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BONHAM v. DRESSER INDUS.

December 28, 1976

Emra Joseph BONHAM, Plaintiff,
v.
DRESSER INDUSTRIES, INC., a corporation, Defendant



The opinion of the court was delivered by: MCCUNE

 This action arises under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (the Act) and concerns an act of alleged age discrimination by the defendant, Dresser Industries, Inc. (Dresser), against plaintiff, a former employee. Plaintiff has filed a two-count complaint, alleging in Count I a violation of the Act and basing jurisdiction upon § 626(c) *fn1" of the Act and 28 U.S.C. § 1331. In Count II, plaintiff alleges a breach of an employment contract under Pennsylvania law, said to arise out of the same factual background as Count I, invoking this court's diversity jurisdiction. Presently before this court is the defendant's motion to dismiss both counts of plaintiff's complaint pursuant to Rules 12(b)(1) and 12(b)(6) respectively of the Federal Rules of Civil Procedure.

 The pertinent facts which comprise the basis for plaintiff's complaint may be briefly summarized. Plaintiff, a Pennsylvania resident, began his employment with the defendant *fn2" on March 18, 1968, *fn3" as a manager of profit planning in Dresser's Pittsburgh office. By April of 1974, plaintiff had attained the title of "Manager-Factory Accounting" and remained in this position until his discharge in 1975.

 The actual date of plaintiff's discharge, however, has not been agreed upon by the parties. On the one hand, plaintiff contends that his employment with Dresser was "wrongfully and unlawfully terminated because of his age and for no other just cause" on December 31, 1975. *fn4" On the other hand, Dresser contends that plaintiff's employment was terminated on October 31, 1975, *fn5" because "his work performance was not up to the standards of the job. *fn6" At any rate, plaintiff was 46 years of age at the time of Dresser's alleged discriminatory action. *fn7"

 Subsequent to October 31, 1975, plaintiff continued to receive regular bi-monthly paychecks throughout November and December of 1975. The last paycheck he received, dated December 31, 1975, *fn8" included a vacation payment to January 15, 1976. On January 13, 1976, plaintiff received a letter from Dresser which advised him of his rights under Dresser's Retirement Income Plan. The calculations pertinent to that plan were based on a termination date of December 31, 1975. *fn9" On January 15, 1976, plaintiff communicated with John V. James, President and Chief Executive Officer of Dresser Industries, Inc., regarding the possibilities of employment in another division of Dresser. His re-employment was denied by Dresser in communications dated January 19, 1976, and February 18, 1976. *fn10"

 Thereafter, plaintiff went to Florida in an effort to find employment and returned to Pennsylvania in April of 1976. Plaintiff claims that it was at this time that he first became aware of his potential rights under the Act, *fn11" and consulted counsel in Butler, Pennsylvania. Then, on June 15, 1976, plaintiff consulted his present counsel who sent the required statutory notices by certified mail on June 16, 1976, to John O'Brien, Area Director for the United States Department of Labor, *fn12" and to the Pennsylvania Human Relations Commission. *fn13" These letters were received by the respective agencies on June 18, 1976. Subsequently, on August 20, 1976, plaintiff commenced this suit.

 I. The Act

 The Age Discrimination in Employment Act was enacted in 1967 for the express purpose of promoting "employment of older persons based on their ability rather than age," and prohibiting "arbitrary age discrimination in employment." 29 U.S.C. § 621(b); Burgett v. Cudahy Company, 361 F. Supp. 617, 620 (D. Kan. 1973). The provisions of the Act were intended to cover employers, *fn14" employment agencies and labor organizations, 29 U.S.C. § 623, and the prohibitions set forth in the Act are limited to individuals between the ages of 40 and 65 years of age, 29 U.S.C. § 631. Exempted from the proscriptions of the Act are those discharges based on "good cause," 29 U.S.C. § 623(f)(3). *fn15"

 Although the primary responsibility for the enforcement of the Act is vested with the Secretary of Labor, the Act does permit an aggrieved individual to commence a civil action for legal or equitable relief, 29 U.S.C. § 626(c). However, such an action by an individual is subject to strict procedural requirements which are set forth in 29 U.S.C. § 626(d). *fn16"

 Under § 626(d), an individual is required to file a notice of intent to sue with the Secretary within 180 days after the alleged discriminatory act occurred. Then, § 626(d) requires that the plaintiff wait sixty days following the notice of intent to sue before commencing suit. Mizuguchi v. Molokai Electric Company, 411 F. Supp. 590, 593 (D. Hawaii 1976). However, § 626(d) further provides that if § 633(b) *fn17" applies, the requisite notice of intent to sue must be filed within 300 days after the alleged discriminatory act occurred, or within 30 days after the receipt of notice of termination of state proceedings.

 The act of alleged age discrimination took place in Pennsylvania. Pennsylvania is a State which has a law prohibiting age discrimination in employment *fn18" and establishing a State authority to grant or seek relief from such discrimination. *fn19" Pennsylvania law further requires that:

 
". . . Any complaint filed pursuant to this section must be so filed within ninety days after the alleged act of discrimination. . . ." (emphasis supplied). *fn20"

 Thus, there are three limitations periods relevant to the instant action: (1) the 180-day period for filing a notice of intent to sue with the Secretary under § 626(d)(1); (2) the 300-day period for filing a notice of intent to sue with the Secretary, if § 633(b) applies, under § 626(d)(2); and (3) the 90-day state period for filing a complaint with the Pennsylvania Human Rights Commission under 43 P.S. § 959.

 II. Jurisdiction

 A. The Date of the "alleged unlawful practice," i.e., the Date of Termination of Plaintiff's Employment.

 The threshold question which this court must decide is when the "alleged unlawful practice occurred," i.e., on October 31, 1975, as the defendant contends, or on December 31, 1975, as the plaintiff contends. *fn21" This determination is essential to our finding of whether plaintiff timely filed his notice of an intent to sue under the Act and Pennsylvania law. We will deal with the defendant's arguments in support of its contention first.

 In support of Dresser's contention that October 31, 1975, was the date when the "alleged unlawful practice occurred," *fn22" Dresser relies upon the Affidavit of Louis J. Reeg, Jr., *fn23" which reveals that the following "occurred" on that date: (1) plaintiff's employment with Dresser was involuntarily terminated; (2) plaintiff was informed of said termination; (3) plaintiff never worked for Dresser subsequent to that date; and (4) plaintiff's employment was "officially" terminated for purposes of Dresser's personnel records and plaintiff's subsequent unemployment compensation application.

 In response, plaintiff relies upon his own Affidavit and accompanying documents in support of his contention that December 31, 1975, is the effective date under the Act. These documents reveal that: (1) plaintiff continued to receive bi-monthly paychecks through December 31, 1975; (2) his rights under Dresser's Retirement Income Plan were based on a termination date of December 31, 1975; and (3) his Group Life Insurance remained in effect through December 31, 1975.

 With regard to plaintiff's receipt of regular paychecks through December 31, 1975, Dresser argues that such payments merely represented severance pay equivalent to what his salary would have been through December 31, 1975, and, therefore, such payments do not establish that the "unlawful practice occurred" on the date plaintiff received his last severance payment, i.e., December 31, 1975. On the contrary, Dresser argues, relying upon Doski v. M. Goldseker Co., supra, n.21, and Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (8th Cir. 1975), that the "unlawful practice", if any, occurs on the date of the actual discharge even though plaintiff may receive severance payments thereafter. We agree. Although both Doski and Olson deal with alleged sex discrimination in employment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and both considered the issue of whether discrimination alleged by a former employer can constitute a "continuing" violation so as to toll the similar notice provisions of ...


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