The opinion of the court was delivered by: DIAMOND
Plaintiff Dale H. Cutright filed this suit against General Motors Corporation (G.M.) alleging that G.M.'s decision to lay-off plaintiff and their subsequent refusal to recall him constituted a violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and a common law breach of contract. Presently before the court is G.M.'s motion for summary judgment on count I of the complaint, the age discrimination claim, on the ground that it is time-barred under 29 U.S.C. § 626(d).
For the reasons set forth below we will grant the motion.
The salaried employees' handbook also gave persons in plaintiff's position recall rights for a five year period. Basically, those recall rights provided that, within a given area, laid-off employees would be asked to fill any subsequent job openings for which they were qualified before consideration would be given to "outsiders." From the time of plaintiff's lay-off until the end of his recall period on May 31, 1975, several "outsiders" were hired as field representatives in territories other than Pittsburgh. Plaintiff alleges that he was not recalled for any of these positions because of his age.
Following termination of his recall rights on May 31, 1975, plaintiff was advised by defendant in August of 1975 that the company wanted to place him on early retirement. At that time plaintiff requested to be reinstated, but this request was not granted. Some time thereafter plaintiff accepted early retirement, which became effective on October 1, 1975.
On January 13, 1976, plaintiff sent a notice-of-intent-to-sue letter to the Secretary of Labor (Secretary) pursuant to 29 U.S.C. § 626(d). On February 24, 1976, plaintiff filed a complaint with the Fair Employment Practices Commission of California, the state in which he was then residing. That complaint was subsequently dismissed for lack of jurisdiction. Plaintiff then filed a complaint with the Pennsylvania Human Relations Commission on August 25, 1976, but on March 4, 1977, that complaint was dismissed as being untimely.
In its motion for summary judgment, defendant contends that plaintiff failed to meet the § 626(d) time limitation for the filing of notice to the Secretary following the occurrence of the alleged discrimination. Section 626(d) requires that notice be given to the Secretary within 180 days of the alleged discrimination, or within 300 days if the alleged discrimination occurs in a state having its own laws prohibiting such discrimination and an agency empowered to grant relief therefrom.
Pennsylvania, the state in which the discrimination alleged here occurred, has designated such an agency, the Pennsylvania Human Relations Commission.
States such as Pennsylvania are often termed "deferral states."
We must first decide in ruling upon this motion when the applicable limitation period, whether it be 180 or 300 days, began to run, i. e., when did plaintiff's cause of action accrue. We consider initially plaintiff's claim for discriminatory lay-off. The general rule in this Circuit was stated in Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3rd Cir. 1977) as follows:
The . . . 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. 569 F.2d 192.
Subsequent applications of that rule in this Circuit indicate that where the employee is discharged or laid-off, the day in which he last rendered services is to be deemed the point at which the employer has "made a final decision." Mazzare v. Burroughs, 473 F. Supp. 234 (E.D.Pa.1979); Wagner v. Sperry Univac, 458 F. Supp. 505 (E.D.Pa.1978). Thus, in plaintiff's case the statutory period for discriminatory lay-off would begin to run on the day he last worked, May 31, 1970.
Plaintiff claims that the accrual date should be much later, arguing that his lay-off, when coupled with the subsequent refusals to recall, constituted a single "continuing violation" which ended only when he was placed on early retirement in October of 1975. In support of this position plaintiff contends that up until that time defendant could have remedied its past violations by recalling him and that, therefore, no "final decision" was made until he was retired. This argument has been rejected by courts in this Circuit, see Mazzare, supra, and Wagner, supra, and in others, see Thomas v. E. I. Dupont, 574 F.2d 1324 (5th Cir. 1978); Charlier v. S. C. Johnson & Son, Inc., 556 F.2d 761 (5th Cir. 1977); Woodburn v. LTV Aero Space Corp., 531 F.2d 750 (5th Cir. 1976); Hiscott v. General Electric Company, 521 F.2d 632 (6th Cir. 1975), which hold that the mere refusal to recall or rehire an employee does not convert his initial lay-off into a "continuing violation." As many of these courts note, any other rule would virtually emasculate the notice requirement, for the power to recall an individual would obviously exist up until the actual filing of the notice. Thus, plaintiff here would have no logical reason for denoting the date of his retirement as the end of the "continuing violation," since G.M. obviously remains free to this very day to rehire him. Accordingly, we hold that there was no "continuing violation" lasting until October 1, 1975, but rather that plaintiff's lay-off itself was the operative event and that any claim arising from the lay-off accrued on that day, May 31, 1970.
We next consider the second basis of plaintiff's age discrimination claim, namely, the defendant's alleged refusal to recall him in accordance with stated company policy. As noted above, the mere failure to recall a laid-off employee does not transform his original lay-off into a continuing violation. However, where, as is alleged in this case, the employer decides to fill a previously vacant position and in so doing refuses on the basis of age to recall a person otherwise qualified for the job, a new violation of the Act, separate and distinct from the initial lay-off, has occurred. Thus, in each instance where G.M. filled a position covered by plaintiff's recall rights plaintiff could assert a cause of action. The parties agree that the last such hiring occurred on December 1, 1974. That date therefore is the latest date for the accrual of plaintiff's claim based on discriminatory failure to recall.
We reject the proposition that Bonham may invoke the extended 300 day period of section 626(d)(2) notwithstanding his failure to make a timely state filing. (Citation omitted). Any other rule would mean that plaintiff could intentionally wait until after the state filing period had run, and then take advantage of the lengthier federal filing period. This was surely not the intent of Congress. (Citation omitted). 569 F.2d 192, fn. 5.
Plaintiff did not file a complaint with the Pennsylvania Human Relations Commission prior to commencing the instant action. Under these circumstances, Bonham would limit plaintiff to 180 days within which to file his notice. Therefore, any claim accruing here prior to approximately mid-July, 1975, would be time-barred. This bars substantially all of plaintiff's age discrimination count.
Even if we were to accept plaintiff's suggestion and deem his good-faith February 24, 1976, filing in California to be a Pennsylvania filing, it would not help him, since Bonham speaks of a timely state filing, and plaintiff's vicarious Pennsylvania filing would have been beyond the 90 day limitation established by that state in 43 Pa.Stat.Ann. § 959.