already been received by virtue of the settlement of the 1988 grievance.
Smilan first notes that the 1988 action was filed in 1988, before he had any interest in a Seattle domicile. Furthermore, he insists that he was never told that the 1988 settlement was based on the cost of a company-paid relocation. To the contrary, he claims that he accepted the $ 17,000 in full satisfaction of "all claims arising out of the events which led to the filing of the [grievances in that case]" because he had already spent $ 12,000 in litigation costs and he was advised by his ALPA attorney that the case would be worth less than $ 17,000 if it went to arbitration.
Under these facts, and making all inferences in favor of the non-moving party, Shockley v. Vermont State Colleges, 793 F.2d 478, 481 (2d Cir. 1986), this Court finds that United has not established that Smilan has already received the company-paid relocation he claims was improperly denied to him as a result of his being activated, in February 1989, to Captain of a 747-100 domiciled in San Francisco. Accordingly, United's motion for summary judgment is denied as to Smilan's first claim.
B. Reduction of Smilan's Pay for Accrued Sick Leave and Vacation
1. Timeliness of Plaintiff's Second Claim
Defendant first notes that a plaintiff is required to wait sixty days after filing a claim with the EEOC before bringing a federal claim. See 29 U.S.C. § 626(d) ("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 Equal Employment Opportunity Commission"). On November 14, 1991, Smilan filed his EEOC claim alleging that United improperly reduced his pay for accrued sick leave and vacation time to a Second Officer's rate before he completed his training for that position. On the same day, plaintiff filed the instant suit in federal court.
Although plaintiff makes no attempt to explain his failure to comply with the sixty day waiting period, he notes that in Dalessandro v. Monk, 864 F.2d 6, 9 (2d Cir. 1988), the Second Circuit held that when a plaintiff fails to abide by the sixty day rule, a district court should merely stay the action until the sixty day period expires rather than dismiss the claim. For the reasons that follow, such a stay will not be needed.
2. Statute of Limitations
United contends that Smilan's second claim, like his first, is time-barred. Again relying on Lorance, United argues that Smilan should be charged with knowledge of the relevant contract provisions when the Agreement went into effect in 1985. As to this claim, United may indeed be correct.
In any event, plaintiff agrees that he was aware of defendant's allegedly discriminatory act by January 2, 1991, when he received his first paycheck at a Second Officer's pay rate. Because Smilan failed to file his EEOC action until November 14, 1991, more than 300 days after that act, defendant argues that the claim is time-barred. Plaintiff counters that each paycheck issued by United to Smilan for his accrued sick leave and vacation time at a Second Officer's pay rate was a new and continuing violation of his rights and therefore the statute of limitations accrues anew each time such a paycheck was issued.
The concept of "a continuing violation . . . applies to a continuously maintained discriminatory employment policy." Bradley v. Consolidated Edison Co. of New York, Inc., 657 F. Supp. 197, 204 (S.D.N.Y. 1987). However, it may not be based on the continuing effects of an earlier discrimination. Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1414 (S.D.N.Y. 1989) (citing United Air Lines v. Evans, 431 U.S. 553, 558, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977)). Although courts in the Second Circuit look unfavorably on the concept, Blesedell, 708 F. Supp. at 1414-15, a continuing violation will be found if the ongoing plan or policy is facially discriminatory. O'Malley v. GTE Service Corp., 758 F.2d 818, 821 (2d Cir. 1985).
The key to resolving defendant's motion is to determine whether United's policy of changing rates of pay was facially discriminatory or facially neutral. This Court finds that it is facially neutral. Although United pilots who reached the age of sixty were not paid at a Captain's salary during the time they were training to be Second Officers, this policy is consistent with the FAA age sixty rule which does not allow pilots to be Captains beyond that age. On the other hand, when younger United pilots applied for advanced positions (or lower positions), there was no reason to change their pay rate until they completed their training or received an assignment because they may never have done so. See Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1103 (5th Cir. 1990) (paychecks issued pursuant to a facially age neutral policy are a continuing effect rather than a continuing violation). Furthermore, the Court notes that the EEOC has recently issued an opinion on United's salary policy here in issue which holds that policy was facially neutral and lawful.
Because plaintiff's second claim is based on a facially neutral policy, no continuing violation exists. Therefore, plaintiff's second claim is time-barred because Smilan was clearly aware of the allegedly discriminatory act by January 2, 1991, more than 300 days prior to his filing of this claim with the EEOC.
Accordingly, for the foregoing reasons, defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is denied as to plaintiff's first cause of action and granted as to plaintiff's second cause of action.
The parties are hereby directed to go forward with full discovery. If, through discovery, it is found that prior to March 2, 1990, plaintiff clearly knew or should have known that United was going to deny him a paid relocation to Seattle pursuant to section 10-C-5 of the Agreement, United may then refile its motion for summary judgment.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York, June 29, 1992