O'Neill v. New York Times Co. , 145 F. App'x 691 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1789
GERARD O'NEILL,
Plaintiff, Appellant,
v.
THE NEW YORK TIMES COMPANY AND
THE GLOBE NEWSPAPER COMPANY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, Chief Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Edward J. Dailey, with whom Lisa M. Fleming and Bromberg
Sunstein, LLP were on brief for appellant.
Joan Ackerstein, with whom Gregory I. Rasin, David J. Kerman,
Richard W. Paterniti and Jackson Lewis LLP were on brief for
appellees.
August 17, 2005
Per Curiam. Gerard O’Neill appeals from a district court
judgment dismissing his age discrimination claim against his former
employers, the New York Times Company and the Boston Globe
Company,1 pursuant to the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621 et seq., and the Older Workers Benefit
Protection Act (OWBPA), 29 U.S.C. § 626(f)(1). We affirm.
I
BACKGROUND
O’Neill was employed as a journalist by the Boston Globe
for 35 years, eventually becoming the editor of the investigative-
journalism unit, known as the “Spotlight Team”. In January 2000,
when O’Neill was 58 years old, Globe Editor Matthew Storin notified
O’Neill that he planned to remove him from the position of
Spotlight Team editor effective January 1, 2001. Storin stated
that he wanted new ideas on the Team, and suggested that O’Neill
should consider early retirement rather than transferring to
another position at the Globe. Eventually, Storin offered the
Spotlight Team editorship to a 54-year-old employee.
After Globe editors had declined to accept several of
O’Neill’s proposals for new work assignments, he undertook
negotiations with the Globe’s human resources department regarding
early retirement. In June 2000, the Globe formulated a Voluntary
1
The New York Times is the parent company of Globe. For ease
in reference, we shall refer to O’Neill’s employer as “the Globe”.
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Early Retirement Program (the 2000 VERP), targeting those non-union
employees who were at least 52 years of age, who had at least
twenty years of service, and who would not have to be replaced in
the positions they occupied at the time they opted for early
retirement. In September 2000, the Globe offered the VERP to
O’Neill, as well as sixteen other employees who purportedly met the
eligibility requirements. The Globe provided each of these
employees with written notification, as required by the OWBPA,
listing the job positions, ages, and years of service of the
seventeen eligible employees, as well as of those Globe employees
with the same job titles who did not meet the VERP eligibility
requirements. Additionally, the VERP included a general release
and waiver of the employees’ ADEA rights. See 29 U.S.C. § 626(f).
The notification advised employees to consult an attorney before
making the “important decision” whether to accept the VERP. Only
five of the employees, including O’Neill, opted to take early
retirement under the 2000 VERP. Nonetheless, O’Neill “saw [the
VERP] as a coerced retirement, because it was the only other option
to doing a take-it-or-leave-it reduced retirement after 35 years of
meritorious work for the Globe.” O”Neill retired effective January
2001.
The following year, the Globe once again offered a VERP
to its employees. When O’Neill learned of the terms of the 2001
VERP, which he considered more lucrative than those in the 2000
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VERP, he was of the mind “that somehow [he]’d been treated
differently because of [his] age,” and he contacted an attorney.
The Globe rejected O’Neill’s requests that he be permitted to
participate in the 2001 VERP, rather than the 2000 VERP. On May 3,
2002, O’Neill’s attorney transmitted a draft complaint to the
Globe, alleging that its use of the 2000 and 2001 VERPs constituted
illegal age discrimination. Nevertheless, O’Neill filed no charge
with the Massachusetts Commission Against Discrimination (MCAD)
until May 5, 2003.
In August 2003, O’Neill filed an action for damages
against the Globe in state court, alleging that the 2000 VERP had
materially omitted or misrepresented facts that the Globe was
obligated to disclose under the OWBPA. The Globe removed the
action to federal district court. In an amended complaint, O’Neill
alleged, inter alia, that the Globe had violated the ADEA by
including him as one of the seventeen employees eligible to
participate, and that it had violated the OWBPA by providing
inadequate disclosures in the 2000 VERP documents.
Following discovery and a hearing, the district court
entered summary judgment for the Globe, based inter alia on two
independent grounds: (i) the general release of ADEA rights
contained in the 2000 VERP was “knowing and voluntary,” hence
enforceable under 29 U.S.C. § 626(f); and (ii) the ADEA claim was
time-barred in that O’Neill failed to file an administrative
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complaint with the MCAD within 300 days of the alleged injury, as
required by 29 U.S.C. § 626(d)(2).
