Petition — Oscar Mayer & Co. v. Evans

AUG

IN THE

;

Supreme Court of the United .

OCTOBER TERM, 1978

No. |

—¥8-275

OSCAR MAYER & CO., ROBERT M. BOLZ, N. D. OTTENS,

DONALD L. PAUL, PAUL F. GOULD,

Petitioners,

vs.

JOSEPH W. EVANS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TC THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT.

STUART BERNSTEIN,

ARTHUR J. KowiTT,

JAMES W. GLADDEN, Jr.,

231 South LaSalle Street,

Chicago, Illinois 60604,

Counsel for Petitioners.

Of Counsel:

MAYER BROWN & Piatt,

231 South LaSalle Street,

Chicago, Illinois 60604.

Gunthorp-Warren Printing Company, Chicago e Finanial 6-6565

7oO «ta vz

bh e. - Ee

INDEX.

PAGE

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Reasons for Granting the Writ:

I. A Clear Division of Opinion Exists Between The

Circuit Courts of Appeal on the Issue Presented

Be Be Ns 6 i on 0c een Se cee ave weit veiese 5

II. The Decision of the Eighth Circuit Court of

Appeals is Contrary to the Plain Language of

Section 14(b) of the ADEA ................ 7

ONG ear ee be kb oe ens ey oe iw ane 10

Appendix A:

Order of District Court, July 8, 1977 ............ Al

Opinion Court of Appeals, April 5, 1978 ......... A8

Opinion on Rehearing, Court of Appeals, July 6, 1978 Al5

Order Denying Petition for Rehearing en banc, Court

Of Apweeie, Duby TF, TSS 2.0 wen ccc esis ccvcccs A22

Appendix B:

Section 14(b) of the Age Discrimination in Employ-

meet Act, 2 Us. BC, S GISED) 4 vic cicncswcness A23

Section 7(d) of the Age Discrimination in Employ-

ment Act, Ze U.S. Cy § GROCE) ow word ccc cee: A23

Section 706(b) of Title VII of the Civil Rights Act of

S9GK, 42 UU. GC. SIU BOIS) niin csc oe te cine A24

ii

TABLE OF AUTHORITIES.

Cases.

Acford v. Exxon Corp., 12 FEP Cases 1500 (D. Conn.

| a rere Terr re re tte hea

Arnold v. Hawaiian Telephone Co., 12 FEP Cases 400

(D. Hawaii 1975) ......ccecccccccvccccccvcces

Berry v. Crocker Nat’l Bank, 13 FEP Cases 673 (N. D.

ee ic pines tas even eeeeseene eee wn Ces

Bertsch v. Ford Motor Co., 415 F. Supp. 619 (E. D. Mich.

NE Fase Cos pa catoenehsapa wens sae hersane

ir) ee ee eer rere oe eee Ce ok

SOE ck anaCh cb nde wees gantac tsb eo uee CER 244

Fitzgerald v. New England Telephone Co., 437 F. Supp.

635 (1976), modified, 437 F. Supp. 635 (D. Mass.

i, i aE wn ae rae ee See ie ew ae

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

Hiscott v. General Electric Co., 521 F. 2d 632 (6th Cir.

oo ke ab bb ied eee OA Re ARES Oe

Holliday v. Ketchum, MacLeod & Grove, Inc., ........... F. 2d

eae , No. 77-140 (3d Cir. July 14, 1978) ..........

Local 5, Electrical Workers v. EEOC, 398 F. 2d 248,

cert. denied, 393 U. S. 1021 (1968) ..........-4--

Love v. Pullman Co., 404 U. S. 522 (1972) ..........

McGinley v. Burrough Corp., 407 F. Supp. 903 (E. D.

DU SONS 6 chink bene ec ee es wr eeetee ctenaens

Northcross v. Board of Education of the Memphis City

Schools, 412 U. S. 427 (1973) .....cesccccevcces

ill

Olson v. Rembrandt Printing Co., 511 F. 2d 1228 (8th Cir.

i ee ere rs Sere ane, ea ee er eee 9

Powell v. Southwestern Bell Telephone Co., 494 F. 2d 485

Se en Nadas kee wah och ne cee de San ve bas 8

Reich v. Dow Badische Co., ............ ft ., 17 FEP

CAR Se Cae Gls SU OM, EPO) bok vince cccescs 5, 6,9

Rogers v. Exxon Research Engineering Co., 550 F. 2d

$34, cont. dome, —.. Ui. 3. ...., HB F. CR 749

fe I ee oe aS ee 6

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

PEUEE UGWbeueceutakpwins ends hee ee deadnu ayes 5

Smith v. Crest Communities, Inc., 8 FEP Cases 1328

Cl ee a BP iin 6 Vara eee 8 be 6 wee bb ae 6200 9

Statutes.

Age Discrimination in Employment Act:

ee se eo ig 0i 60k i went pevae’s 2

Section 7(¢), 29 U. S; C. $GZ60E) ..nccgcccccce 6, 8

Section 14(b), 29 U.S. C. § 633(b) .......... «i ey

Iowa Civil Rights Act of 1965, Section 601 A.1 et seq... .3,8

Title VII of the Civil Rights Act of 1964, 42 U. S. C.

RAT oa. ase tied wack eae eae i chase Ss 2,8

ee ae EE co kde vsss cen peeeea¥eeeseasen 2

Miscellaneous.

yi ge YX) Serer eT er ee eee ee ee ee ee 6

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

OSCAR MAYER & CO., ROBERT M. BOLZ, N. D. OTTENS,

DONALD L. PAUL, PAUL F. GOULD,

Petitioners,

VS.

JOSEPH W. EVANS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT.

Petitioners Oscar Mayer & Co., Robert M. Bolz, N. D. Ottens,

Donald L. Paul, and Paul F. Gould respectfully pray that a writ

of certiorari issue to review the judgment of the United States

Court of Appeals for the Eighth Circuit entered in this case on

July 6, 1978.

OPINIONS BELOW.

