Defendants express great concern over the prospect of defending against both a private lawsuit and a separate EEOC action. Defendants argue that both actions cannot proceed without producing unnecessary duplication of effort. Although the threat of duplicative litigation is a valid concern, it is not, in and of itself, a sufficient reason to deny an aggrieved party the right to assert his claims through counsel of his own choosing. A private individual does not necessarily share common interests with the EEOC and, indeed, may wish to take a separate approach to the litigation. Ultimately, the court can minimize duplication by virtue of its authority to monitor and control the litigation. Id.
This court finds that section 7(c)(1) of the ADEA only precludes an individual from commencing a lawsuit after the EEOC has filed suit. There is simply no compelling authority which suggests that the statute can be logically extended to preclude a plaintiff from maintaining a previously-filed action. Therefore, Blumenthal's ADEA action remains viable at this time.
Defendants argue that Blumenthal did not satisfy the filing requirements set forth in 29 U.S.C. § 626(d). Before commencing an ADEA action, an aggrieved party must file a charge of discrimination with the EEOC. The charge must be filed "within 300 days after the alleged unlawful practice occurred." 29 U.S.C. § 626(d)(2). Blumenthal filed an EEOC charge on August 5, 1988. Defendants contend that Blumenthal cannot recover for any discriminatory act occurring prior to October 9, 1987 -- more than 300 days prior to the filing of the charge.
Ordinarily, a plaintiff will not be able to assert an ADEA claim based on discriminatory acts occurring prior to the filing period. The plaintiff, however, can satisfy the filing prerequisite by establishing a "continuing violation." See Stewart v. CPC Int'l, Inc., 679 F.2d 117, 120-21 (7th Cir. 1982); Bruno v. Western Elec. Co., 829 F.2d 957, 960 (10th Cir. 1987); see also EEOC v. Home Ins. Co., 553 F. Supp. 704, 713 (S.D.N.Y. 1982) ("an employer that maintains a continuing violation neither deserves nor obtains repose"). A continuing violation can be established by showing either "a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period." Valentino v. United States Postal Serv., 218 U.S. App. D.C. 213, 674 F.2d 56, 65 (D.C. Cir. 1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (Supp. 1979)). But if the defendant demonstrates that the alleged discriminatory policy was terminated prior to the statutory period, then the plaintiff's claim must be dismissed. Bruno, 829 F.2d at 961.
Defendants in this case argue that Blumenthal failed to allege that any discriminatory acts occurred within the statutory filing period. Despite defendants' position, Blumenthal has sufficiently alleged a continuing violation. Blumenthal asserted, in both the EEOC charge and the complaint, that defendants maintained a discriminatory pension and profit-sharing plan aimed at phasing out older employees as they approached seventy years of age. In support of his theory, Blumenthal alleges that in 1986, defendants began reducing his share of new sales accounts. According to Blumenthal, defendants' refusal to provide him with new accounts was part of an overall scheme to force him to retire. There is no evidence indicating that defendants discontinued or terminated this policy prior to October 9, 1987. In fact, GKG's president asked Blumenthal to retire on November 23, 1987 -- just one month before Blumenthal's seventieth birthday. Ten days after Blumenthal turned seventy years of age, he was terminated. Having alleged that defendants maintained a discriminatory retirement policy prior to and during the filing period, Blumenthal's claims will not be dismissed at this early stage of the litigation.
Defendants also argue that some of Blumenthal's claims are barred by the statute of limitations. An ADEA suit must be commenced within two years after the cause of action accrued. 29 U.S.C. § 626(e)(1) (incorporating 29 U.S.C. § 255(a)). A claim stemming from a willful violation may be commenced within three years after the cause of action accrued. Id. Defendants assert that because Blumenthal filed this action on November 22, 1989, any nonwillful violations that occurred prior to November 22, 1987, and any willful violations that occurred prior to November 22, 1986, are time-barred.
Regardless of whether the violations are characterized as willful or nonwillful, none of Blumenthal's claims are barred by the statute of limitations. As stated previously, Blumenthal has alleged that defendants' conduct constituted a continuing violation. Consequently, Blumenthal's claims will survive defendants' motion to dismiss if a discriminatory act occurred during the limitations period. Stewart, 679 F.2d at 121; EEOC v. City of Chicago, 1989 U.S. Dist. LEXIS 12161, 51 Empl. Prac. Dec. (CCH) P39,421 (N.D. Ill. 1989). Blumenthal was notified of his impending termination on November 23, 1987, and he was terminated one month later. These acts were taken in furtherance of the alleged discriminatory policy and clearly fall within the two-year statute of limitations.
For the foregoing reasons, defendants' motion to dismiss is denied.
IT IS SO ORDERED.