distress claim and Pettibon were to proceed with this claim in state court, the parties would be required to reestablish and prove facts already proven in the federal action. This would logistically and financially inconvenience both parties as well as waste judicial resources. Therefore, considerations of judicial economy and convenience outweigh the burden of a slightly enlarged scope of trial which will result from considering the pendent emotional distress claim along with the ADEA claim.
While judicial economy and convenience support exercising this Court's discretion to hear the pendent state emotional distress claim, the decision to exercise the discretion to hear the pendent claim must also be fair to the litigants. More specifically, it must be fair to both Pettibon and defendants to permit a state emotional distress claim which permits recovery of emotional and punitive damages to be appended to an ADEA claim which specifically excludes these type of damages.
The legislative history of the ADEA indicates that its purpose was to promote employment of older persons based on their ability, to prohibit arbitrary age discrimination, and to facilitate solving the problems of age discrimination in employment. S.Rep.No. 95-493, 2 (1977) reprinted in U.S. Code Cong. and Admn. News 504, 505 (1978). Permitting an employee whose employer has discriminated against him solely because of age, to take advantage of all existing legal rights is therefore not inconsistent with the purposes of the ADEA.
Not only is it fair to permit Pettibon to assert his pendent emotional distress claim in an ADEA proceeding, but it also is not unfair to defendants. Since a state emotional distress claim is not preempted by the ADEA, defendants have no reason to expect that they will not be subject to such a claim. Therefore, the course of action most fair to both defendants and Pettibon is to permit Pettibon an opportunity to prove his pendent emotional distress claim.
This is not to say, however, that defendants cannot move for summary judgment on the pendent emotional distress claim once sufficient facts have been established. However, until such facts can be ascertained, it would be unfair and premature to dismiss an available remedy for age discrimination when it arises from the same nucleus of facts out of which the ADEA claim arises. Therefore, defendants' motion to dismiss the pendent state tort claim will be denied.
AND NOW December 11th, 1986 in accordance with the foregoing memorandum opinion, IT IS HEREBY ORDERED that defendants' motion to dismiss the pendent state tort claim is denied.