The Opinion of the District Court for the Southern District

of Iowa of July 8, 1977, denying petitioners’ Motion to Dismiss

is reported unofficially at 17 FEP Cases 218 and is reproduced

in Appendix A herein (App. Al-A7). The Opinion of the

Court of Appeals of April 5, 1978, reversing the trial court, is

unofficially reported at 17 FEP Cases 221 and is reproduced in

2

Appendix A herein (App. A8-A14). The Court of Appeals’

Opinion on Rehearing issued on July 6, 1978, withdrawing its

Opinion of April 5, 1978, and affirming the trial court, is unre-

ported and is reproduced herein in Appendix A (App. Al5-

A21).

JURISDICTION.

The opinion by a divided panel of the Court of Appeals was

entered on July 6, 1978 (App. A15-A21). Petition for rehear-

ing en banc was denied on July 7, 1978 (App. A22). Jurisdic-

tion is conferred on this Court by 28 U. S. C. § 1254(1).

QUESTION PRESENTED.

Whether the Court of Appeals for the Eighth Circuit erred in

finding that the commencement of proceedings in a timely

fashion before a state agency is not a mandatory prerequisite to

the institution of a civil suit under the Age Discrimination in

Employment Act, 29 U. S. C. § 621 et seq. in states having

laws prohibiting age discrimination in employment and estab-

lishing agencies empowered to grant or to seek relief from such

discriminatory practices.

STATUTES INVOLVED.

This case involves the interpretation and application of Sec-

tion 14(b) of the Age Discrimination in Employment Act, 29

U. S.C. § 633(b) (hereinafter referred to as the “ADEA”) and

Section 706(b) of Title VII of the Civil Rights Act of 1964 as

amended, 42 U. S. C. § 2000e-5(c). These statutory provisions

are reprinted in full in Appendix B (App. A23-A24).

STATEMENT OF THE CASE.

This case raises a question of fundamental importance under

the ADEA, i.e., whether resort must be had to a state agency

3

having jurisdiction over claims of age discrimination before pro-

ceeding in the federal district courts.

Petitioner Oscar Mayer & Co. (“Oscar Mayer”) is a corpora-

tion incorporated under the laws of the State of Delaware, and

is licensed to do business in Iowa. It owns and operates a num-

ber of plants throughout the country, including a plant in Daven-

port, Iowa.

Respondent was employed by Oscar Mayer as-a hog buyer

for 23 years until his retirement on January 31, 1976. Although

he was assigned to the Davenport plant, his buying station was

located at Williamsburg, Iowa.

On March 10, 1976, respondent filed with the United States

Department of Labor a notice of intent to sue under the ADEA,

claiming that he was “forced” to retire and that his termination

was in violation of the ADEA.

The Iowa Civil Rights Act of 1965, as last amended in 1974,

prohibits age discrimination in employment and entrusts enforce-

ment of this Act to the Iowa Civil Rights Commission. Section

601, A. 5, 6, Code of Iowa (1975). Any person claiming to be

a victim of unlawful discrimination under this Act must file a

complaint with the Commission within 120 days of the alleged

discriminatory practices. Section 601, A. 14(1), (15), Code of

Iowa (1975).

Despite these statutory provisions, respondent never filed a

complaint with the Iowa State Civil Rights Commission. Instead,

on March 7, 1977, filed a complaint with the United States Dis-

trict Court for the Southern District of Iowa, Davenport Divi-

sion, alleging that he was discharged in violation of the ADEA.

Petitioners moved to dismiss the complaint for lack of juris-

diction over the subject matter due to respondent's failure to file

a timely complaint of age discrimination with the lowa State

Civil Rights Commission as required by Section 14(b) of the

ADEA, 29 U. S. C. § 633(b). On August 8, 1977, this motion

4

was denied by Judge W. C. Stuart, who held that the filing of an

age discrimination claim with a state agency is not a prerequisite

to the institution of a civil suit under the ADEA (App. Al-A7).

On appeal, the Court of Appeals for the Eighth Circuit, on

April 5, 1978, initially reversed the decision of the district court

and held that resort to the state agency was required under the

ADEA. Judge Bright, writing for the majority stated: *

“We conclude that, in a state having laws that prohibit

age discrimination and having an agency with authority to

seek relief from such practices, filing a charge with the

state agency is mandatory under the ADEA and is a pre-

requisite to the filing of an action in federal court.” (App.

All.)

Shortly thereafter, respondent filed a petition for rehearing

and suggestion for rehearing en banc. Respondent was supported

in his position by the Secretary of Labor, who, on April 26,

1978, was permitted to file an amicus curiae brief. On July 6,

1978, a divided panel of the Court of Appeals withdrew its

opinion of April 5, 1978 and affirmed the district court's order.

Judge Henley, who originally dissented, wrote the majority

Opinion on Rehearing, noting that “the authorities are in con-

flict, and the question is not free from doubt”. He went on to

hold, however, that the “preferable view” was that an individual

was not required to file a complaint with a state agency before

instituting a civil suit. (App. Al8-A19.)**

* Judge Bright was joined in his opinion by Judge Talbot Smith,

United States Senior District Judge, Eastern District of Michigan,

sitting by designation. Judge Henley dissented.

** Judge Henley was joined by Judge Smith who had concurred in

the court’s original opinion that an individual was required to file

a timely complaint with a state agency before instituting suit under

the ADEA. Judge Bright, consistent with his opinion of April 5,

1978, dissented to the Court’s opinion of July 6, 1978.

mmm aa a A a NR a a aati a ae a

REASONS FOR GRANTING THE WRIT.

I. A Clear Division of Opinion Exists Between the Circuit

Courts of Appeal on the Issues Presented by This Petition.

At the present time, four other circuit courts of appeal have

been faced with the question of the proper interpretation of

Section 14(b). They have divided evenly on this issue. The

Courts of Appeal for the Third and Sixth Circuits have issued

decisions consistent with the court below. See Gabriele v. Chrys-

ler Corp., 573 F. 2d 949, (6th Cir. 1978); Simpson v. Whirl-

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

Ketchum, MacLeod & Grove, Inc.., ............ Se eee , No. 77-

140 (3rd Cir. July 14, 1978). However, the Courts of Appeal

for the Second and Ninth Circuits have rendered decisions which

are diametrically opposed to the view expressed by the court

below. See Reich v. Dow Badische Co., ........... ae eke a x,

FEP Cases 363 (2d Cir. April 14, 1978); Curry v. Continental

Airlines, 513 F. 24 691 (9th Cir. 1975).

