Moses v. H.R. Textron10/30/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Rather than accept a demotion by respondent, H.R. Textron, Inc., as of August 16, 1999, William Moses retired, effective September 20, 1999. On August 19, 1999, he filed a charge of constructive discharge and received a right to sue letter from the Department of Fair Employment and Housing (DFEH). Both the DFEH charge and the lawsuit alleged that his discharge had occurred on August 6, 1999. On September 19, 1999, Moses filed his first lawsuit alleging constructive discharge due to age discrimination. (Moses I.) After a defense verdict in that case on November 7, 2000, Moses obtained another right to sue letter and filed the instant action for wrongful demotion on December 13, 2000, attaching the original DFEH charge. Textron successfully moved for summary judgment based on the statute of limitations. (Gov. Code § 12960.) Moses appeals from the summary judgment granted respondents, H.R. Textron, Inc., and its parent company, Textron, Inc. (collectively, Textron). He contends there are triable issues of fact regarding these causes of action. We affirm.
FACTS
Moses began working for Textron in 1960 and eventually became Director of Facilities and Maintenance. On August 6, 1999, six weeks before he was eligible to retire with full benefits, Patricia Archer, Textron's Human Resources Director, informed him that his employment would be terminated unless he discharged "a subordinate employee, who was more than 40 years old." Archer told Moses he would be expected to handle all the functions of the terminated employee in addition to his own. Archer also told him that his position as director was being eliminated and that he would be offered the position of maintenance manager at the same pay. Moses was given 10 days to consider the proposal.
At the time, his salary was in the midrange for his position as director. Although he believed his pay would not be cut if he accepted the proposal, he knew that the position of manager had a much lower salary range and he would not be eligible for any increases in pay. He, like Textron, viewed the offer as a demotion. Moses cleaned out his office during the 10-day period. On August 16, 1999, he refused the offer, told Archer he would resign, and handed her his master keys to the plant, along with a company credit card, his pager, and some petty cash.
Archer suggested that instead of resigning, he take his six weeks of accrued vacation so he could obtain a regular retirement at age 65. Moses withdrew his resignation and provided a written statement accepting Archer's suggestion.
On August 19, 1999, Moses filed an administrative complaint with the DFEH charging that on August 6, 1999, he was constructively discharged on the basis of age discrimination. (See Gov. Code, § 12960 et seq.) DFEH immediately provided a right to sue letter. On September 14, 1999, Moses filed Moses I, alleging that he was constructively discharged due to age discrimination on August 6, 1999. On September 29, 1999, Moses filed a DFEH charge naming the parent company, too.
On October 13, 2000, Textron produced an internal e-mail dated July 22, 1999, apparently from Archer to the vice president of human resources at Textron headquarters, that said Moses "will be offered a lesser position" and that " is salary will be reduced from $103,482 to $83,354, which is the top of the range
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