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ALLOTTA v. CHASE MANHATTAN BANK

September 24, 1982

VINCENT J. ALLOTTA, Plaintiff,
v.
THE CHASE MANHATTAN BANK, N.A., Defendant



The opinion of the court was delivered by: POLLACK

MEMORANDUM

 Milton Pollack, District Judge.

 Vincent Allotta commenced this action against his former employer, The Chase Manhattan Bank, alleging that he was discharged by the Bank on May 30, 1980 in violation of the Age Discrimination Act of 1967, as amended, 29 U.S.C. §§ 621-634. The Bank has moved pursuant to Rule 12(b) (6), Fed. R. Civ. P. to dismiss this action on the ground that the statute prohibits commencement of such a suit against an employer unless the aggrieved employee has filed a charge alleging unlawful discrimination against his former employer with the Equal Employment Opportunity Commission within a specified time after the alleged unlawful practice occurred and that here, Allotta filed such a charge long after the expiration of the period within which to complain of the alleged unlawful practice.

 Allotta concedes the untimeliness of the filing of his charge but contends that equitable considerations tolled the time limit. Having failed to set forth any facts to justify equitable tolling of the filing requirement, plaintiff's civil action must be dismissed. The facts follow.

 Allotta was employed by Chase Manhattan Bank or its predecessor for 17 years until he was terminated at 43 years of age. At the time of his discharge, Allotta was employed as a Vice President and Account Executive in the Factor and Finance Department of Chase and was salaried at about $45,000 per year. Allotta was terminated as of May 30, 1980 although he received salary until November 30, 1980. On June 24, 1980 plaintiff granted an interview concerning his severance to a trade newspaper, the Women's Wear Daily, which stated that Allotta announced he was leaving the company and in which he said "he was leaving because of a difference over 'the philosophy of operating a factoring company.'"

 Allotta did not commence any form of proceedings against the Bank until February 17, 1982 when he filed a charge with the Equal Employment Opportunity Commission. On April 23, 1982, he filed a complaint with the State Division of Human Rights. This Division declared on May 27, 1982, pursuant to Executive Law § 297.2, that it did not have jurisdiction as the complaint was filed more than one year after the alleged violation. On May 28, 1982 this action was filed.

 Section 626(d) of the Age Discrimination in Employment Act provides:

 
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 [Equal Employment Opportunity Commission]. Such a charge shall be filed --
 
(1) within 180 days after the alleged unlawful practice occurred; or
 
(2) in a case to which section 633(b) of this title applies, [such as New York], within 300 days after the alleged unlawful practice occurred, or within 30 days after the receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

 There is no doubt that the 300 day filing requirement was not met. No charge was filed until February 17, 1982. This date is more than 300 days after both Allotta's notification of his severance, May 30, 1980 and his last receipt of salary from Chase, November 30, 1980. Allotta does not dispute that he failed to satisfy the statutory requirement for filing.

 Nonetheless, plaintiff claims that equitable considerations should operate to toll the 300 day requirement. In particular, he claims that he delayed in filing his claim as he feared that doing so would jeopardize his job search and further that he was unaware initially of Chase's discharge of other employees in his age group.

 Plaintiff is correct in noting that equitable considerations can toll this requirement. Thus, Judge Carter, in Pirone v. Home Insurance Company, 507 F. Supp. 1281 (S.D.N.Y. 1981), refused to dismiss an action under the Age Discrimination in Employment Act despite the failure of the plaintiff to file within 300 days. Judge Carter noted that inadequate posting of notice of employees' rights by the employer could toll the requirement and held that an evidentiary hearing on the adequacy of the employer's posting of notice must be undertaken before a decision could be made on the motion to dismiss.

 Allotta cannot come within this limited exception to the statutory requirement. Allotta has alleged no action on the part of Chase that delayed his filing. There is no claim that Chase failed to post required notice and no allegation that Chase in any way deterred Allotta from bringing this action. Thus, Allotta does not claim that Chase fraudulently concealed its reasons for terminating Allotta. Allotta was aware of the fact that after he left, as stated to the Women's Wear Daily, he had ...


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