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HERMAN v. NATIONAL BROADCASTING CO.

May 31, 1983

FRANK HERMAN, FRANK MULLANEY AND GEORGE LUSSON, PLAINTIFFS,
v.
NATIONAL BROADCASTING COMPANY, INC., DEFENDANT.



The opinion of the court was delivered by: William T. Hart, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs*fn1 Frank Herman ("Herman"), age 60, and Frank Mullaney ("Mullaney"), age 57, bring this two count complaint against their former employer National Broadcasting Company, Inc. ("NBC") alleging that NBC's failure to consider them for new staff positions, failure to train them for temporary positions and other acts constitute both willful and nonwillful discrete and continuing violations of the Age Discrimination in Employment Act of 1967, as amended 29 U.S.C. § 621 et seq. ("ADEA"). Jurisdiction is asserted pursuant to 29 U.S.C. § 626(b), 28 U.S.C. § 1331*fn2 and § 1343(4).

Presently before the Court is NBC's motion for partial summary judgment in its favor on all claims of nonwillful violations. For the reasons stated below, NBC's motion for partial summary judgment is granted.

FACTS

Herman was employed as a full-time film editor in the news department of NBC's WMAQ-TV from 1966 until June 30, 1978. Mullaney was employed as a full-time assistant film editor, also in NBC's WMAQ-TV news department, from 1972 until May 19, 1978. In the Spring of 1978, NBC completed a technological conversion of its news gathering process, changing from film to videotape. Incident to that changeover, a new videotape department was created, known as the "Electronic Journalism Department." On March 14, 1978, NBC solicited applications for six engineering positions in the new department. Both Herman and Mullaney applied. Their applications were rejected in writing on March 31, 1979, ostensibly because all new positions had been filled. Herman and Mullaney also were informed that their respective applications would be kept on file pending vacancies.

At about the same time as they were rejected for new staff positions, Herman and Mullaney were notified that due to the change to videotape news gathering they would be discharged. Herman's letter of termination was received on April 28, 1978 and announced that his last day of regular employment by NBC would be June 30, 1978. Mullaney's letter of termination was dated March 24, 1978 and indicated that his final employment date would be May 21, 1978. Both letters noted that the impending dismissals were not for any cause attributable to the plaintiffs.

On May 8, 1978 Herman filed an age discrimination charge with the Wage and Hour Division of the Department of Labor and Mullaney filed a similar charge on May 11, 1978.*fn3 Subsequent to their respective discharges, Herman and Mullaney were hired to perform temporary work at NBC. During the pendency of the EEOC investigation of their charges, Herman and Mullaney complained to EEOC investigators that NBC was continuing to discriminate against them due to their age by failing to train them for the temporary jobs and, despite an avowed hiring freeze, hiring younger persons than they for ultimate promotion to permanent positions. No formal complaints of post-termination violations were ever filed by the plaintiffs with the EEOC.

Herman and Mullaney filed this suit on May 2, 1980. They allege that NBC's failure to hire them for the newly created engineering jobs and certain post-termination conduct violated ADEA. Herman and Mullaney do not argue that NBC's decision to terminate them due to technological changes was improper.*fn4 But, they assert that it was only "at the time of their termination . . . that Plaintiffs were able to take an overview of what happened and saw that there was a distinct pattern of discrimination in hire against those 50 years of age and older."

NBC has moved for partial summary judgment on the plaintiffs' allegations of nonwillful age discrimination. According to NBC, a claim for nonwillful age discrimination must be filed within two years of the alleged violation. Since Herman and Mullaney were rejected for the new department on March 31, 1978, NBC argues that this suit is time barred as it was not filed on or before March 31, 1980. Plaintiffs do not dispute the two year limitations period for nonwillful violations of ADEA. Instead they counter the motion for partial summary judgment by characterizing NBC's conduct after their rejections as "continuing violations" of ADEA: each new incident with an independent filing period, unelapsed on May 2, 1980.

DISCUSSION

ADEA discrimination claims are governed by the following filing time requirement and statutes of limitation: (1) A claimant must file a discrimination charge with the Secretary of Labor within 180 days after the occurrence of the alleged unlawful act. 29 U.S.C. § 626(d)(1); (2) A lawsuit alleging a nonwillful violation of ADEA must be commenced within two years after the occurrence of the alleged violations. 29 U.S.C. § 626(e)(1), incorporating section 6 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 255; and (3) A lawsuit alleging a willful violation of ADEA must be commenced within three years after the occurrence of the alleged willful violation. 29 U.S.C. § 626(e)(1), incorporating section 6 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 255.

NBC concedes that the plaintiffs' allegations of willful discrimination are within the three year limitation period. Whether Herman and Mullaney's claims of nonwillful violations of ADEA are timely, however, is disputed. Resolution turns on isolating the actionable behaviors and pinpointing their occurrence dates. Here the complaint and pleadings allege two discrete violations or classes of violations: the rejections and the continuing violations. Dating the alleged rejection violations is not a problem. Assuming the rejections were discriminatory, the violations occurred on March 31, 1978, the date the plaintiffs were notified of the unavailability of positions in the Electronic Journalism Department. Their respective ADEA charges were filed with the EEOC on May 8, 1978 and May 11, 1978 — well within the 180 day filing period.*fn5

The two year statutes of limitation for bringing an ADEA suit in federal court for nonwillful violations commences on the same date as the 180 day period for filing a charge with the EEOC, i.e., the violation date. See, e.g., Marshall v. Kimberly Clark, Inc., 625 F.2d 1300 (5th Cir. 1980). Thus, a complaint charging discriminatory rejection was due in this Court no later than March 31, 1980. This suit, however, was filed on May 2, 1980.

Regardless, Herman and Mullaney claim that the statute of limitations for filing was tolled because NBC's alleged "continuing violation" occurred sometime after their late May and June 1978 terminations. Under their view, a suit for nonwillful ADEA violations filed on May 2, 1980 is timely. The plaintiffs argue that they told the EEOC about the continuing violations incident to the EEOC's investigation of NBC. The Court does not doubt that the plaintiffs told the EEOC their versions of NBC's post-termination actions and motives. Furthermore, the Court notes that the EEOC investigation of NBC continued at least through 1979. However, those facts ...


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