author: ALLEN SHARP, Chief Judge.

text:
    Rebecca WILLIAMS, Barbara Parrow, Claudesta Brooks, Plaintiffs, v. NATIONAL CAN CORPORATION, an Illinois corporation; Local 7955, United Steelworkers of America, AFL-CIO & CLC; and the United Steelworkers of America, AFL-CIO & CLC, Defendants.
    No. S 83-149.
    United States District Court, N.D. Indiana, South Bend Division.
    March 11, 1985.

      Timothy J. Hartzer, South Bend, Ind., for plaintiffs.
    Rudolph L. Milasich, Jr., Pittsburgh, Pa., Allan J. Mindel, Merrillvill, Ind., Richard W. Snyder, South Bend, Ind., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case is an action brought pursuant to . Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, by three employees, who were laid off by their employer, against their employer for breach of a collective bargaining agreement and against the union for breach of its duty of fair representation. The underlying issues involve the employees’ entitlement to vacation pay and severance pay. The plaintiffs have filed a Motion for Class Certification and the defendants have filed motions for summary judgment. The parties have fully briefed the issues and oral argument has been heard on the motions for summary judgment. The depositions of Barbara Parrow and Rebecca Williams are hereby published.

I.

The record discloses the following undisputed facts. National Can Corporation (Company) operates a manufacturing facility at 300 N. Fail Road, LaPorte, Indiana, which plant has not been permanently shut down. Production and maintenance employees at the plant are represented by Local 7955, United Steelworkers of America, AFL-CIO & CLC (Local 7955) and the United Steelworkers of America, AFL-CIO & CLC (USWA) under a Collective Bargaining Agreement dated the 16th day of February, 1981 (Agreement) which, by extension, expires February 16,1986. In the fall of 1982, many of the employees represented by Local 7955 were laid off by the Company though the exact number is not clear from the record. Meetings between the employees and Company management were held near the time of layoff at which meetings matters concerning the layoff were discussed.

On November 29, 1982 an interoffice correspondence was directed to all employees by Mel Spiegel, Industrial Relations Manager for the Company, with respect to eligibility for 1983 vacation benefits. Shortly thereafter, Larry L. Wood, President of Local 7955, met with Mel Spiegel and informed him that Local 7955 did not agree with the Company’s position on 1983 vacation benefits and was going to check with Gene Chlebowski, Staff Representative for USWA, with respect to the matter. After checking with Gene Chlebowski, Larry Wood reported at the regular meeting of Local 7955 on December 16, 1982 that he had been advised by the staff representative that the International Office had said that the Company’s position was correct with respect to vacation benefits.

Larry Wood continued to receive complaints with respect to the vacation pay issue and filed a written grievance with the Company with respect thereto on January 13, 1983. The Company denied the grievance on January 14, 1983 and Staff Representative Gene Chlebowski appealed the grievance to the Third Step on January 24, 1983. At the Third Step Meeting on March 14, 1983, Gene Chlebowski argued in favor of the grievance but then withdrew the grievance after the Company’s citation to other adverse arbitration awards on the same issue.

Larry Wood also received a request from plaintiff, Rebecca Williams, to file a grievance protesting the Company’s refusal to pay severance pay to the laid off employees. Rebecca Williams indicated that she felt that the plant was closed with respect to her because she had been informed that she would never be recalled. Larry Wood consulted with Staff Representative Chlebowski; David Gore, a labor lawyer who had represented USWA; Tom Duzak, then head of the USWA’s Department of Insurance, Pensions and SUB and the USWA’s negotiator with the Can Industry with respect to the severance pay issue. Based on the language of the Agreement, all of these individuals indicated that the severance pay claim was without merit as the plant had not been permanently closed. No grievance on the severance pay issue was filed.

Internal union charges, dated April 18, 1983, were filed with Local 7955 against Larry Wood and Eugene A. Chlebowski and signed by plaintiff Rebecca Williams, alleging violations.of the USWA Constitution and the duty of fair representation by refusing to file a severance pay grievance for the laid off employees and by acquiescing in the withdrawal of the grievance concerning vacation pay for laid off employees. A Trial Committee, elected in accordance with the USWA Constitution, found Larry Wood not guilty of the charges. The Trial Committee’s report was approved by vote of the membership of Local 7955 at a regular meeting held on June 28, 1983.

The Master Agreement between the Company and USWA in effect at all relevant times contained the following language:

Article IIV — Vacations
Section 1. Employees hired on or after November 1, 1962 shall receive vacation on the following basis:
(a) Eligibility — An employee is eligible for vacation when he completes a total of twelve (12) months of continuous service with the Company and has received at least twenty-six (26) pay cheeks. If an employee receives less than twenty-six pay checks during the first twelve (12) months of continuous service, he shall not become eligible until he has received twenty-six (26) pay checks.
(b) Amount — An employee who has established vacation eligibility as provided above shall be granted one week of vacation to commence prior to December 31 of the year in which his eligibility is established.
Thereafter, such eligibility will continue during each following calendar year he continues in the employ of the Company and performs work for which fy'e is compensated by the Company, Ke shall be granted and shall take vacation on the following basis____
Section 5. Terminations.
(b) An employee who is laid off for an indefinite period before he has been granted a vacation shall be paid vacation allowance at the time such indefinite layoff commences, limited to the vacation for which he was eligible at that time and would have been granted during the current year had he continued to work for the Company. Any layoff extending beyond December 31 shall be considered as indefinite layoff for the purpose of the vacation plan.
Article XVII — Local Supplements, Customs and Practices
Section 2. Established local customs and practices, written or oral, which are currently in effect and are neither covered by nor in conflict with this Agreement shall continue in effect for the term of this Agreement.
Section 3. Established local customs or practices, written or oral, which are currently in effect and provide benefits in addition to or in excess of those provided in this Agreement shall continue in effect for the term of this Agreement, unless modified or eliminated by mutual agreement.
Section 4. Local customs or practices which may hereafter be established by mutual agreement shall be reduced to writing. Any practice or custom hereafter established by mutual agreement or otherwise found to be in violation of the provisions of this Agreement shall not be enforceable to the extent that it conflicts with the terms of this Agreement unless allowed to continue by mutual agreement between the International Union and the Executive Officers of the Company.

The Supplemental Unemployment Benefit Plan Agreement (SUB Plan Agreement) in effect at all relevant times contained the following provision:

Severance Payments
5.0 If the company shall close a plant permanently, any employee whose continuous service shall not have been broken prior to the date of closing, whose job shall be discontinued and who does not transfer to another Company plant (whether or not a plant as defined in this Plan) and who becomes entitled to a severance allowance in accordance with this Agreement, will, except as provided in Paragraph 5.3, receive a single severance payment determined as follows:____

II.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate only where the record shows “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.Proc. 56(c). The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact. Big O. Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir. 1984). However, when a properly supported summary judgment motion is made, the nonmoving party may not rest upon his pleadings but must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.Proc. 56(e); Hermes v. Hein, 742 F.2d 350, 353 (7th Cir.1984). When considering a motion for summary judgment, the court must view the evidence, and the reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party. Id.

In the case presently before the court, both the Company and the Union have moved for summary judgment. It is clear that in order for plaintiffs to litigate their grievances in a section 301 suit, they must first prove that the Union violated its duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 186-87, 87 S.Ct. 903-04, 17 L.Ed.2d 842 (1967). Accordingly, that issue will be dealt with first.

III.

In their brief, the plaintiffs argue that the Seventh Circuit has not issued an en banc opinion on what standard should be applied in fair representation cases and therefore this court should not grant summary judgment because there are genuine issues of material fact under the broader standard they urge this court to adopt. Such a position is not supported by law, however, in this circuit. In Dober v. Roadway Express, Inc., 707 F.2d 292 (7th Cir. 1983), the Seventh Circuit stated:

In Hoffman v. Lonza, Inc., 658 F.2d 519, 522 (7th Cir.1981), this court “limit[ed] suits for breach of the duty to fairly represent to instances of intentional misconduct by unions.” Although Judge Cudahy, in a concurring opinion, contended that a standard of intentional misconduct was too limited, and cited two earlier Seventh Circuit cases, distinguished but not overruled in Hoffman-Baldini v. Local No. 1095, United Auto Workers, 581 F.2d 145, 150-51 (7th Cir.1978), and Miller v. Gateway Transport. Co., 616 F.2d 272, 277 nn. 11-12 (7th Cir.1980)— that could be read to embrace a broader standard, a series of cases in which different panels of this court have followed Hoffman make clear that it is indeed the law of this circuit. See Rupe v. Spector Freight Systems, Inc., 679 F.2d 685, 691-92, 694 (7th Cir.1982); Cote v. Eagle Stores, Inc., 688 F.2d 32, 34 (7th Cir. 1982) (per curiam); United Steel Workers of America v. NLRB, 692 F.2d 1052, 1057 (7th Cir.1982) (per curiam); Graf v. Elgin, Joliet & E. Ry., 697 F.2d 771, 777-81 (7th Cir.1983). The most recent of these decisions, Superczynski v. P.T.O. Services, Inc., 706 F.2d 200 (7th Cir.1983), could not be more explicit. “Hoffman v. Lonza, Inc., 658 F.2d 519 (7th Cir.1981), is the law of this circuit regarding the proof required of a plaintiff seeking to establish a breach of fair representation.... Hoffman holds that a union breaches its duty to fairly represent a worker if it deliberately and unjustifiably refuses to represent that worker in processing a grievance.” At 202. Superczynski goes on to distinguish Miller and Baldini on a ground that makes them instances of the Hoffman principle: “The records in both cases indicated that the unions may have acted in bad faith.” Id. at 203.

