Petition — Sun Oil Co. v. Marshall

Bowe Semene Gout, © Ss

FILED

APR 11 1979

en MICHABL RODAK, JR., CLERK

Supreme Court of the United States

October Term, 1978.

No. WB-15470

SUN OIL COMPANY OF PENNSYLVANIA,

Petitioner,

v.

RAY MARSHALL, Secretary of Labor,

United States Department of Labor,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT.

Joun J. RUNZER,

Nancy J. GELLMAN,

2001 The Fidelity Building,

123 South Broad Street,

Philadelphia, PA 19109

(215) 893-3000

Attorneys for Petitioner,

Sun Oil Company oj

Pennsylvania.

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

REASONS FOR GRANTING THE WRIT .............000seeeeee:

I. The Decision Below Is a Hindrance to the Effective

Administration of the Conciliation Provisions of the

ee a eRe ck ne sessed veces

II. The Decision Below Is in Conflict in Principle with

the Decision of Another Circuit Concerning the

Propriety of Dismissing an ADEA Action Brought

by the Secretary of Labor for Failure of the Secre-

tary to Conduct Adequate Pre-Suit Conciliation ...

CONCLUSBON .cccccces ihe atic aasee's ernbenks +6 a ee

APPENDIX:

District Court Findings and Recommendations of the

RE

District Court Memorandum and Order ..............

Cpeee EEO onc cece eceees

Court of Appeals Judgment .....................000:

Court of Appeals Order Denying Rehearing ...........

12

TABLE OF CITATIONS.

Cases: Page

Brennan v. Ace Hardware Corp., 495 F. 2d 368 (8th Cir.

oe OE ET EEE OTOL PTY eT Pe 10, 12, 13, 14

Burgett v. Cudahy Co., 361 F. Supp. 617 (D. Kan. 1973) . 8

Dartt v. Shell Oil Co., 539 F. 2d 1256 (10th Cir. 1976), aff d

per curiam by an equally divided court, 434 U. S. 99

SEER Soy Nia teay 5 ee eS Sees Te A 6s OEE WeES co 8 8

Dunlop v. Resource Sciences Corp., 410 F. Supp. 836 (N. D.

Okla. 1976), appeal dismissed on motion of Secretary of

Labor sub nom. Usery v. Resource Sciences Corp., No.

76-1426 (10th Cir. August 30, 1976) ...............4.. 12,13

Equal Employment Opportunity Commission vy. Hickey-

Mitchell Co., 507 F. 2d 944 (8th Cir. 1974) ........... 13

Equal Employment Opportunity Commission v. United States

Pipe and Foundry Co., 375 F. Supp. 237 (N. D. Ala.

WEE Sid CUe veel we Sanus RAGE SELES ard wou kee eae 13

Equal Employment Opportunity Commission v. Westvaco

Corp., 372 F. Supp. 985 (D. Md. 1974) ............... 13

Johnson v. Railway Express Agency, 421 U. S. 454 (1975) ... 11

Marshall v. Hartford Fire Insurance Co., 78 F. R. D. 97 (D

RN SUNEES Coceutaseh ach ce cecack haw cleus bakak cats 10

Patterson v. American Tobacco Co., 535 F, 2d 257 (4th Cir. ),

cert. denied, 429 U. S. 920 (1976) ...............0.05. 13

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

834 (3d Cir. 1977), cert. denied, 434 U. S. 1022 (1978) . 9

Usery v. Sun Oil Co. (Delaware), 423 F. Supp. 125 (N. D.

Texas 1976), appeal docketed No, 77-1954 (5th Cir. May

Ney gi id Coes ae aR et per ee Ce Seen ee 12

TABLE OF CITATIONS (Continued).

Miscellaneous: Page

A 0 Pe) 8 en soc are. SE hi 2

On ly SE SE MOE ices one ss pub oe aciucnem aioe 2

ee Sa EINES ole it's abn dete eevee ont 2, 3, 4, 7, 8, 9, 13

Se Oh, NED Sink bs ac ava dwin'o 5 ae bare ae bea Oks 8

29 U. S. C. § 626(e)(2) ....... Ate bok ahah ua panne ho aac ll

Se We By ks RE OP OE ok Oe enya dc vcs cvevedeonuyte 13

ee Wa i IE are nv oC Ais wy ks SHG SMR Ook aaa Oba 13

ME Ses, a RE ED ones nwa Pasind bm ccnwb Seman’ 13

Age Discrimination in Employment Act of 1978, P. L. 95-256,

POPE CE, MID da ok ov canwokod ves khaueune’ 11

H. R. No. 805, 90th Cong. Ist Sess. U. S. Code Cong. and

PANU TOE Deed CRED ise aces vy ova wedaWcceban 9

¢

IN THE

Supreme Court of the United States

Ocroper Term, 1978.

No.

SUN OIL COMPANY OF PENNSYLVANIA,

Petitioner,

0.

RAY MARSHALL, Secretary of Labor,

United States Department of Labor,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT.

The petitioner, Sun Oil Company of Pennsylvania, re-

spectfully prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Tenth Circuit entered in this proceeding

on February 1, 1979.

2 Petition for a Writ of Certiorari

OPINIONS BELOW.

The unreported findings and recommendations of the

magistrate of the District Court for the Northern District

of Oklahoma of November 4, 1975 appear in the Appendix

hereto (App. Al-Al0). The opinion of the District Court

for the Northern District of Oklahoma of November 3,

1976 is reported unofficially at 17 FEP Cases 1577 and

appears in the Appendix hereto (App. All-A42).

The opinion of the United States Court of Appeals

for the Tenth Circuit of February 1, 1979 is reported un-

officially at 18 FEP Cases 1632 and appears in the Appen-

dix hereto (App. A43-A49).

JURISDICTION.

The judgment of the United States Court of Appeals

for the Tenth Circuit was entered on February 1, 1979

(App. A50), and this petition for certiorari was filed within

ninety (90) days of that date. A petition for rehearing

and suggestion for rehearing en banc, although untimely,

was ordered filed, considered and denied on March 9,

1979 (App. A51-A52). This Court’s jurisdiction is in-

voked under 28 U. S. C. § 1254(1).

QUESTION PRESENTED.

Where Congress directed the Secretary of Labor to

engage in informal methods of conciliation before insti-

tuting any action under the Age Discrimination in Em-

ployment Act, 29 U. S. C. § 621 et seq., in order to

promote enforcement through conciliation rather than liti-

gation whenever possible and where it is found that the

Secretary did not engage in adequate conciliation before

filing suit, may a district court dismiss an action brought

by the Secretary under the statute?

Petition for a Writ of Certiorari 3

STATUTE INVOLVED.

This case involves the interpretation and application

of section 7(b) of the Age Discrimination in Employment

Act, 29 U. S. C. § 626(b) (hereinafter “ADEA” ), which

provides:

(b) The provisions of this chapter shall be en-

forced in accordance with the powers, remedies, and

procedures provided in sections 211(b), 216 (except

for subsection (a) thereof), and 217 of this title, and

subsection (c) of this section. Any act prohibited

under section 623 of this title shall be deemed to be

a prohibited act under section 215 of this title.

Amounts owing to a person as a result of a violation

of this chapter shall be deemed to be unpaid mini-

mum wages or unpaid overtime compensation for pur-

poses of sections 216 and 217 of this title: Provided,

That liquidated damages shall be payable only in

cases of willful violations of this chapter. In any ac-

tion brought to enforce this chapter the court shall

have jurisdiction to grant such legal or equitable re-

lief as may be appropriate to effectuate the purposes

of this chapter, including without limitation judg-

ments compelling employment, reinstatement or pro-

motion, or enforcing the liability for amounts deemed

to be unpaid minimum wages or unpaid overtime

compensation under this section. Before instituting

any action under this section, the Secretary shall at-

tempt to eliminate the discriminatory practice or prac-

tices alleged, and to effect voluntary compliance with

the requirements of this chapter through informal

methods of conciliation, conference, and persuasion.

4 Petition for a Writ of Certiorari

STATEMENT OF THE CASE.

This case raises the question of whether a district

court may dismiss an action brought by the Secretary of

Labor under the ADEA where the Secretary has failed to

engage in adequate pre-suit conciliation required by sec-

tion 7(b) of the ADEA, 29 U. S. C. § 626(b). Both the

district court and court of appeals found that the Secre-

tary’s pre-suit conciliation efforts were inadequate but

differed on the nature of the relief which should be

granted as a result of this inadequacy.

The Department of Labor’s involvement began in

May, 1973 when Emory Osgood notified the Secretary of

his intent to sue petitioner, Sun Oil Company of Pennsyl-

vania (“Sun”), for allegedly forcing him te take early

retirement in December, 1972 in violation of the ADEA.

The Labor Department's compliance officer, J. Dean Speer,

met with representatives of Sun in June, 1973 to discuss

Osgood’s case. Sun’s representative, Robert Webster, ex-

plained that Osgood, who had been Regional Marketing

Manager of Sun’s Western Region, had been retired at

age 56 because of poor performance and inability to adapt

to the company’s new management philosophy and had

been replaced by W. W. Neddo who was 57 (App. A4,

A13, A15-A17, A44).

