period because the May, 1990 letter, which arrived five months before the statutory period expired, informed plaintiff "the EEOC is administratively closing the federal aspects of your complaint."
Peterson maintains that he did not receive notice of the disposition of his charge because the February, 1988 letter was ambiguous. In support of his position, plaintiff cites four cases which found that an EEOC letter, similar to the February, 1988 letter, did not notify the claimant of a "disposition" because it failed to communicate the finality of the EEOC's action.
These cases are clearly distinguishable because Peterson received a subsequent communication, the May, 1990 letter, which unequivocally indicated that no further action would occur concerning plaintiff's ADEA charge.
Nevertheless, plaintiff contends that the May, 1990 letter was also confusing because it stated that the decision to close his case was "based on" the two-year limitations period for non-willful violations rather than the three-year period for willful discrimination. Indeed, the reason for the EEOC's reliance on the two-year limit is obscure. Nonetheless, a mistake by the EEOC is not among the criteria which entitles a claimant to an extension of time under the ADCAA. See ADCAA § 3; see also Zabielski v. Montgomery Ward & Co., 919 F.2d 1276, 1278 (7th Cir. 1990). Although this letter is confusing as to the EEOC's rationale, the EEOC's decision, to close the case, is perfectly plain. Thus, the EEOC notified Peterson of the disposition of his charge prior to the expiration of the applicable three-year limitations period. Since he is, therefore, not entitled to an extension of time under the ADCAA, plaintiff's claim based on a willful violation of the ADEA is time-barred.
It does not necessarily follow, however, that plaintiff's ADEA claim must be dismissed altogether. Under certain circumstances, the court may grant plaintiff leave to amend his complaint, pursuant to Rule 15(a), F.R.Civ.P., to assert a cause of action based on a non-willful violation of the ADEA. See EEOC v. Chrysler Corp., 729 F. Supp. 1002, 1005 (S.D.N.Y. 1990) (Patterson, J.); accord Ruggieri v. Warner & Swasey Co., 938 F.2d 322, 326 (1st Cir. 1991); see also Zabielski, 919 F.2d at 1280; Harter v. GAF Corp., 967 F.2d 846, 851 (3rd Cir. 1992). Although such a claim would be timely,
Peterson cannot amend his complaint in this manner because his claim is grounded on a constructive discharge which is inherently intentional. See, e.g., Spence v. Maryland Casualty Company, No. 92-9052, 1993 U.S. App. LEXIS 12666 (2d Cir. May 26, 1993); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983).
Thus, it would be incongruous to allege non-willful discrimination in this case. Accordingly, summary judgment is granted as to the plaintiff's first cause of action.
Defendants also seek summary judgment on plaintiff's second cause of action for breach of contract based on the oral agreement between plaintiff and defendants which induced Peterson to retract his initial letter of resignation. Peterson contends that he was compelled to resign the second and final time because ICNA breached that agreement by allegedly failing to give him a promised salary increase and demanding that he resume a five-day work week.
It is well settled law in New York that "absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party." Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 211, 506 N.E.2d 919 (1987) (citing Martin v. New York Life Ins. Co., 148 N.Y. 117, 121, 42 N.E. 416 (1895)). Since there is no question that plaintiff was an at-will employee, hired for an indefinite period, ICNA had the right to terminate him or alter the conditions of his employment.
Plaintiff nonetheless urges the court to impose on ICNA an obligation of good faith and fair dealing. The New York Court of Appeals has expressly held, however, that an obligation of good faith and fair dealing will not be read into a contract for employment at will. Sabetay, 69 N.Y.2d at 335, 514 N.Y.S.2d at 212; Murphy v. American Home Products Corp., 58 N.Y.2d 293, 304, 461 N.Y.S.2d 232, 237, 448 N.E.2d 86 (1983).
Thus, plaintiff's second cause of action is dismissed.
Based on the foregoing analysis, defendants' motion for summary judgment is granted.
IT IS SO ORDERED.
Dated: New York, New York
May 26, 1993
Robert L. Carter