Petition — Dresser Industries, Inc. v. Bonham
Supreme Court brief1978
Ask Donna
What actually matters in this document.
Text
|| “FILED Jf
FILED
MAY 1 1978
a MICHAEL BODAK. JR., CLERK
IN THE
Supreme Court of the United States
Ocroser TERM, 1977
No. x = 156%
DRESSER INDUSTRIES, INC.,
Petitioner
Vv.
EMRA JOSEPH BONHAM,
Respondent
PeTITION For Wart or CERTIORARI
To Tue Unirep States Court or APPEALS
For THe THirp Crracurr
AND
APPENDICES
DONALD E. SEYMouR
KIRKPATRICK, LOCKHART,
* JOHNSON & HUTCHISON
1500 Oliver Building
Pittsburgh, Pa. 15222
Counsel for Petitioner,
Dresser Industries, Inc.
Financial Press Corporation, Pittsburgh
Se
TABLE OF CONTENTS
Page
EEE l
GUTS wei cccccesdcccccccesvccsce l
sn ys er 2
EEE wc Ghcccakducccdcescccceces 2
SEATEMEINL OF THE CASE ......ccccccccccccses 3
REASONS FOR GRANTING THE WRIT........... 5
EE 8
Appendix A—Opinion of the District Court for the
Western District of Pennsylvania ...... la
Appendix B— Opinion of the Third Circuit Court of
EE ee 22a
Appendix C—Order of the Third Circuit Court of Ap-
peals Denying Petition for Rehearing .. 37a
Appendix D—Certificate of Service ................ 38a
TABLE OF CITATIONS
Cases
Page
Caminetti v. U.S., 242 U.S. 470 (1917) ............... 7
Clark v. West Chemical Products, Inc.,
rr 5
Dartt v. Shell Oil Company, 539 F. 2d 1256
(10th Cir. 1976), aff'd per curiam by an
equally divided court, 46 U.S.L.W. 4021
Ne ccc ccsoccccs 5, 6
Edwards v. Kaiser Aluminum & Chemical Sales,
ine., SIS F. Sd 1105 (Sth Cir. 1975) .............. 5
Eklund v. Lubrizol Corp., 529 F. 2d 247
ccc cecccecs 5
Electrical Workers v. Robbins & Meyers, Inc.,
I a aascocccncvcccccsccccsccs 8
‘i
Page
Ex Parte Collett, 337 U.S. SB (1948) .. 0c cccccccccess 7
Goger v. H. K. Porter Company, Inc.,
Gs ee I, OTE, Chicks Kev cicvaciccces 5
Hinton v. CPC International, Inc., 520 F.2d 1312
Sea) MC rs 534 5 oaks oot ee cekheuseb) none 5,7
Hiscott v. General Electric Co., 521 F.2d 632
ee EE ee a erat ee vada vcssetavas 5
McDonnel Douglas Corp. v. Green,
ee Ore CE ho os b.dodn Dhaceawesccsnct ed 8
McGarvey v. Merck and Co., Inc., No. 73-1558
Gee MA, EE NOUN acc ec kcccascccsace 5
Moses v. Falstaff Brewing Corp., 525 F.2d 92
ae ecu gaccweeseknwooceaes 5
Ott v. Midland-Ross Corp., 523 F.2d 1367
Se Cee ee ce ced hasseeens 5
Powell v. Southwestern Bell Telephone Co.,
ee ef Le a | ee 5
Rogers v. Exxon Research & Engineering Co.,
ee et te I ITD Sic ccs ceccdanesectses §
STATUTES
Age Discrimination in Employment Act,
et ss SE WER Lad ab an bee cence passim
OTHER AUTHORITIES
Beer GE, GE, I, I Ghee de ckbacidceseteesss 7
IN THE ]
Supreme Court of the United States
October Term, 1977
No.
DRESSER INDUSTRIES, INC.,
Petitioner
v.
EMRA JOSEPH BONHAM,
Respondent
PETITION For Wait oF CERTIORARI
To THe UNitep STATES Court oF APPEALS
For THe Tuirp Circuit
Petitioner, Dresser Industries, Inc., respectfully prays
that a writ of certiorari issue to review the judgment of the
United States Court of Appeals for the Third Circuit entered
in this proceeding on December 27, 1977.
OPINIONS BELOW
The opinion of the United States District Court for the
Western District of Pennsylvania is printed in Appendix A
hereto and is reported at 424 F. Supp. 891. The opinion of the
United States Court of Appeals for the Third Circuit is
printed in Appendix B hereto and is reported at 569 F.2d 187.
JURISDICTION
The judgment of the United States Court of Appeals for
the Third Circuit was entered on December 27, 1977. A
IIE SEE SET OE | RET
2 Question Presented &
Statute Involved
timely Petition for Rehearing was denied on February 1,
1978. The jurisdiction of this Court is invoked under 28
U.S.C. §1254(1).
QUESTION PRESENTED
Whether timely compliance with the notice-of-intent-
to-sue requirement [29 U.S.C. §626(d)] is a jurisdictional
prerequisite to a civil action under the Age Discrimination in
Employment Act (29 U.S.C. §621 et seq.).
STATUTE INVOLVED
This case involves the interpretation and application of
the Age Discrimination in Employment Act, 29 U.S.C. §621
et seq. The text of the pertinent portion of that statute [29
U.S.C. §626(d)] is set forth below:
“(d) No civil action may be commenced by any
individual under this section until the individual has
given the Secretary not less than sixty days’ notice of an
intent to file such action. Such notice shall be filed—
(1) within one hundred and eighty days after
the alleged unlawful practice occurred, or
(2) in a case to which section 633(b) of this title
applies, within three hundred days after the alleged
unlawful practice occurred or within thirty days
after receipt by the individual of notice of
termination of proceedings under State law,
whichever is earlier.
Upon receiving a notice of intent to sue, the Secretary
shall promptly notify all persons named therein as
prospective defendants in the action and shall promptly
seek to eliminate any alleged unlawful practice by
informal methods of conciliation, conference and
persuasion.”
ee
Statement of the Case 3
STATEMENT OF THE CASE
Respondent Emra Joseph Bonham (“Bonham”) filed an
action on August 20, 1976 in the United States District Court
for the Western District of Pennsylvania against his former
employer, a division of Dresser Industries, Inc. (“Dresser”).
In Count One! of his Complaint, Bonham alleged that the
termination of his employment as Manager—Factory
Accounting of Harbison-Walker Refractories, Division of
Dresser Industries, Inc. at the age of 46 violated the Age
Discrimination in Employment Act, 29 U.S.C. $621, et seq.
(the “Act”). Federal question jurisdiction was alleged under
the Act.
Dresser moved to dismiss Count One on the grounds
that the district court lacked subject matter jurisdiction
because of Bonham’s failure to file timely charges with both
the federal and the Pennsylvania authorities under the Act's
notice-of-intent-to-sue requirements. The district court,
treating Dressers motion as a motion for summary
judgment, granted the motion. Bonham appealed to the
United States Circuit Court of Appeals for the Third Circuit,
which reversed the granting of the summary judgment on
Count One, holding that the notice-of-intent-to-sue re-
quirements found in the Act were not “jurisdictional” but
rather were in the nature of a statute of limitations.
The district court had determined that Bonham’s
employment with Dresser was termins*ted on October 31,
1975 and the court of appeals affirmed that determination. It
is admitted by Bonham in his Complaint that his “statutory
notices” to the federal and Pennsylvania authorities were not
mailed until June 16, 1976, some 229 days after his
termination.
'The issue presented to this Court involves only Count One of the
Complaint.
* aR TT Ne NT Tenn Re Se URES SESE TOTES ea
4 Statement of the Case
The Act imposes upon private litigants certain
procedural requirements, including the requirement found
at 29 U.S.C. §626(d)(1) that a notice-of-intent-to-sue be
served upon the Secretary of Labor or his designee “within
one hundred and eighty days after the alleged unlawful
practice occurred....”2 Thus, Bonham failed to comply
with that procedural requirement. However, the Third
Circuit Court of Appeals held that such failure would not
“necessarily” foreclose Bonham’s action, unless “the 180-day
requirement is viewed as strictly ‘jurisdictional’ and not
subject to tolling or similar equitable modifications.” The
circuit court then held that the 180-day notice requirement is
not jurisdictional, but rather is in the nature of a statute of .
limitations. Accordingly, Count One was remanded to the
district court to determine whether or not facts existed to
justify a tolling of the 180-day notice requirement or an
equitable modification thereof .*
The instant Petition for Writ of Certiorari is filed in
order to present to this Court the question of whether or not
the aforesaid notice requirement is jurisdictional.
“The act also imposes a procedura’ quirement of notification to
state authorities, if applicable. 29 U.S.C. §633(b). However, because of
the nature of the holding in the court below, Bonham’s failure to meet that
requirement is not relevant to the issue presented to this Court.
‘The circuit court held this to be a question of fact “which must be
determined by the district court in the first instance”. Bonham had
claimed (i) that he was unaware of his rights under the Act and never saw
the required statutory notice posted on the premises; and (ii) that he had
written a letter to the President of Dresser in Dallas, Texas, requesting a
position on the “headquarters staff’, to which the President had
responded by declining the suggestion but telling Bonham that an aide
would be in contact with him if there were other opportunities at Dresser.
ee ne
Reasons for Granting the Writ 5)
REASONS FOR GRANTING THE WRIT
I. THE DECISION BELOW OF THE Tii 8D CIR-
CUIT COURT OF APPEALS IS IN CONFLICT
WITH DECISIONS OF OTHER COURTS OF
APPEALS ON THE SAME ISSUE.
In holding that the notice requirement is not jurisdic-
tional, the court below relied upon the decision of the Tenth
Circuit Court of Appeals in Dartt v. Shell Oil Company, 539
F.2d 1256 (10th Cir. 1976), aff'd per curiam by an equally
divided court, 46 U.S.L.W. 4021 (U.S. Nov. 29, 1977).
