Petition — Chrysler Corp. v. Gabriele
Supreme Court brief1979
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IN THE
Supreme Court of the GQnited States
October Term, 1978
No. vd & ws 1
CHRYSLER CORPORATION, Petitioner,
Vv.
CLEMENT GABRIELE, Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
HIRA D. ANDERSON, JR.
WILLIAM S. HURST
Attorneys for Petitioner
Chrysler Corporation
Office of the General Attorney
P. O. Box 1919
Detroit, Michigan 48288
(313) 956-4467
TODA. —
i
TABLE OF CONTENTS
Page
Table of Authorities ii
Opinions Below 1
Jurisdiction . 1
Questions Presented 2
Statutes .... 2
Statement of the Case 2
Reasons for Granting the Petition +
Conclusion 17
Appendix A la
Appendix B l6a
Appendix C 3la
ii
TABLE OF AUTHORITIES
Cases Page
Abshire v. Chicago and Eastern RR Co., 352 FSupp
601 (N.D. Ill. 1972) 9
Bertrand v. Orkin Exterminating Co., 419 FSupp 1123
(N.D. Ill. 1967) 6
Bertsch v. Ford Motor Co., 415 FSupp 619 (E.D. Mich.
1976) 15
Bonham v. Dresser Industries, Inc., 569 F2d 187 (3rd
Cir. 1977) 6, 15, 16, 17
Chrysler Corporation v. Michigan Civil Rights Com-
mission, 68 Mich App 283, 242 NW2d 556 (1976) ... 6
Crosslin v. Mountain States Telephone and Telegraph
Co., 422 F2d 1028 (9th Cir. 1970) 8
Curry v. Continental Airlines, 513 F2d 691 (9th Cir.
1975) 6, 9, 16
DuBois v. Packard Bell Corp., 470 F2d 973 (10th Cir.
1972) 8
Eklund v. Lubrigo Corp., 529 F2d 24 (6th Cir. 1976)... 7
Electrical Workers Local 5 v. EEOC, 398 F2d 248 (3rd
Cir. 1968) cert. denied, 393 US 1021, 89 SCt, 21
Led2d 565 (1968) 9
Enos v. Kaiser Industries Corp., 443 FSupp 798 (D.C.
i | 6, 15
Ethridge v. Rhodes, 268 FSupp 83 (S.D. Ohio 1967) ... 9
Evans v. Oscar Mayer and Co., et al., F2d 5 he
No. 77-1692 (8th Cir. 1978) 6, 9, 16
Page
Fitzgerald v. New England Telephone Co., 416 FSupp
617 (D. Mass. 1976) 6, 15
Goger v. H. K. Porter Co, 429 F2d 13 (8rd Cir.
1974) ol 6, 9, 16
Graham v. Chrysler Corporation, Civil Action No.
6-70125, E. D. Mich., March 19, 1976 (J. DeMascio) ....7, 15
Hadfield v. Mitre Corp., 562 F2d 64 (1st Cir. 1977) ....6,16
Hiscott v. General Electric Co., 521 F2d 632 (6th Cir.
TN eae 7
Love v. Pullman Co., 404 US 522, 92 SCt 616, 30 LEd2d
2b) | a ee 8
McGarvey v. Merck & Co., Inc., 359 FSupp 525 (D.C.
pO EE TREES Ca Oa 6, 9,15
McGinley v. Burroughs Corp., 407 FSupp 903 (E.D.
NG ED Shitlabacsoncecnseactcocecens ; 6
Magolotee v. Ford Motor Co., 418 FSupp 430 (E.D.
NN IPR st Sie a aca Lathan sescbateemulestasinots 15
Nickle v. Shatterproof Glass Corp., 424 FSupp 884
Csi SRI ROPRUED: Miisctnsescccesacisstcantscteceniocns 15
Northcross v. Board of Education of the Memphis City
Schools, et al., 412 US 427, 93 SCt 2201, 37 LEd2d 48
EAPPIIED (ccscigabicceveinttinlicaopentecons ee 9
Oubichon v. North American Rockwell Corp., 325 F
Supp.1033 (C.D. Calif. 1970) .................... 9
Reich v. Dow Badische Co., F2d , 17 FEP
DER (08 Che: R010) abe 6, 9, 15, 16, 17
iv
Page
Rucker v. Great Scott Supermarkets, Inc., 10 EPO
q| 10,508 (E.D. Mich. S.D. 1974), 528 F2d 393 (6th
Cir. 1976) 6,7
Skoglund v. Singer Co., 403 FSupp 797 (D. N.H. 1975)
Smith v. Crest Communities, Inc., 9 EPD 710,053 (D.C.
W.D. Ky. 1974) 6, 7, 15
Smith v. Jos. Schlite Brewing Co., 419 FSupp 770 (D.
N.J. 1976) 6
Stebbins v. Nationwide Mutual Insurance Co., 382 F2d
267 (4th Cir. 1967) 9
Vaughn v. Chrysler Corporation, 382 FSupp 143 (E.D.
Mich. 8.D. 1974) 6, 9,15
Vazquez v. Eastern Airlines, Inc., 405 FSupp 1353 (D.
P.R. 1975) 6
Statutes
Age Discrimination in Employment Act,
29 USC 621 et seq .............. 2
Age Discrimination in Employment Act,
29 USC 626(d) 2, 3, 7,14
Age Discrimination in Employment Act,
SE FE I cites thnnidmnhedntinrbiipisinieantinassneiten 2, 3, 4, 5, 7, 9,
11, 12,13, 14, 16, 17
Title VII of the Civil Rights Act of 1964,
42 USC Sec. 2000e-5(c) pe Be BEETS 2, 8, 9, 10, 11, 12
Sec. 2000e-5 13
MSA Sec. 17.458(3a) ; 5,
PT sare
‘naw
Se te ee eee
Page
MSA See. 17.458(7) 5
MSA See. 17.458(7) (b) 5
Miscellaneous Authorities
Hearings before the Subcommittee on Labor of the
Senate Committee on Labor and Public Welfare on
8.830 and 8.788, 90th Congress, Ist Sess. at 102 and
234 11
110 Cong. Rec. 12707 12
110 Cong. Rec. 12721 12
110 Cong. Rec. 13081 .... 12
110 Cong. Rec. 13087 12
73 AmJur2d, ‘‘Statutes’’ §186-193 and $223 9
IN THE
Supreme Court of the Gnited States
October Term, 1978
No.
CHRYSLER CORPORATION, Petitioner,
Vv.
CLEMENT GABRIELE, Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
Chrysler Corporation respectfully petitions this Court
to issue a writ of certiorari to review the Judgment of the
United States Court of Appeals for the Sixth Circuit.
Opinions Below
The opinion of the court of appeals (App. A, infra, pp.
la-l5a) is not yet officially reported. The opinion of
the district court (App. B, infra, pp. 16a-3la) is reported
at 416 FSupp 666 (E.D. Mich. 1976).
Jurisdiction
The judgment of the court of appeals was entered on
April 7, 1978. The jurisdiction of this Court is invoked
under 28 USC §1254(1).
” =
-
Questions Presented
1. Whether 633(b) of the Age Discrimination in Employ-
ment Act (ADEA) 29 USC §621 et seq. requires a
claimant to first pursue his state remedies before
bringing an action under the aforesaid act in a United
States District Court.
2. Whether the claimant under the ADEA must pursue
his state remedies in a timely fashion if the answer
to the immediately foregoing question is answered in
the affirmative.
Statutes
The relevant provisions of the Age Discrimination in
Employment Act, 29 USC §621 et seg. (to with: 633(b) and
§626(d)) and Title VII of the Civil Rights Act of 1964,
42 USC §2000-e-5(c) are set forth as App. C, infra, pp.
32a-34a).
Statement of the Case
In 1975 respondent was a methods and standards engi-
neer at petitioner’s Warren Truck Plant in Warren, Mich-
igan. He was essigned to the Heavy Duty Truck Depart-
ment, In May of 1975 the heavy duty truck operation was
discontinued, and respondent was put on an indefinite lay-
off effective May 9, 1975.
On August 15, 1975 respondent attempted to file a com-
plaint with the Michigan Civil Rights Commission (MCRC).
On September 3, 1975 respondent was informed in writing
that MCRC could not accept his complaint because it was
not filed within 90 days of the alleged discriminatory act,
as required by Michigan law. The respondent filed the
instant action on November 6, 1975 in the United States
District Court, Eastern District of Michigan, Southern
Division, claiming a violation of the ADEA. That respond-
ent gave the requisite 60-day notice to the Secretary of
Labor as required by §626(d) of the ADEA is not dis-
puted.
Petitioner filed a motion for summary judgment request-
ing that the matter be dismissed upon the grounds that
respondent had not complied with §633(b) of the ADEA
by first seeking relief from the appropriate state agency
in a timely fashion sixty days prior to the initiation of an
action under the ADEA. Petitioner’s motion was heard
before the Honorable Cornelia G. Kennedy, who issued an
Opinion and Order Granting petitioner’s motion for sum-
mary judgment and a judgment in accordance therewith.
Judge Kennedy held that compliance with §633(b) of the
ADEA was a mandatory jurisdictional prerequisite and
failure to so comply deprived the Court of authority to
entertain an action brought under the ADEA. The Court
then held that respondent’s failure to commence proceed-
ings with the MCRC before the expiration of its limitation
period was not in compliance with §633(b) of the ADEA.
On August 3, 1976, respondent filed Notice of Appeal of
Judge Kennedy’s decision.
On April 7, 1978, the Court of Appeals issued its opinion
and order reversing the judgment of the District Court.
The majority of the Court of Appeals (the Honorable
Judge Edwards and Judge Celebrezze) made no specific
determination as to the issue of whether a claimant under
the ADEA had to pursue his state remedies in a timely
fashion as a condition precedent to bringing a suit under
said statute but rather made the following broad ruling:
‘‘We determine that 29 USC 633(b) does not re-
quire prior resort to an available state agency as a
prerequisite to an ADEA suit in federal court.’’
4
Obviously, the above-quoted ruling obviated the necessity
of ruling upon the narrower issue presented on appeal from
the lower court.