707 F.2d at 294. Accordingly, the standard for determining whether a union breached its duty of fair representation is intentional misconduct-negligence, even when gross, does not violate the duty of fair representation.

A.

In the case presently before the court, the plaintiffs have failed to raise a triable issue of fact with respect to the union’s duty of fair representation on the severance pay issue. The union did not deliberately and unjustifiably refuse to process plaintiffs’ grievances on the issue of severance pay and did not act in bad faith with respect thereto.

It should be noted that a union’s decision not to press a worker’s grievance does not establish intentional misconduct. Dober v. Roadway Express, Inc., 707 F.2d at 295. Accordingly, the union’s decision not to file a grievance over the severance pay issue in this case is not prima facie evidence that the union violated its duty of fair representation. Further, the evidence with respect to the union’s decision not 10 submit a grievance on the severance pay issue shows that it was acting justifiably and the plaintiffs’ have not submitted any evidence to the contrary. The union based its decision on contractual language, namely, Paragraph 5.0 of the Supplemental Unemployment Benefit Plan Agreement (SUB Plan Agreement) which conditions entitlement to severance pay on the permanent closing of a plant. There is no evidence in the record that the plant was permanently closed at the time Rebecca Williams requested the union to file a grievance on the issue nor is there any evidence of such a permanent plant closing at this time. The evidence further shows that Larry Wood, President of Local 7955, consulted with several other persons with direct knowledge of the provision in question and they all concurred with his interpretation. Thus, under Dober, the defendant union has not engaged in intentional misconduct with respect to the severance pay issue and therefore did not violate its duty of fair representation.

Further, even if this court were to analyze the union’s actions with respect to the severance pay issue under the alleged different standards of Miller v. Gateway Transportation Co., Inc., 616 F.2d 272 (7th Cir.1980) and Baldini v. Local Union No. 1095, United Auto Workers, 581 F.2d 145 (7th Cir.1978) as urged by the plaintiffs, this court finds no breach of the union’s duty of fair representation. The actions of the union in this case do not parallel or even approximate the conduct of the unions in those cases. The requested grievance on severance pay rested solely on an interpretation of the contractual language of the SUB Plan Agreement. The material facts involved were not disputed — there was a substantial layoff of plant employees but there were some employees still working at the plant. Larry Wood investigated the meaning of the contractual language at issue. There is no evidence that the union acted in a discriminatory manner with respect to the plaintiffs nor that it arbitrarily ignored or perfunctorily handled the requested grievance. Larry Wood reported at regular meeting of Local 7955. Even the union, under its own internal procedures, found that Larry Wood and Eugene Chlebowski had not breached their duty of fair representation. Accordingly, defendant union’s motion for summary judgment on the severance pay issue will be granted.

B.

With respect to the vacation pay issue, the same result must be reached with respect to the union’s duty of fair representation. The evidence does not reveal any intentional misconduct on the part of the union. The union filed a grievance on the vacation pay issue which was denied by the Company. They appealed the grievance to the Third Step and made a good faith argument in favor of plaintiffs’ positions at the meeting. The union withdrew the grievance after the Company cited other adverse arbitration awards. The plaintiffs’ argue that the grievance was untimely filed and that the circumstances surrounding the union’s withdrawal of the vacation pay issue are therefore questionable rendering summary judgment inappropriate on this issue. Even assuming that the grievance was untimely filed and that it played a part in the decision to withdraw the grievance, the defendant union cannot still not be found guilty of intentional misconduct as defined by the Seventh Circuit. See Dober v. Roadway Express, Inc., supra; Graf v. Elgin, Joliet and Eastern Railway Co., 697 F.2d 771, 778-79 (7th Cir.1983); Hoffman v. Lonza, Inc., 658 F.2d 519 (7th Cir.1981). Accordingly, defendant union’s motion for summary judgment on the vacation pay issue is denied.

IV.

It is clear from the foregoing that the plaintiffs have failed to show that the union breached its duty of fair representation. Thus, under Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903,17 L.Ed.2d 842 (1967), the plaintiffs cannot maintain a § 301 suit against the Company. However, even if the union had breached its duty of fair representation, the plaintiffs have failed to show that either of the underlying grievances is meritorious.

A. COMPANY-SEVERANCE PAY

Severance pay, under the SUB Plan Agreement, is paid only when a plant has been permanently closed. The only issue, therefore, with respect to the Company's alleged breach of contract on the severance pay issue is a factual one: Was the LaPorte plant of National Can Corporation permanently closed at any time from September 1982 to the present? The answer, based on undisputed facts, must be no. The affidavits of Larry L. Wood and Eugene A. Chlebowski and the depositions of Rebecca Williams (p. 43) and Barbara Par-row (p. 34) clearly indicate that the plant is operating and is not permanently closed. The plaintiffs, in opposition to defendant company’s motion for summary judgment, argue that they viewed their entitlement to severance pay as deriving from a de facto permanent shutdown of operations at the plant because they were placed on “permanent” layoff. They have not, however, given the court any legal or factual basis for asserting such a position and the court can find none to support such an assertion. The SUB Plan Agreement contains specific language with respect to layoff and with respect to entitlement to severance pay. There are no provisions with respect to a de facto permanent shutdown and this court is not at liberty to modify the agreements in question absent an ambiguity, which is not present here. Accordingly, defendant Company’s motion for summary judgment as to the severance pay issue is granted.

B. COMPANY-VACATION PAY

The specific provisions in the Agreement with respect to vacation pay benefit are set forth above and basically provide that an employee becomes eligible for one week of vacation upon completion of one full year and receipt of twenty-six pay checks. Thereafter, the employee is entitled to additional vacation, as set forth in the Agreement, during each succeeding calendar year in which the employee performs work for which he is compensated. See Article CXIV of Agreement. The plaintiffs recognized that this provision contractually controls vacation eligibility and acknowledged that under this clause they would not be entitled to vacation benefits. (Williams Dep. pp. 49-51; Parrow Dep. pp. 24-26). Plaintiffs’ argue, however, that this provision should not apply for two reasons: (1) they believed that vacation pay was to be based on work performed during the prior calendar year; and (2) past practices by the Company in relation to vacation pay benefits.

The plaintiffs submitted eight affidavits relating to the “believe” held by various laid off employees that they were entitled to vacation pay in 1983 based upon work performed in 1982 and that they were informed by representatives of National Can that they could claim vacation pay as of January 1, 1983. Two of the named plaintiffs also testified with respect to past practices of the Company with respect to vacation benefits. This evidence, however, even considered in the light most favorable to the plaintiffs, cannot alter the entry of summary judgment on the vacation pay issue in favor of the Company under Indiana law.

Under Indiana law, a contract is to be interpreted to mean what on its face it purports to mean, unless from the entire contract and the subject matter thereof, it is clear that some other meaning was intended. Fort Wayne Cablevision v. Indiana & Michigan Electric Co., Ind.App., 443 N.E.2d 863 (1983). Further, the court must give effect to the meaning and intention of the parties as expressed in the language of the contract and where the terms of the contract are plain and free from uncertainty, it is not the proper function of the court to use any rules of interpretation or construction in determining the provisions of their agreement. See, e.g., THQ Venture v. S. W., Inc., Ind.App., 444 N.E.2d 335 (1983); Fort Wayne Cablevision v. Ind. & Mich. Elec. Co., supra, at 866. Thus, where a contract is not ambiguous, the court must only consider the language contained in the contract to determine the parties’ intentions and may not consider the secret design in one party’s mind or the conduct of the parties. 6 I.L.E. Contracts §§ 113, 134 (1959). The test for determining whether a contract is ambiguous is whether reasonable men would find the contract subject to more than one interpretation, see, e.g., Fort Wayne Cablevision v. Ind. & Mich. Co., supra, and is a matter to be determined by the court as a question of law. Kokomo Veterans, Inc. v. Schick, Ind.App., 439 N.E.2d 639 (1982).

In the case presently before the court, the provisions with respect to entitlement to vacation benefits are not ambiguous. The terms are clear and unambiguous and embody a definite meaning. The Agreement specifically states that:

[s]uch eligibility will continue during each following calendar year he continues in the employ of the Company and performs work for which he is compensated by the Company, ...

This language clearly requires that an employee must perform work in each calendar year and be compensated therefore in order to be eligible for vacation pay for that year. Thus, defendant Company’s motion for summary judgment is granted.

CONCLUSION

For the foregoing reasons, the summary judgment motions of National Can Corporation; Local 7955, United Steelworkers of America, AFL-CIO & CLC; and United Steelworkers of America, AFL-CIO & CLC are GRANTED. Plaintiffs’ Motion for Class Certification is DENIED as moot. SO ORDERED.

      . As the concurring opinion of Judge Cudahy at 707 F.2d 296 demonstrates all the circuit judges are not completely of one mind on the issue decided in Dober. However, the majority opinion of Judge Posner concurred in by Judge Pell states the current law in this circuit in no uncertain terms. The reasoning and result of the. majority opinion are clearly applicable here and compel the result here announced.


source: Caselaw Access Project

author: MILTON POLLACK, Senior District Judge.

license: Public Domain

text:
    ANABAS EXPORT LTD., Plaintiff, v. ALPER INDUSTRIES INC., Defendant.
    84 Civ. 6186 (MP).
    United States District Court, S.D. New York.
    March 11, 1985.