Speer then conducted an investigation to explore the

reasons given by Sun for Osgood’s separation to see if

there was some basis for further discussions (R. IT at 26).'

In furtherance of his inquiry concerning Osgood, Speer

wrote to Webster on October 1, 1973 requesting additional

information (name, positions, ages, etc.) concerning all of

the individuals who were or had been part of the manage-

ment structure in the marketing division of Sun since

February, 1970. Webster supplied Speer with all of the

1. References are to the record in the court of appeals, citing

the volume (R. I or R. II) and the page number.

Petition for a Writ of Certiorari 5

requested information by letter dated October 25, 1973.

The information was provided with respect to twenty-five

individuals, including all seven of the individuals whose

cases later became the subject of this action (App. A4-A5;

R. II at 27-28, 35-36, 96-103).

In December, 1973, Speer notified Webster for the

first time that the Labor Department believed remediai

action in the form of re-employment or a cash settlement

should be taken with respect to Osgood and another

former employee, George Sokol. Sokol had not filed a

notice of intent to sue, and Sun had not been previously

informed Sokol’s case was under investigation. When

Webster would rot agree to take the remedial actions

suggested, Speer stated that the file would be forwarded

to the Labor Department's legal office for analysis and a

decision as to further action, and he sent the file to this

office in December, 1973 (App. A5, A20, A44-A45).

In July, 1974, eight months later, Speer received the

file back with advice and instructions with respect to addi-

tional information to be developed. Speer ther continued

his investigation and on October 23, 1974 met with Sun.

During the period between December, 1973 and October

23, 1974, Speer had not been involved in any further con-

ciliation efforts with Sun (App. A20-A21, A45).

At the October 23, 1974 meeting, Speer advised

Webster that he had concluded from his investigation that

Sun had engaged in age discrimination with respect to

seven former marketing managers. Two of the seven were

Osgood and Sokol. Speer had never previously informed

Sun that the other five (Craig, Daniels?” McKee, Tolbert

2. James Daniels had filed an untimely notice of intent to sue

with the Labor Department's Philadelphia regional office on May

21, 1974 (R. II at 51-52, 102). The Philadelphia regional office

sent a letter to Sun Oii Company on May 29, 1974 advising it of

Daniels’ complaint and later transferred the matter to Speer to

handle (R. II at 46-47, 52, 59-62). Speer never discussed Daniels’

case with Sun before the October 23, 1974 meeting (App. A23).

6 Petition for a Writ of Certiorari

and Holcomb) were the subject of his investigation or

conciliation efforts (App. A6, A23, A45).

Speer asked if Sun would consider re-employment

and backpay for the seven, but Webster answered that he

did not have enough information about all of them to re-

spond. Webster stated he would like to review the matter

and would be prepared to discuss it with Speer after his

review. Speer would not agree to further negotiations

unless Sun agreed to waive the statute of limitations which

would run with respect to some of the individuals on

December 1, 1974. When Sun refused to consent to the

waiver, the Secretary filed this action in the United States

District Court for the Northern District of Oklahoma on

November 27, 1974 alleging that Sun had engaged in age

discrimination against the seven former employees. No

further conciliation efforts were attempted by the Labor

Department after the October 23, 1974 meeting, and the

Secretary's representatives admittedly had not learned

from or discussed with Sun the reasons for the actions

taken with respect to all of the seven individuals before

suit was filed (App. A6, A24-A29, A45).

On May 27, 1975, Sun filed « motion for summary

judgment based on the Secretary’s failure to comply with

the pre-suit conciliation requirements of the ADEA. On

November 4, 1975, following briefing and oral argument,

Magistrate Morris L. Bradford filed findings and recom-

mended that Sun’s motion be granted and the action be

dismissed * (App. Al-A10). On November 3, 1976, follow-

ing additional briefing, Chief Judge Allen E. Barrow

granted Sun’s motion for summary judgment and dismissed

the complaint with prejudice on the grounds that the court

lacked subject matter jurisdiction or, in the alternative, the

3. Although the findings were prepared, at the magistrate’s

direction, by counsel for Sun, they incorporate the specific com-

ments and rulings made by the magistrate at oral argument on

October 22, 1975. See e.g., App. A8-A9, {§ 18 and 20.

Petition for a Writ of Certiorari 7

complaint failed to state a claim upon which relief can be

granted as a result of plaintiff's failure to comply with the

statutory directive of attempting to effect voluntary com-

pliance through informal methods of conciliation before

filing suit * (App. All-A42).

On appeal, notice of which was filed December 27,

1976, the Secretary raised two issues: (1) whether the

Secretary's pre-suit conciliation efforts complied with

section 7(b) of the ADEA, 29 U. S. C. § 626(b), and (2)

if not, whether the district court should have stayed pro-

ceedings rather than dismissed the complaint. On Feb-

ruary 1, 1979, the Court of Appeals for the Tenth Circuit

concluded that the Secretary “failed to fully exhaust the

informal enforcement avenues as contemplated by § 7(b).”

(App. A47). However, the court held that the district

court should have stayed proceedings until further con-

ciliation efforts could be concluded rather than dismissed

the action (App. A48-A49).

On March 9, 1979, the Court of Appeals for the Tenth

Circuit denied Sun’s petition for rehearing and suggestion

for rehearing en banc (App. A51-A52).

4. R. C. Holcomb’s claim was dismissed by the district court

on the ground it was barred by the statute of limitations. No ap-

peal was taken from this ruling by the Secretary, and “the dismis-

sal as to Holcomb still stands.” (App. A46 n. 1).

8 Petition for a Writ of Certiorari

REASONS FOR GRANTING THE WRIT.

I. The Decision Below Is a Hindrance to the Effective

Administration of the Conciliation Provisions of the

ADEA.

The Tenth Circuit’s opinion in this case raises an im-

portant issue concerning the remedies available to a dis-

trict court when the Secretary of Labor fails to comply

with the conciliation requirements of the ADEA before

filing suit. The resolution of this issue has a significant

impact on whether the congressional purpose of attempt-

ing to enforce the ADEA through informal methods of

conciliation will succeed.

The ADEA places primary emphasis on conciliation

by the Secretary, rather than litigation, to resolve disputes.

Burgett v. Cudahy Co., 361 F. Supp. 617, 621 (D. Kan.

1973). Resort to the conciliation process is required be-

fore either the Secretary or an individual may file an

ADEA action.’ With respect to actions brought by the

Secretary, such as this case, section 7(b) of the statute

provides:

“... Before instituting any action under this section,

the Secretary shall attempt to eliminate the discrimi-

natory practice or practices alleged, and to effect vol-

5. With respect to suits by an individual, the ADEA requires

that the individual must file a charge of age discrimination with the

Secretary within 180 days of an alleged discriminatory act and pro-

vide the Secretary at least 60 days thereafter to “promptly seek to

eliminate any alleged unlawful practice by informal methods of

conciliation, conference and persuasion” before a federal action may

be filed. 29 U. S. C. §626(d). A basic purpose behind the 180

day notice requirement is to provide the Secretary “with an oppor-

tunity to achieve a conciliation of the complaint while the com-

plaint is still fresh.” Dartt v. Shell Oil Co., 539 F, 2d 1256, 1261

(10th Cir. 1976), affd per curiam by an equally divided court, 434

U. S. 99 (1977).

Petition for a Writ of Certiorari 9

untary compliance with the requirements of this

chapter through informal methods of conciliation,

conference and persuasion.” 29 U. S. C. §626(b).

The legislative history of the ADEA emphasizes that

the “most favored method of enforcement was conciliation

and mediation.” Rogers v. Exxon Research and Engineer-

ing Co., 550 F. 2d 834, 841 (3d Cir. 1977), cert. denied,

434 U.S. 1022 (1978). The House Report on the ADEA

states:

“It is intended that the responsibility for enforcement

vested in the Secretary by section 7, be initially and

exhaustively directed through informal methods of

conciliation, conference and persuasion and formal

methods applied only in the ultimate sense.” H. R.

No. 805, 90th Cong., Ist Sess., U. S$. Code Cong. and

Admin. News 2213, 2218 (1967) (emphasis added).

Both the district court and court of appeals concluded

that the statutory mandate requiring the Secretary to en-

gage in exhaustive conciliation efforts before filing an

action had not been complied with in this case (App. A10,

A41, A47). However, the court of appeals refused to

sustain the district court’s dismissal of the action on this

ground, holding instead that the district court should have

stayed the proceedings until conciliation could be con-

cluded (App. A47-A49).

The Tenth Circuit's decision undermines and frus-

trates the statutory purpose of attempting to enforce the

ADEA through informal methods of conciliation by

the Secretary of Labor rather than through litigation in the

federal courts. Instead of imposing any sanction for the

Secretary's failure to comply with the pre-suit conciliation

requirements of the ADEA, the decision of the court below

allows the Labor Department to ignore its conciliation

10 Petition for a Writ of Certiorari

responsibilities with impunity, thereby minimizing the

opportunity for effective conciliation and placing the bur-

den of enforcement on federal court litigation.

