Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

SCARAMUZZO v. GLENMORE DISTILLERIES

United States District Court, Northern District of Illinois, E. D


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 at 167, citing Danner v. Phillips Petroleum
  Co., 447 F.2d 159, 162 (5th Cir. 1971).*fn3

Though this standard has not been previously applied to ADEA cases, there is no reason why this Court should not so apply it. See, e. g., Coke v. General Adjustment Bureau, Inc., 616 F.2d 785, 789 (5th Cir. 1980).

Under both Title VII and the ADEA, Congress sought to insure that voluntary administrative conciliation procedures be invoked before suit is filed in federal court. The breadth of the standard set by the Seventh Circuit reflects the fact that an administrative charge only triggers the agency's investigation and its efforts at conciliation. Jenkins, 538 F.2d at 168. Any civil action that may be filed subsequent to the administrative charge actually "grows out" of the administrative investigation rather than the employee's specific charge. McCray, 76 F.R.D. at 497. Thus, the Court may infer the existence of other discriminatory acts from the allegations contained in the administrative charges. Id. at 498.

Like Title VII, the ADEA is a remedial statute that should be liberally construed and broadly applied to effectuate its goal of promoting employment among protected class members. Kephart v. Institute of Gas Technology, 581 F.2d 1287, 1289 (7th Cir. 1978); Bonham v. Dressler Industries, Inc., 569 F.2d 187, 193 (3d Cir. 1978); Locascio v. Teletype Corp., 74 F.R.D. 108, 112 (N.D.Ill. 1977). In Kephart, the Seventh Circuit held that the 180-day notice requirement of the ADEA is not a strict jurisdictional prerequisite to suit in federal court and is subject to equitable modification when necessary to effect the remedial purposes of the statute.*fn4 In so doing, the court quoted approvingly from Bonham v. Dressler Industries, Inc., 569 F.2d 187, 193 (3d Cir. 1978), where the court voiced recognition that the ADEA is

  remedial and humanitarian legislation which
  should be liberally interpreted to effectuate the
  congressional purpose of ending age
  discrimination in employment. Circumstances may
  exist where, notwithstanding plaintiff's failure
  to comply with the letter of the law, the
  purposes of the statutory requirement-providing
  the Secretary of Labor with an opportunity to
  conciliate while the complaint is fresh and
  giving early notice to the employer of possible
  litigation-have been substantially served.

Further support for finding that plaintiff's complaint properly encompasses any discrimination like or reasonably related to the allegations of the charge filed with the Department of Labor is found in the legislative history of the 1978 amendments to the ADEA. This history provides valuable guidance for interpretation of the notice requirements. First, it is important to note that the Senate Report recommended total elimination of the 180-day notice requirement found in section 626(d)(1). In support thereof, the Senate Report explained the purpose of the 1978 legislation:

  The purpose of these amendments is to make it
  more likely that the courts will reach the merits
  of the cases of aggrieved individuals and do so
  more expeditiously. . . .

  The basic purpose of the notice requirement is to
  apprise the Department of Labor of any alleged
  violations of the Act so that the Department may
  notify prospective defendants and to provide the
  Department with an opportunity to eliminate the
  alleged unlawful practices through informal
  methods of conciliation. Failure to timely file
  the notice as required by section 7(d) has been
  the most common basis for dismissal of ADEA
  lawsuits by private individuals. The 180-day
  limit has been interpreted as jurisdictional by
  some courts, and consequently complaints are
  dismissed. (citations omitted).

  In the committee's view, this provides a
  compelling argument for removing the 180-day
  notice requirement entirely. Age discrimination
  is often much more subtle and less well
  understood than other forms of discrimination and
  therefore is often not discovered by the victim
  until long after the alleged act has occurred.
  S.Rep.No.95-493, 95th Cong., 2d Sess.,
  reprinted in [1978] U.S.Code Cong. & Ad. News, p.
  515.

The Conference Committee rejected the Senate proposal for removing the 180-day notice requirement and instead amended section 626(d)(1) to require that a "charge" rather than a "notice of intent to sue" be filed with the Secretary of Labor. In making this change the conferees noted:

  This change in language is not intended to alter
  the basic purpose of the notice requirement,
  which is to provide the Department with
  sufficient information so that it may notify
  prospective defendants and to provide the
  Secretary with an opportunity to eliminate the
  alleged unlawful practices through informal
  methods of conciliation. Therefore, the conferees
  intend that the "charge" requirement will be
  satisfied by the filing of a written statement
  which identifies the potential defendant and
  generally describes the action believed to be
  discriminatory. (Emphasis added). H.R.Rep.No.
  95-950, 95th Cong., 2d Sess., reprinted in [1978]
  U.S.Code Cong. & Ad. News, p. 534.

Scaramuzzo's letter of March 23, 1980, adequately complies with the letter and spirit of section 626(d)(1) as elucidated by the legislative history of the Act. Scaramuzzo did identify Glenmore as the potential defendant and indicated that his termination was but one manifestation of Glenmore's alleged practice of age discrimination.*fn5 In so doing, both the Secretary and the prospective defendant were provided with notice of Scaramuzzo's claim, sufficient to create an opportunity to eliminate the allegedly unlawful practices through conciliation.*fn6 Accordingly, plaintiffs' motion for summary judgment on portions of the age discrimination claim is denied.

