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PFISTER v. ALLIED CORP.

April 29, 1982

William A. PFISTER, Plaintiff,
v.
ALLIED CORPORATION (formerly Allied Chemical Corporation), a New York corporation, Defendant



The opinion of the court was delivered by: SAND

Plaintiff, William A. Pfister, was employed by the defendant, Allied Corporation, as Assistant General Counsel. On September 17, 1979, the plaintiff was given written notification that he would be officially terminated on October 31, 1979, though his actual last day of work was September 31, 1979. According to the plaintiff, on April 23, 1980, he filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). The EEOC notified the defendant by letter dated May 14, 1980 that it would commence its conciliation efforts. Two months later, by letter dated July 14, 1980, the EEOC informed the plaintiff that conciliation efforts had failed, and that the plaintiff could initiate his own private action.

The plaintiff alleges that "during the time surrounding his termination," he made repeated attempts to persuade Allied to "reserve its employment decision," and that on or about January 20, 1981, the defendant offered the plaintiff approximately $ 10,000 to settle his case and withdraw his charge. Plaintiff's Brief at 1-2. According to the plaintiff, although no settlement was reached, "plaintiff continued to seek amicable resolution of his grievance with the defendant" and Allied showed "a willingness to discuss the matter." Plaintiff's Brief at 2.

 On December 29, 1981, the plaintiff commenced the present action alleging that he was unlawfully terminated because of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA").

 The defendant has brought this motion to dismiss the complaint on the grounds that the plaintiff's suit is untimely since it was not commenced within the two-year statute of limitations period for non-willful violations, and for failure to state a claim upon which relief can be granted.

 The statute of limitations for actions brought under the ADEA is determined by § 255 of the Portal-to-Portal Pay Act which provides:

 
"(an action) 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...."

 29 U.S.C. § 255(a). The defendant asserts that a cause of action for wrongful termination under the ADEA accrues on the date that the employee receives notice of the alleged unlawful action, and the plaintiff contends that such an action accrues when the employee's termination actually takes effect.

 A review of recent Supreme Court pronouncements on this and analogous subjects convinces the Court that the defendant's position is a correct statement of the current state of the law. In Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980), the plaintiff was informed that he was denied tenure at Delaware State College and that he was being offered an additional one-year terminal contract. He filed a discrimination charge with the EEOC and more than two years later, commenced an action under Title VII and § 1981 of Title 42 of the United States Code, alleging discrimination on the basis of national origin. The District Court's conclusion that the plaintiff's cause of action under both statutes accrued when he received notice of the alleged unlawful act was sustained by the Supreme Court. In rejecting the plaintiff's argument that the existence of a grievance procedure caused the limitation period to run from the date of his actual termination, the Court stated that "(t)he existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer's decision is made." 449 U.S. at 261, 101 S. Ct. at 506 (emphasis added).

 The plaintiff protests that the Supreme Court's decision in Ricks is applicable only to cases involving tenure decisions. The Supreme Court has explicitly rejected this argument in its reversal of a First Circuit decision which had held that a cause of action accrues at the time a wrongful discharge actually takes effect. Fernandez v. Chardon, 648 F.2d 765 (1st Cir.), rev'd, -- - U.S. -- , 454 U.S. 6, 102 S. Ct. 28, 70 L. Ed. 2d 6 (1981). The Supreme Court stated:

 
"The Court of Appeals for the First Circuit distinguished Ricks on the ground that Ricks had alleged that denial of tenure was the "unlawful employment practice,' whereas here respondents allege that termination of their employment as administrators was the "unlawful employment practice.' We think Ricks is indistinguishable."

 102 S. Ct. at 28 (emphasis in original). Even though the plaintiff in Chardon continued to work for a year after he was notified of his termination, the statute of limitations was held to run from the date he received notice of the termination decision.

 A number of courts have subsequently applied the Chardon rule in ADEA cases. See, e.g., Aronsen v. Crown Zellerbach, 662 F.2d 584 (9th Cir. 1981); Lippert v. General Electric Co., 27 FEP Cases 1427 (W.D.Ky.1982); Cantrell v. Illinois Bell Telephone, No. 81 C 4565 (N.D.Ill. December 3, 1981) (slip op.); EEOC v. Kimberly-Clark Corp., 531 F. Supp. 58 (N.D.Ga.1981). The plaintiff has referred this Court only to pre-Chardon cases.

 This Court, bound by the Supreme Court decisions in Chardon and Ricks, finds that the statute of limitations in this action began to run on the date the plaintiff received written notice of the final termination decision-September 17, 1979. As the Supreme Court noted in Chardon : "The fact that (he was) afforded reasonable notice cannot extend the period within which suit must be filed." 102 S. Ct. at 29. Thus, the plaintiff's claims of nonwillful ADEA violations were time-barred as of September 17, 1981, more than three months before this action was commenced.

 The Court need not decide whether the ADEA provision tolling the statute of limitations during the time the Secretary is pursuing conciliation efforts applies to civil actions brought by private individuals. See 29 U.S.C. § 626(e)(2). This is so since, even if the limitations period was tolled for the longest conceivable conciliation period-from April 23, 1980 (the date on which the plaintiff filed his charge with the EEOC) to July 14, 1980 (the date of the EEOC's notice ...


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