If conciliation -fforts are to resolve disputes and

avoid burdening the federal courts with litigation, these

efforts must be undertaken promptly when disputes are

fresh. The Labor Department must give the employer

time to conduct internal investigations, formulate re-

sponses to individual charges as well as some opportunity

to present its responses in negotiations with the Labor

Department. Brennan v. Ace Hardware Corp., 495 F. 2d

368, 374-375 (8th Cir. 1974); Marshall v. Hartford Fire

Insurance Co., 78 F. R. D. 97, 106 (D. Conn. 1978). Con-

ciliation cannot be achieved where, as in this case, the

Labor Department has information concerning all the in-

dividual cases for one year but does not inform the em-

ployer of the identity of all of the individuals on whose

behalf the Department is seeking relief until one month

before the statute of limitations is to expire and then will

only engage in conciliation efforts if the employer waives

the statute of limitations.

The longer the delay between the alleged act of dis-

crimination <nd the efforts to resolve the charges, the

less chance there is that the process of conciliation can

achieve a satisfactory result for either the terminated em-

ployee (who continues without a job or backpay) or

the employer (who is asked to reinstate an employee years

after discharge and to pay ever increasing amounts of

backpay). This is particularly true where, as in this case,

the Labor Department is seeking re-employment and

backpay for high level managers. A company simply can-

not be expected to keep open or find such positions years

after the employee has left the company, and the longer

the delay in conducting conciliation efforts, the larger the

Petition for a Writ of Certiorari 11

backpay demanded. This is not the most productive at-

mosphere for attempting to reach a negotiated settlement.

If the statutory purpose of enforcement through con-

ciliation rather than litigation is to have an opportunity

for success, the conciliation requirements of the ADEA

must be enforced by the courts in an effective manner.

The most effective sanction is dismissal in appropriate

cases because a stay of proceedings, as authorized by the

Tenth Circuit, only serves to compound the delay which

precludes constructive conciliation efforts. Moreover, the

pendency of a lawsuit alters the relationship and attitudes

of the parties and tends to deter efforts at conciliation . Cf.

Johnson v. Railway Express Agency, 421 U. S. 454, 461

(1975).

This case is an appropriate case for dismissal because

the delay in conducting adequate conciliation was attrib-

utable solely to the dilatory conduct of the Labor Depart-

ment which has never been explained or justified. Unless

an appropriate sanction is authorized by this Court to dis-

courage such conduct by the Labor Department and to

promote the congressional purpose of conciliation, the

Tenth Circuit decision may well cause the federal courts,

6. The 1978 amendments to the ADEA do not eliminate the

need for effective sanctions in cases where the Secretary's concilia-

tion efforts are unjustifiably inadequate. The amendments provide

that when the Secretary is attempting to effect voluntary compli-

ance through informal methods of conciliation, the statute of limita-

tions shall be tolled for a period not to exceed one year. 29 U. S. C.

ge 2), as amended. If, despite the additional time provided

or conciliation, the Secretary still fails to comply with the statutory

requirement, dismissal should be available as a sanction in appro-

priate cases in order to insure that the Secretary properly carries

out his duties under the ADEA.

It should be noted that the 1978 amendments apply to “con-

ciliations commenced by the Secretary of Labor after the date of

enactment [of the amendments]” which was April 6, 1978, and

therefore the amendments do not apply to this case. Age Discrimi-

—_ in Employment Act of 1978, P. L. 95-256, § 4(c)(2) (April

, 1978).

¢,

12 Petition for a Writ of Certiorari

employers and the Secretary to be burdened with cases

which might otherwise have been resolved had the Secre-

tary been effectively encouraged to fulfill his obligations

under the statute.

II. The Decision Below Is in Conflict in Principle with

the Decision of Another Circuit Concerning the Pro-

priety of Dismissing an ADEA Action Brought by

the Secretary of Labor for Failure of the Secretary

to Conduct Adequate Pre-Suit Conciliation.

The Tenth Circuit concluded that a stay of proceed-

ings, rather than dismissal, was the appropriate remedy

because the Secretary of Labor had made some effort to

effect voluntary compliance before filing suit (App. A48-

A49}. The court of appeals justified this conclusion by

noting that enforcement of the ADEA would be severely

hampered if courts were to demand, upon penalty of dis-

missal, full compliance with a standard that the Secretary

exhaustively seek informal compliance before filing suit

(App. A47).

The reasoning and conclusion of the Tenth Circuit

are in conflict with the decision of the Eighth Circuit in

Brennan v. Ace Hardware Corp., 495 F. 2d 368 (8th Cir.

1974). In Ace Hardware, the Eighth Circuit affirmed the

dismissal of an action on the ground of inadequate pre-

suit conciliation even though the Secretary had made some

conciliation effort before suit and even though the dis-

missal was granted after a trial at which the employer was

found to have violated the ADEA.’ 495 F. 2d at 371, 374-

7. Other ADEA actions filed by the Secretary of Labor have

been dismissed on the ground of inadequate pre-suit ccnciliation

efforts by the Secretary: Usery v. Sun Oil Co. (Delatvare), 423 F.

Supp. 125 (N. D. Texas 1976), appeal docketed, No. 77-1954 (5th

Cir. May 9, 1977); Dunlop v. Resource Sciences Corp., 410 F.

Supp. 836 (N. D. Okla. 1976), appeal dismissed on motion of

Petition for a Writ of Certiorari 13

375. The Eighth Circuit analyzed the ADEA and its legis-

lative history and concluded that the provisions promoting

voluntary compliance before legal action is initiated are an

“integral part” of the ADEA which require the Secretary

of Labor to initially use exhaustive, affirmative action to

achieve conciliation. 495 F. 2d at 374.

“Although the availability of and resort to courts

allow for a method of resolving conflicts, the frame-

work of a free people and the functioning of their

government depends not essentially upon the courts,

but upon the desire of the people to agree within the

framework of their law and to compromise the dif-

ferences outside the walls of a courtroom. The volun-

tary compliance provisions recognize this principle

and also wisely perceive that conciliation is a difficult

process in which exhaustive, affirmative action, in this

situation initiated by the Secretary, is demanded to

achieve resolution without the necessity of legal

action.” 495 F. 2d at 375.

The Eighth Circuit affirmed the lower court's finding that

the pre-suit conciliation efforts by the Secretary did not

7. (Cont'd. )

Secretary of Labor sub. nom. Usery v. Resource Sciences Corp.,

No. 76-1426 (10th Cir. August 30, 1976). °

Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e

et seq., as amended, contains a provision which imposes pre-suit

conciliation duties on the Equal Employment Opportunity Com-

mission (EEOC) similar to those imposed on the Secretary of

Labor under the ADEA. Compare 42 U. S. C. § 2000e-5(b) and

(f)(1) with 29 U. S. C. § 626(b). Courts have dismissed actions

brought by the EEOC under Title VII when the EEOC has failed

to engage in adequate pre-suit conciliation. Patterson v. American

Tobacco Co., 535 F. 2d 257, 271-272 (4th Cir.), cert. denied, 429

U. S. 920 (1976); Equal Employment Opportunity Commission v.

Hickey-Mitchell Co., 507 F. 2d 944 (8th Cir. 1974); Equal Em-

ployment Opportunity Commission v. United States Pipe and

Foundry Co., 375 F. Supp. 237 (N. D. Alab. 1974); Equal Employ-

ment Opportunity Commission v. Westvaco Corp., 372 F. Supp.

985 (D. Md. 1974). :

14 Petition for a Writ of Certiorari

“fulfill the affirmative burden of exhaustively employing

informal methods to allow the Employer the opportunity

to comply voluntarily with the Act.” 495 F. 2d at 374-375.

In Ace Hardware, the Secretary of Labor argued that

dismissal was inappropriate and that the district court

““should have stayed the proceedings to permit the Secre-

tary to make necessary additional efforts toward effecting

voluntary compliance.” 495 F. 2d at 376. Although

noting that the district court had the power to order such

a stay, the court of appeals affirmed the dismissal stating:

“. . . we think that § 626(b) invests a broad discre-

tion in the District Court ‘to grant such legal or equi-

table relief as may be appropriate to effectuate the

purposes’ of the Act. We cannot say that the District

Court's failure to grant a stay of proceedings was an

abuse of discretion, particularly in light of the express

statutory provision of the Act requiring conciliation

attempts before instituting legal action.” 495 F. 2d

at 376.

The Eighth Circuit’s reasoning in Ace Hardware con-

flicts with the Tenth Circuit's holding that where the

Secretary has made some effort to effect voluntary com-

pliance before filing suit, even though these “efforts fell

far short of what might reasonably be considered ‘ex-

haustive,” the proper course is to stay proceedings until

conciliation can be concluded rather than dismiss the

action (App. A49). The Eighth Circuit would leave to

the district court the question of whether, under the cir-

cumstances of the conciliation efforts in each case, the

statutory purpose of encouraging private settlement to

avoid unnecessary litigation is best served by dismissing

or staying a case where the Secretary's efforts are found to

be inadequate. This Court should grant this petition for

Petition for a Writ of Certiorari 15

certiorari in order to resolve the different conclusions of

these two circuits with respect to the propriety of dismiss-

ing an action brought by the Secretary of Labor when the

Secretary has failed to adequately comply with the pre-suit

conciliation requirements of the ADEA.

