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WAGNER v. SPERRY UNIVAC

September 6, 1978

Peter J. WAGNER
v.
SPERRY UNIVAC, DIVISION OF SPERRY RAND CORPORATION



The opinion of the court was delivered by: LUONGO

Peter J. Wagner filed the complaint in this action on March 24, 1977. All three counts of the complaint allege that defendant Sperry Univac, which formerly employed Wagner, unlawfully discriminated against him on the basis of his age by refusing to grant his requests for transfers, by later terminating his employment, and by failing to reinstate him. Count I alleges violations of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976), As amended by Age Discrimination in Employment Act Amendments of 1978, Pub.L. No. 95-256, 92 Stat. 189. Count II alleges violations of the Pennsylvania Human Relations Act, Pa.Stat.Ann. tit. 43, §§ 951-963 (Purdon 1964 & Supp.1978). Count III alleges violations of Wagner's employment contract with Sperry Univac. Presently before me is Sperry Univac's motion for partial summary judgment on count I of the complaint, and for summary judgment on counts II and III. See generally Fed.R.Civ.P. 56. For the reasons hereafter stated, I conclude that Sperry Univac is entitled to partial summary judgment on count I, that count II should be dismissed for lack of subject-matter jurisdiction, and that Sperry Univac's motion should be denied with respect to count III.

THE FACTS

 On a motion for summary judgment, of course, the court must view the evidence in the light most favorable to the party opposing the motion. Bishop v. Wood, 426 U.S. 341, 347 n. 11, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1975); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), Cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). With that admonition in mind, the essential facts in this case may be summarized as follows. Peter J. Wagner was hired by Sperry Univac's predecessor *fn1" in October of 1952. N.T. 22; Volz Affidavit P 3. At that time, he was twenty-five years old. He began as a mechanical technician, and he received successive promotions approximately every two-and-a-half years. During his first ten or twelve years with Sperry Univac, Wagner attended Drexel University in the evenings, and he received a bachelor's degree in Mechanical Engineering in June of 1964. Wagner was then made a mechanical engineer, and, after completing a training program at Sperry Univac, he was assigned to the Blue Bell, Pennsylvania plant, where he worked at designing memory drums and memory discs for particular computer systems manufactured by Sperry Univac. In December of 1967, he became a senior mechanical engineer, and in 1972, he was made a principal engineer. During this period, Wagner received salary increases approximately every twelve or eighteen months. N.T. 52-3, 59.

 In February of 1974, while Wagner was assigned to a tape transport development project, Sperry Univac cancelled that project. N.T. 78, 89. Wagner was then assigned to an "OEM" (Original Equipment Manufacturers) project that was aimed at purchasing tape transport development from other manufacturers. N.T. 77, 89; Coffey Affidavit PP 3, 4. Several months later, Sperry Univac began laying off workers at its Blue Bell plant. N.T. 54, 95-96. Sperry Univac ultimately decided to transfer most activities related to tape technology to its Bristol, Tennessee plant, and Wagner was informed in December of 1974 that he would probably be laid off by the end of March, 1975. N.T. 96-97. None of the personnel connected with the "OEM" project at Blue Bell were transferred to the Bristol plant. *fn2" N.T. 190.

 During the period preceding Wagner's ultimate termination, the personnel department at Sperry Univac made efforts to find another job for him. These efforts are described in the affidavit of Sperry Univac's personnel director:

 
"Such assistance included circulating (Wagner's) Professional Staff Data Sheet (a detailed resume of his activities with Univac since his hire) among all departments which could have had a need for his type of services, preparing resumes, offering leads for jobs with other companies, arranging interview for possible job openings with Univac, and offering any other assistance Mr. Wagner might have requested."
 
Volz Affidavit P 6.

 Shortly before Wagner's last day at Sperry Univac, he was offered a position comparable to the one he held at that time. However, this position was at Sperry Univac's plant in Utica, New York, and Wagner turned down the offer. N.T. 112-14; Coffey Memorandum, Exhibit 1 to Defendant's Answers to Interrogatories (Document No. 7).