      Hertzog, Calamari & Gleason by William Simon, New York City, for plaintiff.
    Martin Fishman, New York City, for defendant.
   DECISION AND OPINION

MILTON POLLACK, Senior District Judge.

Defendant, Alper Industries, Inc. (“Al-per”), moves for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on the ground that the contract sued on is unenforceable because it violates New York Civil Rights Law (N.Y.C.R.L.) § 50. Anabas has cross-moved for a declaration that the contract is legal and enforceable. For the reasons set forth below, defendant’s motion will be granted and plaintiff’s motion will be denied.

Anabas sold and delivered stickers, which feature the portrait of Michael Jackson, to Alper for resale and distribution by Alper in the course of trade. Anabas sues to recover the agreed price therefor. Al-per, under a license agreement with Anabas, also manufactured similar stickers for purposes of trade, and Anabas claims the royalties provided under the agreement from Alper.

Michael Jackson’s written permission to feature his portrait on the stickers was not obtained by Anabas; relying on N.Y.C.R.L. § 50, which makes use of the portrait without permission for purposes of trade a misdemeanor, Alper claims that the sale and license agreement are void and unenforceable. Under that statute,

“[a] person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person ... is guilty of a misdemeanor.”

It is unlawful for a person to sell items portraying the picture of a person without his consent. See Rosemont Enterprises, Inc. v. Choppy Productions, Inc., 74 Misc.2d 1003, 347 N.Y.S.2d 83 (N.Y.Sup.Ct. 1972). The unlawfulness of the sale and license agreement are manifest since defendant’s affidavit states, and plaintiff has not disputed, that Michael Jackson never gave his written consent for the use of his portrait on the stickers.

Generally, a court will not enforce a contract to commit an unlawful act. “[A] party to an illegal contract cannot ask a court of law to help him carry out his illegal object, nor can such a person plead or prove in any court a case in which he, as a basis for his claim, must show his illegal purpose.” Stone v. Freeman, 298 N.Y. 268, 274, 82 N.E.2d 571 (1948). Specifically, a court will not enforce a contract to commit a tort. See Attridge v. Pembroke, 235 A.D. 101, 256 N.Y.S. 257 (1932); 14 Williston on Contracts § 1628, p. 3 (3d ed. 1972); Restatement (Second) of Contracts § 192; 17 Am.Jur.2d Contracts § 182 (1964); 77 C.J.S. Sales § 194 (1952).

Under a narrow exception, courts will enforce some contracts made in violation of revenue and licensing statutes. In Rosasco Creameries, Inc. v. Cohen, 276 N.Y. 274, 11 N.E.2d 908 (1937), the court permitted a milk dealer to recover the price of milk sold to defendant, even though the dealer had failed to register in violation of a statute. The court said,

“Nothing in this statute reveals an implied intent to deprive unlicensed dealers of their right to recover the reasonable value of the milk sold by them, and where the wrong committed is malum prohibitum, and does not endanger health or morals, such additional punishment should not be imposed unless the legislative intent is expressed or appears by clear indication.”

Rosasco, 276 N.Y. at 280, 11 N.E.2d 908.

The Rosasco exception has no applicability to this case, for it is limited primarily to revenue and licensing statutes. See East Coast Moving & Storage, Inc. v. Flappin, 78 Misc.2d 140, 355 N.Y.S.2d 525, 531 (N.Y. Civ.Ct.1974). See also Restatement (Second) of Contracts § 181.

N.Y.C.R.L. § 50, unlike a mere revenue or licensing statute, was enacted to protect the moral sensibilities of the community. Section 50 was

“a recognition by the law-making power of the very general sentiment which prevailed throughout the community against permitting advertisers to promote the sale of their wares by this method, regardless of the wishes of the persons thereby affected. There was a natural and widespread feeling that such use of their names and portraits in the absence of consent was indefensible in morals and ought to be prevented by law.”

Rhodes v. Sperry & Hutchinson Co., 193 N.Y. 223, 85 N.E. 1097 (N.Y.1908), aff’d, 220 U.S. 502, 31 S.Ct. 490, 55 L.Ed. 561 (1911). See also Flores v. Mosler Safe Co., 7 N.Y.2d 276, 280, 196 N.Y.S.2d 975, 164 N.E.2d 853 (1959). See generally Hofstadler & Horowitz, The Right of Privacy, pp. 28-32 (1964).

Moreover, as the text of the statute explicitly states, Section 50, was enacted to prohibit the commercial exploitation of the “use ... for the purposes of trade, ... [of] the portrait of any living person without having first obtained the written consent of such person.” N.Y.C.R.L. § 50. This is a “clear indication” that the legislative intent was to “stop the merchandising in channels of normal trade of a portrait of a person who occupies a position in which there is a monetary value by publicizing same.” Kline v. Robert M. McBride & Co., 170 Misc. 974, 11 N.Y.S.2d 674, 682 (N.Y.Sup. Ct.1939).

This case is similar to Carmine v. Murphy, 285 N.Y. 413, 415, 35 N.E.2d 19 (1941), where the Court of Appeals refused to permit a seller to recover the price of liquor sold because the seller was not licensed to sell alcohol, in violation of a statute. The lower court permitted recovery on the ground that the statute did not expressly declare contracts made in violation of the licensing statute unlawful. See Carmine v. Murphy, 261 A.D. 17, 23 N.Y.S.2d 723 (1940) . However, the Court of Appeals reversed and denied recovery, saying, “We think it can hardly be presumed that transactions so punctiliously forbidden were to be accompanied by no consequence other than penal discipline.” Carmine v. Murphy, 285 N.Y. 413, 415, 35 N.E.2d 19 (1941) .

Plaintiff’s remaining arguments in opposition to summary judgment are unpersuasive. Plaintiff asserts that the contract is enforceable because, on its face, it does not violate a statute, and the parties did not intend to engage in an unlawful act. However, if a contract “is opposed to the interests of the public, the agreement is void, even though in the particular case the intent of the parties may have been good ...” In re Dunbar’s Will, 189 Misc. 687, 71 N.Y.S.2d 287, 292 (N.Y.Surr.Ct.1947), quoting, Sampliner v. Motion Picture Patents Co., 255 F. 242, 251 (2d Cir.1918).

Likewise, it is unnecessary for the words of the contract to disclose the illegality, as long as the contract is “closely connected with an unlawful action.” Contemporary Mission, Inc. v. Bonded Mailings, Inc., 671 F.2d 81, 83 (2d Cir.1982). See also McConnell v. Commonwealth Pictures Corp., 7 N.Y.2d 465, 471, 199 N.Y. S.2d 483, 166 N.E.2d 494 (1960). Such a connection is evident here, since the subject matter of the contract was the sale of Michael Jackson stickers issued without his consent, which was an illegal objective.

Finally plaintiff suggests that New York law was not violated by the sales contract since title to the goods passed to defendant at John F. Kennedy Airport, before they passed through customs and into New York. However, the goods were to be delivered to Jamaica, New York after they cleared customs, the defendant’s principal place of business is in Mount Vernon, New York, and the resale and distribution of the merchandise obviously would be in or from New York. Consequently, the sale will not be enforced in New York “if it is repugnant to positive statutory enactment and the public policy of that state ...” Lynch v. Bailey, 275 A.D. 527, 90 N.Y.S.2d 359, 366 (1949), aff’d, 300 N.Y. 615, 90 N.E.2d 484. Cf. Rutkin v. Reinfeld, 229 F.2d 248, 255 (2d Cir.1956). The royalty obligation is in the same posture; it is not enforceable since the merchandise was for use in trade without the written consent of Michael Jackson.

The cases hold that “[w]here the parties’ arrangement is illegal the law will not extend its aid to either of the parties or listen to their complaints against each other, but will leave them where their own acts have placed them.” United Calendar Mfg. Corp. v. Huang, 94 A.D.2d 176, 463 N.Y. S.2d 497, 500 (1983).

The defendant’s motion for summary judgment is granted, plaintiff’s cross-motion is denied, and the complaint is dismissed in all respects.

SO ORDERED.

      . Plaintiff suggests that Alexandre v. Westchester Newspapers, Inc., 169 Misc. 398, 9 N.Y.S.2d 744 (N.Y.Civ.Ct.1938), is applicable here. In Alexandre, the court permitted a photographer to recover the price of pictures sold to defendant, a newspaper, in the absence of the written consent of the subject of the picture. However, the court found that a writing had been waived and that since the photographer had the subject’s oral consent the sale was enforceable. The subject had clearly manifested his consent and the court said that he was "at liberty to waive the statutory requirement of [his] written consent.” Alexandre, 9 N.Y.S.2d at 748.


author: GERRY, District Judge.

text:
    Sueyun PYO, Plaintiff, v. STOCKTON STATE COLLEGE, Defendant.
    Civ. A. No. 84-0006.
    United States District Court, D. New Jersey.
    March 11, 1985.

      Sovel & Gruber by Stanley B. Gruber, Haddonfield, N.J., Freedman & Lorry, P.C., by Miriam L. Gafni, Philadelphia, Pa., for plaintiff.
    Irwin I. Kimmelman, Atty. Gen. of N.J. by William Haría, Deputy Atty. Gen., Trenton, N.J., for defendant.
   OPINION

GERRY, District Judge.

This is a Title VII employment discrimination case. The plaintiff was an assistant professor in the Department of Art at Stockton State College. In December 1981, plaintiff was denied tenure by the college, and her employment was terminated. She alleges that the decision not to grant her tenure was the product of sex and/or race (Asian) discrimination. Among the relief sought by plaintiff is a judicial award of tenure. It is certainly within the court’s power to award tenure under appropriate circumstances.

