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NOGAR v. HENRY F. TEICHMANN

November 21, 1985

JAMES H. NOGAR, Plaintiff,
v.
HENRY F. TEICHMANN, INC., Defendant



The opinion of the court was delivered by: COHILL

 COHILL, C.J.

 Presently before us is Defendant's Motion for Summary Judgment in above captioned action. Plaintiff's Complaint alleges one count of age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (1982), one count of age discrimination under the Pennsylvania Human Rights Act ("PHRA"), 43 P.S. §§ 951-963 (Purdon 1965 & Supp. 1984), and three counts under Pennsylvania common law. The latter four counts are before us on the basis of pendent jurisdiction. Since we find Plaintiff's age discrimination claim under the ADEA without merit, we will decline jurisdiction over Plaintiff's pendent state claims.

 Facts

 On October 21, 1982, Plaintiff withdrew his pension funds, which act, he maintains, terminated his employment status.

 On March 29, 1983, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") citing August 26, 1982, 90 days from the date of his lay-off, as the date of the most recent or continuing discrimination against him by the Defendant. Plaintiff never filed a charge with the Pennsylvania Human Rights Commission ("PHRC"). Deposition of James H. Nogar at para. 42. However, pursuant to a work-sharing agreement, the EEOC transmitted the charge to the PHRC on March 31, 1983. Pretrial stipulation at para. II.

 Plaintiff claims that Defendant posted no notices advising employees of the existence of or the provisions of the ADEA as required by the Act. See 29 U.S.C. § 627. Even so, he claims no knowledge of facts which would have supported such a claim until March 25, 1983 when E. Mason Ashby, an employee in Defendant's International Sales Department, informed him that younger employees were not laid off. Affidavit of James H. Nogar, at paras. 7 & 8.

 Defendant argues that Plaintiff failed to file his charge with the EEOC in a timely manner. Alternately, Defendant argues that Plaintiff was laid off as a result of sales downturns producing net losses, and not due to his age.

 Summary Judgment

 When considering a motion for summary judgment, the Court must determine if there are material facts in dispute. In so doing, the Court must view all facts in the light most favorable to the non-moving party. Sun Refining and Marketing Co. v. Rago, 741 F.2d 670, 673 (3d Cir. 1984). The burden is on the moving party to show that no genuine issue of material fact exists. Fed. R. Civ. P. 56; Wolk v. Saks Fifth Avenue, Inc., 728 F.2d 221 (3d Cir. 1984).

 Timeliness of Charge Filed

 A charge of discrimination must be timely filed with the EEOC prior to the initiation of an action in federal court. Love v. Pullman, 404 U.S. 522, 523, 92 S. Ct. 616, 617, 30 L. Ed. 2d 679 (1972). Under the ADEA, two different time limits are applied to determine when the charge must be filed with the EEOC depending on whether or not the unlawful practice occurred in a deferral state: If the unlawful practice occurred in a nondeferral state, the complainant must file within 180 days; but if it occurred in a deferral state, the time limit is extended to 300 days. 29 U.S.C. § 626(d). Pennsylvania is a deferral state. See Seredinski v. Clifton Precision Products Co., 776 F.2d 56 (3d Cir. March 4, 1985); Butz v. Hertz Corp., 554 F. Supp. 1178, 1180 (W.D. Pa. 1983) (Cohill, J.); Cutright v. General Motors Corp., 486 F. Supp. 590, 592-93 (W.D. Pa. 1980).

 In a deferral state, the complainant must allow the state agency 60 days to take action on his charge before he files suit in a federal district court. 29 U.S.C. § 633(b). Although there are similarities between the limitations periods in Title VII and the ADEA, see Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979), they differ significantly with regard to the 60-day deferral period. Under Title VII, the claimant must file a charge with the state agency 60 days before filing with the EEOC, see 42 U.S.C. § 2000e-5(c), thus the 300-day limitation period is effectively cut to 240 days unless the state proceedings are terminated in less than 60 days. Mohasco Corp. v. Silver, 447 U.S. 807, 814, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980); Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1211 (3d Cir. 1984). Under the ADEA, however, the federal court and not the EEOC must defer to the state so the 240-day rule does not apply. Seredinski, slip op. at 14. A claimant under the ADEA may file simultaneously with the state agency and the EEOC without raising a deferral problem. Id.

 Where a claimant files initially with the EEOC rather than the state agency, the EEOC must refer the charges to the state agency. 29 C.F.R. § 1601.13 (1985). The EEOC referral entitles the claimant to the 300-day extended filing period provided in § 626 even though filing is untimely under state law. Id. at 10-11; Howze, 750 F.2d at 1210 (citing Mohasco, 447 U.S. at 815-16); Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 751 (3d Cir.), cert. denied, 464 U.S. 852, 104 S. Ct. 164, 78 L. Ed. 2d 150 (1983) (citing Davis v. Calgon Corp., 627 F.2d 674, 675 (3d Cir. 1980) (per curiam), cert. denied, 449 U.S. 1101, 66 L. Ed. 2d 827, 101 S. Ct. 897, reh'g denied, 450 U.S. 971, 67 L. Ed. 2d 623, 101 S. Ct. 1494 (1981)).

 Under Pennsylvania law, for example, a claimant must file a charge with the PHRC within 90 days. 42 Pa. Stat. Ann. § 959 (Purdons Supp. 1977). Under the ADEA, a claimant has 300 days to file a charge in a deferral state. Since the state statute can not shrink the filing period set by federal law, a claim filed with the PHRC 300 days after the unlawful practice allegedly occurred must be deemed timely for federal purposes even though it is untimely for state purposes. See Bonham v. ...


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