The opinion of the court was delivered by: LORD, III
The plaintiff, William F. Tobin, is now fifty-nine years of age. In January of 1977, before the events leading to this litigation, he was employed as Eastern Regional Vice President by the defendant, Trans Union Systems Corporation (TUSC). Since that time, Tobin claims that he has been demoted, denied proper compensation and generally shut out of company affairs in an effort to force him to resign or to fabricate a pretext for his dismissal. Tobin brought this action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, alleging that TUSC has discriminated against him because of his age. The defendant has moved for summary judgment on all or part of the complaint on the ground that the plaintiff failed to file a timely charge with the Secretary of Labor before bringing suit as required by § 626(d) of the ADEA.
The basic facts, taken in the light most favorable to plaintiff, are as follows. As of January 1, 1977 plaintiff was Eastern Regional Vice President of TUSC. Up to that time he had enjoyed a successful career with TUSC and its predecessor companies. On February 6, 1977 plaintiff was informed that he should begin to report to another regional vice president, S. L. Mularz, rather than directly to the president as he formerly had done. In the next few months, the president, W. J. Devers, withdrew permission for plaintiff to operate a company car and Mularz ridiculed plaintiff's business judgment on a personnel matter. On May 17, 1977 Mularz informed the plaintiff that as of July 1, 1977 he would be relieved of responsibility for New York. Mularz told the plaintiff that this change was not "personal" but the result of reorganization within the company.
Tobin did not accept Mularz's explanation. As of that date, May 17, 1977, he believed "absolutely" that he was the victim of age discrimination. Plaintiff's Answer to Defendant's Motion for Summary Judgment, P 2; Tobin Deposition at 27-8. Plaintiff did not know that age discrimination was unlawful, however, until September of 1977 when he retained a lawyer, his present counsel. Plaintiff met with his lawyer several times during 1977. He told the lawyer that he believed he was subject to age discrimination and the lawyer explained that age discrimination was unlawful, but expressed no opinion on the legality of defendant's conduct toward the plaintiff. Plaintiff learned in February 1978 that his bonus for 1977 would be $ 5,000 half the amount of the previous year and that he would receive no salary increase in the coming year for the first time in his career with the defendant. Tobin Affidavit P 2. On February 7, 1978, after receiving a memorandum from Mularz regarding his reduced bonus, plaintiff telephoned Mularz and asked what his salary would be for 1978 and when he would receive his annual performance appraisal. Mularz refused to discuss the appraisal, saying, "There's no point in talking about your performance appraisal you wouldn't want to hear what I would have to say." Plaintiff's Answers to Defendant's First Set of Interrogatories at 41.
Plaintiff interpreted this comment to mean that his appraisal was unfavorable. He maintained that his performance had been outstanding, but to no avail.
Several months later, plaintiff's attorney sent a letter dated May 18, 1978 to the Director of Industrial Relations for defendant's parent corporation. In the letter, the attorney accused TUSC of age discrimination and demanded to meet with corporate counsel to discuss this charge as well as "incorrect" entries in plaintiff's personnel file. Plaintiff's attorney threatened to commence legal proceedings unless he received a response by May 31. The defendant acceded to Tobin's request for a meeting but adamantly refused to change its position. In July 1978, during the course of discussions between the parties, plaintiff gained access to his personnel records and found what he believed to be false statements. When, on July 21, President Devers refused to correct his records, plaintiff knew for certain that TUSC's actions were age-based. Five weeks later, on August 29, 1978, Tobin simultaneously filed charges with the Department of Labor and the Pennsylvania Human Relations Commission (PHRC). Plaintiff claims damages for the loss of bonus and salary increase in February 1978 and for a similar loss of compensation in February 1979, several months after his filing date.
Section 626(d) of the ADEA requires as a condition precedent to bringing suit that a grievant file a charge alleging unlawful discrimination with the Secretary of Labor:
(1) within 180 days after the alleged unlawful practice occurred; or
(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.
In 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), the Third Circuit suggested a two-part analysis for assessing the timeliness of a charge under the ADEA. The first part of the inquiry is to determine when the discrimination "occurred" within the meaning of § 626(d). This question can be difficult when, as here, changes in employment status occur as a series of actions over a period of time rather than as a single event. The second part of the inquiry is whether circumstances exist which would justify equitable modification of the 180-day period. Tolling or estoppel may be called for when the plaintiff has substantially complied with the statute without prejudicing the defendant or when the defendant has lulled the plaintiff into sleeping on his rights.
On the issue of when the discrimination occurred, plaintiff argues that the 180-day period has not yet begun to run on any of his claims and will not begin to run while he remains a TUSC employee. As support for this contention Tobin cites the following language from Bonham : "An employee should not be required to take action to enforce his rights while he continues to work and while his employment status is at all uncertain." 569 F.2d at 192. Tobin submits that I am "bound" by this language to hold that the 180-day period does not begin to run so long as he is still employed at TUSC.
This reading of Bonham, while certainly ingenious, proves too much. In effect, plaintiff would have the 180-day period apply only to discharges; any discrimination short of discharge would remain actionable during the employee's entire term of employment and for 180 days beyond. It is implausible, moreover, to ascribe such a radical revision of § 626(d) to Bonham. Bonham was a discharge case. The plaintiff was given notice on October 31 that he would be terminated effective December 31. Although he actually stopped working on the date of notice, he continued to receive his salary until the date of termination. The Third Circuit opted for the earlier date as the date of occurrence, holding that the period begins to run when an employee has notice of his discharge and actually stops working.
The 180-day period does not begin to run until the employee knows, or as a reasonable person should know, that the employer has made a final decision to terminate him, and the employee ceases to render further services to the employer. Until that time he may have reason to believe that his status as an employee has not finally been determined, and should be given an opportunity to resolve any difficulty while he continues to work for the employer. In any event, a terminated employee who is still working should not be required to consult a lawyer or file charges of discrimination against his employer as long as he is still working, even though he has been told of the employer's present intention to terminate him in the future.
The italicized language, which restates the passage on which plaintiff relies, places that passage in context. The Third Circuit's concern was that an employee who continues working after receiving equivocal notice of discharge should not have to choose between provoking his employer and trusting in his tender mercies. This concern does not lead ineluctably to a general rule that incumbent employees are exempt from the limitation period of § 626(d). On the contrary, Judge Stern expressly warned in Bonham against such a broad reading, stating that "no simple rule can be formulated which will ...