However, every other circuit ruling on the issue has found
timely compliance with §626(d) to be a jurisdictionai
prerequisite to the maintenance of a private action under the
Act. FIFTH CIRCUIT: Clark v. West Chemical Products,
Inc., 557 F.2d 1155 (Sth Cir. 1977); Edwards v. Kaiser
Aluminum & Chemical Sales, Inc., 515 F.2d 1195 (5th Cir.
1975); and Powell v. Southwestern Bell Telephone Co., 494
F.2d 485 (5th Cir. 1974). SIXTH CIRCUIT: Eklund v.
Lubrizol Corp., 529 F.2d 247 (6th Cir. 1976); Ott v. Midland-
Ross Corp., 523 F.2d 1367 (6th Cir. 1975); and Hiscott v.
General Electric Co., 521 F.2d 632 (6th Cir. 1975). EIGHTH
CIRCUIT: Moses v. Falstaff Brewing Corp., 525 F.2d 92
(8th Cir. 1975); Cf. Hinton v. CPC International, Inc., 520
F.2d 1312 (8th Cir. 1975).
Indeed, prior to its decision in the instant case, the Third
Circuit Court of Appeals had stated in at least three cases
that the §626(d) notice requirement was jurisdictional.
Rogers v. Exxon Research & Engineering Co., 550 F.2d 834
(3d Cir. 1977); Goger v. H. K. Porter Company, Inc., 492
F.2d 13 (3d Cir. 1974); and McGarvey v. Merck and Co.,
Inc., No. 73-1558 (3d Cir., filed Mar. 12, 1974).
6 Reasons for Granting the Writ
Il. THE QUESTION OF FEDERAL LAW PRE-
SENTED IS EXTREMELY IMPORTANT IN THE
LITIGATION OF CASES ARISING UNDER THE
AGE DISCRIMINATION IN EMPLOYMENT ACT
AND HAS NOT BEEN, BUT SHOULD BE,
SETTLED BY THIS COURT.
Federal courts and attorneys practicing in the age
discrimination area are well aware of the volume of cases
arising under the Act which have posed procedural
questions for resolution by the courts. The question of
whether or not the procedural prerequisites to a civil action
under the Act are jurisdictional is fundamental to most of
those cases. The issue has been before courts of appeals at
least twelve times (see supra) and district courts on occasions
so innumerable that they defy brief citation here. Yet the
conflict remains among the courts of appeals, and it has not
yet been settled by this Court. The issue was before this
Court in the Dartt case, but remained undecided by an
equally divided court, with Mr. Justice Stewart taking no
part in the consideration or decision of the case. 46 U.S.L.W.
4021 (U.S. Nov. 29, 1977).
lil. THE DECISION BELOW OF THE THIRD CIR-
CUIT COURT OF APPEALS IS BELIEVED TO BE
ERRONEOUS AND THE CONFLICTING
DECISIONS OF THE OTHER COURTS OF
APPEALS REFERENCED ABOVE ARE BELIEV-
ED TO BE CORRECT.
The language of the Act, its legislative history, and legal
precedent all mandate a conclusion that the notice require-
ment of §626(d) is jurisdictional and, thus, that failure to file
such a timely notice is fatal to the action. Unlike a statute of
limitations, which can be subject to toliing, waiver and other
equitable considerations, a jurisdictional defect cannot be
Reasons for Granting the Writ 7
waived, nor can it be cured even with consent of the parties.
Cf. Hinton v. CPC International, Inc., 520 F.2d 1312 (8th Cir.
1975). If a jurisdictional prerequisite is not met, an essential
condition of liability is lacking and the court is deprived of
subject matter jurisdiction.
Congress clearly indicated that timely compliance with
§626(d) was jurisdictional when it stated that “No civil action
may be commenced” unless the notice requirement of the
section was met and when it referred to the requirement as a
“condition precedent” to the maintenance of a private civil
action. 113 Cong. Rec. 31250, 34748. When statutory
language is clear and unambiguous, it must be held to mean
what it plainly says, because such clear statutory language is
the best evidence of what the Congress intended. Caminetti
v. U.S., 242 U.S. 470 (1917). Here the statute clearly requires
that the “notice of intent to file such action ... shall be filed
within one hundred and eighty days .
Although it is not necessary to refer to legislative history,
because the statutory language of §626(d) is conclusive [Ex
Parte Collett 33) U.S. 55, 61 (1949)], an examination of the
legislative history supports the conclusion that timely
compliance with its requirements is a jurisdictional prere-
quisite to suit. The 180-day requirement originally appeared
in the Senate bill, was deleted by the House, restored by the
Senate, and finally accepted by the House. Thus, Congress
attached significance to the requirement, enacting only one
limited exception to it, allowing an extension for 120 days
where an individual first sought relief from a state agency
which enforced an age discrimination law. 29 U.S.C.
§626(d)(2).4 There were numerous legitimate reasons for
Congress to have so circumscribed the private right of
‘The courts below each held that Bonham could not invoke the
extended 300-day period because of his failure to make a timely filing with
the Pennsylvania Human Relations Commission.
8 Conclusion
action, including encouragement of case settlements and
provision for administrative remedies through the Depart-
ment of Labor.
In the analogous setting of a Title VII case in which the
employee-plaintiff urged the allowance of a “slight delay”
beyond the statutory notice period, this Court stated:
“But the principal answer to this contention is that
Congress has already spoken with respect to what it
considers acceptable delay when it established a 90-day
limitations period, and gave no indication that it
considered a ‘slight’ delay ... equally acceptable. In
defining Title VII's jurisdictional prerequisites ‘with
precision’ [citation omitted], Congress did not leave to
courts the decision as to which delays might or might
not be ‘slight’”. Electrical Workers v. Robbins & Myers,
Inc., 429 U.S. 229, 240 (1976) (emphasis added).
This Court also referred to the analogous Title VII
procedural prerequisites as jurisdictional in the case of
McDonnel Douglas Corp. v. Green, 411 U.S. 792, 798 (1973).
CONCLUSION
For the reasons set forth above, it is respectfully
submitted that this petition for a writ of certiorari should be
granted.
DoNaALp E. SEYMOUR
KIRKPATRICK, LOCKHART,
JOHNSON & HUTCHISON
1500 Oliver Building
Pittsburgh, Pennsylvania 15222
Counsel for Petitioner,
Dresser Industries, Inc.
ee
Appendix A la
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EMRA JOSEPH BONHAM, 7 7
Plaintiff
VS.
Civil Action
DRESSER INDUSTRIES, INC. No. 76-1067
a corporation,
Defendant
4
OPINION
Barron P. McCune, District Judge
December 28, 1976.
This action arises under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §621, et seq. (the Act)
and concerns an act of alleged age discrimination by the
defendant, Dresser Industries, Inc. (Dresser), against
plaintiff, a former employee. Plaintiff has filed a two-count
complaint, alleging in Count I a violation of the Act and
basing jurisdiction upon §626(c)' of the Act and 28 U.S.C.
§1331. In Count II, plaintiff alleges a breach of an
employment contract under Pennsylvania law, said to arise
out of the same factual background as Count I, invoking this
court’s diversity jurisdiction. Presently before this court is
the defendant's motion to dismiss both counts of plaintiff's
complaint pursuant to Rules 12(b)(1) and 12(b)(6) respec-
tively of the Federal Rules of Civil Procedure.
'Section 626(c) provides as follows:
“(c) Any person aggrieved may bring a civil action in any court of
competent jurisdiction for such legal or equitable relief as will
effectuate the purposes of this chapter: Provided, That the right of
any person to bring such action shall terminate upon the commence-
ment of an action by the Secretary to enforce the right of such
employee under this chapter.”
2a Appendix A
The pertinent facts which comprise the basis for
plaintiff's complaint may be briefly summarized. Plaintiff, a
Pennsylvania resident, began his employment with the
defendant? on March 18, 1968,° as a manager of profit
planning in Dresser’s Pittsburgh office. By April of 1974,
plaintiff had attained the title of “Manager-Factory
Accounting” and remained in this position until his discharge
in 1975.
The actual date of plaintiff's discharge, however, has
not been agreed upon by the parties. On the one hand,
plaintiff contends that his employment with Dresser was
“wrongfully and unlawfully terminated because of his age
and for no other just cause” on December 31, 1975.4 On the
other hand, Dresser contends that plaintiff's ernployment
was terminated on October 31, 1975.5 because “his work
performance was not up to the standards of the job®.” Atany
rate, plaintifff was 46 years of age at the time of Dresser’s
alleged discriminatory action.”
Subsequent to October 31, 1975, plaintiff continued to
receive regular bi-monthly paychecks throughout
November and December of 1975. The last paycheck he
‘It should be noted that plaintiff was employed in the Harbison-
Walker Refractories, a division of Dresser Industries, Inc. As alleged in
plaintiff's Complaint, paragraph 2, Dresser is a Delaware corporation,
with its principal place of business in Dallas, Texas.
‘See plaintiff's Complaint, paragraph 4, and the Affidavit of Louis J.
Reeg, Jr. (Vice President-Industrial Relations of Harbison-Walker Re-
fractories, Division of Dresser Industries, Inc.) in Support of Dressers
Motion to Dismiss Plaintiff's Complaint, Affidavit Exhibit “A”, paragraph
3.
‘See plaintiff's Complaint, paragraphs 5 and 11, and plaintiff's
arguments in support of this date, to be presented, infra.
‘See affidavit of Louis J. Reeg, Jr., supra, paragraphs 4-8, and
Affidavit Exhibit “A” attached thereto.
*Id., Affidavit Exhibit “B.”
‘Plaintiff's date of birth is January 3, 1929.
Appendix A 3a
received, dated December 31, 1975%, included a vacation
payment to January 15, 1976. On January 13, 1976, plaintiff
received a letter from Dresser which advised him of his
rights under Dresser’s Retirement Income Plan. The
calculations pertinent to that plan were based on a
termination date of December 31, 1975.9 On January 15,
1976, plaintiff communicated with John V. James, President
and Chief Executive Officer of Dresser Industries, Inc..,
regarding the possibilities of employment in another
division of Dresser. His re-employment was denied by
Dresser in communications dated January 19, 1976, and
February 18, 1976.'°
Thereafter, plaintiff went to Florida in an effort to find
employment and returned to Pennsylvania in April of 1976.