The concurring opinion of the Honorable Judge Lively
disagreed with the majority’s broad ruling and concluded
that §633(b) of the ADEA did indeed require a claimant
to initiate state proceedings prior to filing a suit under
said act; but a failure of a claimant to file with the state
agency within the period of time prescribed by state law
did not bar a claimant from bringing an action in federal
court under the ADEA if the claimant fulfilled the other
requirements of the act.
Reasons for Granting the Petition
Petitioner Chrysler Corporation submits that there are
two compelling reasons for this Court to grant the instant
Petition for Certiorari. Initially, the decision of the Court
below is erroneous as a matter of law. Secondly, there is
split between the United States Circuit Courts of Appeal
on both issues presented to this Court; and thus, for the
sake of both uniformity of the law and certainty as to what
conditions precedent must be met by a claimant under the
ADEA before he can institute an action in a federal dis-
trict court, a decision by this Court on the aforestated issues
is necessary.
1. The decision of the Sixth Circuit Court of Appeals is
erroneous as a matter of law.
The most obvious problem with the determination of the
Court immediately below is that it contravenes the clear
wording of the statute. Section 633(b) of the ADEA reads
as follows:
5
‘*Limitation of Federal action upon commence-
ment of State proceedings
‘*(b) In the case of an alleged unlawful practice
occurring in a State which has a law prohibiting dis-
crimination in employment because of age and
establishing or authorizing a State authority to
grant or seek relief from such discriminatory prac-
tice, no suit may be brought under section 626 of this
title before the expiration of sixty days after pro-
ceedings have been commenced under the State law,
_unless such proceedings have been earlier termina-
ted: . . . If any requirement for the commencement
of such proceedings is imposed by a State authority
other than a requirement of the filing of a written
and signed statement of the facts upon which the
proceeding is based, the proceeding shall be deemed
to have been commenced for the purposes of this
subsection at the time such statement is sent by
registered mail to the appropriate State authority.’’
(emphasis added)
The State of Michigan has a statute prohibiting discrimi-
nation based on age, MSA $§17.458(3a). It also has an
agency with the authority to en.orce the statute, MSA
§17.458(7).
The Michigan statute contains the following provision
concerning the limitation period for filing complaints:
‘*Any individual claiming to be aggrieved by an
alleged unlawful employment practice may, by him-
self or his agent, make, sign and file with the board,
within 90 days after the alleged act of discrimina-
tion a cerified complaint in writing. . . .”? MSA
§17.458(7) (b)
Compliance with this 90-day limitation period has been
held to be a mandatory jurisdictional prerequisite for action
by MCRC. Chrysler Corporation v. Michigan Civil Rights
Commission, 68 MichApp 283, 242 NW2d 556 (1976).
To date, of the Cireuit Courts, only the Sixth Circuit
has ruled that the language of §633(b) does not mean what
it says, and that failure to initiate state remedies does not»
bar an action in Federal court. While there have been a
few district court opinions supportive of the Sixth Circuit
positions, they are in the distinct minority. Smith v. Jos.
Schlitz Brewing Co., 419 FSupp 770 (D. N.J. 1976); Vae-
quez v. Eastern Airlines Inc., 405 FSupp 1353 (D. P.R.
1975) ; Bertrand v. Orkin Exterminating Co., 419 FSupp
1123 (N.D. Ill. 1976); Skoglund v. Singer Co., 403 FSupp
797 (D. N.H. 1975).
The other Circuit Courts which have addressed the issue
of whether one must initiate state proceedings pursuant to
§633(b) in order to bring an action in Federal court have
determined that compliance with §633(b) is a mandatory
prerequisite. Evams v. Oscar Mayer, et al., F2d C.A. No.
77-1692 (8th Cir. 1978) ; Reich v. Dow Badische Co., F2d_ ,
17 FEP 363 (2d Cir. 1978); Bonham v. Dresser Industries,
569 F2d 187 (3d Cir. 1977) ; Curry v. Continental Airlines,
513 F2d 691 (9th Cir. 1975); Goger v. H. K. Porter Co.
429 F2d 13 (3d Cir. 1974). See also Hadfield v. Mitre Corp.,
562 F2d 84, 87-88 (ist Cir. 1977). Moreover, the vast
majority of district courts have ruled likewise. Enos v.
Kaiser Industries Corp., 443 FSupp 798 (D.C. D.C, 1978).
Fitzgerald v. New England Telephone Co., 437 FSupp 635
(D. Mass. 1977) ; McGinley v. Burroughs Corp., 407 FSupp
903 (E.D. Penn. 1975); Vaughn v. Chrysler Corporation,
382 FSupp 143 (E.D. Mich. 8.D. 1974) ; McGarvey v. Merck
& Co., Inc., 359 FSupp 525 (D.C. N.J. 1973) ; Rucker v. Great
Scott Supermarkets, Inc., 10 EPD 10,508 (E.D. Mich. 8.D.
7
1974); Smith v. Crest Communities, Inc. 9 EPD {10,053
(D.C. W.D. Ky. 1974); Graham v. Chrysler Corporation,
Civil Action No. 6-70125, E.D. Mich., March 19, 1976 (J.
DeMascio).
It would be difficult to state in plainer, less ambiguous
language that an aggrieved party under the ADEA can-
not file a suit pursuant thereto until he has first com-
menced state proceedings. Indeed, §626(d) of the ADEA
has comparable language:
**(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 ease 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, which-
ever is earlier.’’
‘(Emphasis added)
The Sixth Circuit has held that the above-quoted language
of §626(d) which is, as noted above, quite similar to the
language of §633(b) imposes a jurisdictional prerequisite to
bringing an action under the ADEA. Hiscott v. General
Electric Co., 521 F2d 632 (6th Cir. 1975); Rucker v. Great
Scott Supermarkets, 528 F2d 393 (6th Cir. 1976) ; Eklund
v. Lubrigo Corp., 529 F2d 24 (6th Cir. 1976). There is no
reason to treat the equally clear language of §633(b) any
differently.
Furthermore, most of the above-cited decisions finding
8
§633(b) to be a mandatory prerequisite to an ADEA action
have noted the striki: z similarity between its language and
a parallel provision of Title VII of the Civil Rights Act of
1964 which reads as follows:
‘“*(c) In the case of an alleged unlawful employ-
ment practice occurring in a State, or political sub-
division of a State, which has a State or local law
prohibiting the unlawful employment practice al-
leged and establishing or authorizing a State or local
authority to grant or seek relief from such practice
or to institute criminal proceedings with respect
thereto upon receiving notice thereof, no charge may
be filed under the subsection (b) of this section by
the person aggrieved before the expiration of siaty
days after proceedings have been commenced under
the State or local law, unless such proceedings have
been earlier terminated, provided that such sixty-
day period shall be extended to one hundred and
twenty days during the first year after the effective
date of such State or local law. If any requirement
for the commencement of such proceedings is im-
posed by a State or local authority other than a
requirement of the filing of a written and signed
statement of the facts upon which the proceeding
is based, the proceeding shall be deemed to have
been commenced for the purposes of this subsection
at the time such statement is sent by registered mail
to the appropriate State of local authority.
42 USC §2000e-5(c) (Emphasis added)
The above-quoted provision has been repeatedly con-
strued to require that the appropriate state agencies be
given prior opportunity to consider discrimination com-
plaints prior to resorting to the federal courts. Love v.
Pullman Co., 404 US 522, 92 SCt 616, 30 LEd2d 679 (1972) ;
DuBois +-Packard Bell Corp., 470 F2d 973 (10th Cir.
1972) ; Crosslin v. Mountain States Telephone and Tele-
ot ene
9
graph Co., 422 F2d 1028 (9th Cir. 1970), vacated and re-
manded, 400 US 1004, 91 SCt 562, 27 LEd2d 618 (1971);
Electrical Workers Local 5 v. EEOC, 398 F2d 248 (3rd Cir.
1968) cert. denied, 393 US 1021, 89 SCt 628, 21 LEd2d 565
(1968) ; Stebbins v. Nationwide Mutual Insurance Co., 382
F2d 267 (4th Cir. 1967); Abshire v. Chicago and Eastern
Illinois RR Co., 352 FSupp 601 (1972) ; Oubichon v. North
American Rockwell Corp., 325 FSupp 1033 (C.D. Calif.
1970) ; Ethridge v. Rhodes, 268 FSupp 83 (S.D. Ohio 1967).
' The courts, in interpreting §633(b), took the natural and
very logical position that since nearly identical language
was used in the 1964 Civil Rights Act that Congress must
have intended that it serve the same purpose. See Evans
v. Oscar Mayer, supra; Reich v. Dow Badische Co., supra;
Goger v. H. K. Porter Co., supra; Curry v. Continental Air-
lines, supra; Vaughn v. Chrysler Corporation, supra; and
McGarvey v. Merck & Co., supra. The majority of the Court
of Appeals below, however, found this similarity in lan-
guage unpersuasive. The Court expressed an opinion that
there was no legislative history accompanying {633(b)
and, thus, no reason to apply the prevailing interpretation
of §2000e-5(c) to §633(b). The Court’s opinion simply
ignores the doctrine of in pari materia which comes into
play when the language of one statute is the same or similar
to the language of a later statute and both statutes pertain
to the same or similar subject matter. When this occurs,
and there is some ambiguity as to the meaning of the later
statutory provision, the later provision should be given the
same interpretation as the former provision. Northcross v.
Board of Education of the Memphis City Schools, et al.,
412 US 427, 93 SCt 2201, 37 LEd 48 (1973). (The Court in
this case calls this the doctrine of ‘‘pari passu.’’) See also
73 AmJur 2d, Statutes, §§186-193 and $233.
10
. Additionally, there is indeed legislative history, which
was brought to the attention of the Court below, that in-
dicates an intent by Congress to incorporate into the pro-
posed bill 8.830 the same scheme used in Title VII §2000e-
5(c) of deferring to the states for sixty days before inter-
vention by the Federal law. Mr. Andrew Biemiller, the
legislative director of the AFL-CIO commented as follows
during the Senate hearings:
**Senator Fannin: Would you like to comment
or give your thoughts as to what should be done as
far as any preemption is concerned?