 Wagner was laid off on March 28, 1975. Sperry Univac prepared an "Employee Status and Change Notice." Exhibit V-1 to Volz Affidavit. This form reflects that Wagner was laid off, but that he remained eligible for rehire. "Pursuant to Univac's layoff procedure, (he) was given an additional two weeks pay in lieu of notice of his termination, as well as accrued vacation benefits." Volz Affidavit P 5. Thus, Wagner received a paycheck for the two-week period ending April 11, 1975.

 On September 26, 1975, Wagner filed with the Secretary of Labor a written notice of his intent to sue Sperry Univac under the Age Discrimination in Employment Act. Exhibit W-3 to White Affidavit. The Department of Labor's Area Director for the Philadelphia area wrote to Sperry Univac that same day, relating the fact that Wagner had filed this notice, and stating that one of its compliance officers would visit Sperry Univac in the near future to begin the informal conciliation process that the Department pursues in all age discrimination cases. Exhibit W-1 to White Affidavit.

 On November 13, 1975, Wagner filed a formal complaint with the Pennsylvania Human Relations Commission. Exhibit W-7 to White Affidavit. This complaint alleged that Sperry Univac had discriminated against Wagner on the basis of his age in its decision to lay him off and in its refusal to reinstate or rehire him.

 On November 26, 1975, Wagner was interviewed at Sperry Univac and offered a position as a mechanical engineer at the company's plant in Dorval, Canada. Sigg Memorandum, Exhibit 2 to Defendant's Answers to Interrogatories (Document No. 7). Although the salary at this position would have been the same as his exit salary, Wagner turned down this offer. N.T. 115, 139.

 On January 8, 1976, Wagner wrote to the Area Director of the Department of Labor, reiterating his intent to sue Sperry Univac under the Age Discrimination in Employment Act. Exhibit W-4 to White Affidavit. This letter referred in passing to Wagner's earlier notice of intent to sue.

 By letter dated May 18, 1976, Sperry Univac offered Wagner a job as mechanical engineer at the Blue Bell plant. Exhibit 9 to Defendant's Answers to Interrogatories (Document No. 7). The salary at this position would have been substantially less than Wagner's exit salary, and Wagner turned down the position. In his reply letter to Sperry Univac, dated May 27, 1976, Wagner mentioned his "age discrimination charges" that were pending before both the Department of Labor and the Pennsylvania Human Rights Commission. Wagner stated his belief that Sperry Univac was under a duty to reinstate him at a salary comparable to his exit salary. The letter concluded: "If a suitable offer to return to Sperry Univac is not forthcoming, having exhausted every informal channel, I have retained an attorney and am prepared to file suit . . ." Exhibit 10 to Defendant's Answers to Interrogatories (Document No. 7). Subsequently, on March 24, 1977, Wagner filed this complaint.

 WAGNER'S CLAIM UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT

 As I noted earlier, Count I of the complaint alleges that Sperry Univac's actions with respect to Wagner violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1976), As amended by Age Discrimination in Employment Act Amendments of 1978, Pub.L.No.95-256, 92 Stat. 189. The Act itself "broadly prohibits arbitrary discrimination in the workplace based on age." Lorillard v. Pons, 434 U.S. 575, 577, 98 S. Ct. 866, 868, 55 L. Ed. 2d 40 (1978); See 29 U.S.C. § 623(a) (1976). Jurisdiction over this claim is conferred by 28 U.S.C. § 1331(a) (1976).

 Sperry Univac argues that it is entitled to partial summary judgment on the ground that Wagner failed to comply with a procedural requirement embedded in the Act's complex enforcement provisions. See generally Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978); Comment, Procedural Prerequisites to Private Suit Under the Age Discrimination in Employment Act, 44 U.Chi.L.Rev. 457 (1977). At issue here is the notice-of-intent-to-sue requirement of section 7(d) of the Act, 29 U.S.C. § 626(d) (1976). *fn3"

 Section 7(d) provides in pertinent part:

 
"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 thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier."
 