Plaintiff claims that it was at this time that he first became
aware of his potential rights under the Act,!! and consulted
counsel in Butler, Pennsylvania. Then, on June 15, 1976,
plaintiff consulted his present counsel who sent the required
statutory notices by certified mail on June 16, 1976, to John
O'Brien, Area Director for the United States Department of
Labor,'* and to the Pennsylvania Human Relations Commis-
sion.'* These letters were received by the respective
agencies on June 18, 1976. Subsequently, on August 20, 1976.
plaintiff commenced this suit.
I. The Act
The Age Discrimination in Employment Act was
enacted in 1967 for the express purpose of promoting
‘See Plaintiff's Affidavit, paragraph 2, and Exh. “A” attached thereto.
‘Id., paragraph 3, and Exh. “B” attached thereto.
"Id., paragraph 5, and Exhibits “D” and “E” attached thereto.
'Id., paragraph 6.
'"Id., Exhibit “F”.
"Id., Exhibit °G”.
4a Appendix A
“employment of . !der persons based on their ability rather
than age,” and prohibiting “arbitrary age discrimination in
employment.” 29 U.S.C. §621(b); Burgett v. Cudahy
Company, 361 F. Supp. 617, 620 (D. Kan. 1973). The
provisions of the Act were intended to cover employers,'*
employment agencies and labor organizations, 29 U.S.C.
§623, and the prohibitions set forth in the Act are limited to
individuals between the ages of 40 and 65 years of age, 29
U.S.C. §631. Exempted from the proscriptions of the Act are
those discharges based on “good cause,” 29 U.S.C.
§623(f)(3).'°
Although the primary responsibility for the enforce-
ment of the Act is vested with the Secretary of Labor, the Act
does permit an aggrieved individual to commence a civil
action for legal or equitable relief, 29 U.S.C. §626(c).
However, such an action by an individual is subject to strict
procedural requirements which are set forth in 29 U.S.C.
§626(d).'*
Under §626(d), an individual is required to file a notice
of intent to sue with the Secretary within 180 days after the
alleged discriminatory act occurred. Then, §626(d) requires
that the plaintiff wait sixty days following the notice of intent
The term, “employer,” is defined at 29 U.S.C. §630(b).
See footnote 6, supra.
‘Section 626(d) reads as follows, in pertinent part:
“(d) No civil action may be commenced by any individual under this
section until the individual has given the Secretary not less than sixty
days’ notice of an intent to file such action. Such notice shall be filed—
(1) within one hundred and eighty days after the alleged
unlawful practice occurred, or (2) in a case to which section
633(b) of this title applies, within three hundred days after the
alleged unlawful practice occurred or within thirty days after
receipt by the individual of notice of termination of proceedings
under State law, whichever is earlier.”
Appendix A 5a
to sue before commencing suit. Mizuguchi v. Molokai
Electric Company, 411 F. Supp. 590, 593 (D. Hawaii 1976).
However, §626(d) further provides that if §633(b)'" applies,
the requisite notice of intent to sue must be filed within 300
days after the alleged discriminatory act occurred, or within
30 days after the receipt of notice of termination of state
proceedings.
The act of alleged age discrimination took place in
Pennsylvania. Pennsylvania is a State which has a law
prohibiting age discrimination in employment!> and es-
tablishing a State authority to grant or seek relief from such
discrimination.'® Pennsylvania law further requires that:
“...Any complaint filed pursuant to this section must
be so filed within ninety days after the alleged act of
discrimination. ...” (emphasis supplied) .”
Section-633(b) reads as follows, in pertinent part:
“(b) In the case of an alleged unlawful practice occurring in a State
which has a law prohibiting discrimination in employment because of
age and establishing or authorizing a State authority to grant or seek
relief from such discriminatory practice, no suit may be brought
under Section 626 of this title before the expiration of sixty days after
proceedings have been commenced under the State law, unless such
proceedings have been earlier terminated. . . .”
Section 955 of the Pennsylvania Human Relations Act, 43 P.S. $951,
et seq., prohibits discrimination in employment because of age $955 reads
as follows, in pertinent part:
“9955. Unlawful discriminatory practices
It shall be an unlawful discriminatory practice, ...
(a) For any employer because of the...age...of any
individual) to refuse to hire or employ, or to bar or to discharge
from employment such individual or to otherwise discriminate
against such individual with respect to compensation, hire,
tenure, terms, conditions or privileges of employment, if the
individual is the best able and most competent to perform the
services required... .”
‘43 P.S. §956 which establishes the Pennsylvania Human Rights
Commission.
“43 PLS. $959.
6a Appendix A
Thus, there are three limitations periods relevant to the
instant action: (1) the 180-day period for filing a notice of
intent to sue with the Secretary under §626(d)(1); (2) the 300-
day period for filing a notice of intent to sue with the
Secretary, if §633(b) applies, under §626(d)(2); and (3) the
90-day state period for filing a complaint with the
Pennsylvania Human Rights Commission under 43 P.S. §959.
Il. Jurisdiction
A. The Date of the “alleged unlawful practice,” i.e., the
Date of Termination of Plaintiff's Employment.
The threshold question which this court must decide is
when the “alleged unlawful practice occurred,” i.e.. on
October 31, 1975, as the Defendant contends. or on
December 31, 1975, as the plaintiff contends.2' This
determination is essential to our finding of whether plaintiff
timely filed his notice of an intent to sue under the Act and
Pennsylvania law. We will deal with the defendant's
arguments in support of its contention first.
In support of Dresser’s contention that October 31.
1975, was the date when the “alleged unlawful practice
*'Since the defendant has moved to dismiss Count I of plaintiff's
complaint for lack of jurisdiction over the subject matter pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure and both parties have
submitted affidavits upon which this court relies, defendant's motion to
dismiss will be treated as one for summary judgment. See F.R.C_P. 12(b);
Doski v. M. Goldseker Co., 10 E.P.D. $10, 582, at p. 6404 (D. Md. 1975);
A. & M. Gregos, Inc. v. Robertory, 384 F. Supp. 187, 193 n.16 (E.D. Pa.
1974).
Likewise, defendant's motion to dismiss Count IL of plaintiff's
Complaint, infra., for failure to state a claim upon which relief can be
granted pursuant to Rule 12(b) (6) of The Federal Rules of Civil Procedure
will be treated as a motion for summary judgment in view of the filing of
affidavits by both parties. See: Burke & Van Heusen, Inc. v. Arrow Drug,
Inc., 233 F. Supp. 881, 882 (E.D. Pa. 1964).
Appendix A 7a
occurred,"* Dresser relies upon the Affidavit of Louis J.
Reeg, Jr.,** which reveals that the following “occurred” on
that date: (1) plaintiff's employment with Dresser was
involuntarily terminated; (2) plaintiff was informed of said
termination; (3) plaintiff never worked for Dresser subse-
quent to that date; and (4) plaintiff's employment was
“officially” terminated for purposes of Dresser’s personnel
records and plaintiff's subsequent unemployment compen-
sation application.
In response, plaintiff relies upon his own Affidavit and
accompanying documents in support of his contention that
December 31, 1975, is the effective date under the Act.
These documents reveal that: (1) plaintiff continued to
receive bi-monthly paychecks through December 31, 1975:
(2) his rights under Dresser’s Retirement Income Plan were
based on a termination date of December 31, 1975: and (3)
his Group: Life Insurance remained in effect through
December 31, 1975.
With regard to plaintiff's receipt of regular paychecks
through December 31, 1975, Dresser argues that such
payments merely represented severance pay equivalent to
what his salary would have been through December 31.
1975, and, therefore, such payments do not establish that the
“unlawful practice occurred” on the date plaintiff received
“It should be noted at this point that nowhere within the Act is the
term, “unlawful practice,” defined so as to indicate what factors may be
considered in determining what constitutes such a practice. Further, our
research reveals only one case to date, Moses v. Falstaff Brewing
Corporation, 525 F.2d 92 (8th Cir. 1975), which discusses this issue under
the Act. Therefore, our determination presents an issue of first impression
in this Circuit.
“See footnotes 5 and 6, supra. Further, Dresser, in its brief, at page 5,
argues that Reeg’s Affidavit is uncontested. We disagree in light of
plaintiff's submitted affidavit. See: Smiley v. Gemini Investment
Corporation, 333 F. Supp. 1047 (W.D. Pa. 1971).
8a Appendix A
his last severance payment, i.e., December 31, 1975. On the
contrary, Dresser argues, relying upon Doski v. M.
Goldseker Co., supra, n.21, and Olson v. Rembrandt
Printing Co., 511 F.2d 1228, 1234 (8th Cir. 1975), that the
“unlawful practice”, if any, occurs on the date of the actual
discharge even though plaintiff may receive severance
payments thereafter. We agree. Although both Doski and
Olson deal with alleged sex discrimination in employment
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e et seq., and both considered the issue of whether
discrimination alleged by a former employer can constitute
a “continuing” violation so as to toll the similar notice
provisions of that Act, we find both courts’ reasoning
regarding when a “discharge” actually occurs to be
persuasive in light of the definition of a “discharge” set forth
in In Re Public Ledger, Inc.,63 F.Supp. 1008, 1015 (E.D. Pa.
1945), rev'd 161 F.2d 762 (3d Cir. 1947):
“...To discharge an employee is to remove him
temporarily or permanently from employment... .In
order that there be a discharge by the employer, there
must be some affirmative action taken by the employer.
There must be some conduct on the part of the
employer, indicating that he will no longer be bound by
the contract of employment. ...There must also be an
intention on the part of the employer to abrogate the
contract, and there must be some communication of
that intent by word or act to the employee.”
See also: Fredericks v. Georgia-Pacific Corporation, 331 F.
