The opinion of the court was delivered by: SWEET
Defendant Colgate-Palmolive Company ("Colgate") has moved for summary judgment against or dismissal of the complaint of plaintiff Equal Employment Opportunity Commission ("EEOC"). For the reasons stated below, the motion to dismiss is denied with leave to renew and the motion for summary judgment is granted in part and denied in part.
The EEOC brought this action alleging age discrimination by Colgate in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(a)(1) & (2). The action resulted from the EEOC's investigation of Colgate's sales force in August 1979. The complaint alleges the following violations of the ADEA:
(1) the constructive discharge of Unit Manager ("Salesperson") Marvin Lindsey ("Lindsey") on March 1, 1978 in Memphis;
(2) the demotions of District Manager William Burke ("Burke") in January 1979 in Baltimore and of Key Account Manager John Bradford ("Bradford") in October 1979 in New Jersey;
(3) the placing on probation of Salesperson William Dettmore ("Dettmore") in October 1978 in Boston and of Salesperson Frank Rovelli ("Rovelli") in January 1980 in New Jersey;
(4) the denial of promotional opportunities occurring on three different management levels at different times in different locations -- three in 1978, including one on April 3, 1978, and three in 1979 -- to members of the protected age group. The EEOC has identified Lionel Branscomb ("Branscomb"), James Short ("Short"), James Kilcommons ("Kilcommons"), Raymond Gallup ("Gallup"), Ellwood Cornog ("Cornog") and Leroy James ("James") as candidates for promotion to these six jobs.
All alleged violations, except Lindsey's discharge, occurred in Colgate's Personal Care Products Division, Northeast Region.
Colgate has moved for dismissal of the complaint, or for a stay of further proceedings, on the ground that the EEOC lacks authority to maintain the lawsuit. Alternatively, Colgate has moved for summary judgment on the ground that there is no evidence of discrimination against any of the alleged victims or, alternatively, that the claims based on Lindsey's termiantion and the denial of a promotion on April 3, 1978 are barred by the statute of limitations. Finally, Colgate has moved to strike the EEOC's demand for a jury trial.
One-House Legislative Veto
Colgate maintains that the EEOC lacks authority to bring this suit because President Carter's Reorganization Act transfer of ADEA investigative and enforcement authority from the Department of Labor to the EEOC was subject to the one-house legislative veto held unconstitutional in Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983). The Fifth Circuit Court of Appeals, in EEOC v. Hernando Bank, 724 F.2d 1188, slip op. at 2056 (5th Cir. 1984), and numerous district courts in decisions cited by the EEOC have rejected this argument on the ground that the Reorganization Act's one-house veto provision is severable, although, of course, there is distinguished authority to the contrary. See EEOC v. Pan Am World Airways, 33 Fair Emp. Prac. Cas. 260 (S.D.N.Y. 1983) (Brieant, J.) The Court of Appeals for this Circuit has not addressed the effect of Chadha in this context but has recently granted the defendnat's petition for an interlocutory appeal of the Honorable John E. Sprizzo's decision sustaining the EEOC's authority to enforce the ADEA. See EEOC v. CBS, No. 8102781 (S.D.N.Y. Jan. 24, 1984), appeal docketed, No. 84-6063 (2d Cir. Feb. 28, 1984). In these circumstances, yet another analysis of the implications of Chadha would not seem necessary, and, upon the Fifth Circuit authority cited above, the motion to dismiss on Chadha grounds is denied with leave to renew following the Court of Appeals' decision in EEOC v. CBS. In view of the age of this case, discovery will go forward. However, trial will await the Court of Appeals' decision in EEOC v. CBS.
Colgate has moved for summary judgment on the claim relating to Lindsey's termination on March 1, 1978 and the alleged denial of a promotion to an employee in the protected age group on April 3, 1978 on grounds of the statute of limitations. The EEOC commenced this action on December 31, 1981. There is a three-year statute of limitations for willful violations of the ADEA, see 29 U.S.C. § 255(a), and neither party contends that this limitation period is not applicable. The statute contains a tolling provision:
For the period during which [the EEOC] 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 ...