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United States District Court, D. Connecticut.

Ralph C. MORGAN

v.

PITNEY BOWES INC.

No. 5:92-CV-670 (JAC).

Jan. 26, 1994.

Kathryn Emmett, Emmett, Fins & Glander, Stamford, CT, for plaintiff.

Joel E. Cohen, Mudge Rose Guthrie Alexander & Ferdon, New York City, Richard J. Buturla, Berchem, Moses & Devlin, P.C., Milford, CT, for defendant.

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JOSE A. CABRANES, Chief Judge:

This is an action for employment discrimination based on age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Pending before the court is the defendant's motion for summary judgment (filed June 18, 1993).

BACKGROUND

The following facts are undisputed by the parties. The plaintiff, Ralph C. Morgan, is a former employee of the defendant, Pitney Bowes, Inc. The plaintiff commenced his employment with Pitney Bowes in 1959. In 1978, after working his way up through the ranks, the plaintiff was promoted to the position of Superintendent, managing the Finishing Unit Shop and reporting directly to the Director of Manufacturing. In 1985, he was transferred out of the Finishing Unit Shop and into Factory Management Systems, where he worked as a project leader. The plaintiff remained in this position until March 1987, when he was transferred, this time at his request, to the position of Senior Engineer.

In November 1990, the plaintiff had a conversation with his immediate supervisor, William Heffron, concerning the employment status of co-worker Ray LeMay. Heffron informed the plaintiff that LeMay's position was being eliminated, and that LeMay had volunteered to retire. During this conversation, Heffron also indicated that the plaintiff's current job assignment would be eliminated in 1991.

On July 30, 1991, the plaintiff was informed that his employment would be terminated effective September 16, 1991. The delayed termination date enabled the plaintiff to qualify for full retirement benefits under the company's "Rule of 85." Under the "Rule of 85," an employee may qualify for retirement at the age of 55 if his age, combined with his years of service to the company, totals 85 years. The plaintiff turned 55 years old on August 9, 1991. Although relieved of his duties before that date, he remained on the company's payroll until September 16, 1991.

On January 24, 1992, the plaintiff filed an administrative charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Connecticut Commission on Human Rights and Opportunities. After these agencies discontinued their review of the plaintiff's claim at his request, he commenced the instant action in November 1992.

DISCUSSION

I.

The defendant is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.Pro. 56(c). The burden is on the moving party to show that no material facts are in dispute. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987). The court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities against the moving party. See Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986) (Feinberg, C.J.), cert. denied, 480 U.S. 932 (1987). The court must therefore view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The defendant has moved for summary judgment on the ground that the plaintiff failed to file his charge of discrimination with the EEOC within the statutorily prescribed 300-day limitations period. According to the defendant, the plaintiff was required to file his charge with the EEOC within 300 days from the date that the allegedly discriminatory employment decision was made and communicated to him. The defendant asserts that the plaintiff received notice that his job was being eliminated during his conversation with Heffron in November 1990. The defendant argues that inasmuch as the plaintiff did not file his charge with the EEOC until January 24, 1992--more than 300 days later--the plaintiff's action is time-barred.

The plaintiff denies that Heffron put him on notice of any discriminatory employment action in November 1990. Rather, he contends that he did not receive notice until July 30, 1991. Because he filed his charge within 300 days of this date, the plaintiff maintains that his action is not time-barred. The court finds that a genuine issue of material fact exists for statute of limitations purposes as to when the plaintiff received notice.

Under the ADEA, a plaintiff in Connecticut must file a charge of discrimination with the EEOC within 300 days after the alleged discriminatory action, or within 30 days after the end of a state investigation, if earlier. See 29 U.S.C. §§ 626(d)(2), 633(b). [FN1] The timely filing of a charge with the EEOC is a prerequisite to bringing suit in federal court. See Miller v. Intern. Tel. & Tel. Corp., 755 F.2d 20, 23 (2d Cir.), cert. denied, 474 U.S. 851 (1985). The 300-day period begins to run on the date that the allegedly discriminatory decision was made and communicated to the plaintiff. See Delaware College v. Ricks, 449 U.S. 250, 258 (1980); Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (per curiam); Miller v. Intern. Tel. & Tel. Corp., 755 F.2d at 23 (Ricks and Chardon applicable to ADEA cases). Notice must be "reasonably calculated to apprise the employee of an allegedly discriminatory act taken with regard to employment." E.E.O.C. v. Home Ins. Co., 553 F.Supp. 704, 711 (S.D.N.Y.1982).

FN1. In states in which there is no agency authorized to investigate allegations of discrimination, plaintiffs must file their charges with the EEOC within 180 days of the alleged unlawful practice. See 29 U.S.C. § 626(d)(1).

In the instant case, there is a question of material fact as to whether Heffron's statements in November 1990 were sufficiently formal to apprise the plaintiff that a final decision had been made regarding his employment status. According to the plaintiff, no formalities were present which might have indicated the significance of Heffron's statements to him--the plaintiff was not summoned by Heffron to discuss his employment status but initiated the conversation himself; he was not provided with a written termination notice during the conversation; and he was not given a specific termination date. While none of these factors standing alone is dispositive, the totality of the circumstances raises a question as to whether Heffron's statements put the plaintiff on notice that discriminatory action had been taken against him at that time. Accordingly, the defendant's motion for summary judgment must be denied.