The defendant is moving for partial summary judgment. The motion is a very limited one. The defendant merely seeks an order striking a judicial award of tenure as a possible remedy in this case. The defendant, in this motion, does not seek to argue whether or not the college’s decision to deny tenure was discriminatory. The college’s position is that even if the tenure decision was the product of discrimination, a judicial award of tenure, under the undisputed facts of the case, is still inappropriate. The appropriate remedy, the only appropriate remedy, for discrimination (if proved) is a “remand” back to the college for a de novo decision, it is argued. This relief is especially appropriate, it is stated, because all of the upper-level personnel who may have acted discriminatorily have since left the college. Thus, an impartial decision is said to be possible. The plaintiff takes the position that whether an award of tenure is an appropriate remedy is rather intimately intertwined with the question of whether there was, in fact, discrimination. If there was discrimination, it is argued, an award of tenure may be appropriate, although the appropriateness of the remedy would depend on, perhaps, the nature of the discrimination and the level of the decision-making process at which the discrimination occurred. The plaintiff urges that further discovery is thus necessary..

So, in essence, for the purposes of this motion, we may assume some discrimination, although this assumption itself is not one capable of precise definition under the complex circumstances of the tenure decision process. (This will presently become clearer.)

The tenure decision process is a multistep process at Stockton State College. During their fifth consecutive year of employment with the college, faculty members are evaluated to determine if they should be reappointed with tenure. If tenure is denied, employment is generally terminated. The first step in the process is for the faculty member to prepare a file in support of her application for tenure. The file may contain any material the candidate cares to submit above and beyond the required self-evaluation, faculty peer evaluations, and evaluations of students enrolled in the candidate’s courses. Once the file is assembled, the second step is the review of the file by Faculty Review Committee of the division of the college in which the candidate is employed. The Faculty Review Committee of the Division of Arts and Humanities (plaintiff’s division) was at all relevant times composed of five faculty members and five students. The dean of the division serves as chairperson but does not vote. After reviewing the file, the committee takes a vote on whether to recommend tenure.

The third step is the recommendation of the dean of the appropriate division. The dean’s recommendation is based on the candidate’s file and the recommendation of the Faculty Review Committee, as well as on his own independent evaluation of the candidate and the needs of the division. The fourth step is the submission of the candidate’s file and the prior recommendations to the vice president of Academic Affairs. The vice president makes his own recommendation, based on the record below and the needs of the college, as he perceives them. The fifth step is the submission of the record below to the college president. If the president decides against tenure, that is the end of the matter. If the president decides to recommend tenure, then the matter is passed on to the college board of trustees for final decision.

In the present case, the plaintiff, as required, prepared a tenure file. The file contained 15 peer evaluations. According to the affidavits of the dean, vice president and president, 15 evaluations is a relatively low number: 30 are not uncommon. Moreover, plaintiff only submitted four letters from faculty outside her program, also allegedly a small number. Of the 15 evaluations, 11, recommending tenure, were very positive (making reference, e.g., to plaintiff’s talent as a sculptor, her strong teaching ability, and her contributions to the revitalization of the Art Department); two, although positive, declined to take a position due to insufficient opportunity to observe; and two were negative. Of these, one (Lemakis) faults plaintiff for lack of self-confidence, leadership and service to the college. The other (Metcalf) faults plaintiff for failing to honor a commitment to put on a show of her work at the college art gallery, and for being inaccessible and more demanding of students than she was of herself. The student evaluations (statistical summaries of responses of students to plaintiff's courses) were slightly below average: the median score is allegedly 5.5-5.6 (1-7 scale), whereas plaintiffs average score was 5.3. The court is not sure the statistics exactly equate with each other, however.

Based on the tenure file, the Faculty Review Committee voted to recommend tenure, by a vote of 7 in favor, 2 opposed, and 1 abstention. According to affidavits, this was no more than lukewarm support.

The dean of plaintiff’s division, Martin Jones, recommended against tenure. Although Jones had nice things to say about Ms. Pyo, he mentioned her failure to put on the aforementioned solo show as “disappointing,” and found her to lack leadership or college service potential. Vice President Nanzetta recommended against tenure as well, in a very cursory manner, relying on the “mixed reviews” of the Faculty Review Committee and the negative recommendation of the dean. The president followed the recommendations of the dean and vice president and decided not to -ecommend Pyo for tenure to the Board of Trustees. Thus, plaintiff was not reappointed to the faculty of the college.

At three of the four levels, the recommendation was to deny tenure, and support for tenure in plaintiff’s file and at the committee level was less than unanimous. Certainly, there are no indications on the face of any of the evidence to suggest discrimination. For the purposes of this motion, discrimination is assumed, however. Does this mean discrimination is assumed at all levels, including among the students whose comments furnished the basis for statistical summaries?

Analysis

1. When Title VII was enacted in 1964, Congress exempted educational institution employees engaged in educational activities from the statute’s requirements. Not until 1972 did Congress extend Title VII to higher educational institutions. The legislative history could not be clearer that Congress was concerned with discrimination in university settings. The House Committee Report states:

Discrimination against minorities and women in the field of education is as pervasive as discrimination in any other area of employment.
The committee feels that discrimination in educational institutions is especially critical. The committee cannot imagine a more sensitive area.... To permit discrimination here, more than in any other area, would tend to promote misconceptions leading to future patterns of discrimination.

1972 U.S.C.C.A.N. 2137, 2155. Thus, Title VII now clearly applies to the hiring and employment policies and decisions of universities, including the decision to grant tenure. Since the central purpose of Title VII is to make persons whole for the harm suffered on account of unlawful employment discrimination, Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975); a judicial award of tenure is, under appropriate circumstances — where an award would make one whole, rather than act as a windfall— certainly a possibility. See Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir.1980) (upholding a conditional award of tenure).

2. Courts have struggled, however, with the application of Title VII to the academic setting and, more often than not, have undertaken no more than a deferential review of tenure decisions, in contrast to the rather aggressive review of employment decisions involving blue collar workers. While the cases pay much lip service to the goal of eradicating employment discrimination, wherever found, they are also replete with language to the effect that courts are not to serve as “super tenure committees.” See, e.g., Johnson v. University of Pittsburgh, 435 F.Supp. 1328, 1354 (W.D.Pa.1977); Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa.1976); Faro v. New York University, 502 F.2d 1229 (2d Cir.1974). Courts, seldom having made a factual finding of discrimination, have almost never had to reach the question of appropriate remedies. Even the Kunda court, which upheld a finding of discrimination and a conditional tenure remedy, stated:

[I]t is beyond cavil that generally faculty employment decisions comprehend discretionary academic determinations which do entail review of the intellectual work product of the candidate. That decision is most effectively made within the university
. . . . . .
Wherever the responsibility lies within the institution, it is clear that courts must be vigilant not to intrude into that determination, and should not substitute their judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure. Determinations about such matters as teaching ability, research scholarship, and professional stature are subjective, and unless they can be shown to have been used as a mechanism to obscure discrimination, they must be left for evaluation by the professionals....

621 F.2d at 547-48 (emphasis added). The Second Circuit has recently elaborated on why tenure decisions are so difficult for a court to become involved in. Tenure decisions, the court stated, entail lifetime commitments in terms of salary and interpersonal relationships; they are often noncompetitive, in the sense that one candidate is not always or necessarily chosen over another: in some years, or within some divisions, no candidate may be granted tenure, or all candidates may be granted tenure; decisions are often decentralized and may involve as well many levels of decision-making; they involve an unusually large mix of factors, from the subjective qualities of the candidate to institutional priorities having nothing to do with the candidate; and finally, tenure decisions are a source of unusually great disagreement for decision-makers. Moreover, because of all these factors, statistical evidence may be less useful to the plaintiff than in other contexts. See Zahorik v. Cornell University, 729 F.2d 85 (2d Cir.1984). Of course, not all of these factors are equally significant in all cases. For example, in the instant case, the evidence thus far does not indicate that institutional factors unrelated to Ms. Pyo entered into the decision. Commentators have additionally questioned whether tenure decisions, involving lifetime commitments, are really in a class by themselves. See Bartholet, “Application of Title VII to Jobs in High Places,” 95 Harvard Law Review 947 (1982); cf. Hishon v. King & Spalding, — U.S. —, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (holding Title VII applicable to law firm partnership decisions).

3. The court is thus faced with the dual obligation of faithfully upholding the goal of Title VII of making the plaintiff whole, while also exercising proper restraint and deference with regard to university officials. The defendant urges that in the instant case a proper balancing of these obligations requires that the court stop short of awarding plaintiff tenure, even if discrimination is found to have infected the tenure decision as to the plaintiff. As an initial matter in support of this argument, the defendant cites a good many cases in which courts, when faced with facts comparable to those here, have refused to award tenure. However, none of these cases are applicable to the instant case, because the courts ruled that plaintiffs did not prove discrimination. Thus, the courts never reached the question of whether the granting of tenure was appropriate relief. See, e.g., Powell v. Syracuse University, 580 F.2d 1150 (2d Cir.1978); Johnson v. University of Pittsburgh, 435 F.Supp. 1328 (W.D.Pa.1977); Faro v. New York University, 502 F.2d 1229 (2d Cir.1974); Hooker v. Tufts University, 581 F.Supp. 104 (D.Mass.1983); Kureshy v. City University of New York, 561 F.Supp. 1098, 1110 (E.D.N.Y. 1983); Johnson v. Michigan State University, 547 F.Supp. 429 (W.D.Mich.1982); Meehan v. New England School of Law, 522 F.Supp. 484 (D.Mass.1981); cf, Duke v. North Texas State University, 469 F.2d 829 (5th Cir.1972) (First Amendment case; college successfully articulated constitutional reasons for termination of professor’s employment). These cases are therefore of limited usefulness to a defendant who, for the purposes of this motion, is conceding discrimination.