‘*M. Biemiller: We are frankly a little disturbed
by the section in the bill that is now before you
which is designed to negative [sic] Federal pre-
emption in this field. I think it could lead to great
confusion, because if I read it properly, you are
virtually leaving the State laws unhampered in their
respective jurisdictions.
‘*Tt would seem to me it would be a far more
practical and preferable solution if you would take
the pattern that was developed by Senator Dirksen
and Senator Humphrey, working in concert, in con-
nection with Title VII of the Civil Rights Act of
1964, creating the Equal Employment Opportunities
Commission. There, as I recall, when you have a
State law that is substantially in agreement with
the Federal law a matter of 60 days is given to the
State fair employment agency to try to solve the
problem.
‘*At the end of that time, if the matter is not
resolved the case is moved to the Federal agency.
I think this would be preferable to trying to say
that, where there is a State law, the State agency
shall have full and complete jurisdiction.
‘‘Hearings before the Subcommittee on Labor of
the Senate Committee on Labor and Public Welfare
ll
on 8. 830 & S. 788, 90th Congress, Ist Sess. 1967, at
102 [Senate hearings].’’
Further commentary was made by Mr. Edward Conway
of the New York Commission on Human Rights who
stated :
‘*It is of particular importance that careful at-
tention be given to the Federal-State relationship
which will arise from the enactment of Federal
legislation in the field of human rights where exist-
ing State legislation has been administered success-
fully over a period of years. This factor was taken
into account by the Congress upon its consideration
an enactment of the Civil Rights Act of 1964.
‘‘The experience under those provisions would
appear to confirm the need for avoiding any implica-
tions of preemption of the field under the Federal
statute.
‘‘This requires a clear and specific saving clause
which will not only save the jurisdiction of the State
agencies, but will avoid to the greatest extent pos-
sible the coming into being of unnecessary duplica-
tions of effort.
‘¢Senate hearings, at 234.’’
The foregoing compels us inexorably to the conclusion
that the purpose and intended effect of §633(b) of the
ADEA is the same as §2000e-5(c) of Title VII. Both of the
aforementioned provisions were designed to mitigate the
further erosion of the federal system of government. Con-
gress was acutely aware of the concerns of the various states
as to the far-reaching arm of the Federal Government and
its continued encroachment upon the sovereign powers of
the individual states. It was recognized that it was neces-
sary to balance the rights and needs of the citizens with the.
policy of doing as little violence as possible to the federal.
12
system of government. Both 4633(b) of the ADEA and
§2000e-5(c) of Title VII of the 1964 Civil Rights Act
achieve this by giving the states sixty days to resolve the
problem under their own laws and enforcement mechanisms,
after which the Federal Government can take jurisdiction
over the matter. Senator Hubert Humphrey expressed the
concerns of Congress in this regard when he spoke in
refence to the pending legislation that would ultimately
become the 1964 Civil Rights Act. He stated:
‘‘The major substantive changes give increased
emphasis to the role of State and local authorities
and to methods of securing voluntary compliance.
This is both salutary and consistent with the basic
philosophy of the bill—that, whenever possible, the
problems dealt with by the bill should be resolved
locally and voluntarily. 110 Cong. Ree. 12707 (1964).
‘If the practice complained of occurs in a State
or locality which has a law prohibiting such prac-
tices and establishing an agency to deal with them
and there is no such agreement the individual com-
plainant cannot file his charge with the Commission
until the State or local agency has been given an
opportunity to handle the problem under State or
local law. However, after the agency has had 60 days
to adjust the complaint or after it terminates pro-
ceedings on it, the complainant may go to the Fed-
eral Commission. 110 Cong. Rec. 12721 (1964).’’
See also comments of a similar vein made by Senator
Dirksen, 110 Cong. Rec. 13087 (1964) and by Senator Case,
110 Con. Dee. 13081 (1964).°
It is quite obvious that this policy could only effectively
be achieved if it is mandatory for a claimant to pursue
his state remedies first. Clearly, the only effective way of
enforcing this requirement is to deny the claimant access
13
to the Federal system if he refuses to proceed with the
state agency; and as noted above, this is precisely what
most of the Courts have determined to be required by both
§2000e-5(c) and §633(b).
The Sixth Cireuit found that the structure of §633 re-
quired that lesser deference be given to the states than
does §2000e-5(c), since §633(a) App. p. 8a, unlike $2000e-
5(c), provides that any state action is superseded by com-
mencement of an action under the ADEA and that §633(d),
unlike §2000e-(5c), allows for concurrent administrative
action by the stat eagency and the Department of Labor.
The Sixth Circuit then concluded that since Congress ac-
corded the states lesser deference in the ADEA than it
accorded the states under Title VII of the 1964 Civil
Rights Act there was no reason to require state action as
a prerequisite to an ADEA lawsuit. This conclusion is
simply a non-sequitor. The fact that Congress may have in-
tended to give the states lesser deference under the ADEA
than under Title VII hardly supports a ruling which gives
the states no deference whatsoever.
As a final justification for its determination, the majority
panel states that the ADEA is remedial legislation and,
therefore, should be construed liberally. However, this
‘‘liberal construction’’ of the Court entailed what was
tantamount to redrafting not only §633(b) but also §636
(d) (2) of the ADEA.
The Sixth Circuit took the very direct and unambiguous
language of §633(b), which reads in pertinent part:
‘¢ |. no suit may be brought under section 626
of this title before the expiration of sixty days after
proceedings have been commenced under State
law,...’’
14
and mystically transmogrified it to mean that a claimant
has the ‘‘option of pursuing state remedies’’ and ‘‘[i]f that
option is elected, then the state agency must be given the
required sixty days to reconcile the dispute before a suit
can be filed in federal court.’’ App. A p. 13a. Such an inter-
pretation of the statute is to leave the realm of liberal
construction and enter the field of editing.
Moreover, to avoid having its interpretation of 633(b)
result in giving a claimant living in a deferral state a wind-
fall benefit of an additional one hundred and twenty days
within which to file an action under the ADEA, the Court
had to redraft $626 as well. Section 626(d) requires that a
claimant must file his notice of intention to sue with the
Secretary of Labor within one hundred and eighty days
after the alleged unlawful practice; but, if the claimant
lives in a state in which §633(b) applies, §626(d)(2) gives
him three hundred days after the alleged unlawful practice
has occurred or within thirty days after receipt of notice
of termination of the state proceedings, whichever is earlier.
In order to avoid the unjust result of a claimant’s bypass-
ing the state agency, but receiving the benefit of the ex-
tended filing period, which Congress obviously in-
tended to apply only to claimants who had filed with the
state agency, the Court judicially revised 626(d). It in-
terpreted §626(d)(2) to read that a claimant ‘‘obtains the
benefits of the extended filing period in §626(d)(2) only
if he is in a ‘‘deferral state’’ and elects to use the state’s
mechanisms to attempt a conciliation of the grievance.
(Emphasis the Court’s). App. A p. 11a.
It would seem that if Congress had intended such an
imaginative result it clearly could have provided for this
contingency in the statute. The fact that it did not do so
is indicative that this was not Congress’s intent. Certainly
15
such an unwarranted exercise of judicial legislation would
not be necessary if the plain language of §633(b) was fol-
lowed so that failure to comply with that provision bars a
claimant from pursuing an action under the ADEA.
With regard to the narrower and second question pre-
sented of whether a claimant must pursue his state reme-
dies within the state limitations period, it would appear
that a ruling that the commencement of state proceedings
is a prerequisite to filing a valid action in federal court
under the ADEA would require a commensurate holding
that filing in a timely fashion with the state is likewise
required.
To allow a claimant to bring an action in Federal court
after the state limitation period has lapsed would also be
in contravention of the above-described federal policy, and
a number of courts have so held. Reich v. Dow Badische
Co., supra; Enos v. Kaiser Industries Corp., supra; Graham
v. Chrysler Corporation, supra; Smith v. Crest Communt-
ties, Inc., supra; Vaughn v. Chrysler Corporation, supra,
McGarvey v. Merck € Co., supra; see also Fitzgerald v.
New England Telephone and Telegraph Co., supra. Contra,
Bonham v. Dresser Industries, Inc., supra; Nickle v. Shatter-
proof Glass Corp., 424 FSupp 884 (E.D. Mich. 1976) ;
Magalotte v. Ford Motor Co., 418 FSupp 430 (E.D. Mich.
1976) ; Bertsch v. Ford Motor Co., 415 FSupp 619 (E.D.
Mich. 1976). The court in McGarvey v. Merck & Co. ex-
plained its retionale as follows:
‘‘[T]o construe the statute as plaintiff suggests
would create a ‘loophole’ in Section 633(b) which
flies in the face of congressional intent... [A]ny
plaintiff could easily by-pass state agencies by wait-
ing, for whatever reasons, until after the state Sta-
tute of Limitations had expired before commencing
16
suit in a federal forum. Congress clearly did not
intend to permit such an avoidance of primary state
remedies where they exist, under the civil rights
act of 1964. [citation omitted] There is no evidence
in the legislative history of Age Discrimination in
Employment Act that Congress intended a different
result in 1967. Section 633(b) should be construed
to mean that plaintiff must first attempt to utilize
available state remedies before filing a complaint
alleging discrimination based upon age.’’
359 FSupp at pp. 527-528
From the foregoing, it is readily apparent that the de-
cision of the Honorable Cornelia Kennedy that respondent’s
failure to commence proceedings with MCRC in a timely
fashion barred him from bringing the instant action was
quite correct.
2. The division of opinion between the circuit courts on
the issues presented by the petition illustrates a sub-
stantial need for a final resolution of these issues by
the United States Supreme Court.
