Opposition — Whirlpool Corp. v. Simpson

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 78-53

WHIRLPOOL CORPORATION - - ~- Petitioner

versus

LEWIS SIMPSON - - - - ~-_ Respondent

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

JAMES F. CLAY, SR.

CLAY, HUDSON & SHEWMAKER

319 W. Main Street

Danville, Kentucky 40422

Counsel for Respondent

WESTERFIELD-BONTE CO., 619 W. KENTUCKY~—P.O. BOX 3251, LOUISVILLE, KY.

euate ae he:

ED

ee

INDEX

vy PAGE

_ _ STS CreTeerereere reer ee 1

AX ocean b db aesevseegesescesucences 2

QUESTIONS PRESENTED ...................... 2

STATUTORY PROVISIONS INVOLVED ......... 3

STATEMENT OF THE CASE .................... 4

ie b ate sal guste od we ¥e00% bo-0 6- 9

I. Was the Court of Appeals for the Sixth Circuit

Correct in Determining That Prior Resort to and

Exhaustion of State Proceedings Was Not a Jur-

isdictional Prequisite to Filing Suit in Federal

District Court for Violation of Federal Age Dis-

crimination in Employment Act of 1967, 29 USC

§§ 621-634, Particularly § 633 (b)? ............. 6

II. Did Respondent’s Prior Resort to the Secretary of

Labor of the United States Deprive State Au-

thorities of Any Jurisdiction Under the Provi-

sions of the Kentucky Revised Statutes Section

EN 5 a EPEC ETRE VEE VTS Ke TS bs ieee 7

APPENDIX A—Opinion on Rehearing ............. 11

APPENDIX B—Opinion of the Court .............. 19

TABLE OF CASES

PAGE

BD UBC 66 CBL-GOE .. ccc cccccscccecvevsncvcces 2, 3, 8,9

¢ Fo). ore rr ere errr Terr rr rei erst 2, 4, 6,7

Goger v. H. K. Porter, 492 F. 2d 13 (3rd Circuit 1974) 6

Gabriele v. Chrysler Corporation, 573 F. 2d 954 ...... ¢C

Evans v. Oscar Mayer & Co., 17 FEP (8th Circuit)... 6,7

James R. Holliday v. Ketchum, MacLeod & Grove,

me i. POPU PEE SESE S VET Tere ere Tr Tere 7

Vasquez v. Eastern Air Lines, 405 F. Supp. 1353 (D.C.

is. kf 8. SS errr Pere Te rere 7

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 78-53

WHIRLPOOL CORPORATION - - - -_. Petitioner

v.

Lewis SIMPSON - - - - - Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

4

Respondent, Lewis Simpson, prays that the Peti-

tion for Writ of Certiorari to the United States Court

of Appeals for the Sixth Circuit be denied for the rea-

sons hereinafter set out.

OPINIONS BELOW

The Order of the United States Court of Appeals

for the Sixth Circuit dated May 10, 1978, No. 76-2195,

reversing the dismissal of Respondent’s Complaint by

the District Court for the Eastern District of Ken-

tucky, is correctly reproduced as Appendix ‘‘A’’, page

A 1, with Petition for Writ of Certiorari.

2

The Opinion cited by the Court of Appeals for the

Sixth Circuit as authority for the disposition of this

case of Gabriele v. Chrysler Corporation, is correctly

reproduced as Appendix ‘‘C’’ with the Petition and is

reported in 573 Federal Reporter 2nd 954.

The Opinion of the District Court for the Eastern

District of Kentucky dismissing Respondent’s Com-

plaint is correctly reproduced as Appendix ‘‘B”’ with

the Petition.

JURISDICTION

Respondent does not question the jurisdiction as

set forth in the Petition for Writ of Certiorari.

QUESTIONS PRESENTED

I. Was the Court of Appeals for the Sixth Cir-

cuit correct in determining that prior resort to and

exhaustion of State proceedings was not a jurisdic-

tional prerequisite to filing suit in Federal District

Court for violation of Federal Age Discrimination in

Employment Act of 1967, 29 USC §§ 621-634, particu-

larly § 633(b) ?

II. Did Respondent’s prior resort to the Secretary

of Labor of the United States deprive state authorities

of any jurisdiction under the Provisions of the Ken-

tucky Revised Statutes Section 344.270?

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are: 29 USC

§ 626(c) and 29 USC $§ 633(a) and 633(b) which

provide:

‘‘(¢) 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 commencement of an action by the Sec-

retary to enforce the right of such employee under

this chapter.”’

‘*(a) Nothing in this chapter shall affect the juris-

diction of any agency of any State performing like

functions with regard to discriminatory employ-

ment practices on account of age except that upon

commencement of action under this chapter 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

discrimination 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

proceedings have been commenced under the State

law, unless such proceedings have been earlier ter-

minated: 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 law. If any requirement for the com-

mencement of such proceedings is imposed by a

State authority other than a requirement of the

4

filing of a written and signed statement of the

facts upon which the proceeding is based, the pro-

ceeding 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 appro-

priate State authority.”’

and Kentucky Revised Statutes § 344.270 providing:

‘‘Neither the Commission nor any court of this

state shall take jurisdiction over any claim of an

unlawful practice under this chapter while a claim

of the same person seeking relief for the same

grievance is pending. A final determination of a

claim alleged in an unlawful practice under this

chapter shall exclude any other action or proceed-

ing brought by the same person based on the same

grievance.”’

STATEMENT OF THE CASE

Respondent, Lewis Simpson, after more than

twenty-five years of employment by Petitioner, Whirl-

pool Corporation, in positions of great responsibility

and after numerous commendations for outstanding

performance, was threatened with termination of his

employment at the end of six months unless within that

time he complied with certain nebulous, confusing and

uncertain recommendations of a new and younger

supervisor, determined to rid the company of older

employees. To avoid a forfeiture of his employee bene-

fits and preserve whatever rights would accrue as an

employee in good standing upon his resignation, Simp-

son tendered his resignation and notified the United

5

States Secretary of Labor of the violation of his rights

under the Age Discrimination in Employment Act of

1967 (ADEA). Together with his counsel he attended

a conciliation conference conducted by a representative

of the United States Department of Labor at which

agreement was determined to be impossible and from .

there went to the office of the Director of Labor Stan-

dards of the Kentucky Department of Labor at Frank-

fort, Kentucky, to learn where and in what form a com-

plaint should be made to state authorities of the age

discrimination which Petitioner had practiced upon

him.

The Kentucky Director of Labor Standards advised

Respondent such complaints were handled at the Louis-

ville, Kentucky, office and suggested that he, the diree-

tor, would call that office and allow Respondent to dis-

cuss his problem with that office, which he did. No

record of that call was preserved but the evidence of

the director confirmed the call by Petitioner.

The following day Petitioner’s counsel was notified

by the Louisville, Kentucky, office of the Kentucky De-

partment of Labor that since Petitioner had elected to

complain to Federal authorities and desired to file suit

in Federal District Court he was free to do so. No

record of this call was kept, but the testimony of the

Executive Director of the Kentucky Commission on

Human Rights and of his first assistant confirmed that

at that time it was routine for the Department to so

advise those contemplating federal action.

Suit was timely filed by Respondent in Federal

District Court for the Eastern District of Kentucky.

6

Upon Petitioner’s Motion to Dismiss for failure to file

a written complaint with state authorities before com-

mencing federal action the District Judge felt com-

pelled to sustain Petitioner’s Motion under the au-

thority of Goger v. H. K. Porter, 492 I’. 2d 13 (3rd

Cir. 1974) as set forth in his Opinion (Appendix B of

Petition).

Upon appeal to the United States Court of Appeals

for the Sixth Circuit that Court reversed the Judg-

ment of the District Court and remanded the case for

further proceedings consistent with its Opinion in

Gabriele v. Chrysler Corporation, 573 F. 2d 954. Peti-

tioner seeks relief from that Order in this Petition for

Writ of Certiorari.

ARGUMENT

I. Was the Court of Appeals for the Sixth Circuit Correct

in Determining That Prior Resort to and Exhaustion

of State Proceedings Was Not a Jurisdictional Pre-

requisite to Filing Suit in Federal District Court for

Violation of Federal Age Discrimination in Employ-

ment Act of 1967, 29 USC §§ 621-634, Particularly

§ 633 (b)?