CONCLUSION.

For these reasons, a writ of certiorari should be issued

to review the judgment and opinion of the United States

Court of Appeals for the Tenth Circuit.

Respectfully submitted,

Joun J. RuNZER,

Nancy J. GELLMAN,

2001 The Fidelity Building,

123 South Broad Street,

Philadelphia, PA 19109

Attorneys for Petitioner,

Sun Oil Company of Pennsylvania.

Dated: April 11, 1979

Appendix.

IN THE

UNITED STATES DISTRICT COURT

For tHe Nortrukern Disrricr or OKLAHOMA

Civil Action No. 74-C-474

PETER J. BRENNAN, Secretary of Labor,

United States Department of Labor,

Plaintiff,

v.

SUN OIL COMPANY OF PENNSYLVANIA,

a corporation,

Defendant.

FINDINGS AND RECOMMENDATIONS

OF MAGISTRATE,

(Filed November 4, 1975)

This cause came on for hearing on this 22nd day of

October, 1975, upon defendant's motion for summary

judgment, at which time the plaintiff appeared by his at-

torney, Heriberto de Leon, and the defendant appeared

by its attorney, Nancy J. Gellman.

The Magistrate finds:

1. This is an action brought by plaintiff, the Secre-

tary of Labor (hereinafter “the Secretary”) alleging that

defendant Sun Oil Company of Pennsylvania (hereinafter

“Sun”) violated the Age Discrimination in Employment

Act of 1967, 29 U. S. C. § 621 et seq. (hereinafter “the

(Al)

A2 - Findings of Magistrate

Act”) in connection with the retirement or discharge of

seven individuals.

2. The seven individuals (James O. Craig, J. W.

Daniels, R. C. Holcomb, John K. McKee, Emory Osgood,

George Sokol, V. P. Tolbert) were o" high level manage-

ment employees in the marketing division of Sun who had

held the position of Regional Marketing Manager or As-

sistant Regional Marketing Manager.

3. The Secretary’s complaint alleges that this Court

has jurisdiction pursuant to 29 U. S. C. § 626(b) and that

plaintiff's representatives attempted to eliminate the al-

leged discriminatory practice and to effect voluntary com-

pliance with the Act through informal means of concili-

ation, conference and persuasion before the action was

instituted. (Complaint, { 1).

4. In its Answer, Sun denies, inter alia, the allegations

of jurisdiction on the ground that plaintiff did not satisfy

the voluntary compliance requirements of the Act and

raises lack of jurisdiction as an affirmative defense. Sun

also asserts in its Answer that any cause of action plaintiff

may have is barred in whole or in part by the applicable

statute of limitations.

5. Sun filed Interrogatories—Set No. 1 and Request

for Production—Set No. 1 which sought information con-

cerning the Secretary's conciliation efforts. Plaintiff's

answers established that such efforts were made by J.

Dean Speer, who had been Assistant Area Director, Wage

and Hour Division, Department of Labor, Tulsa, Okla-

homa and by Heriberto de Leon, Attorney, Department of

Labor. (Plaintiff's Answers to Defendant’s Interroga-

tories—Set No. 1, Interrogatory No. 5). On April 21,

1975, Sun took the deposition of Mr. Speer, and the origi-

Findings of Magistrate A3

nal deposition has been filed with and reviewed by the

Court.

6. On May 27, 1975, Sun filed a motion for summary

judgment which set forth two grounds: (a) the concili-

ation efforts of the Secretary do not satisfy the requirements

of the Act necessary to confer jurisdiction in this Court,

or, in the alternative, the Secretary has failed to state a

claim upon which relief can be granted, 29 U. S. C. § 626

(b); and (b) any claim on behalf of R. C. Holcomb is

barred by the Act’s statute of limitations, 29 U. S. C. § 255,

626(e).

7. There are no genuine issues of material fact in the

record before this Court with respect to defendant's mo-

tion for summary judgment.

8. The Act expressly directs the Secretary to attempt

to effect voluntary compliance with the Act through in-

formal methods of conciliation, conference and persuasion

before any legal action is instituted. 29 U. S.C. § 626(b).

The emphasis of the Act is on private settlement, and the

Secretary has the responsibility to use exhaustive affirma-

tive action to attempt to achieve conciliation before re-

sorting to legal action. Brennan v. Ace Hardware Corp.,

495 F. 2d 368 (8th Cir. 1974); Burgett v. Cudahy Corp.,

361 F. Supp. 617, 621 (D. Kan. 1973); H. R. No. 805, 90th

Cong., Ist Sess., U. S. Code Cong. and Admin. News, pp.

2213, 2218 (1967). The Act requires that such efforts

are to be conducted promptly, consistent with the Act’s

two year statute of limitations for the filing of claims. 29

U. S. C. §§ 255, 626(e). The Secretary’s failure to com-

ply with the conciliation requirements of the Act has

properly been held to justify dismissal of an action.

Brennan v. Ace Hardware Corp., supra; Brennan v. Ap-

proved Personnel Service, Inc., 8 EPD § 9810 (M. D. N.

Carolina 1974).

A4 Findings of Magistrate

9. The record of the Secretary's compliance efforts

in this case is a record of unjustifiable delays and failure to

comprehensively explore resolution of the conflict which

requires dismissal of this action. The involvement of the

Department of Labor began with the receipt of a notice

of intent to sue filed by Emory Osgood on May 29, 1973.

On June 18, 1973, Speer met with Sun representatives,

Kenneth Mosley and Robert A. Webster, to discuss Os-

good’s complaint. This was the only case Sun was ad-

vised of and the only case discussed by Speer. The Sun

representatives explained that Osgood, who had been Re-

gional Marketing Manager (Western Region), had been

retired early by Sun at age 55 because of poor perform-

ance and inability to conform to the company’s new man-

agement style and had been replaced by W. W. Neddo

who was 57. The Sun representatives also explained the

1970 reorganization of the marketing division of Sun Oil

Company, a New Jersey corporation, and the 1972 re-

organization of defendant's marketing division. During

this explanation, Webster identified at least 14 individuals

and their positions within the marketing division, includ-

ing four who are the subject of the present action (Os-

good, Sokol, Tolbert and McKee) The Sun representa-

tives cooperated with Speer and indicated that they were

willing to meet and discuss the matter with Speer again.

Speer was to investigate the matter further.

10. On October 1, 1973, Speer wrote to Webster re-

questing additional information (names, positions, ages,

premerger status, replacements ) concerning the manage-

ment structure in the marketing division of Sun beginning

February, 1970. By letter dated October 25, 1973, Webster

promptly supplied all the requested information concern-

ing 25 individuals, including the seven whose cases are the

Findings of Magistrate A5

subject matter of this action. Therefore, by at least the

end of October, 1973, the Secretary was aware of the

identity of these seven individuals, their age and positions

with Sun, the actions taken by Sun with respect to their

employment, and the Secretary had the same information

with respect to all individuals who held comparable posi-

tions to the seven in the marketing division since February,

1970. However, the Secretary did not notify Sun that in-

dividuals other than Osgood were the subject of his inves-

tigation or conciliation efforts.

11. In early December, 1973, Speer contacted Web-

ster and stated he felt some action should be taken by

Sun with respect to Osgood and George Sokol. This was

the first time Speer discussed Sokol, and Webster told

Speer he was surprised by the mention of Sokol. Speer

testified that he requested that Sun consider either re-

employment or a cash settlement with respect to Osgood

and Sokol. Even accepting Speer’s testimony that Webster

stated unequivocally that Sun would not take any action

with respect to Osgood or Sokol in December, 1973, one

telephone conversation during which an employer is in-

formed for the first time that the Secretary is investigating

the termination of an employee cannot satisfy the exhaus-

tive and affirmative conciliation efforts required of the

Secretary by the Act.

12. Speer sent the file to the Solicitor’s Office in

December, 1973. Eight months later, in early August,

1974, Speer received the file back from the Solicitor’s Office

with instructions to develop certain additional information.

Speer had not been involved in the case in any respect

between December, 1973 and August, 1974 and during

this period there was no further contact with Sun. Speer

did not contact Sun when he received the file back from

A6 Findings of Magistrate

the Solicitor’s Office. He did interview approximately eight

individuals and advised the Solicitor’s Office of the com-

pletion of his investigation sometime after October U5,

1974. Speer then telephoned Webster and told him that

he had completed an investigation limited to regional

marketing manavers and former assistant regional market-

ing managers and requested a meeting with Webster to

discuss the findings of the investigation. Speer did not

advise Webster over the telephone as to what his findings

were,

13. On October 23, 1974, Speer and Heriberto de

Leon, an attorney with the Solicitor’s Office of the Depart-

ment of Labor, met with Webster. Speer advised Webster

that he had concluded from his investigation that Sun had

engaged in age discrimination with respect to seven former

regional marketing managers and assistant regional market-

ing managers. Speer gave Webster the names of the seven

individuals. Two of the seven were Osgood and Sokol.