II.

Even if the plaintiff had notice of the termination of his employment in November 1990, the defendant's motion must still be denied on equitable grounds. The plaintiff argues that the defendant is estopped from asserting the statute of limitations as a defense because he relied upon the defendant's implied promise to reassign him after his position as Senior Engineer was eliminated. The defendant responds that any expectation that the plaintiff may have had concerning possible reassignment was irrelevant. The court disagrees with the defendant.

A plaintiff may invoke equitable considerations to toll the statute of limitations in two circumstances. First, a plaintiff may invoke the doctrine of equitable tolling where his employer concealed the existence of his cause of action. See Cerborne v. Int'l Ladies' Garment Workers, 768 F.2d 45, 49 (2d Cir.1985); Wingfield v. United Technologies Corp., 678 F.Supp. 973, 982-83 (D.Conn.1988) (Blumenfeld, J.). Second, a plaintiff may invoke the doctrine of equitable estoppel where his employer misled or otherwise caused him to delay the filing of his EEOC charge--for example, by promising reinstatement or a comparable position within the company. See Cerborne, 768 F.2d at 49-50.

In the instant case, the plaintiff has come forward with facts sufficient to raise a triable question of equitable estoppel. Although equitable estoppel traditionally involves an express promise of reinstatement or reassignment, Pitney Bowes' asserted practice of routinely reassigning employees could have created an implied promise of reassignment. During the plaintiff's tenure with the company, he was reassigned on numerous occasions after the completion of individual projects. In addition, the plaintiff claims that this was the company's practice with respect to other employees. Depending on the facts proved at trial, a jury may find that the defendant had an obligation to expressly repudiate the plaintiff's expectation that he would be reassigned.

Even if the defendant had no general obligation to warn the plaintiff that he would not be reassigned, such a duty may have arisen from the plaintiff's direct inquiry on the issue. During the November 1990 conversation, the plaintiff asked Heffron whether he would have a job after the elimination of his position as Senior Engineer. By all accounts, Heffron shrugged his shoulders in response--implying, in the plaintiff's view, that reassignment was indeed a distinct possibility. Furthermore, the defendant conceded at oral argument that neither Heffron nor any one else in the company took any steps to correct any such misunderstanding before July 30, 1991. Under these circumstances, a rational jury could find that the plaintiff reasonably expected that he would be reassigned after losing his position as Senior Engineer, that he delayed in filing his EEOC charge as a result, and that (as a result) the defendant is estopped from asserting the statute of limitations as a defense. Accordingly, the defendant's motion for summary judgment must be denied.

III.

The defendant's motion must also be denied as to the plaintiff's asserted "continuing violation" of the ADEA. The plaintiff argues that even if he received notice in November 1990 and equitable principles were inapplicable, his cause of action did not "accrue" until July 30, 1991--the day he was formally informed of the termination of his employment--because he was the victim of a continuing violation of the ADEA as a result of the defendant's practice of discharging older workers when they became qualified for full retirements benefits. The defendant responds that the plaintiff has failed to produce any evidence to establish the existence of a continuing violation. Because discovery has not been completed on the issue of a continuing violation, the court finds that the defendant's motion for summary judgment is not ripe for decision on this issue.

For purposes of the instant motion, the parties agreed to limit discovery to the threshold issue of the statute of limitations. See Superseding Scheduling Order (filed Aug. 6, 1993). While the plaintiff has only raised the issue of a continuing violation at this time for the limited purpose of rebutting the defendant's argument concerning the statute of limitations, findings of fact would be necessary to determine whether the asserted continuing violation tolls the statute of limitations. Because the parties have not completed discovery on the issue of a continuing violation, the defendant's motion for summary judgment, to the extent that it applies to any asserted continuing violation, must be denied without prejudice to renewal after the completion of discovery.

IV.

At oral argument, the defendant suggested that in the event his motion was denied, the court bifurcate the issues of the statute of limitations and the merits. The defendant further suggested that the court could initially hold an evidentiary hearing on the statute of limitations issue alone, without the necessity of submitting it to a jury. The plaintiff rejected the defendant's suggestions, asserting that judicial economy requires that both issues be tried together since they are intertwined, and that both are triable to a jury.

On the basis of the record of this case, the court declines the invitation of the defendant to bifurcate the trial of this case. Accordingly, discovery shall now proceed on the normal course. Counsel are directed to consult inter se and to submit to the court, by no later than February 8, 1994, a form of scheduling order along the lines prescribed by the court; in the normal course, the proposed discovery should be completed within six to nine months of this date.

CONCLUSION

For the reasons stated above, the defendant's motion for summary judgment (filed June 18, 1993) (doc # 15) is hereby DENIED. Insofar as the defendant's motion for summary judgment applies to any asserted "continuing violation" of the ADEA, it is DENIED without prejudice to renewal on the issue of a "continuing violation" after the completion of discovery.

It is so ordered.