(A) First let it be pointed out that the cases of

Goger v. H. K. Porter, 492 F. 2d 13 (3rd Cir. 1974)

and Evans v. Oscar Mayer & Co., 17 FEP (8th Cir.)

upon which Petitioner so heavily relies, are no longer

authorities for Petitioner’s position. Goger has been

repudiated by the United States Court of Appeals for

the Third Circuit, the Court which decided the case, in

an unreported opinion in the case of James R. Holliday

7

v. Ketchum, MacLeod & Grove, Inc., et al., decided

July 14, 1978, and reproduced herewith as Appen-

dix és’?

The opinion in Evans v. Oscar Mayer & Company

cited on page 6 of the Petition was withdrawn by the

Court of Appeals for the Eighth Circuit and the oppo-

site conclusion reached in an opinion yet unpublished

which is reproduced herewith marked Appendix ‘‘B’’.

(B) It would be presumptuous of this writer to

assume that improvement could be made on the reason-

ing of the Courts of Appeals for the Third, Sixth and

Kighth Circuits as set out in Gabriele, Holliday and

Evans, supra, as well as the opinion of the District

Court in Vasquez v. Eastern Air Lines, 405 F. Supp.

1353 (D. C. Puerto Rico, 1975). Further attempt to

justify the Order of the Court of Appeals for the Sixth

Circuit reversing the dismissal of Respondent’s suit in

this case would be an imposition upon this Court and

no further attempt to do so will be made here.

II. Did Respondent’s Prior Resort to the Secretary of

Labor of the United States Deprive State Authorities

of Any Jurisdiction Under the Provisions of the Ken-

tucky Revised Statutes Section 344.270?

(A) The provisions of KRS 344.270 depriving the

state of all jurisdiction in matters involving age dis-

crimination while such a claim is pending by the same

person. Whether it is unique or not, other cases do not

deal with the provision or its effect upon an injured

party’s right to seek relief under Federal law. It is

submitted that, upon being informed by Respondent

8

that he had made a complaint to the United States

Department of Labor, the officials of the State Labor

Department gave the only answer they could give under

the provisions of this Statute and that was that Peti-

tioner was free to proceed with an action in Federal

Court.

(B) It is true that this question was never reached

or decided in the Circuit Court of Appeals. However,

it is submitted that had the Circuit Court reached a

different conclusion with regard to the requirement of

a resort to state authority before bringing action in

Federal Court, it would probably have reversed the

District Court in this case because of the foregoing

provision of the Kentucky Statutes and the resulting

conflict with the Federal Act.

Further, we believe it to be impossible to reconcile

this provision of the Kentucky Statutes with the pro-

visions of § 633(a) that commencement of an action

under the act shall supersede any state action. The

simple truth is that any construction other than that

adopted by the Court of Appeals in this and the

Gabriele case would involve an exercise in futility of

resorting to some type of complaint to state authority

with no requirement to bring it to any conclusion since

filing a federal action would supersede it any way.

(C) Finally, an examination of the Kentucky Age

Discrimination Statute will show that its provisions

fall far short of the provisions of the federal act insofar

as protecting an injured employee. There are only

injunctions and small fines provided for the offending

9

employee and the right to resort to state courts for

redress of grievances.

There is a serious question which could be raised

as to whether the Kentucky Age Discrimination Law

complies at all with the § 633(b) as a State having

‘“* * * a law prohibiting discrimination in em-

ployment because of age and establishing or au-

thorizing a state authority to grant or seek relief

from such discriminatory practice. * * *”’

Because it is not the basis of the ruling of the Court

of Appeals for the Sixth Circuit and is of relatively

minor importance by comparison to the real reason for

the ruling of the Court in this case further discussion

of this issue will not be undertaken. Nevertheless, it is

present and should be discussed further in the event

the Court does not agree with the Court of Appeals

on the basis of its opinion herein.

Respectfully submitted,

JAMES F’, CLAY, Sr.

Cay, Hupson & SHEWMAKER

319 W. Main Street

Danville, Kentucky 40422

Attorneys for Respondent

APPENDIX

at Pine tl Pi ie ts ll

11

APPENDIX “A”

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 77-1692

JosepH W. Evans, - - - - - = Appellee,

v.

Oscar Mayer & Co.,

Rosert M. Bouz,

N. D. Ortens,

Donatp L. Pau, and

Paut F. Goutpn, - - - - - - £Appellants.

Appeal from the United States District Court

for the Southern District of Iowa.

OPINION ON REHEARING

Before Bricut and Hentey, Circuit Judges, and Taxsor

Smitu, Senior District Judge.*

Hentey, Circuit Judge.

Joseph W. Evans brought this suit against his employer,

Oscar Mayer & Co., and its executives,’ charging that they

had forced him into early retirement in violation of the

Age Discrimination in Employment Act (ADEA), 29 U.S.C.

*TaLsot SmitH, United States Senior District Judge, Eastern

District of Michigan, sitting by designation.

1In this opinion we shall refer to the defendants collectively

as ‘‘Oscar Mayer.”’

12

$$ 621-634 (1970). Oscar Mayer moved to dismiss the action

for want of jurisdiction. The district court denied the mo-

tion and certified this interlocutory ruling for appeal under

28 U.S.C. § 1292(b) (1970), stating that the order presented

a “controlling question of law as to which there is substan-

tial ground for difference of opinion” and “that an immedi-

ate appeal . . . may materially advance the ultimate out-

come of the litigation.” This court thereafter permitted

this appeal.

The case was argued and submitted on January 12, 1978,

and was decided on April 5 of this year. A majority of the

court voted to vacate the order of the district court and to

remand the case for further proceedings. Thereafter, the

plaintiff-appellee filed a petition for rehearing and sug.

gestions for rehearing en banc. Plaintiff was supported

in his position by the Secretary of Labor who is charged

with the duty of enforcing ADEA but who was not a party

to the original action. The Secretary was permitted to file

an amicus curiae brief taking the position that the district

court had jurisdiction of the case, and that the original

determination of the district court was correct.

In his brief the Secretary pointed out that two days

after our original decision was announced, the Court of

Appeals for the Sixth Cireuit had reached an opposite result

in Gabriele v. Chrysler Corp., F. 2d (6th Cir.

No. 76-2265 April 7, 1978), and that that court had adhered

to Gabriele in an order entered on April 10, 1978 in Simp-

son v. Whirlpool Corp., F. 2d (6th Cir. No.

76-2195 April 10, 1978).

We have given careful consideration to the matter. We

grant rehearing, withdraw our original opinion and substi-

tute this one in its stead. This time, we affirm the order of

the district court.

Joseph Evans worked for Oscar Mayer & Co. in Daven-

port, Iowa for twenty-three years before his retirement on

January 31, 1976. On March 10, 1976 Evans notified the

13

Secretary of Labor, as required by 29 U.S.C. § 626(d),?

that he intended to sue Oscar Mayer under the ADEA. He

filed the present action in federal district court on May 7,

1977. Thereafter Oscar Mayer moved to dismiss the action

for lack of subject matter jurisdiction, arguing that Evans

had not fulfilled a jurisdictional requirement under 29

U.S.C. § 633(b) because he did not first file charges with the

Iowa Civil Rights Commission. The district court con-

cluded that filing charges with an appropriate state agency

is not a jurisdictional prerequisite to an action in federal

court. It therefore denied the motion, and Oscar Mayer

appealed.

Section 633(b) of the ADEA reads as follows:

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 author-

izing a State authority to grant or seek relief from such

discriminatory practice, no sutt 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

2Seetion 626(d) provides:

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, whichever is earlier.

Upon receiving a notice of intent to sue, the Seeretary

shall promptly notify all persons named therein as pro-

spective defendants in the action and shall promptly seek

to eliminate any alleged unlawful practice by informal

methods of conciliation, conference, and persuasion.

14

be extended 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 pro-

ceedings is imposed by a State authority other than a

requirement 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 commenced

for the purposes of this subsection at the time such

statement is sent by registered mail to the appropriate

State authority. [Emphasis added.] .

Iowa has a law prohibiting age discrimination in em-

ployment,® and the Iowa Civil Rights Commission has the

authority to seek relief from such practices. The narrow

issue raised on appeal is whether filing a claim with the

State Agency is a prerequisite to a suit under the ADEA.