With regard to the first question presented in this
Petition of whether a claimant is required to initially pur-
sue his remedies with the appropriate state agency prior
to bringing an action in federal court under the ADEA,
the Sixth Circuit Court of Appeals is the only circuit which
has held that a claimant is not so required. The First Cir-
cuit, Hadfield v. Mitre Corp., supra; the Second Circuit,
Reich v. Dow Badische Co., supra; the Third Cireuit, Goger
v. H. K. Porter Co., and Bonham v. Dresser Industries, Inc.,
supra; the Eighth Cireuit, Evans v. Oscar Mayer Inc.,
supra; and the Ninth Circuit, Curry v. Continental Airlines,
supra have all indicated that a claimant must indeed pur-
sue his state remedies prior to commencing an action under
17
the ADEA in Federal court. As to the second issue of
whether the pursuit of the state remedies must be done
within the state limitations period in order to comply with
§633(b), the Third Circuit has held that such timely pur-
suit is not necessary in Bonham v. Dresser Industries, Inc.,
supra; and the First Circuit has held that it is necessary
to comply in §633(b) in Reich v. Dow Badische Co., supra.
Given the divergence of opinions on these issues, it is
readily apparent that a resolution of them by the Supreme
Court is in the national interest. Clearly, a uniform inter-
pretation and application of the ADEA is needed to prop-
erly implement this important national legislation. Those
who look to this statute to protect their rights are entitled
to some certainty as to what must be done to invoke the
statute’s enforcement mechanism. Presently, the diverse
opinions from the courts have simply confused this area
of the law.
Conclusion
For the above-discussed reasons, this Petition for a Writ
of Certiorari should be granted.
»
Respectfully submitted,
/s/ HIRA D. ANDERSON, JR.
/s/ WILLIAM 8. HURST
Attorneys for Petitioner
Chrysler Corporation
Office of the General Attorney
P. O. Box 1919
Detroit, Michigan 48288
313 /956-4467
APPENDIX
la
APPENDIX A
No. 76-2265
UNITED STATES COURT OF APPEALS
For The Sixth Circuit
CLEMENT GABRIELE, Appgat from‘the
Plaintiff-Appellant, United States District
v. Court for the Eastern .
CHRYSLER CORPORATION, District of Michigan,
Defendant-Appellee. Southern Division.
Decided and Filed April 7, 1978.
Before: Epwarps, CELEBREZZE and Live.y, Circuit Judges.
CELEBREZZE, Circuit Judge, delivered the opinion of the
Court, in which Epwarps, Circuit Judge, joined. Livezy,
Circuit Judge, (pp. 13-14) filed a separate concurring
opinion.
CeLesrezze, Circuit Judge. Plaintiff-appellant Clement
Gabriele, a former employee of defendant-appellee Chrysler
Corporation, filed an action in the district court alleging that
his employment was terminated on the basis of age in viola-
tion of the Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C. §§ 621.34. The district court granted
Chrysler’s motion for summary judgment based upon Ga-
briele’s failure to timely file an age discrimination complaint
with the Michigan Civil Rights Commission (MCRC). 416
F. Supp. 666 (E.D. Mich. 1976). The principal issue raised
on appeal is whether timely resort to an agency charged
with enforcement of state age discrimination laws is a pre-
requisite to filing suit under the ADEA in federal court.’
We hold that the ADEA imposes no such prerequisite and
reverse the judgment.
Gabriele was employed by Chrysler as an engineer from
1 This Court expressly declined to resolve this issue in Rucker v.
Great Scott Supermarkets, 528 F.2d 398, 394 (6th Cir. 1976).
f.*
2a
1965 until he was laid off on May 9, 1975. On August 15,
1975, he filed a complaint with the MCRC alleging age dis-
crimination.” On September 3, 1975, he was informed by the
MCRC that it could not accept the complaint since it was
not filed within ninety days of the alleged discriminatory
act, as then required by Michigan law.* On November 6,
1975, he filed an action in the district court, alleging that
the sixty-day advance notice of intént to sue, required by
29 U.S.C. §626(d), had been given to the Secretary of Labor,
which Chrysler does not contest. Thus, the notice to the
Secretary of Labor was necessarily given within the 180-day
period set forth in 29 U.S.C. § 626(d) (1).*
2 Michigan is a so-called “deferral state” in terms of 29 U.S.C.
§ 688 (b) since it “has a law prohibiting discrimination in em-
ployment because of age,” MicH. C.L.A. § 37.2202(1) (a), replac-
ing MICH. C.L.A. § 428.308a(a), and the MCRC is authorized “to
grant or seek relief from such discriminatory practice,” MICH.
C.L.A. § 37.2602(c)-(d), r ing MicH. C.L.A. § 428.307 (a).
Eklund v. Lubrizol Corp., 529 F.2d 247, 250 n.4 (6th Cir. 1976) ;
Cie 1078) Great Scott Supermarkeis, 528 F.2d 393, 394 n.3 (6th
ir. :
® MicH. C.L.A. § 423.807(b), repealed by P.A. 1976, No. 453, § 804,
eff. March 31, 1977, which eliminates any statutory limit for filing
with the MCRC, apparently leaving the issue to departmental
regulations.
429 U.S.C. § 626(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 al-
leged unlawful practice occurred, or
(2) inacase 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 de-
fendants in the action and shall promptly seek to eliminate any
alleged unlawful practice by informal methods of conciliation,
conference, and persuasion.
Gabriele does not need the benefit of the extended period set forth
in § 626(d) (2).
3a
The district court held that the largely uncontested proce-
dural history deprived it of jurisdietion since: it read 29
U.S.C. § 633(b)® as mandating prior resort to an appropri-
ate state agency before one could bring suit in federal court.
It relied heavily upon cases which have held that provisions
of the ADEA should be construed consistently with parallel
language in Title VII of the Civil Rights Act of 1964. Not-
ing that 42 U.S.C. § 2000e-5(c),° a Title VII provision
5 29 U.S.C. § 633 (b) :
In the case of an alleged unlawful practice occurring in a
State which has a law prohibiting discrimination in pegg rb on
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: Provided, That such sixty-day period shall be ex-
tended to one hundred and twenty days during the first year
after the effective date of such State law. If any requirement
for the commencement of such proceedings is imposed by a State
authgrity other than a requirement of the filing of a written
and signed statement of the facts upon which the proceeding
is based, the proceeding shall be deemed to have n com-
menced for the purposes of this subsection at the time such
statement is sent by registered mail to the appropriate State
authority.
6 42 U.S.C. § 2000e-5 (c) :
In he case of an alleged unlawful employment practice oc-
curring in a State, or political subdivision of a State, which has
a State or local law prohibiting the unlawful employment prac-
tice alleged and establishing or authorizing a State or local
authority to grant or seek relief from such practice or to in-
stitute criminal proceedings with respect thereto upon receiving
notice thereof, no charge may be filed under subsection (b) of
this section by the person aggrieved before the expiration of
sixty days after proceedings have been commenced under the
State or local law, unless such proceedings have been earlier
terminated, provided that such sixty-day period shall be ex-
tended to one hundred and twenty days during the first year
after the effective date of such State or local law. If any require-
ment for the commencement of such proceedings is imposed by a
State or local authority other than a requirement of the filing of
a written and signed statement of the facts upon which the pro-
ceeding is based, the proceeding shall be deemed to have been
commenced for the purposes of this subsection at the time such
statement is sent by registered mail to the appropriate State or
local authority.
4a
parallel to § 653(b), has usually been interpreted to require
prior resort to an appropriate state agency before a charge
can be filed with the Equal Employment Opportunity Com-
mission (EEOC), the district court imposed a similar re-
quirement on ADHA suits. The court also relied upon cases
from this Court which it read as making a timely filing of
notice of intent to sue with the Secretary of Labor, §626(d),
a jurisdictional prerequisite to an ADEA suit in federal
court. The district court finally noted that Congress must
have been aware that some states had shorter filing periods
under their age discrimination laws than the 180-day federal
period and must have tacitly approved them when enacting
the ADEA. This was said to justify the holding that one
must not only first file a complaint with the appropriate
state agency, but that filing must also be timely under state
law, in order to proceed in federal court. The district court
was not persuaded by arguments that its holding effectively
turned the state filing limit into the federal filing limit,
even though the former was only one-half of the latter.
Our research discloses a Third Circuit Court of Appeals
decision which addressed the narrow but important question
presented herein. Goger v. H. K. Porter Co., 492 F.2d 13 (3d
Cir. 1974).” In Goger, relied upon by the district court, the
court held that although § 633(b)
7 Goger was followed in Rogers v. Exxon Research and i Peers
inp F.2d 884, 848-44 (3d Cir. 1977), cert. den.,
The issue was discussed but not decided in Hadfield v. Mitre
Corp., 662 F.2d 84, 87-88 (1st Cir. 1977).
Many district courts have addressed the issue. rg. Nickel v.
Shatterproof Glass Corp., 424 F. Supp. 884 (E.D. Mich. 1976)
geen J.) (timely state filing not ~~) Smith v. Jos.
hits Brewing. Co., 419 F. Supp. 770 (D.N.J. 1976) (state filing
not required) ; Bertrand Vv. Orkin Exterminating Co., 419 F. Supp.
5a
does not require an aggrieved person to exhaust state
remedies as a condition precedent to the institution of
a federal suit, it does require that the State be given
a threshold period of sixty days in which it may at-
tempt to resolve the controversy, normally by volun-
tary compliance.
Id. at 15.
Its ratio decidendi was that § 633(b) was nearly identical to
42 U.S.C. § 2000e-5 (ce)
and courts have repeatedly interpreted the latter as
requiring that appropriate state agencies be given a
prior opportunity to consider discrimination com-
plaints before resorting to the federal courts.
Id. at 15-16 (footnote omitted).