Speer had not previously informed Sun that the other five

(Craig, Daniels, Holcomb, McKee and Tolbert) were the

subject of Speer’s investigation or conciliation efforts.

Webster told Speer he could not discuss all of the individ-

ual cases at the October 23 meeting as he did not have

information concerning all of them. Webster asked for

time to review the matter and stated he wanted to discuss

the matter with Speer after his review. Speer would only

agree to continue conciliation efforts if Sun would agree

to waive the Act’s statute of limitations which Speer and

de Leon contended would begin to run with respect: to

some of the claims on December 1, 1974. Webster stated

he had no authority to agree to such a waiver and would

have to consult with Sun’s general counsel.

14. On November 13, 1974, Speer called Webster, at

which time Webster informed Speer that Sun would not

Findings of Magistrate A7

agree to waive the statute of limitations, No further con-

ciliation efforts were attempted or suggested by Speer or

de Leon, and neither Speer nor de Leon contacted Sun

following this conversation, The complaint in this action

was filed on November 27, 1974,

15. At no time during the October 23, 1974 mecting

or subsequent contacts between Webster and Speer did

Webster state that Sun was unwilling to continue concilia-

tion efforts with respect to all of the seven former em-

ployees. However, Speer and de Leon told Webster that

the Department would not continue the conciliation efforts

unless Sun waived the statute of limitations. Prior to the

filing of this action, Speer and de Leon had not learned

from or discussed with representatives of Sun Sun's posi-

tion concerning the reasons for the action taken with re-

spect to all of the seven former employees.

16. The Act’s two year statute of limitations became

a factor in this case as a result of the Secretary's unjusti-

fiable delay in permitting the matter to lay dormant for at

least eight months. Sun had voluntarily provided the

Secretary with information concerning the seven, among

others, in October, 1973; however, the Secretary did not

inform Sun until October, 1974 that all seven were the

subject of the Department's investigation and conciliation

efforts. Without even affording Sun the opportunity it

requested to review the cases it was first advised of at the

October 23, 1974 meeting and to discuss possible resolu-

tion of all the cases with the Secretary, the Secretary

demanded that Sun waive its rights under the Act or the

Secretary would not continue conciliation efforts,

17. The claims asserted by the Secretary on behalf of

the seven former employees were separate and distinct.

Notice and consideration of Osgood’s case, for example,

A8 Findings of Magisirate

did not constitute notice or consideration by Sun of the

cases of the other individuals and any response by Sun

with respect to one case did not foreclose a different re-

sponse with respect to the other individuals. Moreover,

Osgood’s case was considered at the October 23, 1974

meeting along with the other cases, and Sun did not state

it would not negotiate further with respect to the seven.

As a result of his delay in raising the claims and his re-

fusal to discuss conciliation after the October 23 meeting,

the Secretary failed to carry ont his obligation to fully ex-

plore conciliation with respect to each of the seven cases.

18. Sun was prejudiced by the Secretary’s failure to

comply with the conciliation requirements of the Act.

Unless conciliation efforts are undertaken promptly, both

the employer's and employee’s situations can be altered

so that certain types of settlements may be precluded

(e.g., re-employment which is sought by the Secretary in

this case). A corporation the size of Sun simply cannot

be expected to keep open or find high level management

positions for individuals on whose behalf claims of im-

proper discharge are first raised several years after they

have left the company. Moreover, the more time that

elapses between the alleged unlawful occurrence and the

conciliation efforts, the more difficult the Act’s favored

resolution through conciliation may become as memories

fade, and participants in the events scatter.

19. When the Secretary has complied with the con-

ciliation requirements of the Act, he had been able to

resolve a high percentage of cases under the Act through

such informal methods and without resort to the courts.

Brennan v. Ace Hardware, supra, 495 F, 2d at 374-75.

20. Although under certain circumstances, it would

be appropriate for a court to enter a stay to permit addi-

Findings of Magistrate AQ

tional conciliation efforts, this is not an appropriate result

in this case. The government had its day and failed to

fulfill its obligation to defendant to promptly, intelligently

and exhaustively explore conciliation with respect to the

seven. The Secretary's failure to carry out his responsi-

bilities under the Act has prejudiced Sun and a stay cannot

eliminate or minimize this prejudice.

21. The Act’s statute of limitations provides:

“Any action... may be commenced within two

years after the cause of action accrued, and every

such action shall be forever barred unless commenced

within two years after the cause of action accrued,

except that a cause of action arising out of a willful

violation may be commenced within three years after

the cause of action accrued.” 29 U. S. C. § 255,

625(e).

The Complaint was filed on November 27, 1974. R. C.

Holcomb was retired by defendant on September 1, 1971.

(Plaintiffs Answers to Defendant's Interrogatories—Set

No. 1, Interrogatory No. i).

22. The date of discharge is the controlling date

under the Act’s statute of limitations and a charge of age

discrimination must be filed in relation to that date. Ter-

mination of employment does not constitute a “continuing

violation of the Act. Olson v. Rembrandt Printing Co.,

511 F. 2d 1228, 1234 (8th Cir. 1975); c.f. Law v. United

Air Lines, Inc., 519 F. 2d 170, 171 (10th Cir. 1975).

Therefore, even if the Act’s three year statute of limitations

is applicable, the claim for violation of the Act with respect

to R. C. Holcomb was filed more than three years after

Holcomb was retired and accordingly is barred by the

statute of limitations.

Al9 Findings of Magistrate

RECOMMENDATION

The Magistrate recommends to the Court that de-

fendant’s motion for summary judgment be granted and

the action be dismissed with prejudice on the grounds that:

(1) this Court lacks subject matter jurisdiction or,

in the alternative, the complaint fails to state a claim upon

which relief can be granted as a result of plaintiff's failure

to comply with the statutory directive of attempting to

effect voluntary compliance through informal methods of

conciliation, conference and persuasion pursuant to 29

U. S. C. § 626(b) before instituting this action; and

(2) the applicable statute of limitations, 29 U. S. C.

§§ 225, 626(e), bars any action or relief on behalf of R. C.

Holcomb.

Dated this 4th day of November, 1975.

/s/ Morris L. BRADFoRD

United States Magistrate

District Court Memorandum and Order All

IN THE

UNITED STATES DISTRICT COURT

For THE NORTHERN District OF OKLAHOMA

74-C-474-B.

PETER J. BRENNAN, Secretary of Labor,

United States Department of Labor,

Plaintiff,

v~.

SUN OIL COMPANY OF PENNSYLVANIA,

a corporation,

Defendant.

MEMORANDUM AND ORDER OF THE COURT.

(Filed November 3, 1976)

The Court. has for consideration the defendant's

Motion for Summary Judgment, filed pursuant to Rule 56

of the Federal Rules of Civil Procedure, and has carefully

perused the entire file, including all pleadings, plaintiff's

responses to defendant's discovery requests, the deposition

of J. Dean Speer, filed of record, and, being fully advised

in the premises, finds:

Defendant’s Motion for Summary Judgment raises two

grounds for consideration by the Court, ice.:

1. That this Court lacks subject matter jurisdiction or,

in the alternative, the complaint fails to state a claim upon

which relief can be granted as a result of plaintiff's failure

to comply with the statutory directive of attempting to

Al2 District Court Memorandum and Order

effect voluntary compliance through informal methods of

conciliation, conference and persuasion pursuant to 29

U.S.C. § 626(b) before instituting this action: and

2. That the applicable statute of limitations, 29 U.S, C.

§§ 255, 626(e) bars any action or relief on behalf of BR. GC.

Holcomb.

The instant litigation was commenced on November

27, 1974, by the Secretary of Labor (hereinafter referred

to as “Secretary” ), under the Ave Discrimination in Em-

ployment Act of 1967, 29 U.S. C. § 621, et seq. (herein-

after referred to as “Act” ),

In the Complaint, the Secretary alleges that) since

November 25, 1971," the defendant, Sun Oil Company of

Pennsylvania (hereinafter called “Sun”), has wilfully vio-

lated and continues to wilfully violate the provisions of the

“Age Discrimination in Employment Act of 19677. The

Secretary further alleges that this action was commenced

after the Secretary's representatives had attempted to

eliminate the alleged discriminatory practice or practices

through informal methods of conciliation, conference and

persuasion, pursuant to the Act.

The file reveals that seven individuals who are former

employees of the defendant form the nexus of the present

controversy. They are James O. Craig; J. W. Daniels;

R. ©. Holeomb; John K. McKee; Emory Osgood; George

Sokol; and V. P. ‘Tolbert. Attached to the deposition of

J]. Dean Speer, taken April 21, 1975, is a copy of a docu-

ment designated “Sunoco Retail Marketing Organization

Beginning February 1, L970") which appears to give cer

tain pertinent information concerning, 25 individuals (7

of whom are listed hereinabove). At this juncture, in con-

* Note: The Secretary alleges violation since November 25.