A definitive answer cannot be found in either the lan-

guage of the statute, its legislative history, or the policy

behind it. The extensive discussions found in Vaequee v.

Eastern Air Lines, Inc., 405 F. Supp. 1353 (D. P.R. 1975)

(filing with state agency not required), and Bertsch v.

Ford Motor Co., 415 F. Supp. 619 (E.D. Mich. 1976) (filing

with state agency is required), demonstrate that substantial

support can be found for either conclusion. Several courts

have determined that deference to an appropriate state

agency is required by the ADEA, see Reich v. Dow Badische

Co., _— F. 2d ——, 17 FEP Cases 363 (2d Cir. No.

76-7637, April 4, 1978), including the dissenting opinion of

Judge Feinberg; Curry v. Continental Airlines, 513 F. 2d

691 (9th Cir. 1975) ; Goger v. H. K. Porter Co., 492 F'. 2d 13

(3d Cir. 1974) ; Gabriele v. Chrysler Corp., 416 F'. Supp. 666

(E.D. Mich. 1976), rev’d, _. F. 2d ___ (6th Cir. 1978),

supra; Fitegerald v. New England Telephone & Telegraph

Co., 416 F. Supp. 617 (D. Mass. 1976), modified, 437 F.

Supp. 633 (1977); Berry v. Crocker Nat'l Bank, 13 FEP

8Iowa Code Ann, § 601A.6 (1975).

15

Cases 673 (N.D. Cal. 1976), while other courts have held it

to be optional, see Bertrand v. Orkin Exterminating Co.,

419 F. Supp. 1123 (N.D. Ill. 1976); Smith v. Jos. Schlitz

Brewing Co., 419 F. Supp. 770 (D. N.J. 1976) ; Magalotti v.

Ford Motor Co., 418 ¥. Supp. 430 (E.D. Mich. 1976) ;

Skoglund vy. Singer Co., 403 F. Supp. 797 (D. N.H. 1975).

While it is obvious that the authorities are in conflict,

and the question is not free from doubt, we think that the

preferable view is that taken by the Court of Appeals for

the Sixth Circuit in Gabriele, supra, and which is also ex-

pressed in the concurring opinion of Judge Garth in Goger

v. H. K. Porter Co., supra, 492 F. 2d at 17-18. We now hold

that if an individual complaining about alleged discrimina-

tion against him in employment on account of his age in fact

files a complaint with a state fair employment practice

agency like the Iowa Civil Rights Commission, he must ob-

serve the waiting period prescribed by § 633(b). We do

not think, however, that an individual is required to file a

complaint with the state agency before coming into federal

court, assuming that he complies with the basic waiting

period prescribed by § 626(d). In our opinion such an in-

dividual has the option of proceeding first before the state

agency and then in the federal court or of proceeding

initially in the federal court without prior resort to the state

agency.

The views here expressed are in accord with the inter-

pretation that the Secretary places on § 633(b), and it goes

without saying that his interpretation of the Act is entitled

to great weight. See, e.g., Van Wyk v. Bergland, Secre-

tary of Agriculture, 570 F. 2d 701, 704 (8th Cir. 1978), and

cases cited. ;

Affirmed.

Bricut, Circuit Judge, dissenting.

I respectfully dissent.

In my judgment, in a state such as Iowa, which has laws

prohibiting age discrimination and an agency with author-

16

ity to seek relief from sueh practice, filing a charge with

the state agency is mandatory under the ADEA and is a

prerequisite to the filing of an action in federal court, sub-

ject, however, to certain equitable consideration. See

Reich v. Dow Badische Co., 17 FEP Cases 363, 368 (2d Cir.

1978); Goger v. H. K. Porter Co., 492 F. 2d 18, 16 (3d

Cir. 1974).

Congress clearly intended that diserimination on the

basis of age be remedied as quickly and efficiently as pos-

sible, for lengthy delays in the courts and administrative

agencies could deprive older workers of an effective remedy,

Section 626(d) of the ADEA expressly roquires the claim-

ant to notify the Secretary of Labor before filing suit and

requires the Secretary to “seek to eliminate any alleged

unlawful practice by informal methods of conciliation, con-

ferenee, and persuasion.” Although Congress patterned

much of the ADEA after Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1970), and other labor

statutes, it rejected a proposed enforcement procedure that

would have subjected ADEA complaints to the same delays

that plague the EEOC and NLRB. Vaequee v. Eastern Air

Limes, Inc., supra, 405 F. Supp. at 1354-55. Instead, the

claimant need defer to the Secretary of Labor and the state

agency for only sixty days before bringing suit. Thus, in

those cases in which the Secretary of Labor or the state

ageney is able to provide speedy relief, the claimant can

escape the delay inherent in any federal court action. On

the other hand, if prompt relief cannot be obtained, the

claimant may bring an action after waiting only sixty days.

Requiring a claimant to seek relief through a state agency

designed specifically to handle this type of case is con-

sistent with congressional intent. It increase the chances

of conciliation while creating no additional delay, for the

sixty-day period of deference to the state agency may run

concurrently with the sixty-day period of deference to the

17

Secretary of Labor. Bertsch v. Ford Motor Co., supra, 415

F. Supp. at 623.

Moreover, the pertinent language of section 633(b) is

nearly identical to language in Title VII:

In the case of an alleged unlawful employment prac-

tice occurring ina State * * * whichhasa * * *

law prohibiting the unlawful employment practice al-

leged and establishing or authorizing a State * * *

authority to grant or seek relief from such practice

* * * no charge may be filed * * * by the person

aggrieved before the expiration of sixty days after pro-

ceedings have been commenced under the State * * *

law, unless such proceedings have been earlier termi-

nated * * *, [42 U.S.C. § 2000e-5(b) (1970) (cur-

rently at 4 2000e-5(c)).]

This language of Title VII requires that state agencies be

afforded an opportunity to consider the employment dis-

crimination before suit for redress may be brought in a

federal court. See Love v. Pullman Co., 404 U. 8. 522

(1972); Olson v. Rembrandt Printing Co., 511 F. 2d 1228

(8th Cir. 1975).

In the present cases, however, I would not dismiss the

action outright, even though Evans failed to file a charge

with the state agency. That requirement is not “jurisdic-

tional”; it is a procedural requirement, which may be sub-

ject to equitable modification when necessary to effect the

broad remedial purposes of the statute. A similar prin-

ciple has been applied in interpreting various procedural

requirements under Title VII, see Lacy v. Chrysler Corp.,

533 F. 2d 353 (8th Cir.), cert. denied, 429 U. 8. 959 (1976) ;

Tuft v. McDonnell Douglas Corp., 517 F. 24 1301 (8th Cir.

1975), cert. denied, 423 U. S, 1052 (1976) ; Reeb v. Economic

Opportunity Atlanta, Inc., 516 F. 2d 924 (5th Cir. 1975);

Franks v. Bowman Transportation Co., 495 F. 2d 398 (5th

18

Cir. 1974), rev’d on other grounds, 424 U. S. 747 (1976),

and I feel it should apply to the present case.

In his resistance to Oscar Mayer’s motion to dismiss,

Evans argued that he had relied on official advice from the

Department of Labor that the only requirement under the

ADEA was notice to the Secretary of Labor. Moreover,

Evans had no interpretation of section 633(b) by this court

to guide him. See Goger v. H. K. Porter Co., 492 F. 2d 13,

16-17 (3d Cir. 1974). The district court did not reach this

question in disposing of Oscar Mayer’s motion. I would,

therefore, vacate the district court’s order and remand for

further proceedings on the motion to dismiss.

July 6, 1978

A true copy.

Attest:

Cuerk, U. 8. Court or Aprgats, Eioutru Orrcuit

19

APPENDIX “B”

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No, 77-1867

James R. Howumay,

Appellant

v.

Kercuum, MacLeop & Grove, Ino., a corporation;

Epwarp T, Parrack; Witu1aM H,. Genae;

Cuartes EH. McoHveu; and James EH. Future

(D.C. Civil No. 77-140)

Appeal from the United States District Court

for the Western District of Pennsylvania

Argned February 24, 1978

Berorz: Apams and Hicornsornam, Circuit Judges, and

Beoutie* District Judge

Reargued May 11, 1978 In Bane

Berore: Serrz, Chief Judge, Aupisert, Apams, Grspons,

Rosenn, Hunter, Weis, Gartu, and HicornsoTHam,

Circuit Judges

OPINION OF THE COURT

(Filed July 14, 1978)

*Honorable Louis C. Bechtle, United States District Judge for

the Eastern District of Pennsylvania, sitting by designation.