The court could not find anything in the ADEA’s legislative
history to justify a different interpretation of § 633(b). The
court held, however, that equitable considerations in that
ease excused the plaintiff’s failure to resort to the ap-
7 continued
1123 (N.D. Ill. 1976) (dictum suggesting state filing not required) ;
Magalotti v. Ford Motor Co., 418 F. Supp. 480 (E.D. Mich, 1976)
(Feikens, J.) (timely state filing not required) ; Fitzgerald v. New
England Tel. & Tel. Co., 416 F. Supp. 617 (D. Mass. 1976) (state
filing required) ; Bertsch v. Ford Motor Co., 415 F. Supp. 619
(E.D. Mich. 1976) (Pratt, J.) (state gg towers generally required but
timely federal + fan” supports action Eastern Air
Lines, Inc., 405 F upp. 1358 cen 1975) (st (state filing not re-
quired) ; Skoglund v. inger ar 408 F. Supp. 797 (D.N.H. 1975)
(timely state filing not requi red) ; ; Vaughn v. Chrysler Corp., 882
F, Supp. 148 (E.D. Mich, 1974) (Kaess, J.) (state filing required
but subject to equitable consideration) ; McGarvey v. Merck & Co.,
859 F. Supp. 525 (D.N.J. ay 182) vacated without opinion, 493 F. 2d
1401 a ir.), cert. 419 U.S. 886 (1974) (state filing re-
quired
See Be 24 A.L.R. Fed, 808, § 8[¢].
6a
propriate state agency and the case waz remanded to the
district court for a hearing on the merits.®
Judge Garth filed a concurring opinion in Goger in which
he agreed that the case should be remanded for considera-
tion of the merits of the complaint. He disagreed, however,
that § 633(b)’s similarity to 42 U.S.C. § 2000e-5(c) man-
dated construing the two statutes similarly. He concluded
‘*there is no requirement that a plaintiff must first attempt
to utilize available state remedies before filing suit under
the 1967 Act.’’ Jd. at 17. He approved the position taken
there by the Secretary of Labor as amicus curiae that resort
to a state agency is completely optional and that § 633(b)’s
sixty-day waiting period applies only if one has chosen to
pursue state relief.®
We agree with the reasoning of Judge Garth in Goger and
reject the holding of the majority in that case.'°
This Court has recognized the parallels between the
ADEA and Title VII of the Civil Rights Act of 1964 but
has also cautioned against blindly applying Title VII rea-
soning and results to ADEA cases. Laugesen v. Anaconda
Co., 510 F.2d 307, 311-12 (6th Cir. 1975). Transferring the
construction of 42 U.S.C. § 2900e-5(¢c) to § 633(b) is parti-
cularly inappropriate." The two statutes are indeed very
8 The court’s remand indicates that it did not consider prior resort
to a state agency jurisdictional in the sense that absent such fact
the district court would not have power to hear the case. Rather, it
considered this requirement a statutory condition nt to suit
in federal court, subject to equitable considerations. Bonham v.
Dresser Industries, Inc., 569 F.2d 187, 194 (3d Cir. 1977).
® The Secretary of Labor as amicus curiae has taken the same posi-
tion in this appeal.
10 Comment, Procedural Prerequisites to Private Suit Under the Age
Discrimination in Employment Act, 44 U. Cut. L. REv. 457 (1977)
11 Note, State Deferral of Complaints Under the Age Discrimination
in Employment Act, 51 NOTRE DAME LAWYER 482 (1976).
7a
similar but neither is explicit on the question of whether
resort to the appropriate state agency is required before
beginning federal action. Most courts that have read §2000e-
5(¢) as requiring such prior resort have done so because
Title VII’s legislative history is very clear on that point.
Dubois v. Packard Bell Corp., 470 F.2d 973, 975 (10th Cir.
1972) ; Crosslin v. Mountain States Telephone & Telegraph
Co., 422 F.2d 1028, 1030-31 (9th Cir. 1970), vacated and
remanded, 400 U.S. 1004 (1971); EEOC v. Union Bank,
408 F.2d 867, 869-70 (9th Cir. 1968); Stebbins v. Natton-
wide Mutual Insurance Co., 382 F.2d 267, 268 (4th Cir. 1967),
cert. den., 390 U.S. 910 (1968); Ethridge v. Rhodes, 268
F. Supp. 83, 89 (S.D. Ohio 1967). There is no similar legis-
lative history accompanying § 633(b), so the rationale be-
hind the prevailing interpretation of § 2000e-5(c) simply
does not apply to § 633(b). Indeed there is legislative his-
tory suggesting that § 633(b) should be construed differ-
ently than §2000e-5(c). A committee report accompanying
the ADEA states that § 633 ‘‘ provides for concurrent Fed-
eral and State actions ... ,’’ H. R. Rep. No. 805, 90th
Cong., Ist Sess. (1967), reprinted in 1967 U.S. Cong. Cone.
anp Apmin. News 2213, 2218 (emphasis added), indicating
that complaints could originate in either state or federal
fora.!? This is, of course, far from a clear indication that
Congress intended § 633(b) to be construed differently than
§ 2000e-5(c). Our review of the legislative history of the
ADEA is only meant to point out the absence of the kind of
clear legislative history supporting the construction gen-
12 Portions of the ADEA were patterned after the Fair Labor
Standards Act, further demonstrating that the ADEA was not
meant to be a mirror-image of Title VII. H. R. Rep. No. 805, 90th
Cong., 1st Sess. (1967), reprinted in 1967 U.S. E CONG. AND
ADMIN. NEws 2218, 2218.
8a
erally given § 2000e-5(c), thus necessitating consideration
of other factors to support our result.
The principal reason we perceive for construing § 633(b)
differently than § 2000e-5(c) is found in the language of
§ 633(a).** That provision states that once action is com-
menced under the ADEA, it ‘‘supersede[s] any State aoc-
tion.’’ Thus, even under Chrysler’s view of this action,
Gabriele could have totally cut off any state action he might
have been required to initiate simply by waiting sixty days
and beginning federal action. As Judge Garth said in
Goger, we
do not believe that it was the intent of Congress to
‘», require, prior to institution of a Federal action, the
commencement of a State proceeding which, under
§ 633(b), need not be concluded and which in any
event would be superseded by the filing of the Federal
action 492 F.2d at 18.
Moreover, § 633(a) has no parallel in Title VII. Title VII
also does not require exhaustion of state remedies but only
the nitiation thereof, Crosslin v. Mountain States Tel. & Tel.
Co., 422 F. 2d 1028, 1031 n.5 (9th Cir. 1970), but Title VIT
has no provision for superseding state proceedings merely
by beginning federal action, Developments in the Law —
Employment Discrimination and Title VII of the Civil
Rights Act of 1964, 84 Harv. L. Rev. 1109, 1212 (1971). The
ADEA thus exhibits lesser deference to the states than does
18 29 U.S.C. § 633 (a)
Nothing in this chapter shall affect the jurisdiction of any
cy of any State performing like functions with regard to
discriminatory employment practices on account of age except
that upon commencement of action under this chapter such ac-
tion shall supersede any State action.
9a
Title VII and gives us no compulsion to require state action
as a prerequisite to an ADEA suit.
Another important distinction exists between § 633(d)
and § 2000e-5(c). The latter states that ‘‘no charge may be
filed’’ until after the sixty-day wating period. This prevents
all federal action during the wating period, since filing of a
charge with the EEOC is a prerequisite to a Title VII suit
in federal court. The sixty-day period gives the appropriate
state agency two months of exclusive jurisdiction over the
discrimination allegation, Section 633(b), on the other hand,
says ‘‘no suit may be brought’’ until after the sixty-day
waiting period. This only prohibits the filing of a complaint
in the district court and contemplates possible concurrent
administrative action by the state agency and the Depart-
ment of Labor. Bonham v. Dresser Industries, Inc., 569
F.2d 187, 194, n. 8 (3d Cir. 1977). The absence of a period
of exclusive state jurisdiction under the ADEA is thus
another indicia of lesser deference to the states under the
ADEA than under Title VII. Again, this militates in favor
of not requiring prior resort to a state agency before an
ADEA suit in federal court.
Another reason for our conclusion is found in the general
purposes of the ADEA. It is remedial legislaiton, designed
‘‘to promote employment of older persons based on their
ability rather than age,’’ 29 U.S.C. § 621(b), and is entitled
to a liberal construction. Moses v. Falstaff Brewing Corp.,
525 F.2d 92, 93-94 (8th Cir. 1975); Skoglund v. Singer Co.,
403 F. Supp. 797, 801 (D.N.H. 1975) ; Woodford v, Kinney
Shoe Corp., 369 F. Supp. 911, 914 (N.D. Ga. 1973). The
interpretation of §633(b) by the district court puts an
unnecessary burden on all age discrimination complainants
10a
and worked a draconian result in this case.'* The need for
quick dispute reasolution is acute in the ADEA context
since the very cause of the alleged discrimination, age,
grows daily. An older person should be allowed to choose
the quicker of the two available remedies and not be forced
to first choose the state remedy if that would unduly im-
pede a prompt resolution of his grievance.
Chrysler argues that the district court properly relied
upon several of this Court’s decisions requiring a timely -
filing of notice of intent to sue with the Secretary of Labor,
§ 626(d), as a prerequisite to suit in federal court. Initially,
we express doubts about the correctness of the reading of
those cases by both Chrysler and the district court. But
even if we accept the idea that we have strictly construed
14 Even the Third Circuit, whence came Goger, does not require a
timely state filing if the state period is shorter than the federal] 180
days. It recognized that this improperly turned the state filing
period into the federal filing period. Bonham v. Dresser Industries,
Inc., 569 F.2d 187, 194 (3d Cir. ert Cf. Davis v. Valley Dis-
tributing Co., 522 F.2d 827, 882-83 (9th Cir. 1975), cert. den., 429
U.S. 1090 (1977); Olson v. Rembrandt Printing Co., 511 F.2d
1228, 1232 (8th Cir. 1975) (both Title VII).
148 This Court’s decisions construing § 626(d) have been cited, by
Chrysler and others, for the proposition that a timely filing under
§626(d) is a strict jurisdictional prerequisite to suit in federal
court, Close examination of those cases, however, reveals that that
is not an accurate reading of them. The first case, Hiscott v. Gen-
eral Electric Co., 521 F.2d 632, 633-34 (6th Cir. 1975), did say that
the notice requirement was “jurisdictional” but expressly refused
to decide whether it could be treated like a statute of limitations
which could be tolled or otherwise be subject to equitable con-
siderations since the plaintiff’s filing in Hiscott was not timely
even if tolling doctrines were employed. The second case, Ott Vv.
