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MAZZARE v. BURROUGHS CORP.

July 5, 1979

James J. MAZZARE
v.
BURROUGHS CORPORATION



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

In this action plaintiff alleges that defendant, which formerly employed him, unlawfully discriminated against him on the basis of his age by willfully discharging him and failing to recall him. Count I alleges violations of the Age Discrimination in Employment Act, as amended (ADEA), 29 U.S.C. §§ 621-634 (1976 & Supp. I 1978). Count II alleges that defendant breached its employment contract with plaintiff. Presently before the Court are defendant's motion to dismiss the complaint, defendant's motion in the alternative for summary judgment as to Count I of the complaint, and plaintiff's motion for leave to amend the complaint. Oral argument was had on these motions.

 Plaintiff having advised the Court that, in light of Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir. 1977), Cert. denied, 439 U.S. 821, 99 S. Ct. 87, 58 L. Ed. 2d 113 (1978), he does not oppose the dismissal of the state law breach of contract claim set forth in Count II of his complaint, the Court will grant defendant's motion to dismiss Count II.

 Because both parties have presented to the Court matters outside the pleadings, which we have not excluded from consideration, we shall, in accordance with Fed.R.Civ.P. 12(b), treat the defendant's motion to dismiss Count I as a motion for summary judgment. Thus, the motions which we consider in this memorandum are defendant's motion for summary judgment and plaintiff's motion for leave to amend the complaint. *fn1" For the reasons hereinafter set forth, we will deny both of these motions.

 MOTION FOR SUMMARY JUDGMENT

 Fed.R.Civ.P. 56(c) provides in pertinent part:

 
(Summary judgment) shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 Thus, in examining the propriety of a motion for summary judgment, the court must first determine whether there is a genuine issue as to any material fact. *fn2" If there is a genuine issue as to any material fact, the motion for summary judgment will not be granted. Ettinger v. Johnson, 556 F.2d 692, 696 (3d Cir. 1977); Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824 (3d Cir. 1951); Toebelman v. Missouri-Kansas Pipe Line Co., 130 F.2d 1016, 1018 (3d Cir. 1942). On a motion for summary judgment, of course, the court must view the evidence in the lights most favorable to the party opposing the motion, and all doubts as to the existence of material facts should be resolved against the movant. 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); Hicks v. ABT Associates, Inc., 572 F.2d 960, 967 (3d Cir. 1978); Abdallah v. Caribbean Security Agency, 557 F.2d 61, 63 (3d Cir. 1977). With this admonition in mind, the essential facts in this case may be summarized as follows.

 Plaintiff was employed by defendant from August 1956 until August 24, 1973, at which time he was 58 years old. On August 24, 1973, defendant discharged plaintiff, informing him that he was eligible for recall for a period of two years. On March 1, 1974, plaintiff accepted early retirement; on June 17, 1975, he commenced an age discrimination proceeding before the Pennsylvania Human Relations Commission, and on June 26, 1975 he gave notice of his intention to sue to the Secretary of Labor. The present action was filed on September 9, 1976.

 Defendant next contends that summary judgment should be granted because plaintiff's notice of intent to sue filed with the Secretary of Labor on June 26, 1975 was not timely. Section 7(d) of the ADEA, 29 U.S.C. § 626(d) provides:

 
(d) 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 in 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 ...

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