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PIECKELUN v. KIMBERLY-CLARK CORP.

June 20, 1980

EDMUND J. PIECKELUN
v.
KIMBERLY-CLARK CORPORATION



The opinion of the court was delivered by: TROUTMAN

MEMORANDUM AND ORDER

Involuntarily retired in December 1976, plaintiff instituted this suit under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (ADEA) and charged defendant, his former employer, with violations of this act and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. *fn1" Defendant now moves to dismiss the complaint, or alternatively for summary judgment, on several grounds. First, defendant argues that plaintiff's failure to give the Secretary of Labor notice of his intent to sue within three hundred days of the allegedly illegal discharge and his failure to commence appropriate proceedings before the Pennsylvania Human Relations Commission bar his ADEA claim. Second, defendant contends that conformation of plaintiff's retirement to defendant's bona fide retirement pension plan *fn2" bars his claims under both federal and state law. Finally, the Court lacks jurisdiction of plaintiff's state claim, defendant argues, because plaintiff did not plead diversity sufficiently and because the Pennsylvania act does not permit the filing of an independent civil action until after a prospective plaintiff files a complaint with the Pennsylvania Human Relations Commission.

 Addressing the first argument, plaintiff responds that he complied with ADEA filing and notice requirements by contacting an attorney with the Department of Labor on February 1, 1977, forty days after his discharge. On that date in Atlanta, Georgia, plaintiff interviewed with a Department lawyer, Thomas Brown, who indicated to plaintiff that he was compiling information for a class action complaint against defendant on the basis of age discrimination. Plaintiff told the attorney that he "wished" to file a charge with the Department of Labor under the ADEA. *fn3" Plaintiff did not hear from Brown until August 1978, eighteen months later, when plaintiff called him and learned that Brown had been unsuccessful in instituting the proposed class action. Plaintiff then contacted the Allentown office of the Department of Labor's Wage & Hour Division and completed an Employee Personal Interview Statement which contained details of his charge against defendant. On January 10, 1979, the Department informed him by letter that conciliation efforts had failed and that the Department would take no further action. Plaintiff then filed this action on December 4, 1979.

 Defendant disputes plaintiff's characterization of the February 1977 interview with Brown. Defendant emphasizes that the "spontaneous" answers which plaintiff supplied in the course of his deposition render a much more accurate description of what really transpired than "the lawyer-drafted allegations" submitted by plaintiff. *fn4" At the deposition, defendant argues, plaintiff could not remember any conversation other than one in which he discussed with Brown the possibility of participating in a class action against defendant. With respect to plaintiff's notice to the Department of Labor of his intent to sue, plaintiff admitted that they never discussed the subject:

 
Q. When was the first time that Mr. Brown discussed with you or you discussed with Mr. Brown an individual action against (defendant)?
 
A. Approximately eighteen months later (than February 1977).
 
Q. Then, was your only conversation with Mr. Brown in February of 1977 in connection with the class action that he was contemplating?
 
A. That's right.
 
Q. Not in connection with an individual action?
 
A. That's right.
 
Q. Do you recall eighteen months later discussing an individual action with Mr. Brown?
 
A. Not discussing. He left the message that I should go ahead and institute an individual action.
 
Q. To the best of your recollection, is that the first time that the subject of an individual action was discussed?
 
A. Right, to the best of my recollection. *fn5" ...

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