Supp. 422, 428-29 (E.D. Pa. 1971).
We believe that plaintiff's “discharge” occurred on
October 31, 1975, since Dresser orally communicated this
fact to plaintiff on that date, plaintiff never performed
further services for Dresser subsequent to that date, and
plaintiff's personnel record and unemployment compensa-
tion application both listed that date as the “official” date of
Appendix A 9a
termination for Dresser’s administrative purposes. The mere
fact that plaintiff received severance pay until December 31,
1975, and pension benefits and life insurance were
calculated through December 31, 1975, does not affect, in
our opinion, the actual date when plaintiff's services were
terminated by Dresser and he was effectively “discharged”
from his employment. See: Davis v. RJR Foods, Inc., 420 F.
Supp. 930, 931 n.1 (S.D. N.Y. 1976).
Although not cited in plaintiff's brief, our research
indicates only one case that discusses this issue and lends
support to plaintiff's position, Moses v. Falstaff Brewing
Corporation, supra, n.22. This court is, of course, not bound
by the decision of the Eighth Circuit. However, we believe |
that our opinion is in accordance with the holding in that
case.*4
“The facts presented in Moses v. Falstaff Brewing Corporation,
supra, are somewhat similar to the facts presented here.
There, Falstaff advised plaintiff of her discharge from employment
on November 12, 1973. Plaintiff did not perform further services for
Falstaff subsequent to November 16, 1973. However, plaintiff was
officially terminated by Falstaff, for administrative purposes on
November 30, 1973, and was paid, apparently for accrued vacation time,
through this date. Plaintiff filed a written notice of her intent to file suit
with the Secretary of Labor on May 24, 1974.
Falstaff contended that November 12, when plaintiff was advised
that she no longer had a job, or November 16, her last day of work, were
the dates when plaintiff was “discharged”. The acceptance of either date
would have constituted untimely notice under the Act. Plaintiff, on the
other hand, contended that November 30 was the effective date since her
employment was terminated on that date for Falstaff's administrative
purposes. Such date provided timely notice.
The issue presented was on which date did the “alleged unlawful
practice” under the Act occur.
The court held that November 30 was the “crucial date” and.
therefore, plaintiff fully complied with the Act's notice requirements. 525
F.2d at pages 34-95.
Our conclusion is in accordance with the Eighth Circuit's holding
since here all of the above actions “occurred” on one day, October 31,
1975.
10a Appendix A
Therefore, we hold that the “alleged unlawful practice,”
29 U.S.C. §626(d), occurred on October 31, 1975. and the
statutory time periods begin to run from that date.
B. Plaintifj’s Alleged Failure to Comply with the
Statutory Requirements of 29 U.S.C. §§626(d) and 633(b),
and 43 P.S. §959.
Since we have concluded that the “alleged unlawful
practice,” i.e., plaintiff's discharge, occurred on October 31,
1975, we next turn to Dresser’s contention that since plaintiff
did not file the required notice of intent to sue with the
Secretary within 180 days after the alleged unlawful practice
occurred,”° plaintiff's complaint must be dismissed.
We are aware of the great weight of authority which
supports Dresser’s contention, and recognize that other
district and circuit courts have uniformly held that the 180-
day notice requirement of 29 U.S.C. §626(d)(1) is a
jurisdictional prerequisite to filing an action under the Act.2°
*As Dresser points out in its brief, page 6, plaintiff's letter to the U.S.
Department of Labor, dated June 16, 1976, was mailed 229 days after the
October 31, 1975 discharge date.
“Fourth Circuit: Raynor v. Great Atlantic & Pacific Tea Company,
Inc., 400 F. Supp. 357 (E.D. Va. 1975); Fifth Circuit: Edwards v. Kaiser
Aluminum Chemical Sales, Inc., 515 F.2d 1195, 1199 (Sth Cir. 1975);
Powell v. Southwestern Bell Telephone Company, 494 F.2d 485 488 (5th
Cir. 1974), reh. den. 498 F.2d 1402 (5th Cir. 1974); Brohl v. Singer
Company, 407 F. Supp. 936, 938 (M.D. Fla. 1976); Cochran v. Ortho
Pharmaceutical Company, 376 F. Supp. 302, 303 (E.D. La. 1971): Sixth
Circuit: Eklund v. Lubrizol Corp., 529 F.2d 247, 249 (6th Cir. 1976):
Rucker v. Great Scott Supermarkets, 528 F .2d 393, 394 (6th Cir. 1976); O¢t
v. Midland-Ross Corporation, 523 F.2d 1367, 1370 (6th Cir. 1975); Hiscott
v. General Electric Company, 521 F.2d 632, 633,34 (6th Cir. 1975); Ninth
Circuit: Oshiro v. Pan American World Airways, Inc., 378 F. Supp. 80, 82
(D. Hawaii, 1974); Tenth Circuit: Law v. United Air Lines, Inc., 519 F.2d
170 (10th Cir. 1975).
Cf., Dartt v. Shell Oil Company, 539 F.2d 1256, 1259 (10th Cir. 1976),
petition for cert. filed, 45 U.S.L.W. 3435 (U.S. November 15, 1976) (No.
76-678).
Appendix A lla
Likewise, this principal [sic] has been followed in this
District. See: Bale v. United Steelworkers of America, 6
E.P.D. 98948, at page 6039 (W.D. Pa. 1973). Therefore, we
find that plaintiff's letter of June 16, 1976, notifying the
Secretary of his intent to file an age discrimination action
under the Act, which was sent 229 days after his alleged
unlawful discharge, did not comply with the 180-day
requirement of §626(d)(1) of the Act.
We thus turn to the question of whether plaintiff falls
within the ambit of §626(d)(2) of the Act, where notice can
be given within a 300-day period following an alleged
unlawful practice.
Section 626(d)(2) affords its more liberal notice period
only in those situations in which §633(b) of the Act is
applicable. Section 633(b), as stated earlier, applies to those
actions in which the alleged unlawful practice occurred in a
state which has (1) a law prohibiting age discrimination in
employment and (2) a state agency authorized to seek relief
for individuals suffering age discrimination. Pennsylvania is
a §633(b) state.?’
Dresser contends that the more liberal 300-day notice
period of §626(d)(2) is not applicable here since, before
commencing suit in this court, plaintiff failed to file his
complaint with the Pennsylvania Human Rights Commis-
sion within 90 days of October 31, 1975, as required by 43
P.S. $959, or at most, within the 180-day period set forth in
§626(d)(1) of the Act, and, therefore, this failure is a
jurisdictional bar to plaintiff's suit in this court.
In response, plaintiff argues that the Act does not
require him to exhaust state remedies as a prerequisite to the
“See footnotes 18 and 19 supra.
12a Appendix A
institution of a federal suit, citing Goger v. H. K. Porter
Company, Inc., 492 F.2d 13, 15 (3d Cir. 1974).
This issue, namely whether a plaintiff is required to
intially make a timely report to an appropriate state agency
before commencing a federal action and whether failure to
do so serves as a jurisdictional bar to plaintiff's action, has
been considered by this Circuit on two prior occasions, and
both of the applicable cases have been discussed by the
parties in their respective briefs.
In Goger v. H. K. Porter Company, Inc., supra, New
Jersey law required that age discrimination in employment
complaints be filed within 180 days of the alleged act of
discrimination. However, plaintiff never filed a complaint
with the appropriate New Jersey state agency responsible
for the elimination of unlawful discrimination in employ-
ment based on age prior to the institution of her federal suit.
The central issue presented was thus, whether $663(b)
requires an aggrieved individual to initially seek redress
from the state agency before instituting suit in federal
district court. The court addressing this issue stated:29
“...{A]lthough the Act does not require an aggrieved
person to exhaust state remedies as a condition
precedent to the institution of a federal suit. it does
“Plaintiff's argument which relies upon particular language stated by
the Third Circuit at page 15 of the Goger opinion, supra, is misplaced in
the context of that opinion and_ incorrectly responds to Dresser’s
jurisdictional argument. The pertinent language was explained in
Magalotti v. Ford Motor Company, 418 F. Supp. 430, 433 (E.D. Mich.
1976). As the Goger court pointed out, although a plaintiff does not have to
thoroughly exhaust state remedies before commencing suit in federal
court (since under the Acta plaintiff could timely file both a federal claim.
and a state claim within 90 days in accordance with state law) a plaintiff
must nevertheless first seek relief from the appropriate state agency
betore filing a federal claim, absent equitable considerations.
“See footnote 28, supra.
Appendix A 13a
require that the State be given a threshold period of
sixty days in which it may attempt to resolve the
controversy, normally by voluntary compliance. (492
F.2d at p. 15).
We. ..conclude that section 633(b) required [plaintiff]
to seek relief from the appropriate New Jersey agency
prior to instituting her suit in the federal district court.”
(492 F.2d at p. 16.).
However, the court nevertheless vacated an order of
dismissal, despite the failure of the plaintiff to resort to the
state agency prior to filing a federal action for age
discrimination, on “equitable” grounds, because plaintiff
had been misled by a Labor Department representative and
there had been no prior reported cases on this jurisdictional
point. The court stated:
“...[WJe...consider equitable relief to be apprépriate
in view of the total absence. ..of any judicial deeision
construing section 633(b) during the period invoked
here and in view of the remedial purpose of the 1987
Act. In the future, however, we think the Congressionat,
intent that state agencies be given the initial opportunity. >
to act should be strictly followed and enforced.” 492
F.2d at p. 17. (Emphasis supplied).
See also: Sutherland v. SKF Industries, Inc.,419 F. Supp. 610,
612-13 (E.D. Pa. 1976).