1971, and Mr. Holeomb was terminated September 1, L971, some

months prior to the November date alleged by the Secretary,

District Court Memorandum and Order A113

sidering defendant's Motion for Summary Judgment, the

Court will deal only with the seven individuals delineated

hereinabove.

James O. Craig. is listed as J. O. Craig, and he is indi-

cated as being the Assistant Regional Manager, N. FE.

Region, Framingham, Massachusetts. His ave is reflected

as 47 and he was terminated on December 9, 1972, with

the notation “job eliminated”,

J. W. Daniels is indicated as Assistant Regional Man

ager, Middle Atlantic Region, Valley Forge, Pennsylvania.

His age is reflected as 6O and he was. terminated on

December 1, 1972, with the notation “job eliminated”,

R. ©. Holeomb is listed as Assistant Regional Man-

ager, No 1. Region, Framingham, Massachusetts. His age

is reflected as 62 and he was terminated on September 1,

1971," with the notation “job eliminated”.

John K. MeKee is listed as J. K. MeKee, and he is indi-

cated as being the Regional Manager, Central Region,

Pittsburgh, Pennsylvania, His age is reflected as 56 and he

was retired on December 1, 1972, and replaced by C. L.

Hodsdon, ave 55

Emory Osgood is listed as . M. Osgood, and he is

indicated as being the Regional Manager, Western Region,

Tulsa, Oklahoma. Tis ave is reflected as 56 and he was

retired on December 1, 1972, and replaced by W. W.

Neddo, aye 57.

George Sokol is listed as G. O. Sokol, and he is indi-

cated as being Assistant’ Regional Manager, Western

Region, Tulsa, Oklahoma. His age is reflected as being 54

and he was terminated on February 28, 1973, with the

notation “job eliminated”,

* Note: The Secretary alleges violation since November 25,

1971. and Mr. Holeomb was terminated September 1, L971, some

months prior to the November date alleged by the Secretary,

Al4 District Court Memorandum and Order

V. P. Tolbert is indicated as Regional Manager, Ohio

Valley Region, Cincinnati, Ohio. His age is reflected as

55 and he was retired on August 1, 1973, with the notation

“Ohio Valley Reg. went out of existence, job eliminated”.

Turning now to the deposition of J. Dean Speer, taken

April 21, 1975, he testified that he was presently the Area

Director for Wage Hour in Little Rock, Arkansas (Dep. 5)

and at the time involved in this litigation was the Assistant

Area Director, Wage Hour, in Tulsa, Oklahoma (Dep. 5).

Commencing at page 8, he testified:

Q. Would you explain your understanding of the

Act’s requirement concerning efforts to achieve vol-

untary compliance through informal methods of con-

ciliation, conference and persuasion? What is your

understanding of what is to be done?

A. Well, I think it is just exactly what it says. I

think an opportunity is to be given the employer to

remedy a given situation without having to agree or

admit, if you will, that any discriminatory act has

taken place. I think this is what the Act means by

conciliation. If you get into a posture of what I refer

to as ‘finger pointing’, you then place the employer in

a posture of having to admit a wrong doing if one

did exist.

In a conciliation effort, I attempt to advise the em-

ployer that I am not interested in determining

guilt or lack thereof. I am only interested in resolv-

ing a particular situation and I am there to see if we

possibly can reach some middle ground that we would

be (sic) somewhat satisfactory to the employer as

well as to the employee—a conciliatory effort.

I think once you depart from there into the area

of conference and persuasion in the event the con-

ciliation effort fails and the employer indicates that he

District Court Memorandum and Order — A15

is not so disposed to make any attempts to reach

middle ground, you must then enter some type of

fact finding phase—or if I feel that at least there is a

prima facie indication of possible non-compliance—

and try to determine to some extent what happened.

If the employer remains adamant in his position

that he has done nothing improper and does not in-

tend to make any changes in the actions that he has

taken, I feel you have to continue to confer with him

or advise him periodically of where you are, what

you found, listening to any information that he wants

to submit to you that might clarify or alter any find-

ings or opinions that you may have formed at that

point.

This procedure is on-going until such time as you

reach the point where there is nothing more to dis-

cuss, all has been said and we—or I— may have come

to the conclusion that these discriminations did take

place. Again, the employer remains adamant in his

position that he is not going to make any changes and

at that point the only thing I think you can do is

advise him that you feel there has been a violative

situation and in the event you can’t reach agreement

on some terms, then you would have to submit the

file to other locations, to the Area Director or to the

Solicitor’s Office is (sic) that is warranted, for any

further actions they feel are necessary.

At page 14 of the deposition, Mr. Speer testified that

his initial contact with the defendant, Sun, was made by

letter dated May 31, 1973, to Mr. Ken Mosly (letter at-

tached to deposition). In pertinent part the letter stated:

“This is to notify you that Emory M. Osgood has

advised me that he intends to bring suit against Sun

Al16 District Court Memorandum and Order

Oil Company of Pennsylvania to seek relief from an

alleged discriminatory practice under the Age dis-

crimination in Employment Act of 1967.

“°° © T will call at your establishment at 9:00 a.m. on

June 5, 1973, to review the circumstances involved in

this case and, if possible, to work out some solution

consistent with the statute and agreeable to the par-

ties. ° ° °.”

Mr. Speer testified (Dep. 16) that he did not meet with

Mr. Mosly or other officials of defendant on June 5, 1973,

but that the first meeting was June 18, 1973 and that prior

to said meeting no investigation was conducted (Dep.

17). His discussion with the Sun officials was limited to

Mr. Osgood’s case in June of 1973 (Dep. 18).

Commencing at page 19, Mr. Speer testified:

Q. I believe you stated that before the June 18th

meeting that you had not conducted any investiga-

tion. Yet you stated that you had talked to Mr.

Osgood. Is ‘investigation’ a term of art in the, Wage

Hour Division?

A. Well, yes, I had contacted Mr. Osgood. I had

received his Notice of Intent to Sue. The contact

was made with Mr. Osgood to ascertain the back-

ground behind his filing of the Notice of Intent to

Sue. Of course, before I can go to a company and

enter into any conciliatory effort, I must know what

the employee or the parties filing the intent to sue

are interested in in order to resolve the potential liti-

gation between the two parties.

Contact was made with Mr. Osgood and I did dis-

cuss with him his salary. That’s how I knew he re-

ceived the severance pay, what he was interested in,

the damage he felt he had incurred as a result of

District Court Memorandum and Order Al7

Sun’s action, so that I could go to the company and

listen to their side and hopefully enter into nego-

tiations to resolve the differences between the two.

Q. Other than your contact with Mr. Osgood,

had you done anything else before the June 18th

meeting?

‘ A. No.

In discussing a four page document, attached to the

deposition, which constitute notes that Mr. Speer made

during the June 18th, 1973, meeting, Mr. Speer testified,

commencing at page 23:

ee

Q. Also on page 3, there are references to sev-

eral other individuals: Mr. Sokol, S-o-k-o-l (spelling );

Mr. Neddo, N-e-d-d-o (spelling); Mr. Tolbert,

T-o-l-b-e-r-t_ (spelling), and Mr. McKee and Mr.

Hodson.

Do you recall how these individuals’ names came

up; what the discussion was?

A. Yes. In the company’s explanation to me of

events surrounding Mr. Osgood, ° ° °.

At pages 25 and 26 of the deposition, he testified:

Q. Do you remember about how long this meet-

ing lasted? Was it a couple of hours?

A. I would say approximately two hours.

Q. And would you say that Sun was cooperating

with you in providing all this information?

| A. Yes.

| and he further testified, on page 26:

j

Q. Did Sun indicate it was willing to meet with

you and discuss this further?

A. Yes.

Q. Did you request any additional information

from Sun at that time?

District Court Memorandum and Order

A. No, not at that time. Nothing other than the

documentation they had already furnished me.

In discussing a letter dated October 1, 1973, from Mr.

Speer to Mr. Webster of Sun, Mr. Speer testified:

Q. Mr. Speer, had you any other contact with |

Sun before you sent this letter on October 1, 1973,

other than the June 18, 1973 meeting?

A. No.

Q. Were there any phone conversations that you

recall?

A. No. I think the parameters for gaining addi-

tional information had been established during the

discussion of June 18th in that Mr. Webster asked

that any subsequent discussions be undertaken with

him. He further indicated at that time, as did Mr.

Mosly, as a result of my initial letter, I believe, dated

May 31, that any personnel records with respect to

management people such as Mr. Osgood would be

maintained in the home office and if I desired those

I would have to obtain them from that particular lo-

cation.

and at page 29:

Q. Well, this letter starts out by saying, ‘this

refers to our discussions of the alleged illegal discrim-

ination with respect to the termination of Emory Os-

good’, and so on.

I am simply wondering whether there were other dis-

cussions after the June 18th meeting that you know of?

A. No. I think that I might want to clarify that.

I do think that I telephoned Mr. Webster and advised

him that I was writing the letter and the type of in-

District Court Memorandum and Order Al9

be providing him with a format, but there wasn’t any

discussion of the validity or invalidity or any further

expansion of the company’s position or anything of

this nature. It was just a conversation indicating that

this was coming.