In Reich, the Court of Appeals for the Second Circuit rea-

soned as follows:

“Much of Appellant’s argument mistakenly proceeds on

the tacit premise that resort to the state remedy is a tech-

nical step devoid of substantive content, and that, there-

fore, the slightest showing will warrant setting the bar of

Section 633 (b) aside. That ignores the paramount cir-

cumstances, that the state remedy, or rather remedies, pre-

sented appellant with a full and adequate system of relief,

and that there was no reason for turning to the federal

remedy that did not equally direct the appellant to the state

remedies, and that the scheme of the ADEA very explicitly

requires that the grievant timely present his claim to the

state authority before suing.” ...... F.2d at .. , 17 FEP

Cases at 367-368.

And, in Curry, the Court of Appeals for the Ninth Circuit

reached this conclusion:

6

“TW]e concur in the reasoning of those courts that have

held decisions interpreting 42 U.S.C. § 2000e-5(b) [as

amended 42 U.S.C. § 2000e-5(c)] .. . to be generally

applicable for purposes of interpreting § 633(b). [Citation

omitted.] ‘The minor differences between § 633 and its

counterpart under the 1964 Act are insignificant and pro-

vide no support for an interpretation of the former which

is contrary to’ interpretations of the latter. Goger., supra,

at 16.” 513 F.2d at 693 {Footnote omitted.]

The current confusion existing among the various circuits

concerning this issue is further evidenced by the conflicting

decisions of the Eighth Circuit. The Court’s decisions of April

5, 1978 and July 6, 1978 are directly contrary to one another

and both were rendered by divided panels. Indeed, even Judge

Henley’s opinion of July 6, 1978 noted that “the authorities are

in conflict and the question is not free from doubt.” (App. A18-

Al19.)

Congress drafted the ADEA in a manner designed to resolve

age discrimination claims in the most expeditious fashion

possible. See 113 Cong. Rec. 7076 (Remarks of Senator Javits).

The courts have thus recognized that interpreting Section 14(b)

as establishing a mandatory prerequisite to the commencement

of a civil suit under the ADEA furthers this intent since the

state agency will always be given a fixed, limited period of sixty

days in which to resolve claims of age discrimination before the

aggrieved individual can institute suit in federal court. See Reich

v. Dow Badische Co., ....... F. 2d —....... 17 FEP Cases 363,

367 (2d Cir. April 4, 1978) (“Deference to the state procedures

where they exist is fundamental to the ADEA structure.”)

During this same sixty day period, the Secretary of Labor may

also endeavor to settle the dispute since, under section 7(d)

of the ADEA, 29 U. S. C. § 626(d), an individual must wait

sixty days after filing his notice of intent to sue with the Secre-

tary before instituting suit. See Rogers v. Exxon Research Engi-

neering Co., 550 F. 2d 834, 841, cert. denied, No. 76-1451,

weibeas . U.S. _.., 98 S. Ct. 749 (January 9, 1978) (“Private

7

lawsuits are secondary to administrative remedies and suits by

the Secretary of Labor.”).

By granting an aggrieved individual the “option” of initiat-

ing proceedings with the state agency or proceeding directly in

federal court, the decision of the court below completely frus-

trates this intent. Instead of maximizing the possibility of resolv-

ing age discrimination claims during the sixty day period follow-

ing the filing of a notice of intent to sue, the decision of the

court below allows an individual to ignore available adminis-

trative avenues, remain idle during this sixty day period, and

then resort immediately to the federal district courts.

The divergent conclusions which have been reached in the

courts of appeals on this issue and the avowed uncertainty

expressed by the Court of Appeals for the Eighth Circuit on

rehearing is perhaps the best evidence that the issue is one which

must be resolved by the Supreme Court. A uniform interpreta-

tion of the procedural requirements of the ADEA is required

not just to protect the rights of employers seeking to comply

with the statute, but to protect the rights of aggrieved individuals

as well.

Il. The Decision of the Eighth Circuit Court of Appeals Is

Contrary to the Plain Language of Section 14(b) of the

ADEA.

The decision of the court below contravenes the clear lan-

guage of Section 14(b) which provides 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 authorizing

a State authority to grant or seek relief from such dis-

criminatory 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. . . .”

(Emphasis added. )

8

The State of Iowa has a law prohibiting age discrimination

in employment and has established the Iowa State Civil Rights

Commission to grant or seek relief for such discriminatory

practices. Section 601 A.5, 6, Code of Iowa (1975). Further,

respondent concedes that he never made any resort to the Iowa

Commission for relief.

On rehearing, the court below held that “an individual 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” (Emphasis added;

App. A19). This, we submit, is completely inconsistent with the

plain language of section 14(b) which provides that “no suit

may be brought before the expiration of sixty days after pro-

ceedings have been commenced under the State law.”* (Empha-

sis added.)

Section 14(b) is couched in language almost identical to

that appearing in Section 706(b) of Title VII of the Civil Rights

Act of 1964, 42 U. S. C. § 2000e-5(c), which provides as

follows:

“In the case of an alleged unlawful employment practice

occurring in a State, .. . which has a. . . law prohibiting the

unlawful employment practice alleged and establishing or

authorizing a State . . . authority to grant or seck relief

from such practice . . . , no charge may be filed . . . by

the person aggrieved before the expiration of sixty days

after proceedings have been commenced under the State

_. . law unless such proceedings have been earlier termi-

nated. . . .” (Emphasis added. )

* Section 14(b) is phrased in similar language to section 7(d)

of the ADEA, 29 U. S. C. § 626(d), which provides that “[nJo

civil action may be commenced . . . until” an aggrieved individual

has satisfied certain prerequisites with respect to the filing of a

notice of intent to sue with the Secretary of Labor. This language of

section 7(d) has consistently been construed as setting forth a man-

datory prerequisite to a civil suit under the ADEA. See, e.g., Hiscott

v. General Electric Co., 521 F. 2d 632 (6th Cir. 1975); Powell v.