Midland-Ross Corp., 523 F.2d 1367, 1870 (6th Cir. 1975), merely
cited Hiscott for the proposition that the § 626(d) filing was
“jurisdictional.” The last two cases, decided by the same panel on
the same day, also relied upon Hiscott for the notion that § 626
(d)’s requirement was a jurisdictional prerequisite to suit in
federal court. Eklund v. Lubrizol Corp., 529 F.2d 247, 249 (6th Cir.
Ne
Ha
§ 626(d), that does not lead to a strict construction of
§ 633(b). The sections are meant to serve different purposes.
Chrysler finally argues that § 626(d)(2) precludes the
result we reach here. That provision extends to 300 days,
or thirty days after receipt of notification of termination
of state proceedings, whichever is earlier, the time within
which notice of intent to sue shall be filed with the Secretary
of Labor. But it only does so ‘‘in a case to which section
633(b) . .. applies.’’ Chrysler argues that if 4 633(b) is
interpreted to give an aggrieved person an option to com-
mence either state or federal action then the ‘‘anomalous
result’’ is that one who deliberately bypasses the state
agency still gets the benefits of the extended filing period
merely by virtue of being in a ‘‘deferral state.’”* This pos-
sible result may or may not be ‘‘anomalous’’ but we believe
it is incorrect in any event. One obtains the benefits of the
extended filing period in § 626(d) (2) only if he is in a ‘‘defer-
ral state’’ and elects to use that state’s mechanisms to attempt
a conciliation of the grievance. Cf. Skoglund v. Singer Co.,
403 F.Supp. 797, 803 (D.N.H. 1975). It is only if one uses
15 continued
1976) ; Rucker v. Great Scott Supermarkets, 528 F.2d 393, 394 (6th
Cir. 1976). Both cases recognized, however, that appropriate facts
could warrant relief from § 626(d)’s specific requirements. 529
F.2d at 250; 528 F.2d at 395. See also the opinions of then Judge,
now Solicitor General, McCree in each case. 529 F.2d at 250-5"
(dissenting, on the grounds that equitable relief was warranted) ;
528 F.2d at 395 (concurring, on the grounds that equitable relief
was not warranted.) This demonstrates that these decisions use
the term “jurisdictional” in the loose sense that § 626(d)’s require-
ments are a condition precedent to suit in federal court and not in
the strict sense that cag deprives the district court of
power to hear the case. Dartt v. Shell Oil Co., 589 F.2d 1259-61
(10th Cir. 1976), aff'd by an equally divided court, U.S.
(1977). Bonham Vv. Dresser Industries, Inc., 569 F.2d 187, 192 (3d
. Cir. 1977). Cf. Reeb v. Economic nity Atlanta, Inc., 516
F.2d 924, 928 (5th Cir. 1975) (Title VII). But cf. Powell v. South-
western Bell Tel. Co., 494 F.2d 485, 487-89 (5th Cir. 1974).
12a
time to let the state try its hand that he needs more time to
notify the Secretary of Labor. Furthermore, any state
filing need only be made within the minimum 180 days al-
lowed for the federal filing, § 626(d)(1), in order to obtain
the benefits of § 626(d)(2). Cf. Olson v. Rembrandt Print-
ing Co., 511 F.2d 1228, 1232 (8th Cir. 1975) (Title VIL).
Contra, Bonham v. Dresser Industries, Inc., 569 F.2d 187,
192 n. 5 (3d Cir. 1977). To require the state filing to be
timely under a shorter state period would improperly
elevate state law over federal law. If the state filing is not
timely under state law, presumably the complainant would
not get the full 300 days to file with the Secretary of Labor
since § 626(d)(2) also imposes a limit of within thirty days
of receipt of notification of termination of state proceedings,
if that is earlier than 300 days.’" This will prevent undue
manipulation of the filing limits by an aggrieved person.
Chrysler contends that this interpretation of §4 633(b)
and 626(d)(2) amounts to ‘‘judicial legislation.’’ We dis-
agree. Congress stated in § 626(d)(2) that the extended
filing period applies only in cases ‘‘to which Section 633(b)
... applies’’ and our construction of § 633(b) is that it does
not apply if an aggrieved person does not elect to proceed
with available state remedies. This is far from ‘‘judicial
legislation’’ but rahter is a judicial harmonization of a
statutory package which is admittedly less than a model of
clarity. This is a proper function for courts and one we are
called upon to perform regularly.
We determine that 29 U.S.C. § 633(b) does not require
- 16 See note 2, supra. ;
17Qne obviously always has 180 days to notify the Secretary of
r, pursuant to § 626 (4) (1), even if § 626(d) (2) is applicable
and thirty apse after he receives notice of termination of
state proceedings before the 180 day period expires.
13a
prior resort to an available state agency as a prerequisite to
an ADEA suit in federal court. Rather, it gives an ag-
grieved person the option of pursuing state remedies. If
that option is elected, then the state agency must be given
the required sixty days to attempt to reconcile the dispute
before a suit can be filed in federal court, unless state
proceedings are earlier terminated.’* The election of first
pursuing state remedies, permitted at any time within 180
days of the alleged discriminatory practice, is also required
to take advantage of the extended filing period set forth in
§ 626(d)(2) regarding the notice of intent to sue given to
the Secretary of Labor. If an aggrieved person does not
elect to pursue available state remedies, then he may bring
suit directly in federal court, subject to the sixty-day
notice provision of § 626(d)**
The judgment of the district court is reversed and the
cause is remanded for further proceedings consistent with
this opinion.
Lrvety, Circuit Judge, concurring. I concur in the result,
but an unable to accept all of the reasoning of the majority
opinion. In particular, I am not persuaded that the legisla-
tive history of ADEA leads to the conclusion that a com-
plainant in a ‘‘deferral state’’ may elect to begin an action
in federal court without any resort to the state agency. The
majority quotes a fragment from the House Report in sup-
port of this determination. However, when read in its en-
tirety, the paragraph from which this quotation is taken
18 If a suit is filed before the expiration of the sixty-day period, the
district court need not dismiss the complaint but should hold the
case in abeyance for the requisite period of time. Cf. Mitchell v.
Mid-Continent Spring Co., 466 F.2d 24, 26-27 (6th Cir. 1972), cert.
den., 410 U.S. 928 (1973) (Title VII).
19 See notes 4 & 15, supra, concerning when that notice must be filed
-with the Secretary of Labor.
i4a
leads me to the opposite conclusion. That paragraph reads:
Federal-State relationship
Section 14 provides for concurrent Federal and
State actions, except that in States having laws pro-
hibiting discrimination in employment because of
age, no suit may be brought under this act before the
expiration of 60 days after proceedings have been
commenced under the State law (120 days during the
first year after the effective date of the State law),
unless such proceedings have been earlier terminated,
and commencement of an action under this act shall
be a stay on any State action previously com-
menced.
H.R. Rep. No. 805, 90th Cong., 1st Sess. (1967), re-
printed in 1967 U.S. Code. Cong. and Adm. News
2213, 2218-19.
The language following the word ‘‘except’’ in the above
quotation denotes a Congressional deference to state
agencies. This language, together with the ‘‘superseding
clause’’ cited by the majority, 29 U.S.C. § 633(a), estab-
lishes a procedure under which a complainant in a de-
ferral state must first initiate proceedings with the state
agency, giving the agency 60 days in which to attempt a
solution by conciliation, but is not required to continue to
pursue state remedies after the expiration of that period.
Such a construction is compatible with expressed Con-
gressional concerns for harmonious state-federal regula-
tions in the national enterprise of eliminating unlawful
discrimination in employment practices. Statements of
these concerns abound in the legislative history of both
Title VII and ADEA.
However, untimely resort to the state agency for at-
tempted conciliation should not deprive a claimant of his
lda
right to seek relief in a federal court where the state al-
lows less than 180 days for filing. I would adopt the fol-
lowing language from the Third Circuit’s opinion in Bon-
ham v. Dresser Industries, Inc., 569 F.2d 187 (3rd. Cir.
1977):
We do not think that is was the intent of Congress
to allow states to shrink the federal remedy for age
discrimination by imposing limitation periods shorter
than the federal ones. If compliance with Pennsyl-
vania’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 1288 (8th Cir.
1975) (Title VII). 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 birng his
complaint to the attention of the state authorities.
Rather, we hold only that if plaintiff files his com-
plaint 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 Congres-
sional 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 modi-
fication.
569 F.2d at 194 (footnote omitted).
16a
APPENDIX B
UNITED STATES, DISTRICT COURT,
EK. D. MICHIGAN, S. D.
July 21, 1976
CLEMENT GABRIELE,
’ Plaintiff,
Vv. Civ. A.
No. 75-72164
CHRYSLER CORPORATION,
Defendant.
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR
ham SUMMARY JUDGMENT
CORNELIA G. KENNEDY, District Judge.
Plaintiff in this action alleges that his employment with
defendant was terminated because of his age. Although
there are several theories stated in the complaint which
plaintiff believes entitle him to relief, the sole theory which
would give this Court jurisdiction is the claim that plain-
tiff’s termination was a violation of the Age Discrimination
in Employment Act, 29 U.S.C. $§ 621, et seq.
[1] Defendant has moved for summary judgment urg-
ing that plaintiff’s admitted failure to file a complaint with
the Michigan Civil Rights Commission within the 90 days
provided by State law bars plaintiff from bringing a federal
action.’ Plaintiff asserts that he has the option of filing a
11f defendant is entitled to summary judgment as to this federal
claim, the remaining parts of the complaint should be dismissed
without prejudice. United Mine Workers v. Gibbs, 383 U.S. 715,
86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
ee eee RNa et a
17a
complaint with the State or not, and, further, that even if
he must file such a complaint he is not restricted to doing
so within the 90-day limitation period of the Michigan
statute.
The relevant dates are as follows:
1. May 9, 1975, plaintiff terminated ;
2. August 15, 1975, plaintiff attempts to file complaint
with Michigan Civil Rights Commission ;
3. September 3, 1975, Michigan Civil Rights Commis-
sion writes to plaintiff, stating that it ‘‘cannot accept
your complaint’’ because it was vot filed within 90
days of the act of alleged discrimination as required
by state law;
4. November 6, 1975, the instant action filed in District
Court.