4. The defendant next argues that the Third Circuit’s decision in Kunda v. Muhlenberg College, supra, mandates that we strike the plaintiff’s demand for a judicial award of tenure. In Kunda, the court was presented with an unusual situation in which the plaintiff’s “achievements, qualifications, and prospects were not in dispute.” Everyone who evaluated her thought she was qualified to be granted tenure. The only reason tenure was denied was because she lacked a master’s degree. The evidence disclosed, however, that unlike her male counterparts, the plaintiff was never informed that she needed a master’s degree. This purposeful discrimination, the Third Circuit held, justified the relief granted: an award of tenure if, within two years, the plaintiff successfully obtained a master’s degree. In Kunda, then, the court was not required to make an independent judgment of plaintiff’s qualifications. All university officials were themselves in agreement as to plaintiff’s suitability, and the court, finding that plaintiff would have earned a master’s degree but for the withholding of advice (a sort of procedural irregularity), deemed the tenure remedy the appropriate means to make plaintiff whole.

The defendant asks this court to read Kunda for the proposition that where there are disputes in the university as to a teacher’s qualifications (and especially, as here, where negative recommendations abound), the court must not “overrule” the university and award tenure.

This court does not believe Kunda necessarily proscribes it from awarding plaintiff tenure merely because officials at Stockton State College disagree about her worth. The Kunda court most definitely stated that courts ordinarily should not intrude upon institutional evaluations. But this statement is not phrased in absolute terms. To repeat a passage previously quoted:

Determinations about such matters as teaching ability, research scholarship, and professional stature are subjective, and unless they can be shown to have been used as a mechanism to obscure discrimination, they must be left for evaluation by the professionals____

621 F.2d at 548. This passage at the least suggests that if the plaintiff can demonstrate that facially neutral evaluations mask bias, then the court is not without the power to conduct its own evaluation. Insofar as the defendant arguendo concedes discrimination, this may be appropriate judicial behavior here.

At this point, however, it may be useful to consider the various points at which discrimination might enter into the decision-making process, as well as the different types of discrimination, and consider the appropriate judicial response to such discrimination.

Kunda teaches that where a candidate’s qualifications are undisputed and discrimination is the apparent reason that tenure was denied, a court may award tenure (subject to any appropriate conditions); but that where one’s qualifications are in doubt, the court generally should not perform its own evaluation.

But there may be cases where a plaintiff can demonstrate that others with the same or very similar evaluations (i.e., qualifications) were granted tenure. If others with “lukewarm” evaluations (like plaintiff’s) were nevertheless granted tenure, then it may be appropriate for the court to grant plaintiff tenure. We say “may” because the college may yet be able to show factors unrelated to plaintiff which justify the disparate treatment. But in a case as described above, the court is not necessarily called upon to perform its own independent evaluation but, taking the evaluations at face value (i.e., assuming their sincerity and lack of bias), in granting tenure may merely be doing what is necessary to make plaintiff whole. In such a case, the discrimination and the relief requested (tenure) are intimately intertwined: the discrimination is the denial of tenure (or the decision not to recommend tenure) where others, similarly evaluated, have been granted tenure. Therefore, if this type of discrimination is shown, an award of tenure may be the appropriate relief.

On the other hand, the evidence may demonstrate that faculty members with evaluations the same or very similar to Ms. Pyo’s were not given tenure either. But plaintiff might prove that the evaluations of her qualifications were not sincere, but were the product of discrimination. In such a situation, if the court were to award tenure, it might be doing more than making the plaintiff whole. Although Kunda does not rule out an independent evaluation by the court under the circumstances hypothesized, neither does it suggest that the court could not resort to less extreme relief, especially if the court were satisfied that an unbiased evaluation were possible. Thus, it might be better in this situation for the court to “remand” for a de novo evaluation.

All this discussion is intended to illustrate is that “discrimination” in the tenure process is not a simple concept. Depending on the type of discrimination (the substantive evaluation of a candidate’s merits versus the decision on how to treat one with a particular set of evaluations) and the level at which the discrimination occurred, a judicial award of tenure may or may not be appropriate. Since, in this case, the “discrimination” has not been clearly defined by the defendant, the court cannot rule out an award of tenure, and the motion will be denied.

The court, of course, expresses no opinion regarding the merits of plaintiff’s case. Further discovery on discrimination, as relevant to the relief sought, is clearly appropriate, however. Defendant’s attorney shall prepare an appropriate order consistent with this opinion.

      . This may mean, simply, that had plaintiff been deemed "qualified," tenure would have been awarded. Or it may mean that the decision-makers, not believing plaintiff qualified, did not have to reach the question of whether other reasons nevertheless justified the denial of tenure.

      . It is interesting to note that the Third Circuit, while acknowledging the problems of a court’s delving too deeply into academic employment decisions, may not attach the same significance to the lifetime commitment problem as the Second Circuit. The Kunda decision, in discussing the desirability of deference, discusses promotion and tenure in the same breath. 621 F.2d at 548. Promotion may involve a change from one non-tenured position to another, or from one tenured position to another. Thus, it may be reasonable to infer that it is the subjective and esoteric aspects of the decision-making process, rather than the long-term consequences of the decision, that are of greatest concern to the Third Circuit.

      . In support of this reading of Kunda, defendant cites Gurmankin v. Costanzo, 626 F.2d 1115 (3d Cir.1980). In the latter case, the Third Circuit merely held that a lower court’s refusal to award tenure was an appropriate exercise of discretion, where the school district had not yet been given an opportunity to evaluate plaintiffs qualifications and performance as a teacher. Gurmankin cannot be read to rule out a judicial award of tenure in a case where decision-makers disagree but only counsels the court against acting prematurely and thereby risking the possibility of placing plaintiff in a better position than she would have been in, but for the discrimination.

      . For example, the plaintiff may be able to demonstrate that other faculty with similar tenure files (peer and student evaluations) received the unanimous support of the Faculty Review Committee; or that other faculty with similar tenure files and mixed votes from the committee nevertheless received a positive recommendation from the dean; or that other faculty with similar files and mixed recommendations were nevertheless supported for tenure by the vice president, etc.

      . Again, however, the relief may depend on the level of the tenure process at which the discriminatory decision or recommendation was made. The earlier in the process the discrimination occurred, the more speculative a determination would seem to be that later decision-makers, but for the discrimination, would have acted differently.


author: PHILIP PRATT, District Judge.

text:
    Stanley M. JANIKOWSKI, Plaintiff, v. The BENDIX COMPANY, Defendant.
    No. 83-CV-5187.
    United States District Court, E.D. Michigan, S.D.
    March 11, 1985.

      George B. Washington, Detroit, Mich., for plaintiff.
    Thomas G. Kienbaum, and Michael A. Alaimo, Detroit, Mich., for defendant.
   MEMORANDUM OPINION AND ORDER

PHILIP PRATT, District Judge.

The question presented here is whether the plaintiff’s claim for unlawful age discrimination in employment is barred by the applicable statutes of limitations.

In this case, the plaintiff, Mr. Stanley M. Janikowski, 52, had been employed in various executive positions with the defendant’s corporation since September 1, 1971. Plaintiff is a Pennsylvania resident. The defendant is a Delaware corporation doing business in Michigan.

Jurisdiction in this matter is predicated on diversity, 28 U.S.C. § 1332 and 29 U.S.C. § 621 et seq., the Age Discrimination in Employment Act. Plaintiff also alleges a state claim under the Michigan Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq.

Since his hire by defendant, plaintiff served in its taxation department. On September 4,1980, plaintiff was advised by the director of the tax department that his employment with that division would be terminated by September 30, 1981 because of a reduction in defendant’s workforce. A written memo dated November 18, 1980 confirmed this termination notice. Plaintiff’s employment with Bendix was actually terminated on November 30, 1981.

About six months after his termination, on May 24, 1982, plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC), charging unlawful age discrimination. On March 28,1983, the EEOC notified plaintiff that it would not proceed further on his complaint. Thereafter, plaintiff commenced the present suit on November 28, 1983.

This matter is now before the court on defendant’s motion for summary judgment or dismissal. It is defendant’s position that plaintiff’s claims under both statutes are barred under their respective statute of limitations periods. Oral arguments were originally held on defendant’s motion on October 29, 1984. During the arguments, plaintiff contended that he was the victim of “continuing” discrimination by the Bendix Corporation. Because this new argument was not' addressed in the parties’ briefs, supplementary briefing was ordered and additional oral arguments were heard.

A motion for summary judgment may be granted when there is no genuine issue of a material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court must construe the evidence together with all inferences in the light most favorable to the party opposing the motion. Watkins v. Northwestern Ohio Tractor Pullers Ass’n., 630 F.2d 1155 (6th Cir.1980); Bohn Aluminum & Brass Corp. v. Storm King, 303 F.2d 425 (6th Cir.1962).

1. ADEA Claim

There is no dispute regarding the applicable law or length of the limitations period concerning plaintiff’s ADEA claim. The Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., provides, in pertinent part,

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; or
(2) in a case to which section 14(b) applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever, is earlier.