Southwestern Bell Telephone Co., 494 F. 2d 485 (Sth Cir. 1974).

9

It has uniformly been held that this section requires prior

resort to the appropriate state agencies before suit may be

brought under Title VII in the federal district courts. See Love

v. Pullman Co., 404 U. S. 522 (1972); Olson v. Rembrandt

Printing Co., 511 F. 2d 1228 (8th Cir. 1975); Local 5, Elec-

trical Workers v. EEOC, 398 F. 2d 248 (3rd Cir.), cert. denied,

393 U.S. 1021 (1968). And, it is because of this similarity in

language that the majority of federal courts, faced with the

question of interpreting section 14(b), have looked to Title

VII for guidance and have thus concluded, contrary to the court

below, that this provision sets forth a mandatory prerequisite

to a civil suit under the ADEA. E.g., Reich v. Dow Badische

+ eee i! BB: etictiens , 17 FEP Cases 363 (2d Cir. April 4,

1978); Curry v. Continental Airlines, 513 F. 2d 691 (9th Cir.

1975); Enos v. Kaiser Industries Corp., 443 F. Supp. 798

(D. D. C. 1978); Fitzgerald v. New England Telephone Co.,

437 F. Supp. 635 (1976), modified, 437 F. Supp. 635 (D.

Mass. 1977); Bertsch v. Ford Motor Co., 415 F. Supp. 619

(E. D. Mich. 1976); Berry v. Crocker Nat'l Bank, 13 FEP Cases

673 (N. D. Cal. 1976); Acford v. Exxon Corp., 12 FEP Cases

1500 (D. Conn. 1975); Arnold v. Hawaiian Telephone Co.,

407 F. Supp. 903 (D. Hawaii 1975); McGinley v. Burroughs

Corp., 407 F. Supp. 903 (E. D. Penn. 1975); Smith v. Crest

Communities, Inc., 8 FEP Cases 1328 (W. D. Ky. 1974).

Further, the identity of language between Title VII, which

was passed in 1964, and the ADEA, which was passed in 1967,

coupled with the fact that both statutes have the same general

purpose of remedying employment discrimination, makes the

doctrine of in pari materia applicable. Under this doctrine,

where there is some uncertainty as to the proper interpretation

of a later statutory provision, the settled rule of statutory con-

struction is to apply that later statutory provision in the same

manner as the former. See Northcross v. Board of Education of

the Memphis City Schools, 412 U. S. 427, 428 (1973). Apply-

ing that principle here, Section 14(b) should be interpreted in

10

the same manner as Section 706(b). The decision of the court

below ignores this well-established principle.

It is thus clear that the Eighth Circuit erred in holding that

Section 14(b) does not set forth a statutory prerequisite to a

civil suit under the ADEA. The plain language of the statute, its

similarity to Section 706(b) of Title VII, and well-established

rules of statutory construction, compel the conclusion that the

original opinion issued by the Court of Appeals for the Eighth

Circuit was the one that correctly expresses congressional intent.

CONCLUSION.

For all of the foregoing reasons, we respectfully request that

a writ of certiorari be issued to review the judgment and decision

of the United States Court of Appeals for the Eighth Circuit in

this case.

Respectfully submitted,

STUART BERNSTEIN,

ARTHUR J. KOwITT,

JAMES W. GLADDEN, JR.,

231 South LaSalle Street,

Chicago, Illinois 60604,

Counsel for Petitioners.

Of Counsel:

MAYER BROWN & PLATT,

231 South LaSalle Street,

Chicago, Illinois 60604.

Al

APPENDIX A.

IN THE UNITED STATES District CourRT

Southern District of Iowa

Davenport Division

JOSEPH W. EVANs, 7

Plaintiff,

vs.

> Civil No. 77-19-D

OscCaR MAYER & Co., et al.,

Defendants. )

ORDER.

The matter currently before the Court concerns defendant’s

resisted motion to dismiss for lack of subject matter jurisdiction.

The original complaint was filed March 7, 1977 alleging that

plaintiff had been forced into early retirement under threat of

termination by defendants in violation of the Age Discrimination

in Employment Act (ADEA), 29 U.S. C. §§ 621 et seq. Viola-

tions of 42 U. S. C. § 2000e were also alleged. Jurisdiction is

predicated upon 28 U. S. C. §§ 1331 and 1343.

Plaintiff further alleges that by letter dated March 10, 1976,

subsequent to his retirement on or about January 31, 1976,

“Notice of Intent to Sue” was served on the Secretary of Labor

in accordance with the statutory requirements. On April 13,

1977 defendants filed the instant motion to dismiss alleging that

a “procedural prerequisite requires the grievant to seek the aid

of the appropriate state authority if such an agency has been

established to provide relief from alleged age discrimination”.

In his resistance, filed April 25, 1977, plaintiff narrows the

issue thus presented stating:

A2

The sole issue before the Court is, then, whether ADEA

requires, as a jurisdictional prerequisite, the institution of

proceedings before the Iowa Civil Rights Commission prior

to the initiation of a United States District Court litigation.

Plaintiff asserts that it does not.

Simply stated, plaintiff concedes that no resort has been

attempted to the Iowa Commission on Civil Rights. Defendant

asserts that such resort is a jurisdictional prerequisite and that

the failure to do so is a jurisdictional bar to subsequent litigation

in federal court.

Initially the Court notes that many of the cases relied upon

by both parties appear to be inapposite. Those cases dealing

with the statutory requirement of filing “notice of intent to sue”

with the Secertary of Labor differ because of the language of

the two statutory provisions. Section 626(d) provides that

“Ts]uch notice shall be filed * * *”. This is clearly a mandatory

provision and it has been so held by a number of courts con-

sidering the issue. See Woodburn v. LTV Aerospace Corp., 531

F. 2d 750 (5th Cir., 1976); Rucker v. Great Scott Super-

markets, 528 F. 2d 393 (6th Cir., 1976); Hiscott v. General

Electric Co., 521 F. 2d 632 (6th Cir., 1975); Law v. United

Airlines Inc., 519 F. 2d 170, 171 (10th Cir., 1975); Edwards

v. Kaiser Aluminum & Chemical Sales, Inc., 515 F. 2d 1195

' (5th Cir., 1975); Powell v. Southwestern Bell Telephone Co.,

494 F. 2d 485 (Sth Cir., 1974). Cf. Hinton v. CPC Interna-

tional, Inc., 520 F. 2d 1312, 1315 (8th Cir., 1975).

