The opinion of the court was delivered by: LECHNER, JR.
This age discrimination action stems from the closing of a Westinghouse Electric Corporation ("Westinghouse") facility located in Belleville, New Jersey on April 1, 1977. Those employees at the facility who were laid off and not relocated to other Westinghouse facilities were provided with one form of post-employment benefits. Employees with sufficient seniority at Westinghouse were entitled to receive early retirement benefits; others were provided with less valuable "layoff income and benefits" ("LIB"). In this action, the sixty-five former Westinghouse employees who were eligible for, and received, early retirement benefits claim that they should have received both early retirement benefits and LIB. They assert that Westinghouse's policy of providing them with only early retirement benefits constitutes age-based discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. (the "ADEA").
Since at least 1960, Westinghouse has negotiated with representatives of its employees a variety of agreements providing certain benefits to its employees. Since 1960, Westinghouse has provided retirement benefits to eligible employees, and LIB benefits to employees involuntarily terminated by Westinghouse who are not otherwise eligible for early retirement. (Weaver Aff., 7/9/86, paras. 2, 3.) Since 1973, Westinghouse has provided enhanced LIB or early retirement benefits to its employees terminated as a result of a plant closing. (Id., para. 9.)
It appears fifty-nine of the sixty-five plaintiffs in this action were members of the union which negotiated these benefits agreements. (Westinghouse Brief, 11/21/86 at 2.) According to the Westinghouse employee who supervised its benefit plans, Rodrigues,
in 1976 all employees at the Belleville plant were provided with booklets summarizing the benefit plans. (Simone Aff., 11/21/86, para. 2.) It appears that the booklets that were distributed indicated that employees eligible for early retirement benefits would not be eligible for LIB. (Weaver Aff., 7/9/86, Ex. D at 2.)
Early in 1977, Westinghouse determined that the Belleville plant would be closed. Between January and March, 1977, employees were informed of the plant closing at plant-wide meetings and in written notices sent to the employees and posted on bulletin boards at the plant. (Duffy Aff., 7/9/86, Ex. A, B; Dep. Testimony cited to in Westinghouse Brief, 7/9/86, at pp. 19-21, nn. 46-52.) Beginning in January, 1977, Rodrigues began conducting counselling sessions to advise employees about the benefits they would be entitled to receive after the plant closing. Employees who did not have the benefit plan booklets which had been distributed in 1976 were given replacement copies. (Simone Aff., 11/21/86, para. 5.) The last of these plaintiffs were counselled on March 16, 1977.
Westinghouse claims that by March 16, 1977, at the latest, all of these plaintiffs knew they would be entitled only to early retirement benefits and not LIB benefits.
The Belleville plant closed as scheduled on April 1, 1977. All but six of the plaintiffs in this action had actually ceased working at the plant by that date. The last plaintiff-employee to actually work at the plant ceased working on June 16, 1977. Most of the plaintiffs were deemed to have retired on May 1, 1977 and they began receiving their post-employment benefits on that date. The last plaintiff was deemed to have retired on August 1, 1977, at which time he began to receive his benefits. (Westinghouse Appendix, 11/21/86, pp. 1-3.) The post-employment benefit checks plaintiffs received included amounts only for early retirement.
Determining the accrual date of a discrimination cause of action is not necessarily a simple task. In Delaware State College v. Ricks, 449 U.S. 250, 258, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980), the Supreme Court held that a discrimination cause of action accrues on the date the allegedly discriminatory action is taken and made known to the alleged victim: "In sum, the only alleged discrimination occurred -- and the filing limitations period therefore commenced -- at the time the [allegedly discriminatory] tenure decision was made and communicated to [the victim]." The issue may be somewhat more complicated in actions such as the one at bar, where there are numerous victims of an allegedly discriminatory policy; there may be some uncertainty as to when or whether the victims became aware of the policy.
The Court of Appeals for the Third Circuit has already had an opportunity to comment on the "accrual problem" in this case. Equal Employment Opportunity Comm'n v. Westinghouse Electric Corp., 725 F.2d 211, 218-20 (3d Cir. 1983), cert. denied, 469 U.S. 820, 83 L. Ed. 2d 38, 105 S. Ct. 92 (1984). Having analyzed the Ricks decision, the Third Circuit approached the accrual problem in this action from the standpoint of determining whether all of the plaintiffs were made aware of the allegedly discriminatory policy during their individualized counselling sessions: "We must determine whether the statute of limitations began to run when the employees were 'counselled' or when they were laid-off because of the plant closing." Id. at 218. And even if the employees were so informed, the Third Circuit suggested that their collective cause of action could not have accrued until the plant closing date:
After the formal promulgation of the policy, the specific instances of discrimination alleged are the application of this policy of denying LIB to each of these individual employees at the time of the plant closing. These specific instances occurred when the ...