On page 31 Mr. Speer testified:

Q. To your knowledge had Mr. Sokol filed the

Notice To Sue Letter as of October, '73?

A. To my knowledge, no.

Q. Do you know whether he ever filed a Notice

To Sue Letter?

A. To my knowledge, no.

and further:

Q. Again, referring to Defendant's Exhibit

Three, in your letter you state that, ‘During our last

conversation you have indicated that Sun Oil Com-

pany is not prepared at this time to make any changes

in the actions already taken.’

I take it that you're referring here to the June 18th

meeting?

A. Yes.

Q. And the action taken with respect to Mr.

Osgood?

A. Yes.

Q. Had you told Sun as of October 1, ’73 that

there had been a violation of the Age Discrimination

Act?

A. No. I don't think so. I feel reasonably sure

that I did not make any statement to the effect that

‘you have violated the Age Discrimination Act.’ We

were still in conciliatory posture at that time.

At page 35 of the deposition Mr. Speer indicated that he

sent the file to Mr. de Leon’s Office (Solicitor’s attorney)

sometime in December of 1973. At page 36 he testified:

formation that I would be seeking and that I would

A20 District Court Memorandum and Order

QO. Did you conduct any further investigations

by talking to othes people?

A. Only to Mr. Osgood and Mr. Sokol,

QO. Did you have any further contact with repre-

sentatives of Sun after receiving this October 25th

letter?

A. Yes. | contacted Mr, Webster in early De-

cember of 1973 and indicated to him that 1 felt some

remedial action should be taken with respect to Mr.

Osgood and Mr. Sokol. During that discussion, he

indicated some surprise at the mention of Mr, Sokol.

When asked for the companys reasons for the

decision with respect to Mr. Sokol, he made the state-

ment that it was their decision that Mr, Sokol simply

would not perform in the new position °*"

At page 37 he testified that this twas the first time (early

in December of 1973) that he had discussed Mr. Sokol’s

situation with any representative of Sun, and it was ina

phone conversation,

Mr. Speer testified, commencing at page 38, that in

the December telephone conversation he thought he ad

vised Sun that in cases involving involuntary retirement

that they were required to submit them to the Solicitor’s

Office for analysis and the like. At page 39 he indicated

he received the file back from the “Solicitors office in

July of 1972"——having been sent in December of 1975.

In further response to questions, he then testified:

QO. During that period were you involved in the

case inany respect? (Referring to the period between

Deceniber of 1973 when the file was sent and July of

1974 when it was returned—this is comment by the

Court. )

A. No,

District Court Memorandum and Order A2,

O. Were you in contact at all with the Solicitors

Office during this period concerning the file?

A, No,

O. You were not conducting any further investi-

patione

A. No,

Mr. Speer testified that the file came back from the

Solicitors Office in July of 1974 (etter of transmittal dated

July 31, 1974) with advice and instructions with respect

to additional information that the attorneys wanted to de

velop and Mr. Speer undertook this task. (Dep. 39 and

AN). He testified, commencing at page 45, with reference

to the contact he made after receiving the file back:

(). Were you contacting these other individuals

with respect to the claims of Mr. Sokol and) Mr,

Osgood?

A. In part, yes,

QO. In part with respect to claims concerning

other individuals?

A. No. Not with respect to claims of other in-

dividuals, but with respect to similar actions taken by

the company as indicated by material submitted by

Mr. Webster to clarify what the circumstances were

with regard to those individuals.

If Pinay make a correction, T don’t know how far

back we would have to go to make it. You indicated

or you asked me—During the period of time between

the June I8th discussion with Mr. Webster and the

letter to him asking for the information if T had eon-

tacted other than Mr. Osgood. T believe T indicated

that another individual came forward, T did contact,

make a direct contact with one other person. That

was brought to my recollection as a result of going

A22

District Court Memorandum and Order

through some of my documents here. 1 did contact

one other person.

(). Is that a person who made a contact to the

Department?

A. No.

Q. So it was Mr. Osgood and another unidenti-

fied individual that you contacted before October?

A. Mr. Osgood and two other ones.

Q. Two other ones. All right.

A. Right.

Q. Now, after October 15, 1974, you completed

your discussions with eight or so individuals. What

did you do next?

A. I advised the Solicitors Office T had com-

pleted the work they had asked me to do.

©. Who did you advise?

A. Herb de Leon.

Q. Did you sent the file back?

A. No.

Q. Did you do anything further in this case after

you advised Mr. de Leon?

A. Yes, | got in touch with Mr. Webster and

asked for a conference with him.

Q. Did you contact him by telephone?

A. Yes.

Q. Did you simply ask for a conference or did

you discuss anything—

A. No. 1 indicated to him that we had com-

pleted an investigation limited to the Regional Mar-

keting Managers and the former Assistant Regional

Marketing Managers and that we wished—that we

desired a conference with him to discuss the findings.

. You didn't tell him over the phone what your

findings were?

A. No.

District Court Memorandum and Order A23

(). Is ita correct characterization of your investi-

gation that subsequent to July 31 that it was an in-

vestigation limited to Regional Marketing Managers

and former Assistant Regional Marketing, Managers?

A. Yes.

Q. When was the meeting set up?

A. For October the 23rd of 1974.

At this meeting, which took place in Dallas, Texas,

Mr. Speer testified that he advised Sun of his findings to

the “extent that the company had engaged in age discrimi-

nation with respect to individuals in the positions named.”

He testified that he advised of the names of the individuals

and, again, asked if they could come to some resolution

of the findings.

On page 49, still discussing the meeting in Dallas,

Texas, on October 23, 1974, Mr. Speer testified:

Q. Could you tell me what you told Mr. Web-

ster with respect to your findings? First, you stated

you advised him of the names of individuals that you

felt had been discharged in violation of the Act: is

that correct?

A. Yes.

. Who were those individuals?

A. Those individuals named in the Summary of

Unpaid Wages contained in Exhibit Five.

(). Seven individuals?

A. Yes.

Q. So there were five individuals in addition to

Mr. Osgood and Mr. Sokol?

A. Yes.

Q. Was this the first time that you had advised

Sun that you were conducting any investigation with

respect to those five individuals?

A. Yes.

A24 District Court Memorandum and Order

At the bottom of page 50 he testified:

Q. Did you discuss the cases of the seven indi-

viduals separately or was it a general description such

as you have just given me?

A. Some of them were discussed individually.

Mr. Webster indicated he was not in a position to

discuss the others.

Q. Do you recall who was discussed individually

and who Mr. Webster said that he could not discuss?

A. No, I don't.

Q. Did Mr. Webster indicate why he felt he was

not in a position to discuss some of the individuals?

A. Because he did not have the information at

hand.

Q. Had any of the other six individuals, other

than Mr. Osgood, filed a Notice of Intent to Sue with

the Department of Labor?

A. With the Department of Labor?

Q. The Secretary.

Orr THE Recorp Discussion

Then the witness, Mr. Speer said, yes. Picking up the

questions and answers at page 52 of the deposition:

Q. Who had filed a Notice To Sue?

A. James Daniels.

Mr. Speer then testified that the Notice To Sue of James

Daniels was filed May 21, 1974, in Philadelphia and that

the Philadelphia regional office notified Sun in Philadel-

phia on May 29, 1974, and that said notice was addressed

to “Sun Oil Company”. Continuing with a discussion of

the meeting in Dallas, Texas, in October, 1974, Mr. Speer

testified, commencing at page 53 of the deposition:

Q. After you described your findings to Mr.

Webster and discussed some of these cases individu-

District Court Memorandum and Order A25

ally, what happened at the meeting, if anything fur-

ther?

A. We asked Mr. Webster or I asked Mr. Webster

if he would be agreeable to making some resolution

of these cases. I specifically asked if he would con-

sider re-employment of the seven individuals in ques-

tion, and that he consider compensation for damages

through lost income that these individuals suffered

during the period of time that they had been displaced

from Sun.

Mr. Speer then testified:

Q. Did Mr. Webster respond to your statement

concerning re-employment damages?

A. He indicated at that time he was not in a po-

sition to enter into any agreements with us—including

myself and Mr. de Leon, who was present at the

conference. We indicated that—he indicated that he

would like to go back and review the matter and dis-

cuss it with us at some subsequent period. We ad-

vised Mr. Webster that the running of the Statute of

Limitations was to begin with respect to a number of

these individuals and that we were perfectly willing

to continue in negotiations with he or someone else

in Sun Oil Company if Sun would provide us with a

waiver of Statute of Limitations so as not to further

erode any compensations that the employee might be

entitled to.

Q. What date were you talking about in terms

of the imminent running of the Statute of Limita-

tions?

A. The Statute would begin running, I believe,

on November Ist—December Ist. December 'st of

74.

A26

The

District Court Memorandum and Order

Fay,

Q. What was Mr. Webster’s response?

A. That he did not have the authority to waive

the Statute on behalf of Sun and that he would have

to discuss it with general counsel for Sun Oil Com-

pany and that he would provide us with an answer

in five days.