20

Stanley M. Stein

Feldstein, Grinberg, Stein & McKee

Attorneys for Appellant

707 Law & Finance Building

Pittsburgh, Pa. 15219

Donald T. O’Connor

John R. Johnson

Buchanan, Ingersoll, Rodewald, Kyle & Buerger

Attorneys for Appellees

600 Grant Street

Pittsburgh, Pa. 15219

Carin Ann Clauss

Solicitor of Labor

Donald 8. Shire

Associate Solicitor

Dennis D. Clark

Paul D. Brenner, Attorneys

Attorneys for the Secretary of Labor

as Amicus Curiae

U. S. Department of Labor

Washington, D. C. 20210

Gartu, Circuit Judge.

The question before us today is the very same question

which a panel of this court answered in 1974: must a

private plaintiff who charges employment discrimination

in violation of the federal Age Discrimination in Employ-

ment Act of 1967 (ADEA) be required to utilize state

remedies before filing a suit in federal court? In 1974, a

majority opinion of a panel of this court answered that

question in the affirmative, holding that initial resort to

state remedies was required. Goger v. H. K. Porter Co.,

1Pub. L. No. 90-202, 81 Stat. 602 (1967) (codified as amended

at 29 U.S.C. §§ 621 et seq.)).

21

Inc., 492 F’. 2d 13 (3d Cir. 1974).2 Today, having recon-

sidered this issue, we have arrived at a different answer.

Thus we overrule Goger® and hold that resort to state age

discrimination remedies is not a precondition to maintaining

a federal suit for age discrimination.

I

On April 15, 1957, James R. Holliday entered into em-

ployment with Ketchum, MacLeod & Grove, Inc. (Ketchum),

an advertising agency. Holliday served in the position

of production manager at Ketchum for some nineteen years,

until January 30, 1976. On that date, Holliday, age 57,

was terminated. Ketchum contends that Holliday was “in-

voluntarily retired” “pursuant to the early retirement pro-

visions of Ketchum’s pension plan.’”* Holliday claims that

Ketchum illegally discriminated against him because of his

age, and that as a result he has suffered injury.®

*The majority opinion in Goger, although holding that initial

state resort was essential, nevertheless permitted Goger’s federal

action to proceed on the basis of equitable considerations. The

Goger concurrence, while disagreeing with the majority opinion’s

statutory analysis, reached the same result, and concluded as we

do today that the ADEA permits, but does not require, initial

resort to state remedies. 492 F. 2d at 17-18.

®*The Internal Operating Procedures of this circuit provide

that an in bane court is permitted to overrule a previous panel

decision of this court. IOP § M. 2 (1974).

*Appellee’s Brief at 4-5. See United Air Lines, Inc. v. Me-

Mann, 46 U.S.L.W. 4043, 4046 (U.S. Dec. 12, 1977) (‘‘we find

nothing to indicate Congress intended wholesale invalidation of

retirement plans instituted in good faith before [the ADEA’s]

passage’’), superseded by Pub. L. No. 95-256, § 2(a), 92 Stat. 189

(1978) (codified at 29 U.S.C.A. § 623(f) (2) (Supp. 1 June, 1978) )

(‘‘no such seniority system or employee benefit plan shall require

or permit the involuntary retirement of any individual °

because of the age of such individual’’).

5Complaint {ff 12-17. See 29 U.S.C.A. § 623(f)(2) (Supp. 1

June, 1978), quoted n. 4 supra; H.R. Conf. Rep. No. 950, 95th

Cong., 2d Sess. 8, reprinted in [1978] U.S. Code Cong. & Ad. News

1000, 1001 (retirement plans in effect before the enactment of the

ADEA are not exempt from § 623(f)(2)).

22

Holliday initially sought redress by filing a notice under

the ADEA with the Secretary of Labor (Secretary).® Holli-

day filed his notice on July 15, 1976—one hundred sixty-

eight (168) days following his discharge—thereby comply-

ing with the ADEA’s one hundred eighty (180) day limita-

tions period for notifying the Secretary of age discrimina-

tion complaints.’ Holliday however did not file an age

discrimination claim with the Pennsylvania Human Rela-

tions Commission (Commission)*® until August 5, 1976—one

hundred eight-nine (189) days following his discharge.

The Commission dismissed Holliday’s complaint as un-

timely, because discrimination complaints must be filed with

the Commission “within ninety days after the alleged act

of discrimination.”

629 U.S.C. § 626(d) (prior to 1978 amendment) provided in

relevant part:

No civil action may be commenced by any individual . . .

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 . . . .

Section 626(d), as amended, Pub. L. No. 95-256, § 4(b) (1), 92 Stat.

190, 191 (1978) (reproduced at 46 U.S.L.W. 51 (May 9, 1978))

requires that a litigant file a ‘‘charge’’ rather than a ‘‘notice of

intent’’ with the Secretary. >

See n. 6 supra.

®The Pennsylvania Human Relations Act, Pa. Stat. Ann. tit.

43, §§ 951 et seq. (Purdon 1964 & Supp. 1978), prohibits among

other things age discrimination in employment against those be-

tween the ages of forty and sixty-two. Id. §§ 952, 953, 954(h),

955. The statute establishes the Pennsylvania Human Relations

Commission as the agency which has the power inter alia ‘‘[t]o

adopt, promulgate, amend and rescind rules and regulations to

effectuate the policies and provisions of this act,’’ id. § 957(d) ;

‘‘{t]o initiate, receive, investigate and pass upon complaints charg-

ing unlawful discriminatory practices,’’ id. § 957(f) ; ‘‘[t]o hold

hearings, subpoena witnesses,’’ id. § 957(g); and ‘‘[t]o prepare

and distribute fair practices notices,’’ id. § 957(J).

°Jd. § 959, | 7 (Purdon Supp. 1977).

In view of our disposition, we need not reach Holliday’s con-

tention that he satisfied the ADEA’s state resort requirement by

(Footnote continued on following page)

23

In light of the Commission’s dismissal of Holliday’s

claim, the district court granted Ketchum’s motion to dis-

miss Holliday’s federal complaint. The district court rea-

soned that under Goger and its progeny, “by failing to

timely file with the [Commission] the Plaintiff has not

afforded the state agency a reasonable opportunity to re-

solve the matter . . . and his [federal] suit is jurisdic-

tionally defective.”

Holliday appealed.

II

Section 623(a) of Title 29, United States Code, pro-

vides that:

It shall be unlawful for an employer—

(1) to fail or refuse to hire or to discharge any in-

dividual or otherwise discriminate against any individ-

ual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individ-

ual’s age; . . . (Emphasis added)."

A complainant seeking to invoke the protective provi-

sions of the ADEA must, as noted, comply with certain

(Footnote continued from preceding page)

filing a state age discrimination claim 189 days following the chal-

lenged act. Cf. Bonham v. Dresser Indus., Inc., 569 F. 2d 187

(3d Cir. 1977), petition for cert. filed, 46 U.S.L.W. 3695 (U.S.

May 1, 1978) (No. 77-1562) (untimely state filing will not pre-

pee federal suit if state age discrimination claim filed within 180

ays).

10Holliday v. Ketchum, MacLeod & Grove, Inc., Civ. Action

No. 77-140, Memorandum Op. at 2 (W.D. Pa. May 6, 1977) ; Id.,

Order dated May 6, 1977.

11Diseussions of age discrimination and of the ADEA are

furnished in Note, The Age Discrimination in Employment Act of

1967, 90 Harv. L. Rev. 380 (1976); Note, Age Discrimination in

Employment, 50 N.Y.U.L. Rev. 924, 945-51 (1975). The 1978

amendments to the ADEA are highlighted in Explanatory Notes,

46 U.S.L.W. 53-57 (May 9, 1978).

24

time limits for filing a notice with the Seeretary.’* In

addition, the relevant portion of section 14(b) of the ADEA,

29 U.S.C. § 633(b), provides as follows:

Federal-State relationship

(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

[quoted in part in n.6 supra] before the expiration of

sixty days after proceedings have been commenced

under the State law, unless such proceedings have been

earlier terminated. .