29 U.S.C. § 626(d).

This section of the ADEA refers to section 14(b) of the same statute. Under section 14(b), the 300 day limitation period is applicable in those states with a similar age discrimination statute. The Elliott-Larsen Act, supra, is a comparable statute under section 633(b). Therefore, the parties agree that plaintiff was required to file a charge with the EEOC within 300 days after the discrimination which is alleged.

Plaintiff makes two arguments — though interwoven — in opposition to defendant’s motion. Initially plaintiff argues that it was never made clear exactly when his employment with the Bendix Corporation would be terminated. In a related argument, plaintiff suggests a “continuing violation” by defendant in first terminating him. from its taxation department, and then refusing to hire him for other positions within the corporation. The continuing violation argument is based on the theory that although plaintiff was terminated from the taxation department, he was not terminated from the corporation itself until his actual discharge on November 30, 1981.

First, the issue of when plaintiff received notice of his termination must be considered. A leading case in this area, as both parties concede, is Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). In Ricks, a college professor was denied tenure by the trustees of a state college. After the trustees made its denial of tenure decision, it wrote the plaintiff a letter, dated June 26, 1974, stating that he would be offered a one-year “terminal contract” and that his employment with the college would terminate on June 30, 1975. The professor had earlier filed a grievance regarding the trustees’ decision. Several months after this June 26, 1974 notice, the professor’s grievance was denied.

The professor attempted to file a discrimination Complaint with the EEOC on April 4, 1975. After a right-to-sue letter was issued by the EEOC, the professor’s action was dismissed by the district court as not being timely because the EEOC charge was not within 180 days of the alleged unlawful employment practice — June 26, 1974— when the professor was notified that his contract would not be renewed and that he was denied tenure. 449 U.S. at 254-55,101 S.Ct. at 502.

The Supreme Court held that the relevant inquiry in determining the timeliness of the professor’s EEOC complaint was “to identify precisely the ‘unlawful employment practice’ of which he complains.” Id. at 257, 101 S.Ct. at 504. The Court said: “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Id. Because termination of his employment was a “delayed but inevitable, consequence of the denial of tenure,” the Court held:

In sum, the only alleged discrimination occurred — and the filing limitations period therefore commenced — at the time the tenure decision was made and communicated to Ricks [the professor]. ‘The proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.’ [citing Abramson v. Univ. of Hawaii, 594 F.2d 202, 209 (9th Cir.1979) ].

Id. at 258, 101 S.Ct. at 504.

Subsequently, in Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) (per curiam), the plaintiffs brought a civil rights action against their employer. Relying on Ricks, the Court ruled that the statute of limitations began to run, not on the designated date on which employment ceased, but rather when respondents were notified by letter that “a final decision had been made to terminate their appointments.” 454 U.S. at 8, 102 S.Ct. at 29. “[T]he proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful.” Id.

Applying the guidelines set forth in Ricks and Chardon to the present case, this court must determine when the termination decision was made and the plaintiff notified of the decision. The defendant takes the position that plaintiff was informed of his termination on September 4, 1980. On that date, plaintiff met with John Doyle, his supervisor, and Ron Weinel, director of defendant’s tax department. Plaintiff’s Deposition at 87-88. According to plaintiff’s deposition, the meeting went as follows:

Q: [Defendant’s counsel] Mr. Janikowski, on what date was your employment with Bendix terminated?
A: November 30, 1981.
Q: And who was the person who told you that you were terminated, or who told you that your employment with Bendix was terminated?
A: That would have been Ron Weinel.
Q: When did Mr. Weinel first indicate to you that you were to be terminated?
A: I guess around September of 1980, or thereabouts.
Q: Was there a meeting with Mr. Weinel?
A: With Ron Weinel and John Doyle, yes.
. . . . .
Q: As precisely as you can, can you tell us what Mr. Weinel told you at that meeting on September 4, 1980?
A: Basically, what he said here in the memo, that the special project status that had been assigned to me would possibly be eliminated and at that time he did not perceive any other openings within the department, nor was he anticipating any in the near future.
Q: Did he suggest you begin looking for other employment?
A: Yes, to continue to search both within and outside the company.
Q: Did he tell you anything else at that September 4th meeting?
A: It was a very short type of meeting, very, very quick.
Q: [referring to the September 4, 1980 meeting] Were you surprised?
A: I was shocked. I couldn’t believe it.
Q: Why was that?
A: Have you ever received notice of termination? You don’t have to answer that question. That was the first time in my life I had ever received any kind of notification of being terminated from any kind of position.
. . . . .
Q: What I’m getting at, you just stated you were surprised because generally you had just never been terminated from a position that you held. Were you specifically surprised about the fact that you were being terminated at Bendix?
A: Absolutely.

Deposition at 88-89.

Additionally, defendant points to the November 18, 1980 memo sent to plaintiff from Mr. Weinel. The memo apparently reiterates the contents of the September 4, Í980 meeting between plaintiff and his supervisors. The memo states, in pertinent part:

[Y]our employment with the Bendix Tax Department will'cease not later than September 30, 1981. If on the date of your termination from the Tax Department you have not secured a position elsewhere within Bendix, you will be terminated from employment.

The memo further says,

Therefore, I strongly urge you to initiate an immediate search, both within and outside Bendix, for alternative employment.
I can assure you that under no circumstances can I envision your employment within the Bendix Tax Department continuing beyond September 30, 1981, and that the possibility exists that the function you currently perform will be eliminated before that date. Therefore, I encourage you not to ignore prospective employment opportunities ...

Under defendant’s argument, plaintiff was given notice of termination on September 4, 1980 in his meeting with Messrs. Doyle and Weinel. Because the EEOC complaint was not filed until May 24, 1982, it is defendant’s position that 626 days lapsed from the notice date — thus barring plaintiff’s ADEA claim against Bendix.

Plaintiff’s response is that neither the September 4, 1980 meeting nor the November 18, 1980 memo made clear that plaintiff’s job with the Bendix Corporation was terminated. Plaintiff contends that the limitations period began on November 30, 1981 when he was actually terminated by defendant. Because his EEOC complaint was filed on May 24, 1982, plaintiff argues it was well within the 300 day period.

In support of his position, plaintiff relies on language in Ricks, supra, regarding the definiteness of the termination notice. In Ricks, the Court noted that the terminal contract offered to the professor had “explicit notice that his employment would end upon its expiration.” 449 U.S. at 258, 101 S.Ct. at 504. Plaintiff states that the notice given him on September 4,1980 “clearly left open the possibility that Janikowski would be employed ‘inside’ Bendix ...”

Moreover, plaintiff cites two recent district court decisions, Cohen v. Board of Education, 536 F.Supp. 486 (S.D.N.Y. 1982), and Leite v. Kennecott Copper Corp., 558 F.Supp. 1170 (D.Mass.1983), for the proposition that “equivocal or unclear notices that a person might be terminated would not cause the statute of limitations to run.” In Cohen, a teacher challenged her termination by filing a civil rights claim against the school district. The court said: “Until plaintiff received notification of the Board’s action, her injury was only a possibility. Therefore, I find that ... [cjlaims accrued when plaintiff was notified on ...” 536 F.Supp. at 493.

Far more instructive is the Kennecott Copper case. In that case, six employees filed ADEA claims against their employer. The employer moved for summary judgment on the ground that all the employee’s claims were time barred by the three-year statute of limitations on “willful” violations. The court, relying on Chardon, supra, held that the actual date of discharge does not control the statute of limitations trigger. 558 F.Supp. at 1172.

Although notice of termination need not be in written form in order to trigger the limitations period, it must unambiguously indicate that a final termination decision has been reached. The Court in Chardon, for example, although it did not discuss what degree of clarity may be required, indicated that the written notices there informed the respondents that a final decision had been made to terminate their appointments.

Id. at 1174 [citations omitted]. Based on this, the Kennecott court determined that “unofficial notice” by the employer was not sufficient enough to start the statute of limitations period. The court said the issue of whether the oral notice provided to the employees “possessed the requisite clarity” would be considered at trial. Id. at 1174.

Although plaintiff in the present case asserts,that the statements made at the September 4, 1980 meeting and the November 8, 1980 memo were unclear and that termination was contingent on plaintiff finding another position within the Bendix Corporation, the plaintiffs own deposition testimony belies such an argument. As noted supra, the plaintiff stated: “This was the first time in my life I had ever received any kind of notification of being terminated from any kind of position.” Plaintiffs Deposition at 89. Plaintiff admitted that he knew he was terminated from his position. Under Ricks and its progeny, the September 4, 1980 meeting was the point at which the 300 day time period for an EEOC filing was triggered under section 14(b) of the ADEA. Therefore, on this date, plaintiff was required to file a charge with the EEOC within 300 days. As the Court in Chardon stated:

[T]he proper focus is on the time of the discriminatory act, [emphasis in original] not the point at which the consequences of the act becomes painful. The fact of termination is not itself an illegal act.... As we noted in Ricks, ‘mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination’. In the cases at bar, respondents were notified, when they received their letters, that a final decision had been made to terminate their appointments. The fact that they were afforded reasonable notice cannot extend the period within which suits may be filed.

454 U.S. at 8, 102 S.Ct. at 29. The plaintiff’s own deposition testimony leaves little doubt that he knew on September 4, 1980 that he was terminated.

The next issue which arises is plaintiff’s “continuing violation argument.” Plaintiff apparently argues that his termination in the Fall of 1980 was from the defendant’s tax department only, and not from the entire corporate structure of Bendix. This, of course, opens the door to the continuing violation argument. Because there is little doubt that plaintiff knew he was terminated on September 4, 1980, the continuing violation argument he advances is critical if he is to defeat defendant’s summary judgment motion.

