member may retire at an Early Retirement Date, which may be the first of any month after his fifty-fifth birthday" (emphasis added). Other references to an early retirement date are found throughout the Plan. For example, P 11 of Article III, the definitional article, states that:

" "Retirement Date' means a Member's Normal Retirement Date unless an Early Retirement Date has been duly elected in which case the term "Retirement Date' shall mean the Member's Early Retirement Date in the case of an Active Employee." (emphasis added).

 Article V, P 5, provides:

"In the case of a Member with respect to whom a Cash Refund Joint and Survivor Annuity form shall have been elected and whose request for an Early Retirement Date is not received at least two years prior to the Early Retirement Date so requested, evidence of the good health of the Employee will be required as a condition for the election of the Early Retirement Date. If such evidence of good health is not furnished, a Member who satisfies the other requirements for electing an Early Retirement Date may nevertheless elect to have annuity payments commence at the Early Retirement Date desired on the following basis: ..." (emphasis added).

 Finally, in referring to the amount of retirement income, Article VI, P 2, states in pertinent part:

"At Early Retirement Date each Member, who elects to retire at Early Retirement Date, directly from the employment of the Company, will be entitled to receive a monthly retirement income on the normal form commencing at his Early Retirement Date." (emphasis added).

 As the highlighted portions indicate, early retirement is characterized throughout these clauses as an option of the employee. Defendants concede this point, but dispute plaintiff's claim that these provisions give the employee, and the employee alone, the sole right to ...

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