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BUTZ v. HERTZ CORP.

January 18, 1983

MARGARET B. BUTZ, Plaintiff,
v.
THE HERTZ CORPORATION, Defendant



The opinion of the court was delivered by: COHILL

 I.

 Introduction

 The plaintiff, Margaret B. Butz, was an employee of the defendant, The Hertz Corporation ("Hertz"), from December 3, 1962, until September 25, 1980. In a two-count complaint filed in federal court against Hertz, Ms. Butz claims that she was terminated by Hertz on September 25, 1980, at the age of 45, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et. seq. (Count I), and that Hertz breached its duty to deal with the plaintiff in a fair, just and good faith manner (Count II).

 Presently before the Court is Hertz's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative, a motion for summary judgment as to both counts, pursuant to Fed. R. Civ. P. 56. Hertz asserts three reasons for granting its motion: 1) Ms. Butz's claim of age discrimination under the ADEA set forth in Count I is untimely under 29 U.S.C. § 626(d); 2) because Ms. Butz refused a better paying position offered by Hertz at the time of her termination, she has no grounds to seek back pay or reinstatement; and 3) Count II, alleging a breach of a general duty of fair, just and good faith treatment, has no basis in federal or state law. Because Hertz has filed affidavits in support of its claim that Count I is untimely, we will treat that motion as a motion for summary judgment pursuant to Fed. R. Civ. P. 56(c). See Fed. R. Civ. P. 12(b). As for Count II, Hertz alleges that Ms. Butz failed to state a claim upon which relief can be granted; therefore, we will treat that motion as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

 II.

 Motion for Summary Judgment (Count I)

 Ms. Butz was employed by Hertz as a switchboard receptionist on December 3, 1962. She continued in that capacity until September 25, 1980 when she was placed on "lay-off" status. See Complaint para. 10. On August 24, 1982, Ms. Butz filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") claiming that she was terminated because of her age. This lawsuit was commenced on September 28, 1982.

 Hertz claims that we lack jurisdiction over the ADEA violation claim alleged in Count I since the charge filed with the EEOC on August 24, 1982 was untimely under 29 U.S.C. § 626(d).

 29 U.S.C. § 626(d) provides in pertinent part:

 
(d) No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed --
 
(1) within 180 days after the alleged unlawful practice occurred; or
 
(2) in a case to which section 14(b) applies [referring to acts of discrimination occurring in States with fair employment practice agencies], within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice ...

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