As we stated at the outset of this opinion, the issue

decided four years ago in Goger, and reconsidered today,

is whether section 633(b) requires, or merely permits, a

plaintiff to resort to available state age discrimination

remedies before instituting federal suit. The resolution of

that issue depends upon the interpretation of two statutory

provisions: section 626(d), quoted in part in n.6 supra,

and section 633, quoted in part in text above.

When Goger was decided, the majority of the Goger

panel, relying primarily on the near-identity of language of

section 633(b) and a comparable provision found in Title

VII of the Civil Rights Act of 1964'* reasoned that:

128¢e n. 6 supra.

1942 U.S.C, § 2000e-5(c), amending 42 U.S.C. § 2000e-5(b),

reads as follows:

In the case of an alleged unlawful employment practice

occurring in a State, or political subdivision of a State, which

has a State or local law prohibiting the unlawful employment

practice alleged and establishing or authorizing a State or

local authority to grant or seek relief from practice or

(Footnote continued on following page)

25

The minor differences between section 633 and its

counterpart under the 1964 Act [Title VII] are in-

significant and provide no support for an interpreta-

tion of the former which is contrary to the Supreme

Court’s construction in Love v. Pullman, [404 U. 8. 522

(1972) (requiring resort to state remedies) }. ;

We therefore conclude that section 633(b) required ap-

pellant to seek relief from the appropriate [state]

agency prior to instituting her suit in the federal dis-

trict court.

492 IF’, 2d at 16 (emphasis added),"*

Relying on a different statutory analysis, the concur-

rence concluded that section 633(b) afforded litigants an

initial choice of forum, 492 F, 2d at 17-18.

The proper interpretation of Section 633(b), requiring

as it does the harmonization of admittedly mixed statutory

signals, has understandably given rise to a multitude of

cases'® and, inevitably, to differences in result. Those

courts which followed our Goger decision have in large part

adopted the majority’s analysis and, by analogizing section

633(b) to the purportedly comparable provision in Title

(Footnote continued from preceding page)

to institute criminal proceedings with respect thereto upon

receiving notice thereof, no charge may be filed under sub-

section (b) of this section by the person aggrieved before the

expiration of sixty days after proceedings have been com-

menced under the State or local law, unless such proceedings

have been earlier terminated. . . .

The Supreme Court has construed this provision in Title VII to

require a prior resort to state remedies. Love v. Pullman Co,, 404

U. 8. 522 (1972).

14Accord, Bonham v. Dresser Induns., Inc., 569 F. 2d 187 (3d

Cir. 1977), petition for cert. filed, 46 U.S.L.W. 3695 (U.S. May 1,

1978) (No. 77-1562) ; Rogers v, Exxon Research & Engineering Co.,

530 F, 2d 884 (3d Cir, 1977), cert. denied, 98 8. Ct, 749 (1978).

There have been at least forty-three reported judicial deci-

sions which interpret the language of section 633(b). Explanatory

Notes to the 1978 Amendments, 46 U.S.L.W, at 56.

26

VII (42 U.S.C. § 2000e-5(c)), have required resort to state

age discrimination remedies before federal suit may be

instituted.'®

Other courts’? and jurists,’* the administrative agency

charged with enforcement of the ADEA,” a joint congres-

sional committee,*° and certain commentators*’ have cited

the Goger concurrence and have agreed with the analysis in

that opinion that section 633(b) of the ADEA affords the

plaintiff an initial choice of forum.

Recognizing the conflict that existed among the various

statutory interpretations** and faced with increased in-

10f.g., Bvans v. Oscar Mayer & Co., No. 77-1692 (8th Cir. Apr.

5, 1978) ; Reich v. Dow Badishe Co., No. 76-7637, slip op. at 6657-

70 (2d Cir, Apr, 4, 1978) ; Curry v. Continental Airlines, 513 F, 2d

691, 693 (9th Cir, 1975) ; cf. Hadfield v. Mitre Corp., 562 F. 2d 84

(Ist Cir, 1977) (assuming the applicability of the state resort re-

quirement but refusing to confront the issue directly).

11H.g., Gabriele v. Chrysler Corp., 5738 F. 2d 949 (6th Cir.

1978) ; Simpson v. Whirlpool Corp., 573 F, 2d 957 (6th Cir, 1978)

(mem,) (following Gabriele) ; Vazquez v. Eastern Air Lines, Inc.,

405 F. Supp. 1353 (D.P.R. 1975); ef. Bertrand v, Orkin Exter.

minating Co., Inc., 419 F. Supp. 1123 (N.D. Ill. 1976), reaffirmed,

432 F, Supp. 952 (N.D, Ill. 1977).

18Reich v, Dow Badiche Co,, No. 76-7637, slip op. at 6678 (2d

Cir, Apr. 4, 1978) (Feinberg, J., dissenting); Evans v. Oscar

Mayer & Co., No, 77-1692, slip op. at 7 (8th Cir. Apr. 5, 1978)

(Henley, J., dissenting).

19In this case, as in many others, the Secretary of Labor filed

an amicus curiae brief. The Secretary has consistently argued that

the ADEA affords the claimant a choice of forum.

20See pp. 13-15 infra.

*18.g., Note, Procedural Prerequisites to Private Suit Under

the Age Discrimination in Employment Act, 44 U. Chi. L. Rev. 457,

475-80 (1977) (hereinafter Note, Procedural Prerequisites). See

also Note, The Age Discrimination in Employment Act of 1967, 90

Harv. L. Rev. 380, 411 (1976) (‘‘ While the language of the ADEA

may be identical to that of Title VII in most respects, the problems

of age, race and sex discrimination are not. As a result, in resolv-

ing these questions under the ADEA, courts could do well to avoid

automatic application of Title VII precedents and to look instead

more carefully to the distinctive aspects of age discrimination,’’).

22In Bertrand v. Orkin Exterminating Co., Inc., 419 F. ei

1123 (N.D. Ill. 1976), reaffirmed, 482 F. Supp. 952 (N.D. IL.

(Footnote continued on following page)

27

stances of claimants who had not resorted to state remedies,

or had done so in an untimely fashion, and further aware of

the policy considerations which inclined toward the com-

plainant’s choice of forum,** we deemed it appropriate to

once more examine the issue decided in Goger, and insofar

as this circuit is concerned, to resolve it definitively by in

bane decision. In arriving at our determination to re-

examine, and ultimately to overrule, Goger, we were aided

by the Supreme Court’s discussion in Lorillard v. Pons,

46 U.S.L.W. 4150 (U.S. Feb. 22, 1978), and by the recent

statutory amendments to the ADEA which, although not

controlling, buttress our conclusion that resort need not be

had to state administrative machinery prior to filing a

federal action.

(Footnote continued from preceding page)

1977), Judge Decker summarized some of the conflicting views

concerning the proper construction of § 633(b).

At one extreme may be found a case such as Vaughn vy.

Chrysler Corporation, 382 F. Supp. 143 (E.D. Mich. 1974),

which analogizes § 633(b) to the jurisdictional deference

provisions of Title VII, 42 U.S.C. § 2000e-5(¢), thereby con-

stituting a bar to plaintiff’s cause of action. Somewhat less

harsh is the conclusion of the majority in Goger v. H. K.

Porter Co., Inc., 492 F. 2d 18 (3d Cir. 1974), that while

§ 633(b) is a jurisdictional requirement, it nonetheless will

not compel dismissal of an action where a plaintiff can present

an equitable claim justifying the hearing of his cause. Curry

v. Continental Airlines, 513 F. 2d 691 (9th Cir. 1975), also

utilized the analogy of Title VII law to find jurisdictional im-

port in § 633(b), but it strictly construed the words of that

section to require a specific legislative mandate to the state

authority concerning age-discrimination.

At the other extreme is the more recent opinion in Vazquez

v. Eastern Airlines, Inc., 405 F. Supp. 1353 (D.P.R. 1975),

which concluded that § 638(b) did not establish resort to state

law as a jurisdictional prerequisite for a federal age dis-

crimination action. This opinion closely relies on the con-

curring opinion of Judge Garth in Goger, supra, . .

Td, at 1125.

28See pp. 16-17 infra.

