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PETERSON v. INSURANCE CO. OF NORTH AMERICA

May 26, 1993

ERNEST PETERSON, Plaintiff,
v.
INSURANCE COMPANY OF NORTH AMERICA and CIGNA CORPORATION, Defendants.


Carter


The opinion of the court was delivered by: ROBERT L. CARTER

ROBERT L. CARTER, District Judge

 Plaintiff Ernest Peterson alleges that he was constructively discharged by defendant Insurance Company of North America ("ICNA") *fn1" in willful violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and in breach of an employment contract. Defendants have moved for summary judgment on both claims, pursuant to Rule 56, F.R.Civ.P.

 The following facts are not in dispute: Peterson was hired by defendants as a casualty underwriter on December 13, 1970. In December, 1986, Peterson advised ICNA that he intended to retire. Plaintiff agreed to rescind his resignation, however, after ICNA promised him that he could work a four-day week for five days pay plus a salary increase. The parties agree that the four-day arrangement was to last "indefinitely". Peterson alleges that ICNA also promised him a second raise and/or bonus in June, 1987, a lighter workload, and more support staff. He further alleges that ICNA: reneged on practically every aspect of the deal; immediately began seeking a replacement for him; and, in June, 1987, demanded he return to a five-day work week.

 Peterson resigned on October 28, 1987, at the age of 63, and on February 1, 1988, he filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging age-based discrimination. By letter dated February 19, 1988, the EEOC advised him:

 
The New York State Division of Human Rights will be investigating this charge in accordance with procedures established by the Commission. Although the Commission does not plan to investigate this charge, we will assure that the charge has been resolved in the appropriate manner and we may take further action at our discretion if we do not consider the agency's processing appropriate.
 
* * *
 
The ADEA provides that an individual may file suit in federal court upon the expiration of 60 days from the charge filing date noted above notwithstanding any action by the Commission or the state/local agency. It is important to note that a law suit must be filed in Federal District Court under the Age Discrimination in Employment Act within 2 years from the date of the adverse employment action (3 years in case of willful violation). (Letter from Anna Cedo, Supervisor, Charge Receipt / Technical Information Unit, EEOC, to Ernest C. Peterson, dated February 19, 1988, the "February, 1988 letter").

 In July, 1988, the EEOC wrote plaintiff a second letter reminding him of the time limits applicable to a private lawsuit under the ADEA. Nearly two years later, Peterson received another letter from the EEOC. That letter informed him, in pertinent part:

 
Based upon our records, unless you have already filed a private ADEA action in federal district court, you may have lost that right. This is because the two (2) year statute of limitations period for filing such action has lapsed. Based on this the EEOC is administratively closing the federal aspects of your complaint. . . . (Letter from Richard B. Alpert, Enforcement Manager, EEOC, to Ernest C. Peterson, dated May 30, 1990, the "May, 1990 letter").

 Plaintiff filed the complaint in this action on January 17, 1992.

 I

 Defendants contend that they are entitled to summary judgment on the ADEA cause of action because that claim, which asserts only a willful violation, is time-barred. Plaintiff concedes that the limitations period commenced to run on October 28, 1987, the date plaintiff submitted notice of his retirement. Since the statute of limitations applicable to claims of willful discrimination is three years (two years for non-willful violations), 29 U.S.C. § 626(e)(1), ADEA § 7(e), all parties agree that the limitations period ended on October 28, 1990, long before plaintiff brought this action.

 Plaintiff argues, however, that his claim is nonetheless timely as a result of the Age Discrimination Claims Assistance Act ("ADCAA") § 3, Pub.L. 100-283, 102 Stat. 78, (April 7, 1988), as amended, Pub.L. 101-504, § 2, 104 Stat. 1298 (November 3, 1990), reprinted in 29 U.S.C.A. § 626 historical and statutory note (Supp. 1993), which extended the limitations periods otherwise applicable under the ADEA. ...


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