Section 633(b), on the other hand, does not expressly com-

mand the commencement of proceedings under state law. It

provides that “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”. See Bertrand v. Orkin

Exterminating Co., 419 F, Supp. 1123, 1125-27 (N. D. Ill,

1976). This section is entirely consistent with the interpretation

that only when resort has been made to a state agency is the

sixty day waiting period mandatory. See Vasquez v. Eastern Air-

A3

lines, Inc., 405 F. Supp. 1353 (D. Puerto Rico, 1975). It does

not mandate initial filing with the state agency.

Secondly, those cases which draw a direct analogy to the

procedures utilized under Title VII, 42 U. S. C. §§ 2000e et

seq., are also not controlling. Pursuant to the authority of the

EEOC and procedures followed thereunder, 29 C. F. R. §§ 1601

et seq., specific language mandates initial deference to specified

state agencies, No such procedural requirements apply under

the ADEA. In the latter, the statute provides:

With the consent and cooperation of State agencies

charged with the administration of State labor laws, the

Administrator and the Secretary of Labor may, for the

purpose of carrying out their respective functions and

duties under this chapter utilize the services of State and

local agencies and their employees * * *. (Emphasis

added. )

See also 29 C. F. R. §§ 850 et seq. This lack of specific and

mandatory deferral provisions seemingly would distinguish the

Title VII rationale. See Love v. Pullman, 404 U. S. 522

(1972); EEOC v. Union Bank, 408 F. 2d 867 (9th Cir.,

1968).

In addition Title VII legislation contains no counterpart to

section 633(a) of the ADEA which provides “that upon com-

mencement of action under this chapter such action shall super-

sede any State action”. This section of the ADEA would seem to

make mandatory filing with the state agency unnecessary and

dilatory. It would, as was noted in Bertrand, supra,

[imply] a belief that Congress would choose to defer to

federalism by burdening victims of age discrimination with

an obligation to file what will ordinarily be nothing more

than a pro forma gesture. Mandatory recourse to state

remedies, which need not be exhausted, would normally be

a dilatory exercise or a ‘procedural pitfall for unsuspecting

individuals’.

Bertrand v. Orkin Exterminating Co., supra at 1127 quoting

Vazquez V. Eastern Airlines, Inc., supra at 1357. Such a con-

A4

struction is supported also by Judge Garth in his concurring

opinion in Goger v. H. K. Porter Co., 492 F. 2d 13 (3d Cir.,

1974), in which it was stated:

I do not believe that it was the intent of Congress to

require, prior to the 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 under

§ 633(a).

Goger Vv. H. K. Porter Co., supra at 18. See also Magalotti v.

Ford Motor Co., 418 F. Supp. 430, 433 (E. D. Mich., 1976).

Finally, in Goger, supra, although stating that timely resort

should be taken to state agencies, the court nonetheless vacated

an order of dismissal entered by the district court because of

equitable considerations. Had the court considered section

633(b) to be jurisdictional despite the existence of section 633

(a) it would have lacked the power to grant equitable relief.

See Magalotti v. Ford Motor Co., supra at 432.

This Court adopts the rationale of those cases which have

held that resort to the state agency is not a jurisdictional prere-

quisite to the filing of an action in Federal Court. See Bertrand

v. Orkin Exterminating Co., supra; Smith v. Joseph Schlitz

Brewing Co., 419 F. Supp. 771 (D. N. J., 1976); Magalotti v.

Ford Motor Co., supra; Vazquez v. Eastern Airtines, Inc.,

supra; Skoglund v. Singer Co., 403 F. Supp. 797 (D. N. H.,

1975).

It is apparent that in certain areas there exists a great deal of

similarity between the ADEA and Title VII legislation. In par-

ticular section 7 of the ADEA, 29 U. S. C. §§ 626(c)-(e) and

§ 706(c) of the 1964 civil rights act 42 U. S. C. §§ 2000e-5 (b)-

(d) are both jurisdictional sections containing similar language,

yet the ADEA “is embodied in a separate act and has its own

unique history * * *”, Laugesen v. Anaconda Co., 510 F. 2d

307, 312 (6th Cir., 1975). This would indicate that automatic

adoption of Title VII guidelines would be inappropriate. See

—_—

AS

H. R. No. 805, 2 U. S. Code Cong. & Ad. News 2213 (1967).

Section 7 thus does not make the filing of an administrative

charge with the appropriate state agency a jurisdictional step. Its

only requirement in the case of an age discrimination complaint

is that the Secretary of Labor be afforded timely notice of intent

to file suit in federal court. The purpose of such filing is to en-

able the Secretary to attempt to eliminate the alleged violation

through the informal methods of conciliation, conference and

persuasion as expeditiously as possible.

In contrast, section 14 of the ADEA, 29 U. S. C. § 633

providing for deferral by the Secretary in cases in which a com-

plaint has been filed with the appropriate state agency is not a

jurisdictional section and sets forth no jurisdictional steps for

instituting suit in federal court. This section deals solely with the

relationship between federal and state law. This is clear from the

very heading of the section which is entitled “Federal-State

relationship” and is captioned Limitation of Federal action upon

commencement of State proceedings. It is this Court’s opinion

that such section is a Congressional recognition of the sensitive

relationship between federal and state governments. It affords

states a reasonable opportunity to settle age discrimination prob-

lems before federal action if a party has resorted to a state

complaint. There is however, no indication that such filing is a

compulsory prerequisite to federal jurisdiction.

Congress specifically rejected agency enforcement proceedings

analogous to those utilized by the EEOC because of the inherent

delay involved in such procedures. Compare S. 830 90th Cong.

Ist Sess. (113 Cong. Rec. 2794-2796) to the final version of the

Act. As Senator Javits noted:

By utilizing the courts rather than [administrative agencics]

as the forum to hear cases arising under the law, these

delays may be largely avoided * * * [iJn the case of older

citizens to whom by definition, relatively few productive

years are left.