In the second case, McGarvey v. Merck & Co., Inc., 359
F. Supp. 525 (D. N.J. 1973), vacated without opinion, 493
F.2d 1401 (3d Cir. 1974), cert. den., 419 U.S. 836,95 S. Ct. 64,
42 L. Ed. 2d 63 (1974), although plaintiff timely field his
notice of intent to sue with the Secretary of Labor under
§626(d)(1), he failed to allege that he had filed a complaint
with or commenced proceedings before the Pennsylvania
Human Relations Commission pursuant to 43 P.S. §951, et
l4a Appendix A
seq. In fact, plaintiff never filed with the state agency. On
this basis, defendant contended that §633(b) of the Act
barred plaintiff's action, relying upon cases interpreting 42
U.S.C. §2000e-5(c), an analogous provision of Title VII of
the Civil Rights Act of 1964, to require primary resort to state
remedies as a jurisdictional prerequisite to a suit under the
Act.” The Court, accepting defendant's contention, dis-
missed plaintiff's complaint®! stating:
“Section 633(b) should be construed to mean that
plaintiff must first attempt to utilize available state
remedies before filing a complaint alleging discrimina-
tion based upon age.
Thus, it is the opinion of this Court that where
substantial relief against alleged age discrimination is
available under state law, 29 U.S.C. §633(b) requires the
person aggrieved to pursue state remedies prior to filing
a complaint with this Court. [Citing Goger v. H. K.
Porter Company, Inc., supra.] Since plaintiff here has
The similarity between Title VII of the Civil Rights Act, 42 U.S.C.
§2000e-1, et seq., and the Age Discrimination in Employment Act, supra,
has been recognized in numerous cases: First Circuit: Skoglund v. Singer
Company, 403 F. Supp. 797, 801-02 (D. N.H. 1975); Third Circuit: Goger
v. H. K. Porter Company, Inc., supra, at pages 15-16: McGarvey vs. Merck
& Co., Inc., supra, at page 527; Fifth Circuit: Woodford v. Kinney Shoe
Corporation, 369 F. Supp. 911, 914-915 (N.D. Ga. 1973): Sixth Circuit:
Gabriele v. Chrysler Corporation, 416 F. Supp. 666, 667-68 (E.D. Mich.
1976); Eighth Circuit: Moses v. Falstaff Brewing Corporation, supra, at
page 94; Ninth Circuit: Curry v. Continental Airlines, 513 F.2d 691. 696
(9th Cir. 1975); Tenth Circuit: Dartt v. Shell Oil Company, supra, at page
1259; Burgett v. Cudahy Company, supra, at page 620.
Cf., Vazquez v. Eastern Airlines, Inc., 405 F. Supp. 1353 (D. P.R.
1975).
"The Third Circuit vacated the district court's order of dismissal here
presumably on the same ground that the Goger case vacated a dismissal.
Appendix A 15a
failed to allege or offered to establish prior resort to the
appropriate state remedy, this Court lacks jurisdiction
over the subject matter... .” (359 F. Supp. at p. 528).
Both of these cases relied upon by the parties, however,
have a distinguishable feature from the instant case in that
the plaintiffs in those cases never applied to a state agency.
Here, plaintiff did apply to the applicable state agency, but
was 139 days late under 43 P.S. §959 and 49 days later under
§626(d)(1) of the Act. See: Gabriele v. Chrysler Corporation,
supra n.30, at page 668.
It is our conclusion, based upon the particular facts
presented here and the language presented by the Third
Circuit in Goger and McGarvey, that a plaintiff is required
by §633(b) of the Act to imtially commence an action with
the appropriate state agency prior to instituting suit in
federal district court and failure to do so constitutes a
jurisdictional bar to a federal court action.”
We, therefo.>, hold ‘that plaintiff's failure to file a
complaint withn. 0 days ar.er Octcner 31, 1975, as required
by 43 P.S. §959,% or within the shorter 180-day federal
period** bars the instant action. Accordingly, Count I of
plaintiff's complaint must be dismissed.
See also: McGinley v. Burroughs Corporation, 407 F. Supp. 903, 908
(E.D. Pa. 1975); Vaughn v. Chrysler Corporation, 382 F. Supp. 143 (E.D.
Mich. 1974). Cf., Curry v. Continental Airlines, supra, n.30. Contra,
Skoglund v. Singer Company, supra, n.30, at page 802; Smith v. Jos
Schlitz Brewing Company, 419 F. Supp. 770, 774 (D. N.J. 1976).
“See: Gabriele v. Chrysler Corporation, supra, which is factually on
point with the case presented here.
“See: Bertsch v. Ford Motor Company, 415 F. Supp. 619, 6...-22, 627
(E.D. Mich. 1976), wherein the court held that although plaintiff failed to
comply with Michigan’s 90-day limitations period due to lack of
knowledge and belated attempts at compliance, a federal action was not
precluded since plaintiff did file a notice of intent to sue within
§626(d)(1)'s 180-day period.
16a Appendix A
Ill. Defendant's Alleged Breach of Plaintiff's Employment
Contract
In Count II of plaintiff's complaint, plaintiff alleged a
breach of an oral contract of employment under Penn-
sylvania law,*° invoking this court's diversity jurisdiction. In
particular, plaintiff alleged that his employment with
Dresser was “wrongfully and unlawfully _ ter-
minated...because of [his] age and for no other just
cause...[thereby]...contrary to the public _ policy
of... Pennsylvania.”
In response, Dresser contends that plaintiff failed to
allege, in his complaint, any duration or tenure of an alleged
employment contract, and, therefore, absent such an
allegation, Pennsylvania law states that such contract may be
terminated at will by either party. In support, Dresser relies
upon the principles set forth in Jackman v. Military
Publications, Inc., 234 F. Supp. 217, 218 (E.D. Pa. 1964),
aff'd 350 F.2d 383, 385 (3d Cir. 1965), and McKinney v.
Armco Steel Corporation, 270 F. Supp. 360, 362 (W.D. Pa.
1967).
In Jackman, the court, citing Cummings v. Kelling Nut Co.,
368 Pa. 448, 451-52, 84 A.2d 323, 325 (1951), stated the
Pennsylvania rule concerning the termination of employ-
ment contracts as follows:
“The general rule is that when a contract provides
that one party shall render services to another or shall
act as an agent, or shall have exclusive sales rights within
certain territory, but does not specify a definite time or
*A contract of employment is governed as to its construction and
effect by the law of the place where the complaint was made, it having
been made when and where the last act necessary for its formation has
taken place. Shipley v. Pittsburgh & L. E. R. Co., 83 F. Supp. 722, 739
(W.D. Pa. 1949). Since this contract was executed in Pennsylvania,
Pennsylvania law therefore controls.
Appendix A 17a
prescribe conditions which shall determine the duration
of the relation, the contract may be terminated by either
party at will. (Citation omitted). The burden is on the
plaintiff in such cases to overcome the presumption by
showing facts and circumstances establishing some
tenure of employment....”™
In McKinney, the court stated:
“Absent a contract of employment for a definite term or
unless restrained by some labor union contract, an
employer may discharge an employee at will, anytime,
without cause or reason, or for any reason he believes
justifies the discharge, even though the employee
believes the reason to be false. In such cases no action
for damages can be maintained for wrongful dis-
charge.”
Plaintiff, in response, relies exclusively upon McGinley
v. Burroughs Corporation, supra, n. 32, at page 910. In
McGinley, the court noted that discrimination by an
employer on account of age is against the public policy of
Pennsylvania, 43 P.S. §952(b). The court then stated:
“Accepting plaintiff's allegation that he was
discharged by the defendant on account of age as being
true, then clearly such action is illegal because it is
contrary to the public policy of Pennsylvania. Any
contract, including a contract at will, which is ter-
minated for a reason contrary to the public policy of
Pennsylvania gives rise to a claim for breach of
contract.”
"See also: Green v. Medford Knitting Mills, Inc., 408 F. Supp. S77, 579
(E.D. Pa. 1976)
“McKinney was cited in the Appendix Opinion to deMarrais v.
Community College of Allegheny County, 407 F. Supp. 79, 82 (W.D. Pa
1976). See also: Hanna v. R.C.A. Service Company. 336 F. Supp. 62, 64
(E.D. Pa. 1971); Weir v. Hudson Coal Co., 9F. Supp. 423, 426 (M.D. Pa.
1951).
18a Appendix A
Plaintiff urges this court to accept the reasoning presented in
McGinley and adopt it in the factual context presented here.
Our research reveals no other case that addresses this
particular issue. Thus, we are presented with the difficult
situation of reconciling two different theories of argument
advanced by the parties in their respective briefs, both of
which accurately state the position of existing law, but which
necessarily culminate in a diametrically opposite result.
As a starting point for our analysis, we must consider
plaintiff's employment situation with Dresser. From our
review of the record presented it is apparent that no formal,
express written contract of employment was entered into by
the respective parties, either at the time of plaintiff's hiring™
or at a time prior to plaintiff's discharge. Further, no
evidence has been presented by plaintiff which would
indicate that his oral contract or employment was to last for
any definite length of time. Thus, we find that plaintiff's
employment was “at will”, and, under applicable Penn-
sylvania law, subject to termination at any time by either
party. Accordingly, due to the nature of the contract
involved, plaintiff would be barred from maintaining an
action for damages for his alleged wrongful discharge
unless, of course, the applicable age discrimination statutes
or the McGinley case provide some means for relief.
It is clear that prior to the enactment of the Pennsylvania
Human Relations Act of 1961 and the Federal Age
Discrimination in Employment Act of 1967, plaintiff could
not have maintained an action for breach of contract or
wrongful discharge against Dresser, absent a contract of
employment for a definite term, which, as stated above, is
not presented by the instant facts. With the enactment of
these statutes, a discharged employee could commence a
“See plaintiff's complaint, $11, and footnote 3, supra.
Appendix A 19a
suit in federal court*® when he believed that his discharge
was purely discriminatory and based upon his age.“
However, the statutes, by their clear language, were
designed and intended to protect only against various types
of discrimination’! which occur in employment
relationships, and not merely to attack various discharges
where age may have been a factor in the employer’s
decision, but some form of discrimination is not presented.