29 U.S.C. § 626(d) (1976).

 Plaintiff does not contend that the 300-day limit of section 7(d)(2) is available to him under the facts of this case. See Bonham v. Dresser Indus., Inc., 569 F.2d 187, 192 n. 5 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S. Ct. 87, 58 L. Ed. 2d 113 (1978). Accordingly, I need only consider whether he has satisfied the 180-day limit of section 7(d)(1).

 Plaintiff filed his notice with the Secretary of Labor on September 26, 1975. This was 182 days after his March 28, 1975 layoff, and 168 days after April 11, 1975, the last day of the two-week period for which he received severance pay. Sperry Univac argues that Wagner's notice was therefore untimely with respect to any unlawful discrimination occurring on or before March 28, 1975, although it apparently concedes that Wagner may assert a claim based on its allegedly discriminatory failure to reinstate him. Plaintiff, however, advances three distinct arguments for the proposition that his notice was timely filed as to All aspects of his age discrimination claim.

 First, Wagner argues that Sperry Univac's actions in denying his requests for reassignment, in later terminating his employment, and in failing to reinstate him up through the present time amount to a single, continuing violation, so that the 180-day period has not yet begun to run. Once this premise is accepted, of course, it follows that Wagner's September 26, 1975 notice was not untimely.

 Assuming that the "continuing violation" concept developed in employment discrimination cases under Title VII is applicable in cases brought under the Age Discrimination in Employment Act, I nevertheless conclude that the acts here complained of do not constitute a continuing violation. "The rationale underlying the allowance of actions for continuing discrimination is to provide a remedy for past actions which operate to discriminate against the complainant at the present time." Olson v. Rembrandt Printing Co., 511 F.2d 1228, 1234 (9th Cir. 1975) (en banc) (citations omitted). Wagner, however, does not complain of a past act with a continuing discriminatory effect. Rather, Wagner alleges that Sperry Univac practiced age discrimination in (1) denying his requests for transfers between August of 1974 and April of 1975, (2) terminating his employment in late March or early April of 1975, and (3) failing to reinstate him in a position comparable to the one he formerly held. Although these three claims are not unrelated, I fail to see how Wagner can be said to presently suffer continuing Discriminatory effects from either (1) Sperry Univac's denial of his requests for transfers or (2) Sperry Univac's decision to terminate him. Rather, it appears that only Sperry Univac's continuing allegedly discriminatory failure to reinstate Wagner can sensibly be said to subject him to present discrimination. As to that claim, Sperry Univac apparently concedes that the 180-day time limit presents no obstacle. With respect to the other two claims, however, Wagner may not avoid the time limit by invoking the "continuing violation" doctrine.

 Wagner also argues that his notice of intent to sue was timely filed because Sperry Univac's alleged unlawful practice "should be deemed to have occurred on or about September 26, 1975." Plaintiff's Memorandum of Law (Document No. 21) at 4. This argument relies heavily on certain language in Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir. 1977), 439 U.S. 821, 99 S. Ct. 87, 58 L. Ed. 2d 113 (1978).

 In Bonham, plaintiff was informed on October 31, 1975 that he would be terminated that same day. Although he performed no further services for his employer after that date, he continued to receive his salary until December 31, 1975, the company extended his insurance coverage through that date, and it also computed his retirement benefits based on a termination date of December 31. After the district court entered summary judgment against Bonham based on his untimely notice of intent to sue, Bonham appealed, arguing that the 180-day period should begin to run on the date of his last paycheck, rather than on his last day of work. However, a panel of the Third Circuit rejected that argument, stating, in the language pertinent here:

 
"Although no simple rule can be formulated which will deal adequately with all factual situations, where Unequivocal notice of termination and the employee's last day of work coincide, then the alleged unlawful act will be deemed to have occurred on that date, notwithstanding the employee's continued receipt of certain ...

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