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PASSER v. AMERICAN CHEM. SOCY.

November 18, 1988

MOSES PASSER, Plaintiff,
v.
AMERICAN CHEMICAL SOCIETY, Defendant



The opinion of the court was delivered by: HARRIS

 STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE.

 Background

 Plaintiff was employed by defendant from some time in 1964 until his termination on January 30, 1987, plaintiff's 70th birthday. At the time of termination, plaintiff's position was Director, Education Division. In late November of 1986, plaintiff had informed defendant that he wished to remain with the organization beyond age 70. Despite his request, he was forced to retire on his birthday. Plaintiff contends that defendant's actions violate the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 626, Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b), and the District of Columbia Human Rights Act, D.C.Code Ann. § 1-2512.

 Plaintiff filed charges of age discrimination with the United States Equal Employment Opportunity Commission (EEOC) and the District of Columbia Office of Human Rights in February 1987. Defendant had scheduled a national meeting to take place in Denver, Colorado, on April 7, 1987. A symposium in plaintiff's honor was to be held at this national meeting. The symposium had been announced approximately six months prior to the national meeting. Distinguished chemists, including plaintiff, were to present papers. On April 5, 1987, defendant informed plaintiff that its Board of Directors had voted to postpone the symposium because of plaintiff's pending age discrimination claims. Plaintiff contends that this action constituted unlawful retaliation under the ADEA and the D.C. Human Rights Act. He further alleges that cancelling the symposium gives rise to a claim of intentional infliction of emotional distress.

 Discussion

 Count One

 Count One of the complaint alleges violations of the ADEA. Section 631 limits the ADEA's application, setting forth several categories of persons who are not covered by the Act. *fn1" Section 631 provides:

 
Nothing in this Chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit . . . which equals . . . at least $44,000.

 29 U.S.C. § 631(c)(1). *fn2" Defendant urges this Court to dismiss the complaint for lack of subject matter jurisdiction because plaintiff has not affirmatively alleged that he falls outside the bona fide executive exemption.

 Defendant's argument stretches the statute and is at odds with federal regulations:

 
Since this provision [the bona fide executive exemption] is an exemption from the non-discrimination requirements of the Act, the burden is on the one seeking to invoke the exemption to show that every element has been clearly and unmistakably met. Moreover, as with other exemptions from the Act, this exemption must be narrowly construed.

 29 C.F.R. § 1625.12(b) (1987). Other courts have recognized that the burden is on defendant to show that a particular employee falls within the exemption. See Colby v. Graniteville Co., 635 F. Supp. 381, 384 (S.D.N.Y. 1986); Whittlesey v. Union Carbide Corp., 567 F. Supp. 1320 (S.D.N.Y. 1983), aff'd, 742 F.2d 724 (2d Cir. 1984). Thus, plaintiff did not need to assert in his complaint that he was not a bona fide ...


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