law. Id. at 39-40. Segal also told Plaintiff that, in his opinion, Plaintiff had no case under Pennsylvania law. Id. at 34. The solicitor of the Pennsylvania Chiefs, talking with Plaintiff at a convention, was unable to provide Plaintiff with any information. Id. at 33. After Plaintiff resigned his position as Treasurer of the Allegheny County Police Chiefs, he continued to submit queries to the State Chiefs' solicitor by way of friends travelling to meetings or conventions. Id. at 34-35. Plaintiff testified that, in March or April of 1981, 7 - 8 months after he first approached the solicitor for the Western Pennsylvania Chiefs, the solicitor for the State Chiefs wrote to him directing him to the Wage and Hour Commission at the Federal Building. Id. at 33-35. Plaintiff went to the Wage and Hour Commission within three weeks of receiving the information. Id. at 56. Employees of the Wage and Hour Commission directed Plaintiff to the EEOC. Id. at 35. Plaintiff testified that he did not go to the EEOC any sooner because he had no knowledge of any rights except those under state law. Id. at 70.
We believe the circumstances of this case justify equitable tolling of the 180-day period. First, no notice informing employees of their rights under the ADEA was posted. Second, we do not view Plaintiff's contacts with the solicitors of the Western Pennsylvania or State of Pennsylvania to amount to the kind of consultation with an attorney contemplated by Bonham. Plaintiff never retained either solicitor as his attorney. His questions to them about mandatory retirement ordinances may or may not have elicited the attention a retained lawyer would give to his client's problems. In sum, we do not find that these contacts were evidence of an attorney-client relationship. See Jacobson v. Pitman-Moore, Inc., 582 F. Supp. 169, 174 (D. Minn. 1984). Once Plaintiff was directed to the Wage and Hour Commission, he acted promptly.
Finally, we find the town solicitor's statement to Plaintiff that the town ordinance was controlling to be an additional factor. A misrepresentation, if proven, will equitably toll the statute of limitations even if not made negligently or fraudulently. See Kamens v. Summit Stainless, Inc., 586 F. Supp. 324, 328 (E.D. Pa. 1984) (citing Ott v. Midland Ross Corp., 600 F.2d 24, 31-32 (6th Cir. 1979); Restatement of Torts (Second), § 552(c) (1977)).
We find Defendant's reliance on Kazanzas v. Walt Disney World, 704 F.2d 1527 (11th Cir.), cert. denied, 464 U.S. 982, 104 S. Ct. 425, 78 L. Ed. 2d 360 (1983) misplaced. Kazanzas held that where an employer simply failed to post the required notice, equitable modification of the 180-day period did not mandate tolling of the two-year statute of limitations. Id. at 1530. At trial, the jury had returned a special verdict stating that Disney did not willfully discriminate. Thus, the two-year statute of limitations applied. Id. at 1529. In the present case, it remains to be decided whether the two or three-year statute of limitations applies. No question has yet been raised as to the tolling of the two-year period because Plaintiff has alleged a willful violation. If, at trial, a violation is found and the violation is found not willful, it may well be that the two-year statute of limitations would act as a bar to recovery. See, e.g., Herman v. NBC, 744 F.2d 604, 606 (7th Cir. 1984) (two-year statute of limitations bar to nonwillful claims); EEOC v. Home Ins. Co., 553 F. Supp. 704, 713-14 (S.D.N.Y. 1982) (finding after trial that defendant's violation willful and not barred by statute of limitations); Kimball v. Goodyear Tire & Rubber Co., 504 F. Supp. 544, 549 (E.D. Tex. 1980) (FLSA; three-year statute of limitations held at trial on finding of willfulness).
Defendant argues that, notwithstanding any other arguments, it is entitled to summary judgment based on the Bona Fide Occupational Qualification defense ("BFOQ") provided for by 29 U.S.C. § 623(f). Whether or not Defendant ultimately prevails under this theory, we find this question one to be resolved after a full trial. The courts are not in agreement as to whether mandatory retirement for law enforcement officers is justifiable as a BFOQ in all cases. Compare Mahoney v. Trabucco, 738 F.2d 35 (1st Cir.), cert. denied, 469 U.S. 1036, 105 S. Ct. 513, 83 L. Ed. 29, 83 L. Ed. 2d 403 (1984), and Johnson v. Mayor and City of Baltimore, 731 F.2d 209 (4th Cir. 1984) (BFOQ defense upheld) with Heiar v. Crawford County, Wisconsin, 746 F.2d 1190 (7th Cir. 1984) (BFOQ defense not made out). We note that the Supreme Court has granted certiorari to decide whether a city's mandatory retirement policy for firefighters who had reached 55 is a valid BFOQ in light of the mandatory federal retirement for federal firefighters who reach 55. See Johnson v. Mayor and City of Baltimore, 731 F.2d 209 (4th Cir. 1984); EEOC v. Mayor and City of Baltimore, 731 F.2d 209 (4th Cir. 1984), cert. granted, 469 U.S. 1156, 105 S. Ct. 901, 83 L. Ed. 2d 917 (1985). We will, therefore, deny Defendant's motion for summary judgment as to its BFOQ defense.
An appropriate order will follow.
AND NOW, to-wit, this 11th day of March, 1985, for the reasons set forth in the foregoing Opinion, it is hereby ORDERED, ADJUDGED and DECREED that Defendant's Motion for Summary Judgment be and thereby is DENIED.
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