28

While the narrow holding of Lorillard (that claimants

under the ADEA are entitled to a jury trial)** is not

relevant to our present determination, we find highly rele-

vant the discussion in Lorillard which concerns the proper

interpretation of the entire ADEA. There a unanimous

Court” ruled that “but for” specific exceptions contained

in the ADEA, Congress “intended to incorporate fully

[into the ADEA] the remedies and procedures of the [Fair

Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq.]”.

46 U.S.L.W. at 4151. The Court explicitly rejected the

relevance of Title VII procedures to lawsuits which allege

age discrimination. In this connection, albeit in the con-

text of entitlement to a jury trial, the Supreme Court

stated:

[T]he rights created by the ADEA are to be “enforced

in accordance with the powers, remedies and pro-

cedures” of specified sections of the FLSA. 29 U.S.C.

§ 626(b).

Petitioner strives to find a contrary congressional

intent by comparing the ADEA with Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,

which petitioner maintains does not provide for jury

trials. We, of course, intimate no view as to whether

a jury trial is available under Title VII as a matter of

either statutory or constitutional right. [Citation.]

24Accord, Rogers v. Exxon Research & Engineering Co., 550

F., 2d 834, 838-40 (3d Cir. 1977), cert. denied, 98 8, Ct. 749 (1978).

Congress recently codified the Supreme Court’s holding in Lorillard

that a jury trial is required under the ADEA, see Pub. L. No.

95-256, § 4(a), 92 Stat. 190 (1978) (codified at 29 U.S.C.A.

§ 626(c)(2) (Supp. 1 June, 1978)) (reproduced at 46 U.S.L.W. 51

(May 9, 1978) ), thereby signifying congressional approval of that

decision.

25Justice Blackmun did not participate in the decision,

29

However, after examining the provisions of Title VII,

we find petitioner’s argument by analogy to Title VII

unavailing. There are important similarities between

the two statutes, to be sure, both in their aims—the

elimination of discrimination from the workplace—and

in their substantive prohibitions. In fact, the prohibi-

tions of the ADEA were derived in haec verba from

Title VII. But in deciding whether a statutory right to

jury trial exists, it is the remedial and procedural

provisions of the two laws that are crucial and there

we find significant differences.

[Rlather than adopting the procedures of Title VII

for ADEA actions, Congress rejected that course in

favor of incorporating the FLSA procedures even

while adopting Title VII’s substantive prohibitions.

Thus, even if petitioner is correct that Congress did not

intend there to be jury trials under Title VII, that fact

sheds no light on congressional intent under the ADEA.

Petitioner’s reliance on Title VII, therefore, is mis-

placed.

46 U.S.L.W. at 4151-52 (footnotes omitted) (emphasis

added).

As we have previously noted, the majority opinion in

Goger reached its conclusion through an almost exclusive

reliance on an analogy between procedures prescribed under

Title VII and those applicable under the ADEA. We now

know however that such reliance was unwarrantee Rather,

procedures are to be imported from the FLSA, a statute

which does not require any, let alone prior, resort to state

proceedings in order to redress FLSA violations, 29 U.S.C.

§§ 216, 217. The critical premise supporting the majority

opinion’s reasoning in Goger having been undercut by the

30

Supreme Court’s interpretation of the ADEA,** the Goger

conclusion that prior state resort is necessary must also

fall.?”

In sum, Lorillard compels us to disavow the Goger

majority’s reliance on an analogy to Title VII procedure—

a reliance which it now appears was “misplaced.” 46

U.S.L.W. at 4152. We therefore start our inquiry afresh,

by examining the language and history of the ADEA in

light of comparable provisions found in the FLSA.**

26Accord, Reich vy. Dow Badiche Co., No. 76-7637, slip op. at

6670, 6675 (2d Cir. Apr. 4, 1978) (coneurring opinion), where

Judge Danaher stated :

We fairly may disregard Title VII cases respecting the

point here at issue under ADEA [whether §§ 626(a) and

633(b) require state resort] in view of the Court’s opinion in

Lorillard v. Pons, ___. U. 8. . , 46 U.S.L.W. 4150,

4152 (U.S. February 22, 1978), where the Court perceived

that Congress specifically had refused to adopt the procedures

of Title VII for ADEA actions. Definitely, the Court made

clear, the Congress in ADEA private actions had incorporated

fully the remedies and the procedures of the Federal Labor

Standards Act.

Cf. Carter v. Marshall, 46 U.S.L.W. 2595 (D.D.C. Apr. 20, 1978)

(relying in part on reasoning contained in Lorillard, district court

held that federal employees have right to jury trial under Equal

Pay Act).

27But cf. Reich v. Dow Badiche Co., No. 76-7637, slip op. at

6670 (2d Cir. Apr. 4, 1978) (Danaher, J., concurring) (conelud-

ing that ADEA requires prior state resort but disavowing analogy

to Title VII procedures).

While the Goger holding could possibly be sustained on some

ground other than a Title VII—ADEA comparison and analysis,

we have have found no such ground to be persuasive. See Reich v.

Dow Badiche Co., No. 76-7637, slip op. at 6678 (Feinberg, J., dis-

senting) ; text p. 16 infra.

28As Justice Powell so recently stated, a court must decide

‘* ‘not to reject [wisdom] merely because it comes too late.’ ’’

Monell v. Department of Social Services, 46 U.S.L.W. 4569, 4582

(U.S. June 6, 1978) (concurring opinion) (brackets in original),

quoting Henslee v. Union Planters Bank, 335 U. S. 595, 600 (1949)

(Frankfurter, J., dissenting).

31

Ir

The language of the ADEA itself strongly supports our

conclusion that no initial resort to state age discrimination

remedies is required. The statute nowhere explicitly im-

poses a resort to state proceedings as a precondition to

instituting federal suit. The provision most likely to have

dealt with this subject—the jurisdictional provision—does

not even suggest, let alone require, prior utilization of

available state machinery. 29 U.S.C. §§ 626(c), (d), as

amended, 29 U.S.C.A. §§ 626 (c), (d) (Supp. 1 June, 1978).

Similarly, the FLSA does not require nor intimate that

prior resort to state administrative machinery is necessary

to enforce its provisions. Jd. §4 216, 217. Indeed, the FLSA

prescribes precisely the opposite procedure: a complainant

is afforded a choice of forum to enforce the provisions of

the statute. Id. § 216(b).

Nor can the ADEA be construed as even impliedly re-

quiring resort to state remedies. Here 29 U.S.C. 4 633 is

relevant. The sole basis for suggesting a state resort re-

quirement, i.e., that the language of 633(b) apparently

tracks the state exhaustion provision found in Title VII,

has been destroyed by Lorillard.*” By contrast, three argu-

2°Lorillard aside, the relevance of the Title VII exhaustion re-

quirement to enforcement procedures under the ADEA was suspect

from the outset.

Most courts that have read § 2000e-5(c) as ae 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. 8. 1004 (1971); EEOC

v. Union Bank, 408 F. 2d 867, 869-70 (9th Cir. 1968) ; Stebbins

v. Nationwide Mutual Insurance Co., 382 F. 2d 267, 268 (4th

Cir. 1967), cert. den., 390 U. 8S. 910 (1968); Ethridge v.

Rhodes, 268 F. Supp. 83, 89 (S.D. Ohio 1967). There is no

similar legislative history accompanying § 633(b), so the

rationale behind the prevailing interpretation of § 2000e-5(c)

simply does not apply to § 633(b). .

Gabriele v. Chrysler Corp., 573 F. 2d 949, 953 (6th Cir. 1978).

32

ments derived from the statute itself, as well as other

persuasive arguments, support the conclusion that we reach

today.

First, the ADEA contains in addition to 633(b) the

highly relevant subsection 633(a).°° That provision pro-

vides that a federal action filed over sixty days after com-

mencement of the state action must supersede the pending

state proceeding."* It would indeed be incongruous to

attribute an intent to Congress to mandate resort to state

proceedings when those proceedings need not be concluded,

and would in any event be necessarily superseded by the

filing of a federal suit. In short, “the ADEA reflects less

deference to state mechanisms than does Title VII.” Reich

v. Dow Badishe Co., No. 76-7637, slip op. at 6684 (2d Cir.

Apr. 4, 1978) (Feinberg, J., dissenting); accord, Gabriele

v. Chrysler Corp., 573 F. 2d 949, 954 (6th Cir. 1978).