A6

Statements by Senator Javits, Hearings Before the Subcommittee

on Labor, United States Senate, 113 Cong. Rec. 7076, 90th

Cong. Ist Sess. (1967). See Bertrand v. Orkin Exterminating

Co., supra; Vazquez V. Eastern Airlines, Inc., supra.

There exists no dispute between the parties to this suit that the

Iowa Commission on Civil Rights is properly an agency to which

deferral could have been made in the first instance. However,

this was not done and it is the specific holding of this Court that

such resort is not a mandatory nor jurisdictional prerequisite to

the filing of an ADEA suit in federal court. This interpretation is

consistent with the Eighth Circuit directive that “[t]he Age Dis-

crimination Act is remedial and humanitarian legislation. It is to

be construed liberally to achieve its purpose of protecting older

employees from discrimination * * *. A procedural requirement

of the Act, of doubtful meaning in a given case, should not be

interpreted to deny an employee a claim for relief unless to do so

would clearly further some substantial goal of the Act”. See

Moses V. Falstaff Brewing Corp., 525 F.2d 92, 92-94 (8th Cir.,

1975).

With regard to plaintiffs claim pursuant to Title VII, how-

ever, the motion to dismiss must be granted. Plaintiff has not

resisted the motion to dismiss on this ground. Further, as defend-

ant correctly points out, Title VII has no application in age

discrimination cases and plaintiff has totally failed to allege com-

pliance with the statutory prerequisites to the initiation of such

an action in Federal Court pursuant to Title VII. See Olson v.

Rembrandt Printing Co., 511 F. 2d 1228 (8th Cir., 1975).

IT IS THEREFORE ORDERED that defendant’s motion to

dismiss with regard to plaintiffs cause of action premised on

42 U.S. C. §§ 2000e et seq., shall be, and the same are hereby

granted.

IT IS FURTHER ORDERED that defendant’s motion to |

dismiss the cause of action pursuant to the Age Discrimination

AT

in Employment Act, 29 U. S. C. §§ 621 et seq., shall be, and

the same is hereby denied.

Signed this 8th day of July, 1977.

/s/ W. C. STUART,

W. C. Stuart,

U. §. District Judge, Southern

District of Iowa.

A8

UNITED STATES COURT OF APPEALS

For the Eighth Circuit

No. 77-1692

JosEPH W. EVANS, 7

Appellee,

Appeal from the

United States Dis-

i trict Court for the

OscaR MAYER & Co., ROBERT M. Southern District of

Boiz, N. D. OTTENS, DONALD L. Iowa.

PAUL, and PAUL F. GOULD,

Appellants. )

vs.

Submitted: January 12, 1978

Filed: April 5, 1978

Before BRIGHT and HENLEY, Circuit Judges, and TALBOT SMITH,

Senior District Judge.*

BRIGHT, Circuit Judge.

Joseph Evans brought this suit against his employer, Oscar

Mayer & Company, and its executives,’ charging that they

forced Evans into early retirement in violation of the Age Dis-

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

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

for want of jurisdiction. The district court denied the motion and

certified this interlocutory ruling for appeal under 28 U. S. C.

1. In this opinion we shall refer to the defendants collectively as

“Oscar Mayer.”

TALBOT SMITH, United States Senior District Judge, District of

Michigan, sitting by designation.

Ee aaa ey

eee a ey

A9

§ 1292(b) (1970), stating that the order presented “a control-

ling question of law as to which there is substantial ground for

difference of opinion” and “that an immediate appeal * * * may

materially advance the ultimate outcome of the litigation.” This

court thereafter permitted this appeal. We vacate the district

court’s order and remand for further proceedings.

Joseph Evans worked for Oscar Mayer & Co. in Davenport,

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

31, 1976. On March 10, 1976, Evans notified the 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 mat-

ter jurisdiction, arguing that Evans had not fulfilled a juris-

dictional requirement under 29 U. S. C. § 633(b) because he

did not first file charges with the Iowa Civil Rights Commission.

The district court concluded that filing charges with an appro-

priate state agency is not a jurisdictional prerequisite to an ac-

tion in federal court. It therefore denied the motion, and Oscar

Mayer appealed.

2. Section 626(d) provides:

No civil action:may be commenced by any individual under

this sectign until the individual has given the Secretary not less

than sixty days’ notice of an intent to file such action. Such

notice shall be filed—

(1) within one hundred and eighty days after the

alleged unlawful practice occurred, or

(2) in a case to which section 633(b) of this title

applies, within three hundred days after the alleged unlawful

practice occurred or within thirty days after receipt by the

individual of notice of termination of proceedings under

State law, whichever is earlier.

Upon receiving a notice of intent to sue, the Secretary shall

promptly notify all persons named therein as prospective

defendants in the action and shall promptly seek to eliminate

any alleged unlawful practice by informal methods of concilia-

tion, conference, and persuasion.

Al10

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 em-

ployment because of age and establishing or authorizing a

State authority to grant or seek relief from such discrim-

inatory practice, 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 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 law. If any requirement for the com-

mencement 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 proceed-

ing 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 employ-

ment,’ 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 pre-

requisite to a suit under the ADEA.

A definitive answer cannot be found in either the language

of the statute, its legislative history, or the policy behind it. The

extensive discussions found in Vazquez v. Eastern Airlines, 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 cither

conclusion. Several courts have determined that deference to an

appropriate state agency is required by the ADEA, see Curry Vv.

Continental Airlines, 513 F. 2d 691 (9th Cir. 1975); Goger Vv.

H. K. Porter Co., 492 F. 2d 13 (3d Cir. 1974); Gabriele v.

Chrysler Corp., 416 F. Supp. 666 (E. D. Mich. 1976); Fitz-

3. Towa Code Ann. § 601A.6 (1975).

All

gerald v. New England Telephone and Telegraph Co., 416 F.