The complaint alleges that plaintiff has given the Secre-
tary of Labor 60 days’ notice of his intent to sue as re-
quired by the Act. While no dates are mentioned, defend-
does not dispute this allegation.
The Age Discrimination in Employment Act includes
the following provisions:
No civil action may be commenced by any in-
dividual under this section until the individual has
given the Secretary [of Labor] no tless 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
tilte applies, within three hundred days after the
alleged unlawful practice occurred or within thirty
18a
days after receipt by the individual of notice of .
termination of proceedings under State law, which-
ever is earlier.
29 U.S.C. § 626(d).
Section 633(b) referred to in the preceding passage reads,
2s follows:
In the case of an alleged unlawful practice occur-
ring in a state which has a law prohibiting discrimi-
nation in employment because of age and establish-
ing 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 terininated, . . .. If any
requirement for the commencement of such proceed-
ings is imposed by a State authority other than a
requirement of the filing of a written and signed
statement of the facts upon which the proceeding is
based, the proceeding shall be deemed to have been
commenced for the purposes of this subsection at the
time such statement is sent by registered mail to the
appropriate State authority.
Michigan is clearly a state which has both an act pro-
hibiting age discrimination, MSA 417.458(3a), and an
agency empowered to enforce the statute. MSA § 17.458(7).
See Eklund v. Lubrizol Corp., 529 F.2d 247, 250 (6th Cir.
1976).
The Michigan statute contains the following provision
regarding the time for filing of complaints:
Any individual claiming to be aggrieved by an al-
leged unlawful employment practice may, by him-
‘Bib «g
~ 19a
- self or his agent, make, sign and file with the board,
within 90 days after the alleged act of discrimina-
tion, a verified complaint in writing.
MSA § 17.458(7) (b).
[2] There are few reported cases dealing directly with
the issue raised here. However, most courts have agreed
that the age discrimination statute should be interpreted
consistently with the almost identical language of Title VII
of the Civil Rights Act of 1964. See Goger v. H. K. Porter,
492 F.2d 13 (3d Cir. 1974); Curry v. Continental Airlines,
513 F.2d 691 (9th Cir. 1975). The legislative history of the
age discrimination statute, discussed at length, infra, sup-
ports this conclusion.
The parallel provisions of Title VII are, as follows:
limitaiton period) was filed with the State agency. The
court in that case relied on two Title VII cases that had
held that the State filing requirements were not technically
‘‘jurisdictional’’ but were rather in the nature of condi-
tions precedent. The Skoglund Court concluded:
I find that, although Section 633(b) requires
timely resort to state remedies before a complaint
may be filed in federal court, this requirement is not
jurisdictional; therefore, plaintiff’s failure to notify
the Massachusetts Commission Against Discrimina-
tion in a timely fashion does not bar him from this
court.
The effect of treating untimely filings as sufficient com-
pliance with State requirements is, of course, to extend the
possible period for bringing action in those states to 300
days, an anomalous result.
20a
The Sixth Circuit has not spoken definitely as to how
the provisions of the age discrimination statute should be
interpreted, since it has not dealt directly with the question
of the necessity of State agency filings. See Rucker v. Great
Scott Supermarkets, 528 F.2d 393, 394 (6th Cir. 1976). How-
ever, in discussing the necessity of filing with the Secretary
of Labor, it has said:
This Court, in Hiscott v. General Electric Co, 6
Cir., 521 F.2d 632... following a review of the Act’s
legislative history, concluded that compliance with
the notice requirements contained in § 626 is a juris-
dictional prerequisite to the filing of an action under
ADEA.
Eklund v. Lubrizol Corporation, 529 F.2d 247, 249 (6th
Cir. 1976). On the other hand, in another case, it qualified
the rule:
Appellant’s failure to afford the Secretary sixty
days’ notice of his intent to sue requires this Court
to affirm the dismissal of Appellant’s action unless
the special facts of the case warrant the granting of
equitable relief.
Rucker v. Great Scott Supermarkets, 528 F.2d 393, 395
(6th Cir. 1976). |
Applying the literal language of the statute and its logi-
cal interpretation, i.e., the requirement that
‘‘no suit may be brought under section 626 of this
title before the expiration of sixty days after pro-
ceedings have been commenced under the State’’,
means proceedings which were commenced timely under
State law also results in unequal periods during which
actions may be brought under the federal statute, depend-
a ee
7.
A CONT i TE I
0 a a aD
2la
ing upon the particular state in which the claimant is
employed.
A plaintiff in Michigan, which has enacted a law giving
him rights that he would not have in, for example, Ohio, is
forced to comply with more stringent procedural require-
ments than a comparable Ohio plaintiff in order to pursue
his federal statutory rights. The Ohio plaintiff can sue in
federal court by filing a complaint with the Secretary of
Labor within 180 days; however, the Michigan plaintiff
must file with the State agency within 90 days or be barred
from his federal court remedies.
It is this situation which prompted the conclusion of The
Honorable Philip Pratt in Bertsch v. Ford Motor Company,
415 F.Supp. 619, E.D.Mich., 1976. Although recognizing that
‘‘Therefore, it is fair to infer that state procedures, in-
cluding limitations periods, were intended to be incor-
porated into the exhaustion requirement of § 633(b)’’, he
concluded
... itis a fair presumption that Congress did not
intend that those state practices which diYer sub-
stantially from the federal, such as a 90 day limita-
tions period, be afforded unchecked deference. Con-
sideration of all of the relevant policies prompts this
Court to conclude that Congress intended that state
limitations periods be fully operative ot the extent
that their operation is fair, feasible, and practicable.
That is, when they do not unduly interfere with the
assertion of the federal right, they must be enforced.
When, however, they are substantially shorter than
the federal period, compliance should not be an auto-
matic and mandatory pre-condition to suit. Rather,
timely resort should generally be required. Certainly,
22a
it should be necessary if one seeks to secure the bene-
fit of the longer 300-day federal filing period. How-
ever, where, as here, the failure to timely exhaust is
only a function of lack of knowledge and the state
refuses jurisdiction, a claimant should be afforded
the benefit of the shorter 180 day federal period al-
lotted by Congress as the time ‘‘reasonably required
... to prepare and file a claim.’’ (Davis [Davis v.
Valley Distributing Co., 9 Cir., 522 F.2d 827], supra,
at 827). If he properly files a notice of intent to sue
with the Secretary of Labor within that time, the
civil action may proceed.
The 180-day limitation is carried forward in order to
avoid deliberate by-pass or enlarge the time where a claim-
ant has failed to comply with the state procedures. Although
this Court, were it enacting such legislation, would concur
with the desirability of the result reached by this Court’s
colleague, it is unable to interpret the statute in this fashion.
That Congress was aware that state procedures might be
more restrictive than it intended is shown by the express
provision that should commencement of state proceedings
require more than ‘‘a written and signed statement of
facts’’ a state proceeding would be ‘‘deemed commenced’’
with that simple requirement. It flies in the face of reason
to conclude that Congress intended state proceedings might
be commenced at any time the claimant selected, rather than
the period set by the state statute. It should be noted that
Title VII until its 1972 amendment had a 90-day limitation
period. Thus, apparently Congress was not concerned that
such a period was too short a time for the filing of a com-
plaint when it adopted the Age Discrimination in Employ-
ment Act in 1967. ,
tee eT ree tes
23a
The legislative history of the Age Discrimination
in Employment Act does not conclusively settle the
question of whether an employee who attempts to file
with the state agency, but not within the time pro-
vided to do so under state law, is barred from bring-
ing a federal court action under the Act. A number of
items in the hearings’ reports and debates are help-
ful, however.
First, it must be realized that none of the provisions re-
garding the requirements of seeking redress from adminis-
trative agencies were contained in the original bills, S. 830
and H.R. 4221. In the Civil Rights Act of 1964, Congress had
directed the Secretary of Labor to make a study of the
problem of Age Discrimination in Employment. See House
Report No. 805, 90th Cong., 1st Sess., Oct. 23, 1967. [House
Report]. 1967 U.S.Code Cong. d Admin.News pp. 2213, 2214.
[House Report}.
Following the completion of the Report, the Congress
directed the Secretary to formulate and submit specific
legislative proposals. 1967 U.S.Code Cong € Admin.News
at p. 2214. These recommendations took the form of S. 830
and H.R. 4221, 90th Congress, 1st Session.
These bills contained an enforcement mechanism that was
very similar to the NLRB procedure used in enforcing the
National Labor Relations Act. A new agency would have
been empowered to conduct hearings, make findings, and
seek enforcement in the Court of Appeals. Individual em-
ployees would not have been authorized to bring civil
actions by those bills.
The section of the bills that corresponds to the present
section 633, dealing with ‘‘Federal-State relations, ’” pro-
vided only that, ‘‘Nothing in this Act shall affect the juris-
24a
diction of any agency of any State performing like functions
with regard to discriminatory employment practices on ac-
count of age.’’ H.R. 4221, section 14.
Both the House and Senate committees added the Jan-
guage that is the present section 633(b). There was very
little discussion in the hearings (and none in the reports
or the debate) of why this was done. There are two mar-
ginally relevant portions of the Senate hearing. First, Mr.
Andrew Biemiller, the legislaitve director of the AFL-CIO,
commented during the Senate hearings:
Senator Fannin: Would you like to comment or
give your thoughts as to what should be done as far
as any preemption is concerned?
M. Biemiller: We are frankly a little disturbed
by the section in the bill that is now before you which
is designed to negative [sic] Federal preemption in
this field. I think it could lead to great confusion,
because if I read it properly, you are virtually leav-
ing the State laws unhampered in their respective
jurisdictions.
It would seem to me it would be a far more prac-
tical and preferable solution if you would take the
pattern that was developed by Senator Dirksen and
Senator Humphrey, working in concert, in connec-
tion with Title VII of the Civil Rights Act of 1964,
creating the Equal Employment Opportunities Com-
mission. There as I recall, when you have a State
law that is substantially in agreement with the Fed-
eral law a matter of 60 days is given to the State
fair employment agency to try to solve the problem.