Second, even if Title VII procedures were relevant to

the interpretation of the ADEA, which Lorillard holds they

are not, the particular language of the ADEA relevant here

(section 633(b)) is not the same as that found in Title VII.

As Judge Celebrezze has explained:

[An] important distinction exists between § 633(b)

and § 2000e-5(c). The latter states that “no charge

may be filed” until after the sixty-day waiting period.

This prevents all federal action during the waiting

period, since filing of a charge with the EEOC is a

prerequisite to a Title VII suit in federal court. The

80Title VII contains no such provision. Developments in the

Law—Employment Discrimination and Title VII of the Civil

Rights Act of 1964, 84 Harv. L. Rev. 1109, 1212 (1971).

8129 U.S.C. § 633(a) reads in full:

Federai action superseding State action

(a) Nothing in this chapter shall affect the jurisdiction of

any agency of any State performing like functions with regard

to discriminatory employment practices on account of age ex-

cept that upon commencement of action under this chapter

such action shal! supersede any State action.

33

sixty-day period gives the appropriate state agency two

months of exclusive jurisdiction over the discrimina-

tion allegation. Section 633(b), on the other hand, says

“no suit may be brought” until after the sixty-day wait-

ing period. This only prohibits the filing of a com-

plaint in the district court and contemplates possible

concurrent administrative action by the state agency

and the Department of Labor. Bonham v. Dresser In-

dustries, Inc., 569 F. 2d 187, 194, n. 8 (3d Cir. 1977)

[petition for cert. filed, 46 U.S.L.W. 3695 (U.S. May 1,

1978) (No. 77-1562)]. The absence of a period of ex-

clusive 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.

Gabriele v. Chrysler Corp., 573 F. 2d at 954.%?

Third, section 633 is entitled “Federal-State Relation-

ship,” not “Jurisdiction,” nor “Procedural Prerequisites.”

These latter subjects are dealt with in an entirely different

section of the statute, see n. 6 supra, thereby indicating that

congressional concern as expressed in section 633 was re-

stricted to notions of comity and federalism, not to juris-

dictional prerequisites.

Additionally, we find it significant that the Secretary

has urged that the ADEA affords complainants a choice of

forum. “[S]Jucha reasonable construction of an ambiguous

statute by the agency charged with its administration is

entitled to great deference.” Reich v. Dow Badiche Co.,

No. 76-7637, slip op. at 6683-84 (Feinberg, J., dissenting),

citing Udall v. Tallman, 380 U. 8. 1, 16 (1965); accord,

Goger, 492 F. 2d at 18 (concurring opinion). See also

Vermont Yankee Nuclear Power Corp. v. National Re-

82 Accord, Note, Procedural Prerequisites, 44 U. Chi. L. Rev. at

478-79.

34

sources Defense Council, Inc., 46 U.S.L.W. 4301, 4308 (U.S.

Apr. 3, 1978).

Indeed, Congress itself has recently expressed its views

as they bear upon the issue before us.** The 1978 Cong-

ress, amending other provisions of the ADEA, left the

entire section 633 intact, and did not effect any relevant

changes in § 626.%* Nevertheless the joint conference re-

port which accompanied the amendments adopted the

Senate Report which dealt with the very issue with which

we are here concerned. The relevant section of the Senate

Report adopted in the joint conference report reads as

follows:

Section 14(b) of the Act [29 U.S.C. § 633(b)]

provides that where an act of discrimination occurs in

a State which has an age discrimination law and an

agency empowered to grant or seek relief from such

discriminatory practices, no suit may be brought under

section 7 of this Act [29 U.S.C. § 626] before the ex-

piration of sixty days after proceedings have been

commenced under State law, unless such proceedings

have been earlier terminated. This provision requires

that if the individual chooses to apply first to the State

agency for relief he must give the State the prescribed

minimum period in which to take remedial action be-

fore he may turn to the federal courts for relief under

the ADEA. The provision does not require that the

individual go to the State first in every instance.

Several courts have properly recognized this dis-

tinction. See e.g., Smith v. Jos. Schlitz Brewing Com-

pany, 419 F. Supp. 770, 774 (D.N.J. 1976) [appeal

88Our examination of the legislative history which underlies

the 1967 enactment of § 633(b) reveals no support for the proposi-

tion that initial resort to state remedies is required. The absence

of clear legislative history in this connection has also been recog-

nized by the Sixth Circuit in Gabriele v. Chrysler Corp., 573 F. 2d

at 953.

84See n. 6 supra.

35

pending, No. 77-1745 (3d Cir., filed Mar. 28, 1977)];

Vazquez v. Eastern Air Lines, 405 F. Supp. 1353, 1356

(D.P.R. 1975) ; Bertrand v. Orkin Exterminating Com-

pany, 419 F. Supp. 1123, 1126 (N.D. Ill. 1976) [reaf-

firmed, 432 F. Supp. 952 (N.D. Ill. 1977)]; Goger v.

H. K, Porter Company, 492 F. [2d] 13, 17-18 (C.A. 3,

1974) (Garth, J., concurring).

Other courts, however, have ruled that the com.

plainant must go initially to the State authorities in

every instance, and that the failure to do so requires

dismissal of the federal action. See Vaughn v.

Chrysler Corp., [382] F. Supp. 143 (E.D. Michigan

1974) ; Smith v. Crest Communities, Inc., 8 FEP Cases

1328 (W.D. Ky. 1974) ; Fitzgerald v. New England Tel.

& Tel. Co., 416 F. Supp. 617 (D. Mass. 1976) [vacated

mem., 437 F. Supp. 635 (D. Mass. 1977)]; see also

Goger v. H. K. Porter Co., 492 F. 2d 13 (C.A. 3, 1974).

It is the committee’s view that an individual who

has been discriminated against because of age is free

to proceed either under state law or wnder federal law.

The choice is up to the individual. However, as Sec-

tion 14(b) makes clear, if the individual does choose to

proceed initially under State law, he must give the

State agency at least 60 days to take remedial action

before he may commence a federal action.

S. Rep. No. 493, 95th Cong., Ist Sess. 6-7 (emphasis added),

reprinted in [1978] U. S. Code Cong. & Ad. News 976,

981-82, adopted in “Joint Explanatory Statement of the

Committee of Conference,” H.R. Conf. Rep. No. 950, 95th

Cong., 2d Sess. 7, 12, reprinted im [1978] U. 8. Code

Cong. & Ad. News 1000, 1006.

It is a rare and welcome event to discover legislative

history so unambiguous. Slightly more problematic how-

ever is the impact of a 1978 joint committee report on our

interpretation of a 1967 enactment. Certainly the intent of

36

the 1978 amenders of the ADEA cannot be said to represent

or reflect the intent of the 1967 Congress: there is no

necessary relation back.** Yet an interpretation of the

ADEA which was feasible, if not preferable, before 1978

has now been officially ratified by the joint congressional

committee assigned to study and recommend changes in the

statute. We recognize, as did the Supreme Court, that

although the views of a subsequent Congress “provide no

controlling basis” for inferring original congressional in-

tent, “[n]onetheless, it is pertinent to note [the views of a

subsequent congressional committee] . . . reporting .. .

on certain proposed amendments to the Act.” Haynes v.

United States, 390 U. S. 85, 87-88 n.4 (1968). In Haynes

the Supreme Court was referring to the House Ways and

Means Committee which reported on amendments to the

National Firearms Act. A fortiori the views of a joint

congressional committee are entitled to consideration and

weight in our re-examination of the contours of sections

626(d) and 633(b) of the ADEA.

Finally, it is appropriate to consider whether a state

resort requirement read into 29 U.S.C. § 633(b) would

effectuate or frustrate the purposes of the ADEA. In this

regard, we are cognizant of those arguments advanced by

the proponents of prior state resort. We appreciate for

example the fact that by allowing state agencies to process

age discrimination complaints in the first instance, relief

may be given to congested federal court calendars. We also

acknowledge that a sixty-day wait to which claimants would

%>Haynes v. United States, 390 U. S. 85, 87 n. 4 (1968)

(‘‘ [t]he views of a subsequent Congress of course provide no con-

trolling basis from which to infer the purpose of an earlier

Congress’’); United States v. Price, 361 U. S. 304, 313 (1960)

(‘‘the views of a subsequent Congress form a hazardous basis for

inferring the intent of an earlier one’’) ; see United States v. South-

western Cable Co., 892 U. S. 157, 170 (1968) ; Rainwater v. United

States, 356 U. 8. 590, 593 (1958).

ota a

37

be subjected under section 633(b) is rather minimal in

light the expected length of the overall proceedings.