The crux of plaintiff’s continuing violation argument is that although plaintiff may have known that he was terminated from the taxation department on September 4, 1980, he was not terminated from Bendix itself at that time. After termination from the taxation department, plaintiff argues, he was the subject of continuing age discrimination until he was actually terminated from the Bendix Corporation on November 30, 1981. Under this theory, plaintiff’s EEOC filing — on May 24, 1982— would have been within the statutory 300-day period and his claim would not be barred.

According to plaintiff’s pleadings and deposition, he was denied a number of positions within the Bendix Corporation after notice of termination from the taxation department. Plaintiff’s Deposition at 100-112. Plaintiff contends that Bendix’s failure to allow him to transfer to another division of the corporation was based on unlawful age discrimination. Specifically, there are four job opportunities within Bendix that plaintiff alleges were denied him based on his age. These opportunities, outlined in Deposition Exhibit # 13, were (1) assistant director of management audit services (Spring ’80); (2) regional audit manager for Warner & Swasey (Summer ’80); (3) assistant director of special projects (Spring ’81); (4) position on group controller’s staff on Bendix Industrial Group (Summer ’81).

The continuous violation doctrine was discussed by the Supreme Court in United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). This doctrine is usually applied in situations involving patterns or practices of discrimination, such as maintaining discriminatory hiring practices, placement, promotion systems, or the like.

In Evans, plaintiff was an airline flight attendant during a period when United Airlines would not employ married flight attendants. When plaintiff married she was forced to resign. This no-marriage policy was eventually held to contravene Title VII and was abolished by the airline. Four years after the no-marriage policy was eliminated, plaintiff resumed working for United. During her second term with United, the airlines refused to accord her any seniority or benefits for her earlier employment. The Supreme Court rejected plaintiffs argument that she was the subject of a “continuing violation of Title VII.” The Court said:

United’s seniority system does indeed have a continuing impact on her [plaintiff’s] pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation [emphasis in original] exists. She has not alleged that the system discriminates against former female employees or that it treats former employees who were discharged for a discriminatory reason any differently from former employees who resigned or were discharged for a non-discriminatory reason.

Id. at 558, 97 S.Ct. at 1889.

More recently in the Ricks case, discussed supra, the Supreme Court spoke to the continuing violation doctrine. The college professor in Ricks claimed that after he was informed he was being placed on a one-year terminal contract, the limitations period for filing a complaint did not start until the expiration of his contract, because the university was committing a continuing violation against him. The Court rejected this argument.

Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination. United Air Lines v. Evans, supra [431 U.S.], at 558 [97 S.Ct. at 1889]. If Ricks intended to complain of a discriminatory discharge, he should have identified the alleged discriminatory acts that continued until, or occurred at the time of, the actual termination of his employment. But the complaint alleges no such facts.

Id., 449 U.S. at 257, 101 S.Ct. at 504. In the complaint in Ricks, sixteen paragraphs detailed the tenure denial decision, but only one paragraph discussed the plaintiff’s leaving the university, and there were no other allegations suggesting discrimination. Id. at n. 8.

The Court stressed that in order for the professor to prove that the limitations period commenced at the date of discharge, he would have to “allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure.” Id. at 258, 101 S.Ct. at 504. In concluding, the Court reiterated the statement that “[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.” The Court continued: “The emphasis is not upon the effects of earlier employment decisions; rather, it is [upon] whether any present violation exists.” [emphasis in original]. Id.

A considerable body of caselaw has developed within the Sixth Circuit on the continuing violation theory. In Roberts v. North American Rockwell, 650 F.2d 823, 827-28 (6th Cir.1981) rehr’ing & rehr’ing en banc denied, (1981), the Sixth Circuit stated that the continuing violation doctrine provides that where the last act alleged is part of an ongoing pattern of discrimination and occurs within the filing period, allegations concerning earlier acts are not time-barred. Within the Roberts framework, however, it is clear that the continuing effect of an alleged act of discrimination is not sufficient — the crucial inquiry is whether there is a present violation. United Airlines, Inc. v. Evans, 431 U.S. 553, 557-58, 97 S.Ct. 1885, 1888-89, 52 L.Ed.2d 571 (1977); Trabucco v. Delta Airlines, 590 F.2d 315, 316 (6th Cir.1979) (per curiam).

The test, simply stated, is whether the plaintiff timely filed a charge of a present violation which is part of an ongoing pattern of discrimination. Roberts, 650 F.2d at 828, Curry v. United States Postal Service, 583 F.Supp. 334 (S.D.Ohio 1984). In applying this test, several recent Sixth Circuit cases are instructive. In EEOC v. McCall Printing Corp., 633 F.2d 1232 (6th Cir.1980), several black employees sued the defendant for race discrimination. In rejecting a continuous violation argument, Judge Kennedy wrote that residual effects of alleged discrimination which may still be felt through a seniority system does not render the alleged discrimination continuous under the Evans rule. “Repeated requests for further relief from a prior act of discrimination will not set the time limitations running anew.” Id. at 1237, citing Goldman v. Sears, 607 F.2d 1014 (1st Cir. 1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980).

In Hall v. Ledex, Inc., 669 F.2d 397 (6th Cir.1982), the court gave an example of a continuing violation. In that case, the plaintiff worked as an office clerk and was promoted to “expeditor.” Plaintiff’s immediate predecessor held the job under the title “Production Control Coordinator.” When the predecessor quit, the company reclassified the job and offered it to plaintiff at a salary lower than what her predecessor had received. The evidence showed that plaintiff assumed all of her predecessor’s duties and more. In her sex discrimination suit, the plaintiff’s continuing violation argument was accepted by the court. The court held that although she filed her EEOC complaint 330 days after her so-called “promotion,” her complaint was not barred because the company’s sex discrimination against plaintiff was “continuing.” The court said: “[T]he discrimination was continuing in nature. Hall suffered a denial of equal pay each check she received.” The Sixth Circuit relied on the Roberts case and several decisions of other circuits. Id. at 398-99.

In one further case, Kinniry v. Aetna, 35 FEPC (BNA) 1474 (D.C.Conn.1984), a district court in Connecticut rejected the continuing violation theory. A 61-year-old former Aetna vice president filed suit for age discrimination. His specific allegations were failure to promote, discriminatory compensation, and forced retirement along with a general allegation about Aetna’s policy of age discrimination.

Kinniry’s continuing violation argument was grounded in his contention that Aetna did not revoke its termination or act upon his request for reinstatement. This argument was rejected by the court:

[I]t is insufficient for Mr. Kinniry to claim that Aetna’s failure to rescind the termination decision gives present effect to the termination decision itself. Such an argument would do away with the limitations period in all cases in which an employee who suffered a discriminatory firing was not rehired. Whatever the merits, such a policy was not adopted by Congress in section 7(d) of the ADEA.

35 FEPC (BNA) at 1477.

The lessons of these cases must now be applied to Mr. Janikowski’s situation. The complaint in this case does not, at least clearly or by reasonable inference, allege any sort of continuing violation. His termination from the taxation department is the sole event he complains of.

If plaintiff’s continuing violation argument is to hold up, plaintiff’s termination from the tax department, along with defendant’s subsequent refusals to hire plaintiff in any other capacity, must have been part of a policy, pattern, or of on-going discrimination by Bendix Corporation. The Ricks court stated: “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” The focus in a continuing violation action is: “not upon the effects of earlier employment decisions; rather it is whether any present violation exists.” Ricks, 449 U.S. at 258, 101 S.Ct. at 504.

Because plaintiff urges that the time at which the 300-day limitations period commenced was upon his actual termination on November 30, 1981, he must show that the discriminatory practice simply manifested itself when he was notified by the company on September 4,1980, and that the discriminatory policy or practice continued through the subsequent job rejections and up until his actual employment termination from Bendix.

Plaintiff’s continuing violation argument, however, is inconsistent with his own complaint and does not square with existing caselaw. In making the relevant inquiry— whether plaintiff timely filed a charge of a present violation which is part of an ongoing pattern of discrimination — there is a shortcoming to plaintiff’s position.

Plaintiff fails to show that the defendant’s failure to hire him after the September 4,1980 termination notice was part of a discriminatory pattern or continuing violation. In fact, the four separate employment opportunities plaintiff applied for seemed to be exactly that — four isolated and discrete job openings for which he was rejected. Plaintiff has not produced any evidence to even suggest that his subsequent application and rejection from these four positions were other than separate and distinct employment decisions. The uncontradicted evidence shows that plaintiff is attempting to label his September 4, 1980 termination notice a continuing violation without proferring any evidence whatsoever that defendant engaged in a pattern of discrimination or employment practice.

In sum, plaintiff alleges that defendant engaged in continuous discrimination but is unable to provide evidence or show any act or acts of continuing discrimination. The September 4, 1980 oral termination from the taxation department was Bendix’s final word on plaintiff’s employment status unless he was able to secure other employment with the corporation. Although not expressly argued, plaintiff’s implied position is that defendant’s failure to offer him another position or rehire him was a continuing violation. This argument, as noted, has been rejected by other courts. Lawson v. Burlington Industries, 683 F.2d 682, 684 (4th Cir.1982) (“[A]n employer’s failure to recall or rehire does not constitute a continuing violation of the ADEA”); Shultz v. Dempster Systems, Inc., 561 F.Supp. 1230 (E.D.Tenn.1983) (Taylor, C.J.) (citing and relying upon Lawson, supra).

Therefore, plaintiff has failed to show a continuing violation, but rather complains of separate and discrete acts of discrimination. Under these circumstances, plaintiff’s ADEA claim is barred by the 300-day limitations period.