CONTRACT CLAIM

Scaramuzzo's complaint contains a breach of contract claim in addition to his age discrimination allegations. This claim is based upon his allegations that Glenmore promised Scaramuzzo that (1) he would be discharged only for good cause, and (2) he would retain all corporate responsibilities assigned to him as long as he competently executed such responsibilities. Glenmore argues that an order of summary judgment should be entered against Scaramuzzo because his employment was terminable at will, and that these alleged promises, even if true, do not alter the status of his employment.

Glenmore bases its argument on the premise that any employment relationship that does not specify a time or duration of employment is terminable at will. Criscione v. Sears, Roebuck & Co., 66 Ill. App.3d 664, 667, 23 Ill.Dec. 455, 457, 384 N.E.2d 91, 93 (1st Dist. 1978). The flaw in Glenmore's argument is that it is not clear, as a matter of law, that Scaramuzzo's contract did not specify a duration of employment. A contract that fails to specify the length of the term of employment, but that does set conditions upon which termination may be based, is not terminable at will-it is terminable upon the existence of those conditions. Donahue v. Rockford Showcase & Fixture Co., 87 Ill. App.2d 47, 230 N.E.2d 278, on rehearing, 87 Ill. App.2d 51, 230 N.E.2d 281, 282 (2d Dist. 1967).

Scaramuzzo claims that he entered into a contract setting forth specific conditions upon which he could be terminated. Glenmore argues that Scaramuzzo's contract merely states that he is terminable on five days notice. The resolution of this dispute as to the terms of Scaramuzzo's contract is a fact question, not properly addressed in a motion for summary judgment. Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573, 576 (7th Cir. 1961). Accordingly, defendant's motion for summary judgment as to the breach of contract claim is denied.

MOTION IN LIMINE

Glenmore has moved this Court to enter an order preventing plaintiff from referring to, testifying about, questioning witnesses concerning, or introducing evidence with respect to: (1) any charges of age discrimination filed against Glenmore by persons other than Scaramuzzo; (2) the settlement of such charges by Glenmore; and (3) the terms or conditions of such settlements. With respect to prior settlements and the terms thereof, Rule 408 of the Federal Rules of Evidence states:

  Evidence of (1) furnishing or offering or
  promising to furnish, or (2) accepting or
  offering or promising to accept, a valuable
  consideration in compromising or attempting to
  compromise a claim which was disputed as to
  either validity or amount, is not admissible to
  prove liability for or invalidity of the claim or
  its

  amount. . . . This rule does not require the
  exclusion of any evidence otherwise discoverable
  merely because it is presented in the course of
  compromise negotiations. This rule also does not
  require exclusion for another purpose, such as
  proving bias or prejudice of a witness,
  negativing a contention of undue delay, or
  proving an effort to obstruct a criminal
  investigation or prosecution.

Though this rule does not appear to go directly to the question of whether a plaintiff may introduce evidence regarding defendant's settlement of other similar cases, the same strong public policy favoring out-of-court settlement that underlies Rule 408 is nonetheless applicable. It would be logically inconsistent to uphold the vitality of Rule 408, while at the same time holding that a settlement offer could be used against the offeror in related cases. An offer of settlement can be of no legal relevance as to the offeror's liability, irrespective of whether the offer was made in the instant case or in a related case. As Professor Weinstein has explained:

  A more common situation involves the attempted
  use of a completed compromise of a claim arising
  out of the same transaction between a third
  person and a party to the suit being litigated.
  Rule 408 codifies the general practice of the
  federal courts in making compromise agreements
  inadmissible in such circumstances as proof of
  liability for, or invalidity of, the claim or its
  amount. As the Second Circuit put it:

    Settlements have always been looked on with
    favor, and courts have deemed it against public
    policy to subject a person who has compromised
    a claim to the hazard of having settlement
    proved in a subsequent lawsuit by another
    person asserting a cause of action arising out
    of the same transaction.

  [Hawthorne v. Eckerson Co., 77 F.2d 844, 847 (2d
  Cir. 1935).] 2 J. Weinstein, Weinstein's Evidence,
  ¶ 408[04], at 408-22 (1979).

Of course, as Rule 408 specifies, no evidence otherwise discoverable should be excluded merely because it was presented in the course of settlement negotiations.

Glenmore also requests that this Court exclude all evidence of prior charges of age discrimination filed against it by persons other than Scaramuzzo. In considering this question, it is important to distinguish between the fact that formal charges were filed and the facts that may have caused those charges to be filed. The fact that persons other than the plaintiff filed age discrimination charges against Glenmore with the Department of Labor is of minimal probative value. Additionally, the likely effect of such evidence or testimony would be to raise potentially damaging inferences against Glenmore that are not supported by the mere fact that a "charge" had been filed. Accordingly, the Court finds that any probative value of evidence or testimony presented to show that age discrimination "charges" have been filed against Glenmore by persons other than Scaramuzzo, are outweighed by the undue prejudice that would thereby result.*fn7

Accordingly, defendant's motion in limine is allowed. Plaintiff is directed to refrain from referring to, testifying about, questioning witnesses concerning, or introducing evidence with respect to (1) the filing of a "charge" of age discrimination against defendant by persons other than plaintiff; (2) the settlement of such charges by defendant; and (3) the terms and conditions of such settlements. It is so ordered.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.