Even recognizing these arguments as well as the other

advantages which may be attributed to a prior resort pro-

cedure, we are nevertheless mindful that the ADEA is

remedial legislation and is entitled to be liberally construed.

Gabriele v. Chrysler Corp., 573 F. 2d at 954; Skoglund v.

Singer Co., 403 F. Supp. 797, 801 (D. N.H. 1975); see

Goger v. H. K. Porter Co., Inc., 492 F. 2d at 17. As such

in the absence of congressional expression, we should be

chary about creating unnecessary procedural bars which

may, at the outset, require the dismissal of otherwise

meritorious age discrimination claims. Moreover, it seems

anomalous to us that deference must be accorded to state

agency procedures when it is a federal right that is sought

to be vindicated. Indeed, it should not be overlooked that

whatever might be said in favor of requiring the initiation

of procedures before a state agency, section 633(a) by its

terms has always permitted total disruption of state pro-

ceedings (once sixty days have passed) by requiring that a

federal suit supersede any state action.

On balance therefore we do not hesitate to conclude that

the ADEA’s purposes would be frustrated rather than ful-

filled if we were to perpetuate a procedural requirement

which in many instances would prevent an otherwise meri-

torious age discrimination claim from being considered.**

86Tn this circuit alone, we have had three examples of claimants

who had not fulfilled what we characterized in Rogers v. Exxon

Research & Engineering Co., 530 F. 2d 834, 844 (3d Cir. 1977),

cert. denied, 98 S. Ct. 749 (1978), as the ‘‘jurisdictional’’ require-

ment of resorting to prior state proceedings. In each instance

however we recognized an equitable ‘‘outlet’’ which avoided the

harsh result of dismissing the complaint because of this procedural

bar. Bonham v. Dresser Indus., Inc., 569 F. 2d 187 (3d Cir. 1977),

petition for cert. filed, 46 U.S.L.W. 3695 (U.S. May 1, 1978) (No.

77-1562) ; Rogers v. Exxon Research & Engineering Co., 530 F. 2d

at 844; Goger v. H. K. Porter Co., Inc., 492 F. 2d 13 (3d Cir.

(Footnote continued on following page)

38

IV

While it may be unusual for us to reject a court prece-

dent announced by us but four years ago, when it becomes

apparent that jurisprudential integrity demands no less, we

will not shrink from undertaking that assignment. To ex-

pand upon the observation expressed by Judge Gibbons in

Cow v. Dravo Corp.,** “[w]Je should not countenance the con-

tinued application in this circuit of a rule, even of our own

devising, which is patently inconsistent with the Supreme

Court’s pronouncements,” and which does not take into ac-

count valid public policy concerns, congressional predilec-

tion, and our own unease with a judicial impediment to

remedial legislation. These considerations result in our

now construing section 633(b) differently from the con-

struction to which we subscribed four years ago in Goger.

Accordingly, we now hold, contrary to our holding in

Goger, that no prior resort to state agency procedures is

required as a precondition to commencing a federal action

charging age discrimination under the ADEA."*

The order of the district court will be reversed, and the

case remanded for proceedings not inconsistent with this

opinion.

To tue CLERK:

Please file the foregoing opinion

(s) (Not legible)

Cireuit Judge

(Footnote continued from preceding page)

1974). Our overturning of Goger’s state resort doctrine will now

permit a more straightforward approach to eyrag n eon remedial

purposes a eo ADEA—without our having to fashion equitable

‘sa ’ devices.

87517 F, 2d 620, 627 (8d Cir.), cert. denied, 423 U. 8. 1020

1975).

' Our holding today also decides the question left unanswered

by our court in Marshall v. West Exsex General Hosp., No. 77-1758

(3d Cir. Apr. 20, 1978): @ fortiori the Secretary of Labor need not

resort to state age discrimination remedies before prosecuting

charges under the ADEA.

39 ’

James P, Houtaway, Appellant, v. Keronum, MacLxop &

Grove, Ino., a corporation; Epwarp T. Parrack; Wi-

uiAM H. Genox; Cuartes BE. MoHvon; and James B.

Futter No, 77-1867 |

Hunter, Circuit Judge:

We again are presented with the question whether sec-

tion 14(b) of the Age Discrimination in Employment Act

of 1967 (ADEA), 29 U.S.C. § 633(b), requires that a state

administrative agency be given 60 days to attempt to

remedy, usually by obtaining voluntary compliance, age dis-

crimination in employment prior to an individual’s resort

to a federal court. The statute, as the court’s opinion notes,

does not by its plain text answer this question. In Goger v.

H. K. Porter Co., 429 F, 2d 13 (8d Cir. 1974), a majority

of a panel of this court held that such prior resort was

required. The majority looked to the legislative history of

the ADEA and found only a repetition of the statutory

language and no guidance, 429 F’, 2d at 16. The language

of section 14(b) was found to be substantially identical to

the “state deference” requirement in Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-5(c). That section at

that time, as now, requires resort to state procedures before

a federal remedy is invoked. F.g. Love v. Pullman Co.,

404 U. S. 522 (1972). See Occidental Life Insurance Co. v.

EEOC, 482 U. 8. 355, 357 (1977). While the majority

recognized differences between Title VII and the ADEA

procedures, it felt that the differences did not warrant de-

parture, in the absence of congressional direction, from the

analogy to Title VII plainly suggested by the similar lan-

guage of the two statutes. See Northcross v. Board of

Education, 412 U. 8. 427 (1973), (per curiam); United

Shoe Workers of America v. Bedell, 506 F. 2d 174 (D.C.

Cir. 1974). Three courts of appeals have followed the rea-

soning of the majority opinion in Goger. Evans v. Oscar

Mayer & Co., No. 77-1692 (8th Cir. Apr. 5, 1978) ; Reich v.

40

Dow Badische Co., No. 76-7637 (2d Cir. April 4, 1978);

Curry v. Continental Airlines, 513 F. 2d 691, 693 (9th Cir.

1975). But see, e.g., Gabriele v. Chrysler Corp., 573 F. 2d

949 (6th Cir. 1978).

The court has now looked again at the intent of Congress

to interpret section 14(b), in light of the 1978 amendments

to the Act. Although Congress did not amend the language

of section 14(b) which relates to the issue before us, the

Reports of the Senate and Conference Committees con-

tained en passant references to the Committees’ view of the

role of state procedures in the Act’s remedial scheme.

While recognizing that this after-the-fact “legislative

history” is pertinent, although not entitled to great weight,

see, e.g., Haynes v. United States, 390 U. S. 85, 87-88 n, 4

(1968), the court has now concluded that Congress in 1967

intended that the victim of age discrimination is not re-

quired first to seek a state remedy.' Prior resort to the

state is to be left to the option of the employee.

The question of state deference in this context is purely

a matter for the legislature. In the light of all the legis-

lative material now before us, and in view of our experience

with litigation under the Act, see, ¢.9., Bonham v. Dresser

Industries, Inc., 569 F. 2d 187 (3d Cir. 1977), petition for

cert, filed, 46 U.S.L.W. 3695 (U.S. May 1, 1978); Rogers v.

Exxon Research & Engineering Co., 550 F. 2d 834 (3d Cir.

1977), cert. denied, 98 S, Ct. 749 (1978), the court’s present

decision is, in my view, appropriate.

1The Court’s opinion also relies on the recent a Court

decision in Lorillard v. Pons, 46 U.S.L.W. 4150 (U.S. Feb. 22,

1978), as undercutting the reasoning in Goger. While I agree that

the Supreme Court pointed out the weakness of the analogy be-

tween Title VII and the ADEA in some contexts, I do not believe

that Lorillard compels a wholesale rejection of such reasoning. For

ae this court ngoy e such an reg quite helpful in

Rodriguez v. Taylor, 569 F. 2d 1231 (3d Cir. 1977), petition for

cert. filed, 46 U.S.L.W. 3617 (U.S. Mar. 23, 1978). lard stands

only for the narrow point that the provisions of the two statutes

which affect the right to a jury trial are sufficiently different that

they should not be construed pari passu on that particular question.

er eines