Therefore, under the applicable statutes, we find that,
notwithstanding the pertinent filing requirements, some
form of discrimination has to be alleged by an aggrieved
plaintiff in order for him to recover thereunder. A thorough
review of the record before us fails to establish any basis for
an age discrimination claim by plaintiff since we note a clear
absence of any evidence in either plaintiff's complaint or his
supporting affidavit which tends to show that younger, and
perhaps as equally qualified, employees were hired as
“The Pennsylvania Act, 43 P.S. §951, et seg., does not have a
provision simular to §626(c) of the Federal Act, 29 U.S.C. §626(c), which
permits an aggrieved individual to commence a civil action for legal or
equitable relief. In this respect, all civil actions based upon alleged age
discrimination can be filed in federal court, subject to the applicable state
tiling requirements. See footnote 20, supra.
"29 U.S.C. §§621, 623, 633; 43 P.S. §§952, 953, 955. See also: Mcllvanie
v. Pennsylvania State Police, 6 Pa. Commonwealth Ct. 505, 511, 296 A.2d
630, 633 (1972), aff'd 454 Pa. 129, 309 A.2d 801 (1973), app. dis’m. 415 U.S.
9S6, MS. Ct. 1583, 39 L. Ed. 2d 854 (1974).
* The term, “Discrimination”, has been defined under the Civil Rights
Act in the context of a sex discrimination case and is, therefore, equally
applicable here. (See footnote 30, supra). That definition reads as follows:
“ “Discrimination... is in general a failure to treat all persons equally
where no reasonable distinction can be found between those favored
and those not favored.”
Baker v. California Land Title Company, 349 F. Supp. 235, 238-39, (C.D.
Cal. 1972), aff'd. 07 F.2d 895 (9th Cir. 1974), cert. den. 422 U.S. 1046, 95S.
Ct. 2664, 45 L. Ed. 2d 699 (1975). See also: Civil Rights Act of 1964,
§703(a)(1), 42 U.S.C. §2000e-2(a) (1).
20a Appendix A
replacements for plaintiff's former position. In this respect,
plaintiff's reliance upon McGinley v. Burroughs Corpora-
tion, supra, is clearly distinguishable, since in that case
evidence was submitted by plaintiff which revealed that
younger employees were hired by the defendant company,
allegedly with the intention that these employees were to be
replacements for plaintiff subsequent to his discharge. 407 F.
Supp. at pages 906, 910.
We believe that the logic presented by the court in the
McGinley decision was intended to carve out an exception to
the uniform Pennsylvania rule regarding the termination of
“at will” employment contracts. Essentially, the reasoning
presented in McGinley states that if some sort of Ciscrimina-
tion in discharge can be shown to exist, then suc» action by
an employer is indeed illegal, since it is violative of public
policy, and, therefore, such action would give rise to a
breach of contract claim. However, we find that the
exception presented in McGinley, and relied upon exclusive-
ly by plaintiff, in support of Count II of his complaint, is not
presented by the instant facts. Therefore, we decline to
accept the principle set forth in McGinley as applicable to
the factual averments present here.
Further, we respectfully disagree with the McGinley
court’s holding that an illegal discharge, i.e., a discriminatory
discharge, gives rise to a breach of contract claim, whether
the discharge be under an “at will” employment contract, or
otherwise. Rather, we prefer to say that a discriminatory
discharge from a job held at will gives rise to a civil rights
claim although it may sound in contract. We say this because
there is no actual contract presented binding an employer to
retain an employee at will for any length of time.
We thus conclude that if an employee can allege a
discriminatory discharge from employment on account of
age, and timely file the appropriate notices set forth in the
Appendix A 2la
respective Acts, an appropriate action under the age
discrimination statutes can be commenced. Likewise, if the
employee can present evidence supporting such a claim of
discrimination, a breach of “contract” action may lie within
the exception to the Pennsylvania law concerning the
termination of “at will” employment contracts as set forth in
McGinley.
Since plaintiff has failed to meet both of the re-
quirements set forth above, and has failed to set forth any
evidence which establishes that his oral employment
contract was to last for any definite length of time, Count II
of plaintiff's complaint must be dismissed and defendant's
motion tor summary judgment is, therefore, granted.
An order in accordance with this opinion, follows.
IsAaacartertnsT esa eet eer eww ee 8 6 ot
Barron P. McCune
United States District Judge
22a Appendix B
United States Court of Appeals
For THE THirp Circuit
No. 77-1292
EMRA JOSEPH BONHAM,
Appellant,
v.
DRESSER INDUSTRIES, INC.,
a Corporation,
Appellee.
(D.C. Civil Action No. 76-1067)
APPEAL FROM THE ORDER OF THE UNITED STATES DiIsTRICT
CourRT FOR THE WESTERN District oF PENNSYLVANIA
Argued October 20, 1977
Before VAN Dusen and RosEnn, Circuit Judges, and
STERN,° District Judge
Donacp E. SEYMOUR
Janice H. ANDERSON
KIRKPATRICK, LOCKHART, JOHNSON
& HUTCHISON
1500 Oliver Building
Pittsburgh, Pennsylvania 15222
Attorneys for Appellee James R. Durry
FINE, PERLOW AND STONE
1531 Frick Building
Pittsburgh, Pennsylvania 15219
Attorneys for Appellant
*Herbert J. Stern, United States District Judge for the District of New
Jersey, sitting by designation.
Ed
Appendix B 23a
OPINION OF THE COURT
(Filed December 27, 1977)
STERN, District Judge
Appellant Emra Joseph Bonham filed an action in the
United States District Court for the Western District of
Pennsylvania against his former employer, Dresser In-
dustries, Inc. The complaint was framed in two counts.
Count I, based on the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. §§621 et seq., charged that Bonham’s
employment with Dresser was unlawfully terminated on
December 31, 1975 “because of his age and for no other just
cause.” Count II invoked the court's diversity jurisdiction
and charged that the termination was a breach of his oral
contract of employment actionable under state common
law.
Dresser moved to dismiss Count I for lack of subject
matter jurisdiction on the ground that plaintiff had failed to
file timely charges with both federal and state authorities.
Dresser also moved for dismissal of Count II for failure to
state a claim. The district court, treating Dresser’s motion as
a motion for summary judgment, granted judgment for
Dresser on both counts.
In granting summary judgment on Count I, the district
court determined that the alleged unlawful practice oc-
curred on October 31, 1975, that the federal 180-day period
for filing a charge with the Secretary of Labor ran from that
date, that Bonham’s June 16, 1976 notice to the Secretary of
Labor was therefore untimely, and that Bonhams failure to
file within 180 days of October 31 was a jurisdictional defect.
The district court held, alternatively, that Bonham’s ADEA
claim was barred for failure to file a charge with state
authorities within 90 days. In granting summary judgment
24a Appendix B
on Count II, the district court held that the complaint failed
to state a claim under Pennsylvania law. We reverse the
district court’s grant of summary judgment on Count of the
complaint; we affirm its disposition of Count II.
Bonham, who was in his late forties when the events
giving rise to this litigation took place, began working for
Dresser Industries in 1969. Through a series of promotions,
he reached the position of “manager-factory accounting” at
an annual salary of $28,500.00
The affidavit of Dresser’s vice president states that
Bonham’s employment terminated on October 31, 1975, that
Bonham was informed of the termination on or before
October 31, 1975, and that Bonham performed no services as
a Dresser employee after October 31, 1975. Bonham’s
personnel card, which Dresser made part of the record,
indicates that Bonham was terminated on October 31; this
document states that the termination was “by mutual
consent.”!
Bonham argued here and before the district court that
the termination occurred on December 31, 1975. His
affidavit states that he was informed on October 31 that he
would be terminated as of December 31, 1975, that he was
paid his regular salary, periodically from October 31
through December 31, 1975, that the company kept his
‘App. 10a-lla. The company took the position before the district
court, for purposes of its motion, and before this Court, for purposes of the
appeal, that Bonham was fired. Indeed, central to its argument is its
contention that Bonham was told that he was fired on a date certain.
Nevertheless, the company apparently still intends to take the position
that the employment relationship was severed consensually.
We sound a note of caution about a grant of summary judgment in
circumstances where the facts are unclear and a fuller development of the
facts may serve to clarify the application of the law. See Palmer v.
Chamberlin, 191 F.2d 532, 540 (Sth Cir. 1951).
Appendix B 25a
insurance coverage effective through December 31, and that
he was advised, in writing by the company, that his
retirement benefits would be calculated on the basis of a
December 31 termination date.2 However, he does not
dispute that October 31, 1975 was the day he was told of his
termination and that it was the last day he actually worked.
In January of 1976, Bonham wrote directly to the
president of Dresser Industries requesting that he be placed
in a different division of the company.® On January 19,
Dresser’s president advised Bonham that he had made
arrangements to review other opportunities for Bonham
within the company.‘ On February 18, 1976, however,
“App. |4a-19a.
3
January 15, 1976
XXX
Dear Mr. James:
I do not see how Dresser, the prime user of direct costs, can afford to
lose a man with 17 years experience in the design and installation of direct
cost systems and with knowledge and training in other Dresser financial
techniques. Many companies have extablished [sic| a headquarters staff
job as a Cost ConsuLTANt with the responsibility of reviewing existing
cost systems to maintain them in compliance with company policy; to
advise and assist divisions in the design and installation of new systems;
and to see that related inventory controls are maintained.
o oO oO
Harbison has made my termination effective lanuary 15 and | wanted
to write betore I accepted other employment. I know you have
recognized the difference in Harbison’'s profit picture as a result of
financial control and may have a use for me elsewhere tc accomplish the
onane See Sincerely yours
Joseph Bonham
App. 20a
4
XXX January 19, 1976
Dear Mr. Bonham:
| have received your letter of January 15 regarding other possible
opportunities for employment within Dresser. I do not feel that we should
(continued )
26a Appendix B
Bonham was notified that there would be no position for him
within Dresser Industries.
On June 16, 1976,—229 days after the October 31 date
urged by the company, 169 days after the December 31 date
urged by Bonham, and 118 days after Bonham received
word from Dresser that there were no other positions at
Dresser for him—Bonham gave notice to the Secretary of
Labor of his intention to sue. On the same date, he notified
the Pennsylvania Human Relations Commission of his
allegedly wrongful discharge.