Supp. 617 (D. Mass. 1976), modified, 437 F. Supp. 635

(1977); Berry v. Crocker National Bank, 13 FEP Cases 673

(N. D. Cal. 1976), while other courts have held it to be op-

tional, 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 F. Supp. 430 (E. D. Mich. 1976); Skoglund v. Singer Co.,

403 F. Supp. 797 (D. N. H. 1975).

We conclude that, in a state having laws that prohibit age

discrimination and having an agency with authority to seek re-

lief from such practices, 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.

Congress clearly intended that discrimination on the basis of

age be remedied as quickly and efficiently as possible, for lengthy

delays in the courts and administrative agencies could deprive

older workers of an effective remedy. Section 626(d) of the

ADEA expressly requires the claimant 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, conference, 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 pro-

cedure that would have subjected ADEA complaints to the same

delays that plague the EEOC and NLRB. Vazquez v. Eastern

Air Lines, 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 agency is able

to provide speedy relief, the claimant can escape the delay in-

herent 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

A12

through a state agency designed specifically to handle this type

of case is consistent with congressional intent. It increases 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 Secre-

tary 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 practice

occurring in a State * * * which has a * * * law pro-

hibiting the unlawful employment practice alleged 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 proceedings have been commenced under

the State * * * law, unless such proceedings have been

earlier terminated ***. [42 U; S. C. § 2000e-5(b)

(1970).]

This language of Title VII requires that state agencies be af-

forded an opportunity to consider the employment discrimina-

tion before suit for redress may be brought in a federal court.

See Love v. Pullman Co., 404 U. S. 522 (1972); Olson v.

Rembrandt Printing Co., 511 F. 2d 1228 (8th Cir. 1975).

The requirement that a charge be filed with an appropriate

state agency is not, however, “jurisdictional;” it is a procedural

requirement, which may be subject to equitable modification

when necessary to effect the broad remedial purposes of the

statute. A similar principle 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.S.

959 (1976); Tuft v. McDonnell Douglas Corp., 517 F. 2d

1301 (8th Cir. 1975), cert. denied, 423 U. S. 1052 (1976);

Reeb v. Economic Opportunity Atlanta, Inc., 516 F. 2d 924

(Sth Cir. 1975); Franks v. Bowman Transportation Co., 495

A tater we tense a © ee -_

Al3

F, 2d 398 (Sth Cir. 1974), rev'd on other grounds, 424 U. S.

747 (1976), and we feel it should apply to the present case.

The question remains, therefore, whether Evans should be

allowed, on equitable grounds, to proceed with his action despite

his failure to file a complaint with the Iowa Civil Rights Com-

mission.‘ In his resistance to Oscar Mayer’s motion to dismiss,

Evans argued that he had relied on official advice from the De-

partment 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., supra, 492 F. 2d at 16-17. The

district court did not reach this question in disposing of Oscar

Mayer’s motion. We therefore vacate the district court’s order

and remand for further proceedings, consistent with this opinion,

on the pending motion for dismissal.

HENLEY, Circuit Judge, dissenting.

While the majority says that the “requirement” of § 633(b)

that Mr. Evans file a complaint with the Iowa Civil Rights

Commission before commencing his federal suit under the pro-

visions of § 626(c) is not “jurisdictional”, still the majority holds

that prior filing with the state agency was a procedural require-

ment, and that noncompliance with the requirement may be

excused only on the basis of equitable considerations which

may or may not be present in a particular case.

I respectfully disagree. I think that it is correct to say that

if an individual complaining about alleged discrimination against

him in employment on account of his age in fact files a com-

plaint with a state fair employment practice agency like the

Iowa Civil Rights Commission, he must observe the waiting

period prescribed by § 633(b). However, I am not persuaded

that an individual is required to file a complaint with the state

4. Iowa Code Ann. § 601A.14(15) (1975) requires that a com-

plaint be filed within 120 days after the discriminatory practice

occurred. This period has run. Therefore, Evans apparently no

longer can comply with the state agency filing requirement.

Al4

agency before coming into federal court, assuming that he com-

plies with the basic waiting period prescribed by § 626(d). I

think that the individual has the option of proceeding first

before the state agency and then in the federal court or of pro-

ceeding initially in the federal court without prior resort to the

state agency.

The majority and I both recognize that the cases are in con-

flict. I prefer the view set out by Judge Garth in his concurring

opinion in Goger v. H. K. Porter Co., 492 F. 2d 13, 17-18

(3d Cir. 1974), and for that reason I dissent. I would affirm

the action of the district court.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

AAP ON ee eR Chile ~ OE Lael be

Al5

UNITED STATES CouRT oF APPEALS.

for the Eighth Circuit.

No. 77-1692

JOSEPH W. EVANs,

Appellee,

Appeal from the

United States Dis-

, trict Court for the

OscaR MAYER & Co., ROBERT M. Southern District of

BoLz, N. D. OTTENs, DONALD L. Iowa.

PAUL, and PAUL F. GOULD,

Appellants. j

vs.

OPINION ON REHEARING.

Before BRIGHT and HENLEY, Circuit Judges, and TALBOT SMITH,

Senior District Judge.*

HENLEY, 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.

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

* TALBOT SMITH, United States Senior District Judge, Eastern

District of Michigan, sitting by designation.

1. In this opinion we shall refer to the defendants collectively as

“Oscar Mayer.”

Al6

for want of jurisdiction. The district court denied the motion and

certified this interlocutory ruling for appeal under 28 U. S. C.

§ 1292(b) (1970), stating that the order presented a “con-

trolling question of law as to which there is substantial ground

for difference of opinion” and “that an immediate appeal...

may materially advance the ultimate outcome 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 suggestions 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 Circuit had reached an opposite result in Gabriele v.

Chrysler Corp, ...cc10- SS eae (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 Simpson v. Whirlpool Corp.,

gtaane 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 substitute this one

in its stead. This time, we aftirm the order of the district court.