At the end of that time, if the matter is not resolved
the case is moved to the Federal agency. I think this
———a
25a
would be preferable to trying to say that, where there
is a State law, the State agency shall have full and
complete jurisdiction.
Hearings before the Subcommittee on Labor of the Sen-
ate Committee on Labor and Public Welfare on S. 830 &
S. 788, 90th Congress, 1st Sess.1967, at 102 [Senate hear-
ings].
A tangential comment was made by Edward Conway of
the New York Commission on Human Rights:
It is of particular importance that careful atten-
tion be given to the Federal-State relationship which
will arise from the enactment of Federal legislation
in the field of human rights where existing State leg-
islation has been administered successfully over a
period of years. This factor was taken into account
by the Congress upon its consideration and enact-
ment of the Civil Rights Act of 1964.
The experience under those provisions would ap-
pear to confirm the need for avoiding any implica-
tions of preemption of the field under the Federal
statute. This requires a clear and specific saving
clause which will not only save the jurisdiction of the
State agencies, but will avoid to the greatest extent
possible the coming into being of unnecessary duplica-
tions of effort.
Senate hearings, at 233-234.
As indicated above, the committees added section 633(b)
in language very similar to that of the corresponding pro-
vision of Title VII, without noting the reason for the addi-
tion. Th econclusion seems inescapable that the section was
patterned after Title VII.
26a
There are also a few comments which attempt to dis-
tinguish the procedures of the age discrimination act from
Title VII. However, these comments seem directed at allay-
ing fears that the administration of the two acts would
interfere with each other. See, e. g., 113 Cong.Rec. 31255
(1967) (Sen. Javits) :
The last question raised by the Senator froin Colo-
radio [Mr. Dominick], and which I also think we
should take account of, is the question of any con-
flict which might develop in the administration of
the law as related also to the Civil Rights Act of
1964, which has some provisions in it with respect
to discrimination in employment, or employment op-
portunity on grounds of race or color.
I do not think this presents any particular prob-
lem. The Civil Rights Act of 1964 does not cover age
discrimination, and S. 830 does not cover racial or
religious discrimination. The laws will operate com-
pletely independently of each other, as will the en-
forcement procedures.
It is quite consistent to conclude that the two provisions
will be enforced independently and that parallel enforce-
ment provisions will nonetheless be employed.
The language of section 626(d), relating to the 180-day
period for filing with the Secretary of Labor (and 300 days
if the State has an enforcement agency) was added on the
suggestion of Senator Javits, as part of a more general
revision of the enforcement provisions. See 113 Cong.Rec.
35055 (1967). The thrust of the change was to make the
basic enforcement provisions like those of the Fair Labor
Standards Act, rather than the NLRB-type enforcement
mechanism. Senate hearings at 24-25, 26, 113, 221.
27a
There is no discussion of the reason for the 180-period
within which complaints must be filed with the Secretary
of Labor; however, there are a number of comments about
the reason for the change to the FLSA system generally.
Secretary of Labor Wirtz, the chief administration
spokesman in the hearings explained the differences as fol-
lows :
[under the administration bill] there would be in-
volved in a particular case, first, of course, the per-
suasion procedures, which I don’t mean to pass over
lightly because experience indicates that is where
most of these matters would be worked out. If they
could not be worked out that way, there would be
the institution of an administrative proceeding by
the Secretary of Labor against the employer... The
Secretary would attempt to get back pay, reinstate-
ment only or reinstatement with back pay.
If a satisfactory settlement did not result, there
would be the institution of proceedings in court in
order to enforce the administrative decision. The
procedure in court would parallel the procedure
under the National Labor Relations Act.
In a Fair Labor Standards Act proceeding you
have a situation in which you must move more im-
mediately into the court and depend more fully on
the court proceeding. There is also authority under
FLSA procedure for a private suit to be instituted
by an aggrieved employee.
Hearings on H.R. 4221 before the Subcommittee on Labor
of the House Education and Labor Committee, 90th Cong.,
1st Sess. 1967 at 14-15.
28a
Senator Javits maintained that his proposal would be
superior because it would utilize an existing agency, rather
than create a new one. Senate hearings at 27.
A representative of the United States Chamber of Com-
merce preferred the Javits version because it would lead
to greater use of the courts which he felt would be fairer
and generally more satisfactory to those involved in dis-
putes. Senate hearings, at 113.
All of this would be far more helpful if the Fair Labor
Standards Act had provisions requiring filing of complaints
with an agency before an individual could institute a suit.
However, it is clear that Senator Javits thought that re-
sort to the federal agency, at least, was required: ‘‘The
method of enforcement almost exactly parallels that used
in minimum wage and hour cases—that is direct action in
the District Court by the Secretary of Labor or the em-
ployee for appropriate relief. Such action may only be.
commenced after informal methods of conciliation have
been exhausted.’’ (Senate hearings at 24-25).
One court has relied on a statement of Secretary Wirtz to
support the conclusion that the purpose of the Federal-
State relations section was to allow states to impose more
strict prohibitions against age discrimination than were
contained in the federal statute. Goger v. H. K. Porter Com-
pany, 492 F.2d 13, 18 (3d Cir. 1974) (concurring opinion).
However, this is a questionable interpretation of the state-
ment. Secretary Wirtz was asked the following question (in
writing) by Senator Javits:
Does the preservation of the jurisdiction of State
agencies in Sec. 14 allow State agencies to impose
prohibitions against age discrimination and employ-
29a
ment stricter than those provided under Federal
law?
Secretary Wirtz answered ‘‘Yes.’’ Senate hearings at 48.
That the provision would allow a certain result does not
mean that its purpose was to produce that result.
There is no doubt that Congress was aware of the ex-
istence of age discrimination laws in about one-half of the
states. See House Report, at 2215. There is less certainty
that Congress knew of the time periods within which com-
plaints to state agencies were required to be filed. At least
four states had, at that time, statutes that required filing
of complaints within time periods shorter than the 180
days provided for filing with the Secretary of Labor under
the federal statute: Connecticut: Conn. Gen. Stat. Ann § 321-
127 (90 days) ; Hawaii: Haw. Laws, 1963 ch. 80 Sec. 3 (90
days); Indiana: Burns Ind. Stat. § 40-2323 (agency com-
plaint against employer required to be filed within four
months of discriminatory practice—any employee com-
plaint would necessarily precede agency action) ; Michigan:
1965 P.A. No. 344 (incorporating 90-day period in general
employment discrimination enforcement section) (the Mich-
igan statute was later held to have been unconstitutional
by the State courts. Hudak v. Ex-Cell-O Corp., 58 Mich.App.
135, 227 N.W.2d 251 (1975), the present statute was enacted
in 1972).
The reports, hearings and debates do not comment on
these provisions; however, the provisions of the Hawaii
and Indiana statute, including the 90-day requirement of
filing, are printed in the House and Senate hearings as part
of material submitted to the committees by several asso-
ciations composed of insurance agents and/or companies.
See House Hearings at 500-518 (especially 502-512) ; Senate
3la
30a
Hearings at 298-316. There is no reason to infer Congress Be ia
was not fully aware of matters presented to it and printed eid
in its hearings. The Age Discrimination in Employment Act, 29 USC,
[8] The clear mandate of the statutory language, that et seq. at Section 633 reads as follows:
‘no action may be commenced by an. individual’’ unless the | ‘‘Limitation of Federal action upon commence-
requirements of 626(d) and by incorporation therein 633(b) | ment of State proceedings
are complied with bars the plaintiff from bringing this | (a) Nothing in this Act shall affect the juris-
action under the Age Discrimination in Employment Act. diction of any agency of any State performing like
His action insofar as it is based on that statute is DIS- functions with regard to discriminatory employ-
MISSED WITH PREJUDICE. The balance of his claim ment practices on account of age except that upon
is DISMISSED WITHOUT PREJUDICE? | commencement of action under this Act such action
shall supersede any State action.
‘‘(b) In the case of an alleged unlawful practice
occurring in a State which has a law prohibiting dis-
crimination in employment because of age and estab-
lishing 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: Pro-
vided, That such sixty-day period shall be extended
to one hundred and twenty days during the first year
after the effective date of such State law. If any re-
quirement for the commencement of such proceed-
ings is imposed by a State authority, other than a
requirement of the filing of a written and signed
| statement of the facts upon which the proceeding
| is based, the proceeding shall be deemed to have
* The ark — to sation it clear that it is not passing on the been commenced for the purposes of this subsection
question of w er plaintiff has stated a claim under Sta’ : . : ,
enunciated in Pompey v. General Motors Corp., 385 Mich ‘537, at the time such statement 1s sent by registered mail
189 N.W.2d 243 (1971) or has stated a claim for breach of an to the appropriate State authority.’’
employment contract.
32a 33a
Section 626(d) of the Age Discrimination in Employment
Act reads as follows: may be filed under subsection (b) of this section by
‘*(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, which-
ever 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, con-
ference, and persuasion.’’
Title VII of the Civil Rights Act of 1964, 42 USC 2000e-
5(c) reads as follows:
‘*(c) In the case of an alleged unlawful employ-
ment practice occurring in a State, or political sub-
division of a State, which has a State or local law
prohibiting the unlawful employment practice al-
leged and establishing or authorizing a State or local
authority to grant or seek relief from such practice
or to institute criminal proceedings with respect
thereto upon receiving notice thereof, no charge
the person aggrieved before the expiration of sixty
days after proceedings have been commenced under
the State or local law, unless such proceedings have
been earlier terminated, provided that such sixty-
day period shall be extended to one hundred and
twenty days during the first year after the effective
date of such State or local law. If any requirement
for the commencement of such proceedings is im-
posed by a State or local authority other than a re-
quirement of the filing of a written and signed state-
ment of the facts upon which the proceeding is based,
the proceeding shall be deemed to have been com-
menced for the purpose of this subsection at the time
such statement is sent by registered mail to the ap-
propriate State or local authority.’’
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.