The Age Discrimination in Emplovment Act of 1967
was designed to promote the employment of persons
between the ages of 40 and 64 by prohibiting discriminatory
employment decisions based on age. See 29 U.S.C. §631.
The substantive provisions of the Act are enforceable both
by governmental actions and by private suits brought by
aggrieved persons. Prior to the coinmencement of any
action, the Secretary of Labor must be given an opportunity
to eliminate the allegedly discriminatory practice through
informal methods. 29 U.S.C. §626(d). In order to provide the
Secretary this opportunity to attempt conciliation, an
aggrieved person must notify the Secretary that he intends to
sue 60 days before commencing an action.
The Act imposes two additional procedural re-
quirements on private litigants. Section 626(d)(1) provides
that the 60-day notice of intent to sue must be filed with the
Secretary of Labor “within one hundred and eighty days
add to the Headquarters staff, the position as Cost Consultant, as you
suggested. However, I have asked Bob Shopoff to review what other
opportunities there might be in Dresser. After Bob has completed his
review, he will be in touch with you directly.
Sincerely,
/s/ J. V. James
App. 2la
Appendix B 27a
after the alleged unlawful practice occurred....” Section
633 provides, in pertinent part:
(b) In the case of an alleged unlawful practice
occurring in a State which has a law prohibiting
discrimination in employment because of age and
establishing or authorizing a State authority to grant or
seek relief from such discriminatory practice, no suit
may be brought under section 626 ... before the
expiration of sixty days after proceedings have been
commenced under the State law, unless such
proceedings have been earlier terminated: ...
Both of these procedural requirements are at issue in this
lawsuit.
Section 626(d)’s 180-day filing requirement begins to
run from the date of the “alleged unlawful practice.” At issue
here is when that unlawful practice occurred. The litigants
agree that the alleged wrongful act was Bonham’s termina-
tion, but Bonham argues that that occurred on December 31,
the date of his last paycheck and the termination of all
company benefits. On these facts, we agree with the district
court that the termination took place on October 31, 1975,
the date urged by Dresser.
Although no simple rule can be formulated which will
deal adequately with all factual situations, where une-
quivocal notice of termination and the employee's last day of
work coincide, then the alleged unlawful act will be deemed
to have occurred on that date, notwithstanding the
employee's continued receipt of certain employee benefits
such as periodic severance payments or extended insurance
coverage. See Davis v. RJR Foods, Inc., 420 F. Supp. 903,
931 n.1 (S.D. N.Y. 1976), aff'd without opinion, 556 F.2d 555
(2nd Cir. 1977); Doski v. M. Goldseker Co., 11 FEP Cas. 468
(D. Md. 1975), aff'd in relevant part and remanded, 539 F.2d
1326, 1328 n.3 (4th Cir. 1976); Payne v. Crane Co., 560 F.2d
198, 199 (5th Cir. 1977) (per curiam).
28a Appendix B
We reject the rule propounded in Moses wv. Falstaff
Brewing Corp., 525 F.2d 92 (8th Cir. 1975), which looks
exclusively to the company’s official termination date as
reflected in company records. Because, as in the case sub
judice, a company may use different termination dates for
different purposes, the Moses rule does not adequately
resolve the issue. Moreover, we would be wary of any
approach which determines the timeliness of an employee's
suit against his employer solely on the basis of records which
are within the exclusive control of the employer. On the
other hand, we would also view with disfavor a rule that
penalizes a company for giving an employee periodic
severance pay or other extended benefits after the
relationship has terminated rather than severing all ties when
the employee is let go.
The ADEA is humanitarian legislation which must be
interpreted in a humane and commonsensical manner; its
180-day filing period is very short. An employee should not
be required to take action to enforce his rights while he
continues to work and while his employment status is at all
uncertain.
The 180-day period does not begin to run until the
employee knows, or as a reasonable person should know,
that the employer has made a final decision to terminate him,
and the employee ceases to render further services to the
employer. Until that time he may have reason to believe that
his status as an employee has not finally been determined,
and should be given an opportunity to resolve any difficulty
while he continues to work for the employer. In any event, a
terminated employee who is still working should not be
required to consult a lawyer or file charges of discrimination
against his employer as long as he is still working even
though he has been told of the employer's present intention
to terminate him in the future.
Appendix B 29a
We emphasize that this test is not subjective, and, on the
facts of this case we believe that the district judge was
correct in ruling that the alleged unlawful practice occurred
on October 31, 1975 when Bonham ceased to perform
services for Dresser Industries with knowledge and on
notice that he was not to return to his job.
Although we agree that October 31, 1975 was the date of
the alleged unlawful practice, we do not agree that the action
is necessarily foreclosed by Bonham’s failure to file within
180 days. Bonham’s action is barred only if the 180-day
requirement is viewed as strictly “jurisdictional” and not
subject to tolling or similar equitable modifications.> While it
is true, as the district court recognized, that some authority
favors the view that the 180-day requirement is a jurisdic-
tional prerequisite to suit, see Ott v. Midland-Ross Corp.,523
F.2d 1367 (6th Cir. 1975); Hiscott v. General Electric Co.,521
F.2d 632 (6th Cir. 1975); Powell v. Southwestern Bell Tel.
Co., 494 F.2d 485 (5th Cir. 1974), the decisions are not all in
accord. The Fifth Circuit, while terming the requirement
“jurisdictional”, has nevertheless found equitable reasons for
tolling or waiving. See Edwards v. Kaiser Aluminum &
Chemical Sales, Inc., 515 F.2d 1195 (5th Cir. 1975).
In Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976),
aff'd per curiam by an equally divided couri, 46 U.S.L.W.
4021 (U.S. Nov. 29, 1977), the Tenth Circuit held that the
180-day rule is merely in the nature of a statute of limitations
and therefore subject to possible tolling and estoppel. We
believe that Dartt represents the better view.
‘We reject the proposition that Bonham may invoke the extended 300-
day period of section 626(d)(2) notwithstanding his failure to make a
timely state filing. See infra at 9-10. Any other rule would mean that
plaintiff could intentionally wait until after the state filing period had run,
and then take advantage of the lengthier federal filing period. This was
surely not the intent of Congress. Cf. DuBois v. Packard Bell Corp., 470
F.2d 973 (10th Cir. 1972)
30a Appendix B
We have searched the ADEA’s legislative history for
indications as to whether Congress intended that the 180-day
requirement be a jurisdictional prerequisite or merely a
statute of limitations. We have found nothing there which
answers the question. Nor do we find guidance under Title
VII. Although the Supreme Court has characterized Title
VII's analogous 180-day filing requirements as “jurisdic-
tional”, see McDonnell Douglas Corp. v. Green, 411 US.
792, 798 (1973) (dictum), it has nevertheless addressed the
question whether the period would be tolled during the
pendency of grievance or arbitration procedures. See
Electrical Workers v. Robbins & Meyers, Inc., 429 U.S. 229
(1976). Thus, Title VII precedent provides no clear path.
Our conclusion that the 180-day period is not jurisdic-
tional is based on our view of the design and purp»oses of the
Age Discrimination in Employment Act. This Court has
recognized that the ADEA is remedial and humanitarian
legislation which should be liberally interpreted to effec-
tuate the congressional purpose of ending age discrimination
in employment. Goger v. H. K. Porter Company, Inc., 492
F.2d 13, 16 (3rd Cir. 1974). Circumstances may exist where,
notwithstanding plaintiff's failure to comply with the letter
of the law, the purpose of the statutory requirement—
providing the Secretary of Labor with an opportunity to
conciliate while the complaint is fresh and giving early
notice to the employer of possible litigation—have been
substantially served. And cases may arise where the
employer's own acts or omissions have lulled the plaintiff
into foregoing prompt attempts to vindicate his rights. See
generally, Comment, Procedural Prerequisites to Private
Suit Under the Act Discrimination in Employment Act,
44 U. Chi. L. Rev. 457 (1977).
Because we construe the 180-day requirement to be in
the nature of a statute of limitations, we conclude that the
granting of summary judgment was improper. The af-
Appendix B 3la
fidavits before the district court on Dresser’s motion state
facts which give rise to a disputed issue of tolling or estoppel.
Plaintiff's post-termination reaction was an attempt to
secure alternative employment with the company. The letter
he received in January from the company’s president was
optimistic in this regard. The limitations period may have
been tolled while Bonham was actively pursuing. this
attempt amicably to resolve his employment situation and
while the company was sending positive signals.”
Furthermore, Bonham maintained before the district
court that he was unaware of the rights conferred upon him
by the ADEA until some time after December. He stated, by
way of affidavit, that Dresser never posted any signs on its
premises advising employees of the existence of the Act, or
at least that he never saw any posted.
Title 29 U.S.C. §627 provides:
Every employer ».. shall post and keep posted ...
upon its premises a notice to be prepared or approved
by the Secretary setting forth information as the
Secretary deems appropriate to effectuate the purposes
of this chapter.
Such notice is to be posted in prominent and accessible
places where it can readily be observed by employees. 29
C.F.R. §850.10 (1976). The posting requirement was
undoubtedly created because Congress recognized that the
very persons protected by the Act might be unaware of its
existence. Failure to post the required notice will toll the
running of the 180-day period, at least until such time as the
aggrieved person seeks out an attorney or acquires actual
knowledge of his rights under the Age Discrimination in
*An employer's records and correspondence, while not dispositive of
the date of unlawful termination, may be relied upon by an employee to
estop the employer from asserting the defense of an untimely notice of
intent to sue.
32a Appendix B
Employment Act. See Bishop v. Jelleff Associates, Inc., 7
FEP Cas. 510 (D. D.C. 1974). Cf., Hiscott v. General Electric
Co., 521 F.2d 632 (6th Cir. 1975); Edwards v. Kaiser
Aluminum & Chemical Sales, Inc., 515 F.2d 1195 (5th Cir.
