The opinion of the court was delivered by: WEBER
This action is before the court on the motion for summary judgment filed by defendant American Sterilizer Company.
Plaintiff, Charles Gallagher, alleges that defendant engaged in unlawful employment practices in that it discriminated against him in violation of Section 4(a) of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Plaintiff contends that he was intentionally discharged from employment by the American Sterilizer Company by reason of his age.
A brief review of the undisputed facts indicate that plaintiff was employed by the defendant since 1965 and became Director of Government Affairs and Quality Control in 1978. On January 3, 1979, plaintiff was notified that he was to be terminated effective June 30, 1979. Plaintiff was 59 years of age at the time of notification.
Plaintiff discontinued work on April 23, 1979 contending that the notice of January 3, created "psychotic depression" that led to his eventual total, non-occupational disability status on May 9, 1979. Plaintiff filed a charge of age discrimination with the Equal Employment Opportunity Commission on or about January 28, 1980. The EEOC issued a right to sue letter on July 16, 1980 and this suit was brought on December 22, 1981. Defendant's prior motion to dismiss certain of plaintiff's claims was denied in part and granted in part by this court in a Memorandum Order issued May 3, 1982.
Defendant now seeks summary judgment on two grounds. First, defendant maintains that the plaintiff was never terminated, rather, that he remains on the company rolls and is actually precluded from work because of a total, non-occupational disability. Second, defendant denies discriminating against plaintiff with respect to compensation, terms, conditions, or privileges of employment since the plaintiff continues to receive the same fringe benefits which he was receiving before his disability leave of absence and continues to be a member of the Company's pension plan. Furthermore, defendant submits, arguendo, that if plaintiff had been terminated as a result of age discrimination, he would not be entitled to back pay during any period when he was disabled and unable to work.
The court first looks to defendant's assertion that plaintiff was never terminated. It is undisputed that plaintiff received notice of his impending discharge on January 3, 1979, with its effective date of June 30, 1979. Defendant does not deny issuing the letter. However, defendant regards June 30, 1979 as the triggering date for any application of the Age Discrimination In Employment Act. It follows, by defendant's argument, that since plaintiff became disabled on or about May 9, 1979, he could not have been terminated since he was reduced to non-active status before the termination took effect.
Section 4(a) of the Age Discrimination in Employment Act, (29 U.S.C. § 623(a)), prohibits age discrimination and provides in relevant part:
It shall be unlawful for an employer --
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely effect his status as an employee because of such individual's age . . . .
Defendant, in essence, urges an interpretation of the above language that would limit application of the word discharge to the final date of employment. In the instant case, we deal with two dates of importance, January 3, the date of notification of discharge, and June 30, the final date of employment according to the notice.
The discriminatory action which plaintiff alleges must logically precede the notice of termination and, for purposes of the application of this statute, was simply made manifest by the communication of January 3. It is undisputed that the decision to discharge plaintiff was made prior to January. It is well established that a cause of action accrues when plaintiff knows or has reason to know of the injury which is the basis for the action. Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 (1949). Cases decided under the Age Discrimination in Employment Act have uniformly held that "a discharge occurs when there are any acts or words which show a clear intention on the part of the employer to dispense with the services of the employee." Monroe v. Penn-Dixie Cement Corporation, 335 F. Supp. 231 (N.D. Ga. 1971); See also, Jackson v. Alcan Sheet & Plate, 462 F. Supp. 82 (N.D. N.Y. 1978); Havelick v. Julius Wile Sons & Co., Inc., 445 F. Supp. 919 (S.D. N.Y. 1978). We conclude that the final date of employment, when purely executory as under the instant facts, cannot control the application of the Age Discrimination In Employment Act. Such an interpretation would require all plaintiffs asserting a violation of the Act to forego their legal remedies until the final date of employment that was set by the terms of the discriminatory act for which they seek redress. Such an interpretation would allow fortuitous intervening events, occurring prior to the actual date of discharge, to shield would-be violators from the sanctions allotted under the Act. In effect, an employer would escape liability where the nature of his discrimination forces an employee to discontinue work prior to the final date in the notice.
This court previously held that the unlawful practices in this case is measured by the date on which the employee was notified that his employment would be terminated at some specific date in the future. See Memorandum Order of May 3, 1982. Several courts have dealt with the similar issue of pinpointing the wrong under discrimination statutes for limitation of action purposes. The Supreme Court in Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980) held that where the only challenged practice under Title VII of the Civil Rights Act of 1964 occurs before the date of termination of employment, the limitation period necessarily begins to run before that date. The Supreme Court cited with approval the Court of Appeals for the Ninth Circuit in Abramson v. University of Hawaii, where that court stated, "the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." 594 F.2d 202, 209 (9th Cir. 1979). See also, Chardon v. Fernandez, 454 U.S. 6, 102 S. Ct. 28, 70 L. Ed. 2d 6 (1981), (applicable limitations period began to run when notice of termination was given, and not on date when employment terminated).
Consequently, we reassert that the notice date most proximate to the decision to discharge is the date which triggers ...