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SCARAMUZZO v. GLENMORE DISTILLERIES

January 1, 1980

PETER SCARAMUZZO, PLAINTIFF,
v.
GLENMORE DISTILLERIES, CO., DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff Peter Scaramuzzo ("Scaramuzzo") has filed a two-count complaint against his previous employer, defendant Glenmore Distilleries, Co. ("Glenmore"), alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and common law breach of contract. This cause is now before the Court on Glenmore's (1) motion for summary judgment on portions of the age discrimination claim, (2) motion for summary judgment on the contract claim, and (3) motion in limine to exclude certain evidence at trial.

SCARAMUZZO'S ADEA CLAIM

Scaramuzzo complains that Glenmore demoted him and then fired him due to his age, and that Glenmore then retaliated against him for filing suit; all in violation of the ADEA. The allegations specify that the demotion took place in May, 1978, and the firing occurred on February 1, 1979. In deposition, Scaramuzzo testified that the alleged retaliatory acts took place on March 28 or 29, 1979.

Glenmore has moved for summary judgment with respect to Scaramuzzo's claims of illegal demotion and retaliation*fn1 on the ground that plaintiff failed to file charges of unlawful demotion or retaliation with the Secretary of the Department of Labor within 180 days after the alleged unlawful acts occurred, as is required under the ADEA. Section 7(d) of the ADEA, 29 U.S.C. § 626(d) provides in pertinent part that:

  No civil action may be commenced by an individual
  under this section until 60 days after a charge
  alleging unlawful discrimination has been filed
  with the Secretary. Such a charge shall be filed-
    (1) within 180 days after the alleged unlawful
  practice occurred;

Though in his complaint Scaramuzzo alleges that he has complied with all applicable notice and filing provisions, Glenmore points to Scaramuzzo's Notice of Intent to Sue which was sent to the U.S. Department of Labor on March 23, 1980, and which states as follows:

  Pursuant to statute, you are hereby advised that
  Peter Scaramuzzo intends to sue against Glenmore
  Distilleries, Co., a Kentucky corporation located
  at 1700 Citizens Plaza, Louisville, Kentucky
  40202, which maintains offices in Chicago,
  Illinois, for violations of the Age
  Discrimination in Employment Act of 1967 and the
  1978 amendments.
  One of the bases of the lawsuit is the unlawful
  termination of Mr. Scaramuzzo in February, 1979,
  on account of his age.

This letter constitutes the only charge filed with the Department of Labor by Scaramuzzo. Because this notice fails to specifically allege claims of unlawful demotion or retaliation, and because more than 180 days have passed since the demotion and alleged retaliation, Glenmore contends that these claims are time barred by the 180-day limitation of section 7(d) of the ADEA. Scaramuzzo, on the other hand, argues that Glenmore's three discrete actions were sufficiently related to one another such that Scaramuzzo's claims of retaliation and demotion must be considered to be encompassed in the Notice of Intent to Sue mailed on March 23.*fn2

Numerous courts have recognized the similarity between the ADEA and Title VII, and the comparability of their filing provisions often has been acknowledged in determining the timeliness of a claim brought pursuant to either Act. See, e. g., Coke v. General Adjustment Bureau, Inc., 616 F.2d 785 (5th Cir. 1980); Templeton v. Western Union Telegraph Co., 607 F.2d 89 (5th Cir. 1979); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979); Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975); Locascio v. Teletype Corp., 74 F.R.D. 108 (N.D.Ill. 1977).

It is well settled in this Circuit that a claim based upon a violation of Title VII properly may encompass any acts of discrimination similar to, or reasonably related to the allegations made in the charge initially to the EEOC. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.) (en banc), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976); Plummer v. Chicago Journeyman Plumbers, Etc., 452 F. Supp. 1127, 1141 (N.D.Ill. 1978); Garcia v. Rush-Presbyterian-St. Luke's Medical Center, 80 F.R.D. 254, 260 (N.D.Ill. 1978); McCray v. Standard Oil Co. (Indiana), 76 F.R.D. 490, 497 (N.D. Ill. 1977). In Jenkins, the Court articulated a standard for determining the scope of a Title VII complaint:

  The correct rule to follow in construing EEOC
  charges for purposes of delineating the proper
  scope of a subsequent judicial inquiry is that
  `the complaint in the civil action . . . may
  properly encompass any . . . discrimination like
  or reasonably related to the allegations of the
  charge and growing out of such allegations.' 538
  F.2d ...

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