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Bailey v. Viacom

February 12, 2009


The opinion of the court was delivered by: Ambrose, Chief District Judge


Defendant Viacom, Inc. ("Viacom") moves for summary judgment with respect to the age discrimination claims asserted by Plaintiffs Donald Benyon ("Benyon"), Anna Marie Bochter ("Bochter"), Gerald Gregg ("Gregg"), David Kasuba ("Kasuba") and Robert Krause ("Krause"). See Docket No. [39]).*fn1 It has already been established that none of these Plaintiffs submitted a timely charge to the EEOC within 300 days of his or her termination. Thus, absent application of the equitable tolling doctrine, the claims are untimely and Viacom is entitled to summary judgment.

In Ruehl v. Viacom, 500 F.3d 375, 384 (3d Cir. 2007), the Third Circuit Court reaffirmed the two requirements for equitable tolling in an employment discrimination case:

the equitable tolling doctrine may excuse the plaintiff's noncompliance with the statutory limitations provision at issue when it appears that (1) the defendant actively misled the plaintiff respecting the reason for the plaintiff's discharge, and (2) this deception caused the plaintiff's non-compliance with the limitations provision.

quoting, Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). In Ruehl, the Third Circuit court determined that Ruehl could not demonstrate that Viacom's alleged deception caused his late filing. Ruehl, 500 F.3d at 385. Specifically, the Court determined that:

Ruehl admitted at his deposition that he first thought he had been subjected to age discrimination in the summer of 1998:"I guess when I was probably the oldest person in the department that was let go, and I was the only one not offered a job with the outsourcer ... [around] Summer of '98 I guess, you know, around the time of my termination ... (App. At 295.) Ruehl also admitted that in 1994 he thought there may have been age discrimination at Viacom, when, in his presence, Viacom's Chief Financial Officer referred to an older employee as a "blocker," and said that Viacom need to "get him out of here." (App. at 292.) Ruehl perceived this at the time to be the type of "comments [that] were probably made about me the same way when I wasn't in the room." (Id.)

Ruehl, 500 F.3d at 385. The Third Circuit court reasoned that because these facts, which would have supported Ruehls' cause of action, were known to him at the time of his termination, he could not demonstrate that Viacom's failure to disclose data under the Older Workers' Benefit Protection Act ("OWBPA") caused his failure to pursue a claim. Id.

Viacom believes that Benyon's, Bochter's, Gregg's, Kasuba's, and Krause's factual scenarios are analogous to Ruehl's. That is, Viacom contends that those Plaintiffs knew facts which would have supported their individual causes of action at or around the time of their termination. Consequently, Viacom reasons, they cannot demonstrate how Viacom's failure to disclose data under the OWBPA caused their failure to timely pursue their claims.

After careful consideration, and for the reasons set forth below, I agree. Viacom is entitled to the entry of summary judgment.

Standard of Review

Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material when it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rule 56 mandates the entry of judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In considering a motion for summary judgment, the Court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.


1. Benyon

Benyon was terminated from his employment on December 31, 1997. Benyon admitted that, at the time of his termination, he thought he was being let go because of his age:

Q: When you were laid off, did you feel like the company was laying you off because of your age?

A: The thought came to my mind. It did. I thought I had contributed quite extensively to the company and my record of achievements were very good. The thought did enter my mind.

See Benyon Dep., p. 23. Benyon also admitted that, prior to his termination, he believed that Viacom had a "culture" of age discrimination. In response to a question of what made him believe, at the time he was being terminated, that he was being discriminated against on the basis of age, Benyon replied:

There were cases that, in other parts of Westinghouse, that had been brought due to age discrimination, and which Westinghouse was shown to be similar, and based upon the culture there, my - my view was that if it happened elsewhere, since there was some pretty strong centralized control, that could be happening in the division in which I operated or worked. So the combination of my successes that I achieved and what I had seen in other parts of the corporation, through reading in the newspaper, led me to conclude that age discrimination could, in fact, be the reason for my termination.

See Benyon Dep. II., p. 160-162. Further, Benyon conceded that he was familiar with Viacom management's use of the word "blocker" prior to his termination. See Benyon Dep. II, p. 162-64. Benyon understood that term to "designate the people that were higher age were blocking the youth of the corporation from moving forward." See Benyon Dep. II, p. 162-63. Benyon acknowledged that "the thought occurred to me that I could have fallen in that category per Mr. Jordan and the management at Westinghouse." See Benyon Dep. II, p. 162-63 (emphasis added).*fn2

I agree with Viacom that Benyon's admissions are comparable to Ruehl's. The fact that he contends his convictions "strengthened over time as he was able to reflect" (see Benyon Dep. II, p. 164) is unconvincing. Such statements do not contradict his admissions that at the time he was terminated he believed Viacom had a culture of age discrimination, that he believed he was being terminated on the basis of age, and that he was considered by Viacom management as one of the "blockers." Nor do I find Benyon's contentions that he failed to connect what he believed to be age discrimination on the part of his manager regarding the directive to give his secretary a "poor review" (see Benyon Dep. II, p. 94-95) or the Leaders of the Future Program, to his own termination, to be convincing. Again, the record contains uncontradicted evidence indicating that at the time of his termination, Benyon believed himself to be the victim of age discrimination. Thus, like Ruehl, he cannot demonstrate that Viacom's failure to disclose OWBPA data caused his failure to pursue a claim based upon information he already had. Because Benyon is not entitled to invoke the equitable tolling doctrine, his administrative claim was not timely filed and Viacom is entitled to summary judgment.

2. Bochter

Anna Marie Bochter began working at Viacom on December 4, 1961. See Bochter Dep., p. 23. Her employment was terminated on November 30, 1996. See Docket No. 51, p. 14. Bochter testified that, at the time of her termination and based upon 35 years of observation, she believed Viacom had a culture of age discrimination:

Q: At the time you left Westinghouse, did you believe that Westinghouse had a culture of discrimination?

A: Yes.

Q: What evidence do you have of that?

A: I have a belief.

Q: What's your belief based on?

A: My observations for 35 years.

Q: What did you observe that led to that belief?

A: Mostly older employees were impacted by ...

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