II
DISCUSSION
On appeal, O’Neill primarily focuses upon whether the
2000 VERP provided sufficient disclosures of information as
required under the OWBPA. It is unnecessary to address these
issues, however, inasmuch as the district court correctly
determined that the O’Neill ADEA claim is time-barred by the
statute of limitations in 29 U.S.C. § 626(d)(2).
We review the summary judgment ruling de novo, viewing
all evidence and reasonable inferences therefrom in the light most
favorable to the non-moving party, in order to determine whether
there exists a trialworthy issue of material fact, and the moving
party is entitled to judgment as a matter of law. See Megwinoff v.
Banco Bilbao Vizcaya, 233 F.3d 73, 74 (1st Cir. 2000).
The O’Neill ADEA claim unquestionably is time-barred.
Subsection 626(d)(2) requires that an employee file a charge with
the EEOC within 300 days “after the alleged unlawful practice
occurred.”2 Although O’Neill alleges that the Globe coerced him
into early retirement in 2000 (e.g., “I accepted the 2000 buyout,
2
The claim O’Neill filed in May 2003 with the MCAD would have
served as a simultaneous filing with the EEOC as well. See Davis
v. Lucent Techs., Inc., 251 F.3d 227, 230 (1st Cir. 2001) (citing
29 C.F.R. § 1601.13(a)(4)).
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even though I saw it as a coerced retirement.”), he failed to
submit an MCAD charge until May 2003. An employee who is presented
with such a take-it-or-leave-it retirement package is thereupon
deemed on notice of the fact of his injury for purposes of
commencing the limitations period in subsection 626(d)(2). See,
e.g., Am. Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 111, 122-23
(1st Cir. 1998).
O’Neill maintains that he did not know until discovery
occurred in the present action that the Globe deliberately withheld
pertinent information from the 2000 VERP documents which should
have been disclosed by the Globe under the OWBPA. An employee need
not possess all the pertinent facts of an employer’s alleged
discriminatory action in order to commence the running of the
limitations period. Rather, it is enough that he “knows that he
has been hurt and also knows that his employer has inflicted the
injury.” Morris v. Gov’t Dev. Bank of P.R., 27 F.3d 746, 750 (1st
Cir. 1994); see Am. Airlines, 133 F.3d at 123 (noting that
employees had sufficient information once employer presented them
with a retirement package on a “take it or leave it” basis, viz.,
retire or lose your job). Furthermore, when O’Neill learned that
the 2001 VERP allegedly contained more lucrative terms, he
concededly thought “that somehow [he]’d been treated differently
because of [his] age,” and he contacted an attorney. Yet he filed
no administrative charge until May 5, 2003, well beyond the time
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prescribed by subsection 626(d)(2).
Finally, O’Neill endeavors to evade the clear constraints
prescribed in the limitations provision by invoking the principle
of equitable tolling. O'Neill contends that, given the fact that
the Globe deliberately withheld from the VERP documents information
which the Globe was required to disclose under the OWBPA, he was
unable to ascertain that crucial, undisclosed information until he
conducted discovery in the course of this lawsuit, and hence could
not know whether or not he had any viable ADEA claim. This claim
fails as well.
Equitable tolling applies only if the employee is aware
of his ADEA rights, yet fails to file a timely administrative
charge due to reasonable reliance upon the employer’s deceptive
conduct. Such employer deception must exceed any alleged deception
that is part and parcel of the ADEA claim itself (viz., the Globe’s
alleged failure to disclose in the 2000 VERP the facts which are
required by the OWBPA), see American Airlines, 133 F.3d at 124(noting that plaintiffs “simply parroted the same events that gave
rise to their underlying claim: that American misled them as to
the reason for the VERP”), and must have succeeded in “‘lull[ing]
the plaintiff[] into believing that it was not necessary for [him]
to commence litigation,’” id. (citation omitted). However,
O’Neill, who signed a release of his ADEA rights, has alleged no
such deceptive or dilatory practices on the part of the Globe.
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Thus, the subsection 626(d)(2) limitations period was never
equitably tolled.
For the foregoing reasons, the district court judgment is
Affirmed.
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