2. State Law Claim

Next, defendant contends that plaintiff’s claim under the Elliott-Larsen Act, MCL § 37.2101 et seq., is barred by the applicable statute of limitations. Both parties agree that the statute of limitations under this act is three years. Vandenhout v. Manchester Plastics, Inc., 43 F.E.P. 826 (E.D.Mich.1982) (Joiner, J.). There is a serious dispute, however, as to when the plaintiff’s cause of action accrued under Elliott-Larsen.

Plaintiff, relying primarily on Department of Civil Rights ex rel. Zlotogura v. City of Muskegon, 100 Mich.App. 557, 298 N.W.2d 760 (1980), argues that his claim accrued on November 30, 1981 which was the date of his actual discharge. Because the present suit was filed on November 28, 1983, the action would have been commenced within the three year limitations period if plaintiff’s argument is accepted. Zlotogura involved a situation in which the plaintiff sought employment from defendant in July of 1973. A younger applicant was hired by defendant on September 5, 1973. Under the Michigan Fair Employment Practices Act, since repealed, plaintiff as an aggrieved claimant was required to file a complaint within 90 days of the alleged discriminatory act. M.C.L. § 423.-307(b). The court held that plaintiffs claim accrued on September 13, 1973 when the new employee actually began work, and not when plaintiff was refused hire. 100 Mich.App. at 560, 298 N.W.2d 760.

In reaching its conclusion, the court in Zlotogura relied on three federal cases which considered this issue: Egelston v. State Univ. College a Genesco, 535 F.2d 752 (2d Cir.1976); Noble v. Univ. of Rochester, 535 F.2d 756 (2d Cir.1976); and the appellate ruling in Ricks v. Delaware State College, supra. The court stated:

The rationale underlying these decisions is that a seemingly final decision may be reconsidered and sometimes reversed and it is not desirable to encourage the initiation of litigation which could preclude the possibility of reconsideration; and more importantly from a practical point of view, a rule which requires an employee actually to cease or begin employment in order to trigger the running of the statutory limitation period serves as a bright guideline for both the courts and the victims of discrimination.
We are persuaded that the rationale of the foregoing cases is applicable with equal validity to cases arising under Michigan’s Fair Employment Practices Act....

100 Mich.App. at 560, 298 N.W.2d 760.

After the Zlotogura decision was rendered, several subsequent court rulings shed doubt on its applicability to the present case. The Third Circuit’s ruling in Ricks, which was relied upon in Zlotogura, was reversed by the United States Supreme Court. As defendant correctly notes, the other two cases relied on in Zlotogura, Egelston and Noble, were “of the same ilk.” Further, the United States Supreme Court issued its opinion in Char-don, supra, one year after Zlotogura. Based on these developments, defendant contends that the underpinnings of the Zlotogura ruling have been “swept away,” and their relevance to the instant case is tenuous at best.

Plaintiff attempts to counter this argument by citing the case of Northville Schools v. Civil Rights Commission, 118 Mich.App. 573, 325 N.W.2d 497 (1982), as reaffirming Zlotogura despite the reversal of the appellate’s court ruling in Ricks. Plaintiff’s reliance on Northville, however, is less than persuasive. In that case, a sex discrimination claim was made under the Michigan Fair Employment Practices Act, M.C.L. § 423.301 et seq. As a point of information, this Act was repealed on March 81, 1977, and the Elliott-Larsen Civil Rights Act, M.C.L. § 37.2101 et seq. was subsequently enacted. The complainant, a teacher, notified her employer that she was pregnant and intended to use her sick leave and personal days for the time she would be missing for the childbirth and recuperation. The school board refused to allow the teacher to do this — and instead offered her a temporary leave of absence without pay, pursuant to school policy. The teacher later challenged the school’s procedure by filing a claim with the Department of Civil Rights. The Court of Appeals noted that since its earlier ruling in Zlotogura, that the Ricks case had been reversed by the Supreme Court. Importantly though, the court stated that Ricks was distinguishable from the Northville case.

The distinction drawn was that in Ricks the college had a policy under which a faculty member who had been denied tenure was not discharged immediately, but given a one year terminal contract. Under these circumstances, the limitation period began to run when tenure was denied, and not when employment was actually terminated. In contrast, the Northville case was distinguished:

Under MCL 423.307(b) [repealed Fair Employment Practices Act], the limitation period began ‘after the alleged act of discrimination.’ It is an act of discrimination which starts the running of the limitation period, not a mere threat to discriminate or an announcement of an intention to discriminate. Here the essence of claimant’s claim is that she was forced to take leave without pay rather than sick leave with pay. The act of discrimination thus occurred at the time when claimant would have been paid for the sick leave days had claimant been permitted to take sick leave with pay.

118 Mich.App. at 579, 325 N.W.2d 497. Based on Northville, therefore, plaintiff asserts that Zlotogura was reaffirmed and that the controlling principle is: “It is an act of discrimination which starts the running of the limitation period, not a mere threat to discriminate or an announcement of an intention to discriminate.” 118 Mich.App. at 579, 325 N.W.2d 497. Plaintiff, in the instant case, argues that the act of discharge on November 30, 1981 was the “act of discrimination” and that since the lawsuit was filed on November 28, 1983, the three year period has not run.

Plaintiff’s argument extends Northville further than the court intended. A crucial distinction is that Northville involved a benefit policy scenario and not an employment termination situation. Therefore, if the Ricks-Chardon rationale is applied to Northville, the discriminatory act would occur when the sick leave policy was announced and all claims based on the policy would accrue at that point. But in North-ville, the court stated that the crucial time is when the policy is actually applied to an individual and not when first announced.

Beyond this distinction between North-ville and the present case, a recent Michigan Court of Appeals ruling is especially important. In Robson v. General Motors Corp., 137 Mich.App. 650, 357 N.W.2d 919 (1984), the court applied the Chardon-Ricks rule in a case arising under one of Michigan’s civil rights laws, the Michigan Handicappers’ Civil Rights Act, M.C.L. § 37.1101 et seq. In Robson, the plaintiff contracted polio as a child and underwent several back operations. In 1965 plaintiff began his employment with General Motors as a test driver. In December of 1978 plaintiff was taken off test driving duties after a routine physical examination. Plaintiff continued in defendant’s employ until February 12, 1982 when he was laid off. Alleging employment discrimination because of his physical handicap, plaintiff filed suit against General Motors on June 14, 1982.

The trial court granted defendant’s motion for accelerated judgment and held that plaintiff’s claim was barred by the applicable statute of limitations. A three year statute of limitations is applied under the handicapper’s act. M.C.L. § 600.5805(8). The crucial date for plaintiff’s claim, according to the trial court, was the time at which plaintiff was removed from his test driving duties and not when terminated, 137 Mich.App. at 653, 357 N.W.2d 919, and therefore the court held plaintiff’s claim was filed too late.

In affirming the trial court’s determination, the Michigan Court of Appeals stated that the limitations period “begins to run with the discriminatory act, not with the employer’s subsequent failure to change its mind.” 137 Mich.App. at 655-56, 357 N.W.2d 919. Accordingly, the court reasoned that any changes in the terms or conditions of plaintiff’s employment after he was- removed as a test driver were “mere consequences of effects” of the defendant’s earlier decision. The court analogized the defendant’s failure to reinstate the plaintiff or change the conditions of his employment to those terminations in Ricks, Chardon, and Evans, supra. Said the court: “Ricks and Chardon show that the limitations period begins to run with the discriminatory act, not with the employer’s subsequent failure to change its mind.” Id. at 655-56, 357 N.W.2d 919.

Because Michigan courts view federal precedent as highly persuasive, the import of Robson is clear. The focus must be on the time of the discriminatory act and not with subsequent refusals of an employer to change a decision it made earlier. The court in Robson stated:

Requests for relief from a prior discriminatory act will not start the limitations period running anew. Equal Employment Opportunity Comm. v. McCall Printing Corp., 633 F.2d 1232, 1237 (6th Cir.1980). A contrary rule would permit a plaintiff to circumvent the statute of limitations and revive a cause of action by merely requesting the employer to undo its past acts.

137 Mich.App. at 656, 357 N.W.2d 919.

As noted supra, the alleged discriminatory act by the defendant in the present ease occurred at the September 4, 1980 meeting with his supervisors. The deposition testimony of plaintiff states that he knew at that time he had been terminated from his position in defendant’s taxation department. Any decision by the defendant not to rehire or transfer plaintiff to another division of its corporation cannot prolong the life of plaintiff’s cause of action. Chardon, 454 U.S. at 8, 102 S.Ct. at 29. The alleged discriminatory act had taken place, plaintiff was fully aware of it, and therefore, the applicable statute of limitations began to run.

Because plaintiff filed his suit on November 28, 1983, more than three years after the discriminatory act, this court must conclude that the statute of limitations has run on the Elliott-Larsen claim.

Plaintiff’s complaint, therefore, must be dismissed as being barred by the applicable statutes of limitations.

IT IS SO ORDERED.

      . In Egelston — the Second Circuit held that the statutory limitation period with a sex discrimination claim began to run when the claimant discontinued her teaching functions and not when she was notified that her contract would be terminated. Additionally, the court noted that the limitations could also be triggered, possibly, when her replacement was hired.
      In Noble — another sex discrimination case, the Second Circuit held that a promotion was not consummated until the employee "took actual command of [his duties] ... and the time limit was not triggered until then” regardless of when the promotion decision was made and the parties advised of such a decision.