1975); Skoglund v. Singer Co., 13 FEP Cas. 253 (D. N.H.
1975); McCrickard v. Acme Visible Records, Inc., 13 FEP
Cas. 822 (W.D. Va. 1976). Any other result would place a
duty upon the employer to comply without penalty for
breach, and would grant to the employee a right to be
informed without redress for violation.”
On these issues of tolling or equitable modification,
questions of fact arise which must be determined by the
district court in the first instance. We hold only that the
employee is to be given an opportunity to demonstrate the
existence of any equitable factors which may have a bearing
on the operation of the 180-day statute of limitations.
Dresser argues that remand is nevertheless unnecessary.
Citing Goger v. H. K. Porter Co., Inc., 492 F.2d 13 (3rd Cir.
1974), it contends that even if the 180-day notice period
cannot be deemed to have run as of June 16, 1976. summary
judgment must nevertheless be granted in its favor because
Bonham failed to file a timely statutory notice with the
Pennsylvania Commission on Human Relations. In Goger,
this Court held that §633(b) requires an aggrieved individual
initially to seek redress from the state agency before
instituting suit in federal court. See also McGarvey v. Merck
& Co., 359 F. Supp. 525 (D. N.J. 1973), vacated without
published opinion, 493 F.2d 1401 (3rd Cir.), cert. denied, 419
U.S. 836 (1974); Rogers v. Exxon Research & Engineering
Co., 550 F.2d 834, 844 (3rd Cir. 1977), petition for cert. filed,
‘If the employer complied with the relevant posting regulations, an
employee's assertion that he never saw any notices should not of itself
require tolling of the 180-day period in which to file a notice of intent to
sue.
Appendix B 33a
46 U.S.L.W. 3108 (U.S. Aug. 30, 1977). Both the Rogers and
Goger courts examined equitable considerations and
decided that, on the facts of those cases, the procedural
default would not foreclose suit. Failure to go to the state
first was not treated as a jurisdictional bar.
The Pennsylvania Human Relations Act, Pa. Stat. Ann.
tit. 43, §§951, et seq. (Purdon), is a law “prohibiting
discrimination in employment because of age and es-
tablishing... a State authority to grant or seek relief from
such discriminatory practice” within the meaning of
§633(b). See Sutherland v. SKF Industries, 419 F. Supp. 610
(E.D. Pa. 1976); McGinley v. Burroughs, 407 F. Supp. 903
(E.D. Pa. 1975). Under the Pennsylvania statute, however,
an aggrieved individual must file his administrative
complaint within only 90 days after the alleged act of
discrimination. Pa. Stat. Ann. tit. 43 §959 (Purdon Supp.
1977). In Bonham’s case, the Pennsylvania Human Relations
Commission deemed Bonham’s June 16 notice untimely, and
the agency declined to take jurisdiction.
We do not think that it was the intent of Congress to
allow states to shrink the federal remedy for age discrimina-
tion by imposing limitation periods shorter than the federal
ones. If compliance with Pennsylvania's 90-day filing period
is deemed a jurisdictional condition precedent to suit under
the ADEA, the federal 180-day limitations period becomes
90 days for residents of Pennsylvania, and the availability of
the federal remedy is seriously undermined. Cf. Olson v.
Rembrandt Printing Co.,511 F.2d 1228 (8th Cir. 1975) (Title
VIL). Moreover, any equitable grounds for relaxing the
federal limitations period would evaporate if not recognized
by the state.
We do not hold that the mere existence of a state
limitations period which is shorter than the federal one
relieves a plaintiff of his obligation to bring his complaint to
34a Appendix B
the attention of the state authorities. Rather, we hold only
that if plaintiff files his complaint with the state agency
within the federal 180-day period, the state’s conclusion that
the filing is untimely under state law will not bar the federal
suit.” We think this rule is in accord with Congressional
intention, consistent with Goger and Rogers, and compelled .
by our conclusion that the federal 180-day requirement is
itself in the nature of a statute of limitations and subject to
equitable modification.
We affirm the grant of summary judgment in favor of
Dresser on Count II of the complaint. The district court
ruled that Bonham’s oral contract of employment was
terminable at will by either party. However, in reliance on
McGinley v. Burroughs Corp., 407 F. Supp. 903 (E.D. Pa.
1975), the court held that, under Pennsylvania law,
termination of a contract at will for a reason contrary to
public policy gives rise to a claim for breach of contract. The
district court recognized that the Pennsylvania age dis-
crimination statutes establish that a discriminatory discharge
offends the state’s public policy and that a state common law
claim would lie if Bonham could prove age discrimination.
but ruled against Bonham on the ground that the record
failed to establish that a younger person was hired to replace
him.
We do not believe that a complaint of age discrimina-
tion will always require proof that the discharged person
was replaced by a younger employee; it is enough that he
was discharged because of his age. Nor do we think that the
record before the district court, before any discovery had
been conducted, would permit summary judgment
‘After a complainant initiates state administrative proceedings, he
must wait at least 60 days, unless the proceedings are terminated earlier,
before bringing suit in federal court. 29 U.S.C. §633(b). This 60-day
period may run concurrently with the 60-day period afforded the
Secretary of Labor to attempt conciliation.
Appendix B 35a
predicated on a factual finding that Bonham had not been
the subject of age discrimination.
Moreover, we do not believe that McGinley accurately
states the law of Pennsylvania. The McGinley court failed to
consider the Pennsylvania Supreme Court's ruling in Geary
v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974).
In Geary, Pennsylvania’s highest court discussed cir-
cumstances under which a discharge arguably in violation of
public policy would give rise to a breach of contract claim
where the plaintiff was hired under an at-will contract of
employment. Plaintiff in that case, a salesman, called to
management's attention his belief that a new product which
the company was marketing had not been adequately tested
and posed a serious danger to potential users. As a result of
Geary's efforts, the product was re-evaluated and
withdrawn from the market, but Geary was summarily
discharged. He filed suit claiming that his termination was in
violation of public policy and thus gave rise to a cause of
action for breach of contract. A majority of the court
rejected nis claim on the grounds that the public policy
considerations were not clear, and that the record disclosed a
legitimate reason for the company’s termination. The court,
however, indicated that the result might be different if the
mandates of public policy were clear and compelling or the
termination violated a statutory duty imposed on the
employer.
In the instant case, Pennsylvania’s public policy on the
question of arbitrary age discrimination is manifest. A
termination based on age would violate the duties imposed
on employers by the Pennsylvania Human Relations Act and
would trigger the remedies provided by that act. We
conclude that the Pennsylvania courts would not hold that
termination of an at-will employee on the basis of age gives
rise to an independent common law cause of action for
36a Appendix B
breach of contract in addition to those statutory remedies.
We do not believe that the courts of Pennsylvania would
hold that the mere passage of the Human Relations Act
created a separate common law claim where none had
existed before, and where that void had been filled by that
very legislation. Judicial reluctance to create such a remedy
is evident in Geary, and we believe that the courts of
Pennsylvania, if directly confronted with the issue, would
hold that the Pennsylvania Human Relations Act and the
procedures established therein provide the exclusive state
remedy for vindication of the right to be free from
discrimination based on age.°
Accordingly, we affirm the grant of summary judgment
on Count I of the complaint. We remand Count I for further
proceedings on the question of tolling or equitable
modification consistent with the views expressed here.
‘Section 962(b) of the Pennsylvania Human Relations Act, as
amended, Pa. Stat. Ann. tit. 43, §902(b) (Purdon Supp. 1977), provides that
“as to acts declared unlawful by section five of this act the procedure
herein provided shall, when invoked, be exclusive and the final
determination therein shall exclude any other action, [except as provided
in subsection (c)] civil or criminal, based on the same grievance of the
complainant concerned.” Section 962(c) permits a complainant under
certain circumstances to bring an action in the state courts of common
pleas “based on the right to freedom from discrimination granted by this
act.” Thus, the Pennsylvania Supreme Court in other contexts has
construed these remedy provisions as exclusive state law remedies once
invoked by a complainant. See Commonwealth Human Rel. Comm'n v. -
Feeser, 469 Pa. 173, 178-179, 364 A.2d 1324, 1326-1327 (1976); Daly v.
School Dist. of Darby Township, 434 Pa. 286, 289-290, 252 A.2d 638 (1969).
~~ mee
Appendix C 37a
United States Court of Appeals
For THe Tuirp Circurr
No. 77-1292
EMRA JOSEPH BONHAM,
Appellant
Vv.
DRESSER INDUSTRIES, INC.,
A Corporation
SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, VAN DUSEN, ALDISERT,
ADAMS, GIBBONS, ROSENN, HUNTER,
WEIS, GARTH, HIGGINBOTHAM, Circuit
Judges, and STERN, District Judge
The petition for rehearing filed by
DRESSER INDUSTRIES, INC., appellee,
in the above entitled case having been submitted to the
judges who participated in the decision of this court and to
all the other available circuit judges of the circuit in regular
active service, and no judge who concurred in the decision
having asked for rehearing, and a majority of the circuit
judges of the circuit in regular active service not having
voted for rehearing by the court in banc, the petition for
rehearing is denied.
By the Court,
/s/ Max ROSENN
Dated: February 1, 1978
38a Appendix D ~
CERTIFICATE OF SERVICE
I, Donald E. Seymour, Esquire, a member of the Bar of
the Supreme Court of the United States, hereby certify that I
have served the foregoing Petition for Writ of Certiorari to
the United States Court of Appeals for the Third Circuit, in
accordance with Rule 33(1) of the Rules of the Supreme
Court of the United States, upon the Respondent by mailing
three copies thereof to James R. Duffy, Esquire, 1531 Frick
Building, Pittsburgh, Pennsylvania 15219, attorney for
Respondent, by first class mail, postage prepaid, this 28th
day of April, 1978. |
Donacp E. Seymour
KIRKPATRICK, LOCKHART, JOHNSON
& HUTCHISON
1500 Oliver Building
Pittsburgh, Pennsylvania 15222
Counsel for Petitioner,
Dresser Industries, Inc.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.