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MCGINLEY v. BURROUGHS CORP.

December 18, 1975

CONDE J. McGINLEY, Plaintiff
v.
BURROUGHS CORPORATION, Defendant



The opinion of the court was delivered by: GREEN

 CLIFFORD SCOTT GREEN, District Judge

 This action arises out of the termination of plaintiff's employment and failure to recall by defendant. The plaintiff has filed an amended two count complaint, as a class action, alleging in Count I violations of the Age Discrimination in Employment Act (the "Act"), 29 U.S.C.A. § 621 et seq., basing jurisdiction on 28 U.S.C. § 1331. In Count II, plaintiff alleges a breach of contract under Pennsylvania law, said to arise out of the same factual background as Count I, invoking this Court's diversity jurisdiction.

 The defendant has moved to dismiss the complaint in its entirety -- both individual causes of action and the class action. For the reasons hereinafter stated, we hold the following: (1) defendant's motion to dismiss plaintiff's unlawful discharge claim arising under the Age Discrimination Act is granted; (2) defendant's motion to dismiss plaintiff's refusal to hire claim arising under the Act is denied; (3) defendant's motion to dismiss plaintiff's breach of contract claim is denied; and, (4) defendant's motion to dismiss plaintiff's Rule 23 class action claim is granted.

 I.

 The allegations of the amended complaint are as follows:

 Plaintiff commenced employment with the defendant at its Paoli office as a Contract Administrator. His duties involved the administration of contracts between the defendant and government agencies.

 Plaintiff's employment was terminated on or about October 1971, while allegedly other Contract Administrators with less company seniority were not discharged or terminated. At the time of his termination, plaintiff was informed, by the defendant, that he would be placed on a recall list for a period of twenty-four months and that he would be considered for recall to work if openings recurred in his job classification. Further, plaintiff alleges that, in or about September 1973, he first learned that, in December 1972 or January 1973, defendant hired two or more young men (two of whom, specifically, were age 25 and 31) as Contract Administrators for work in defendant's Paoli, Pa. office and, in March 1973, defendant hired a young man (age 24) for the relevant position at Paoli and, at an unknown time, defendant transferred another individual to Paoli as a Contract Administrator. Plaintiff alleges the defendant did not advise plaintiff of the aforesaid personnel actions and, in fact, concealed the openings from the plaintiff.

 The discharge and failure to recall plaintiff is alleged to be based on his age in violation of the Act; this contention comprises the first count of the amended complaint. Plaintiff seeks to maintain this cause of action under the Act as a class action under Rule 23 of the Federal Rules of Civil Procedure and he makes the appropriate allegations thereunder.

 The complaint was filed on January 16, 1974 and the amended complaint was filed on November 4, 1974. Plaintiff alleges that he has satisfied all statutory prerequisites for filing this action under the Age Discrimination in Employment Act of 1967; i.e. plaintiff gave the Secretary of Labor and the Pennsylvania State Human Relations Commission at least sixty (60) days notice of his intent to file suit. The notices were filed with the respective agencies in October, 1973.

 The second count states a breach of contract claim and is based upon the same allegations as count one.

 II.

 The defendant has moved to dismiss both the individual and class aspects of Count I of the amended complaint for lack of jurisdiction over the subject matter, under Rule 12(b)(1) of the Federal Rules of Civil Procedure, and to dismiss Count II of the amended complaint for failure to state a claim upon which relief can be granted, under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

 A.

 Defendant sets forth the following reasons for dismissal of the individual action brought pursuant to the Act: (1) plaintiff failed to file charges of age discrimination with the Pennsylvania Human Relations Commission (the "Commission") within 90 days of the termination of his employment with the defendant, or within 90 days of the alleged refusal of defendant to recall plaintiff to employment in March, 1973; and (2) plaintiff failed to notify the Secretary of Labor or his designate of his intention to sue defendant within 300 days after the discriminatory practices alleged to be unlawful occurred.

 The arguments of the defendant relate to certain statutory prerequisites to suit under the Act. Generally, the Act proscribes discrimination in employment against individuals at least forty years of age but less than sixty-five years of age, 29 U.S.C. §§ 623 and 633, and an aggrieved person may bring an action for relief under the Act. 29 U.S.C. § 626(c). As prerequisites to suit, 29 U.S.C. § 626(d) provides that:

 
No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days' notice of an intent to file such action. Such notice shall be filed --
 
(1) within one hundred and eighty days after the alleged unlawful practice occurred, or
 
(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within 30 days after receipt by the individual of notice of termination ...

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