Joseph Evans worked for Oscar Mayer & Co. in Davenport,

Iowa for twenty-three years before his retirement on January 31,

1976. On March 10, 1976 Evans notified the Secretary of

Labor, as required by 29 U. S. C. § 626(d),? that he intended

2. Section 626(d) provides: -

No civil action may be commenced by any individual under

this section until the individual has given the Secretary not less

(Footnote continued on next page.)

bs. A APU. Men heen ow

wank Shere eS

fa br ee mad

Pee ee ee

Al7

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 jurisdic-

tion, arguing that Evans had not fulfilled a jurisdictional require-

ment under 29 U. S. C. § 633(b) because he did not first file

charges with the Iowa Civil Rights Commission. The district

court concluded 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 em-

ployment because of age and establishing or authorizing a

State authority to grant or seek relief from such discrim-

inatory practice, 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 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 law. If any requirement for the commence-

ment 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 com-

(Footnote continued from preceding page.)

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 unlaw-

ful 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 defend-

ants in the action and shall promptly seek to eliminate any

alleged unlawful practice by informal methods of conciliation,

conference, and persuasion.

Al8

menced 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 employment,’

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 language

of the statute, its legislative history, or the policy behind it.

The extensive discussions found in Vazquez 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 defer-

ence to an appropriate state agency is required by the ADEA,

see Reich v. Dow Badische Co.., ............ Ps Se acenan , 17 FEP

Cases 363 (2d Cir. No. 76-7637, April 4, 1978), including the

dissenting opinion of Judge Feinberg; Curry v. Continental Air-

lines, 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, _....... i de anaes

(6th Cir. 1978), supra; Fitzgerald 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

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 F. Supp. 430 (E. D. Mich. 1976); Skoglund v.

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

3. Iowa Code Ann. § 601A.6 (1975).

%

eu ae,

Al9

view is that taken by the Court of Appeals for the Sixth Circuit

in Gabriele, supra, and which is also expressed 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 complain-

ing about alleged discrimination 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 Com-

mission, he must observe 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 wait-

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

vidual 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 interpretation

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, Secretary of Agriculture.

570 F. 2d 701, 704 (8th Cir. 1978), and cases cited.

Affirmed.

BRIGHT, Circuit Judge, dissenting.

I respectfully dissent.

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

hibiting age discrimination and an agency with authority to

seek relief from such 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, subject, however, to

certain considerations. See Reich v. Dow Badische Co., 17 FEP

Cases 363, 368 (2d Cir. 1978); Goger v. H. K. Porter Co.,

492 F. 2d 13, 16 (3d Cir. 1974).

Congress clearly intended that discrimination on the basis

of age be remedied as quickly and efficiently as possible, for

lengthy delays in the courts and administrative agencies could

A20

deprive older workers of an effective remedy. Section 626(d)

of the ADEA expressly requires the claimant 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, conference, 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 enforce-

ment procedure that would have subjected ADEA complaints

to the same delays that plague the EEOC and NLRB. Vazquez

v. Eastern Air Lines, 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

agency 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 consistent with congressional intent. It

increases 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 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 practice

occurring in a State * * * which has a * * * law prohibiting

the unlawful employment practice alleged and establishing

or authorizing a State * * * authority to grant or seck

relief from such practice * * *, no charge may be filed

* * * by the person aggrieved before the expiration of sixty

days after proceedings have been commenced under the

State * * * law, unless such proceedings have been earlier

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

rently at § 2000e-5(c)).]

A2!1

This language of Title VII requires that state agencies be af-

forded an opportunity to consider the employment discrimina-

tion before suit for redress may be brought in a federal court.

See Love v. Pullman Co., 404 U. S. 522 (1972); Olson v. Rem-

brandt 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 “jurisdictional”; it is a

procedural requirement, which may be subject to equitable modi-

fication when necessary to effect the broad remedial purposes of

the statute. A similar principle 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. S. 959 (1976); Tuft v. McDonnell Douglas Corp., 517 F. 2d

1301 (8th Cir. 1975), cert. denied, 423 U. S. 1052 (1976);

Reeb v. Economic Opportunity Atlanta, Inc., 516 F. 2d 924

(Sth Cir. 1975); Franks v. Bowman Transportation Co., 495

F. 2d 398 (Sth 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 interpreta-

tion 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:

Clerk, U. S. Court of Appeals, Eighth Circuit.

A22 A23

UNITED STATES COURT OF APPEALS

For the Eighth Circuit APPENDIX B.

No. 77-1692. September Term, 1977

Sta .

JOSEPH W. EVANS, eee

Appellee, | Appeal from the Section 14(b) of the Age Discrimination in Employment

a United States Dis- Act, 29 U, S. C. § 633(b), reads as follows:

: trict Court for the R

Southern District of (b) In the case of an alleged unlawful practice occur-

OscaR MAYER & Co., et al, owe. ring in a State which has a law prohibiting discrimination

Appellants. in employment because of age and establishing or author-

izing a State authority to grant or seek relief from such

Petition for rehearing en banc filed by counsel for appellee discriminatory practice, no suit may be brought under sec-

is denied. tion 626 of this title before the expiration of sixty days

after proceedings have been commenced under the State

Judges Bright and Ross would vote for petition for rehearing law, unless such proceedings have been earlier terminated:

en banc essentially for the reasons set forth in Judge Bright's : Provided, That such sixty-day period shall be extended to

dissent to the opinion filed July 6, 1978. one hundred and twenty days during the first year after the

July 7, 1978 effective date of such State law. If any requirement for the

commencement of such proceedings is imposed by a State

authority, other than a requirement of the filing of a writ-

ten 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 ap-

propriate State authority.”

Section 7(d) of the Age Discrimination in Employment Act,

29U. S.C. § 626(d), reads as follows:

“(d) No civil action may be commenced by any indi-

vidual 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 acase 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,

A24

“Upon receiving a notice of intent to sue, the Secretary

shall promptly notify all persons named therein as pros-

pective defendants in the action and shall promptly seek "

to eliminate any alleged unlawful practice by informal .

methods of conciliation, conference, and persuasion.”

Section 706(b) of Title VII of the Civil Rights Act of 1964,

42 U.S. C. § 2000e-5(c), reads as follows:

“(c) In the case of an alleged unlawful employment

practice occuring in a State, or political subdivision of a

State, which has a State or local law prohibiting the unlaw-

ful employment practice alleged and establishing or author-

izing 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 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 extended 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 im-

posed by a State or local authority other than a require-

ment 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 purpose

of this subsection at the time such statement is sent by

registered mail to the appropriate State or local authority.”