Q. Did you tell Mr. Webster that because of the

Statute of Limitations, you did not have time to con-

ciliate with respect to five individuals who were first

mentioned at this meeting?

A. No.

October meeting lasted approximately an hour or an

hour ana half. (Dep. 56).

Mr. Speer then testified:

Q. What happened following the meeting with

respect to the Statute of Limitations?

A. Not having heard from Mr. Webster, I con-

tacted him on the 5th of November.

Q. This is by telephone?

A. Yes. At that time he indicated he had not

received a reply from the general counsel as to

whether or not Sun would agree to waive the Statute.

Q. Is that the substance of the whole conversa-

tion?

A. Yes. I simply called to ask or contacted him

by telephone to ascertain what Sun’s position was

going to be. On November 13th, again, not having

heard from Mr. Webster, I contacted him and he ad-

vised me that he had received an answer from general

counsel that they would not agree to the waiver of

the Statute to facilitate further negotiations for con-

ciliation.

Q. Did you discuss anything further with him?

©

District Court Memorandum and Order A27

A. No. Other than I would refer the file back to

the Solicitor’s Office as we had advised him at the

time—There was one other thing. During the con-

versation on October 23rd, we advised Mr. Webster

that if we could not reach some agreement for a

waiver of Statute that the file would be submitted to

the Solicitor’s Office and assuming that everyone

agreed, the suit would be entered.

Q. In the October meeting and subsequent phone

calls, did Mr. Webster at any point indicate that Sun

would be unwilling to consider conciliation efforts

with respect to the seven individuals?

A. Well, I feel he did so indicate when he would

not agree to the waiver of Statute in that it would

erode the compensation due the individuals: That

we were perfectly willing to enter further conciliatory

efforts or negotiations—whichever terminology you

want to use—if Sun were agreeable to doing so.

By refusing to waive the Statute, I think it was

an indication that Sun was refusing to negotiate.

Q. Did Mr. Webster tell you directly that Sun

would not consider negotiating further with respect

to all or some of the individuals?

A. No.

Q. You told Mr. Webster that if Sun would not

waive the Statute, then the suit would be filed?

A. Well, I think that’s a little, rather harsh way to

put it. I don't think it was ever phrased to him in

exactly that terminology. I think the same message

was given to Mr. Webster by Mr. de Leon represent-

ing the Solicitor’s Office.

Q. The same message that if——

A. That if we could not enter into negotiations

and through the waiver of the Statute that the file

A28

District Court Memorandum and Order

would be submitted to the Solicitor’s Office and we

would consider filing a lawsuit.

Q. Did Mr. Webster explain in any way Sun’s

decision not to waive the Statute of Limitations?

A. No.

_Q. Is it a fair summary to say that except for Mr.

Osgood and Mr. Sokol that Sun was first notified of

the Defendants’ (sic) investigation with respect to Mr.

Craig, Mr. Daniels, Mr. Holcomb, Mr. McKee and Mr.

Tolbert at the October 23rd, ’74 meeting?

A. It may be a fair description of my contact with

Sun Oil Company with respect to these individuals in

the course of—well, the case with respect to James

Daniels and in his notice of intent to sue had pre-

viously been discussed with Mr. Webster.

Q. But not by you?

A. Not by me. At that time, as a result of that

discussion, Mr. Webster indicated that he did not want

to discuss that case any further. There was an inquiry

or an investigation, if you will, initiated by the Phila-

delphia office in which some of these people were also

involved. And as a result of discussions between my-

self and the Compliance Officer in Philadelphia and to

avoid an overlap type situation, he agreed to divorce

from his inquiries with respect to these individuals

any actions that I was taking in my case.

Sun was aware that an investigation was taking

place with respect to the Marketing Department.

He further testified, commencing at page 60:

Q. Do you know which individuals he had been

in contact with Sun about?

A. He was looking at the Marketing Division of

Sun Oil Company as a whole and had requested

specific information with respect to personnel files,

District Court Memorandum and Order A29

personnel actions and this type of thing that had tran-

spired since the reorganization began, which was in

1972 and °73.

In response to a question propounded tu Mr. Speer as to

whether he knew when Mr. Johnson’s activities (Compli-

ance Officer in Philadelphia ) began, Mr. Speer replied that

he was just aware that he was making an investigation in

Philadelphia and he did not know if his investigation in-

cluded contact with Sun concerning conciliation efforts.

He further testified that Mr. Johnson’s investigation was

apparently broader than Mr. Speer’s investigation.

Mr. Speer testified, commencing at page 62 of the

deposition:

Q. I believe you stated that in the October 23,

‘74 meeting, that Mr. Webster indicated that he was

not at that time in a position to discuss some of the

seven individuals because he did not know enough

about their situations; is that correct?

A. Yes.

Q. Was this subject ever picked up again? Did

you ever have any further conversations with Mr.

Webster about Sun’s position with respect to those

individuals?

A. No. If you are talking about some subsequent

date——

Q. Before the suit was filed.

A. No. The issue between that conference and

the time I submitted the file back to Mr. de Leon’s

office was whether or not Sun would agree to the

waiver of the Statute.

Q. You didn’t know what Sun’s position was with

respect to at least some of the seven individuals be-

fore the suit was filed?

A. That’s correct.

A30 District Court Memorandum and Order

To summarize, 2 chronological delineation of pertinent

dates and events are as follows:

May 29, 1973 Emory Osgood filed his Notice of In-

tent to Sue with the Department of Labor.

May 31, 1973 Letter from J. Dean Speer, Assistant

Area Director, Wage Hour, Tulsa, Oklahoma, to

Sun Oil Company requesting a conference for

June 5, 1973.

June 18, 1973 Conference between J. Dean Speer

and Sun Oil Company representatives, Robert

Webster and Ken Mosly. Only former employee —

discussed was Emory Osgood. Meeting lasted

about two hours.

October 1, 1973 Letter by Mr. Speer to Mr. Webster

seeking additional information. Mr. Speer testi-

fied he might have telephoned Mr. Webster and

told him that he was writing the letter.

October 25, 1973 Letter from Mr. Webster to Mr.

Speer furnishing information requested in letter

of October 1, 1973.

December, 1973 Mr. Sokol, former employee, entered

the picture when Mr. Speer contacted Mr. Web-

ster and Mr. Speer first brought up Mr. Sokol’s

name.

December, 1973 Mr. Speer sent file to the Solicitor’s

Office.

July 31, 1974 Transmittal letter sending file from

Solicitor’s Office to Mr. Speer.

October, 1974 Mr. Speer contacted Mr. Webster at

Sun to set up a conference in Dallas, Texas.

District-Court Memorandum and Order A3l

October 23, 1974 Conference in Dallas, Texas. Pres-

ent were Mr. Webster, Mr. Speer, and Mr. de

Leon. It was at this meeting that seven individ-

ual’s names were brought up, including the names

of Messrs. Osgood and Sokol. The only other in-

dividual, beside Mr. Osgood, who filed a Notice

of Intent to Sue was Mr. James Daniels, whose

notice was dated May 29, 1974, and was filed in

Philadelphia. His notice was handled by a

Regional Compliance Officer there and the letter

was sent to “Sun” in Philadelphia. It was at this

meeting that Mr. Webster was requested to waive

the Statute of Limitations on behalf of Sun.

November 5, 1974 Telephone call by Mr. Speer to

Mr. Webster to see if Sun had made a determina-

tion to waive the Statute of Limitations.

November 13, 1974 Telephone call by Mr. Speer to

Mr. Webster. Mr. Webster advised that Sun

would not waive the Statute.

November 27, 1974 Suit filed.

The first issue to be determined by the Court is to

ascertain whether the claims asserted by the Secretary on

behalf of the seven former employees were separate and

distinct. Sun contends that notice and consideration of

Osgood’s case, did not constitute notice or consideration

by Sun of the cases of the other individuals and any re-

sponse by Sun with respect to one case did not foreclose a

different response to the other individuals.

This Court finds that notice of the claim of Osgood

does not impute knowledge or notice to the defendant of

the other resultant claims of the other six individuals.

A32 District Court Memorandum and Order

Title 29 U. S. C. § 626(b) provides, in pertinent part:

“° © © Before instituting any action under this sec-

tion, the Secretary shall attempt to eliminate the dis-

criminatory practice or practices alleged, and to effect

voluntary compliance with the requirements of this

chapter through informal methods of conciliation,

conference, and persuasion.”

The Act was enacted in 1967 for the express purpose

of promoting “employment of older persons on their abil-

ity rather than age”, and prohibiting “arbitrary age dis-

crimination.” 29 U. S. C. § 621(b); Burgett v. Cudahy

Company, 361 F. Supp. 617 (USDC Kans. 1973).

The primary responsibility for the enforcement of the

Act is vested with the Secretary of Labor, who is em-

powered to undertake appropriate studies ({§ 624), dele-

gate responsibilities to other agencies (§ 625(a)), issue

appropriate rules and regulations (§ 628), and make in-

vestigations (§ 626(a)). The Secretary is-also authorized

to bring actions to enforce the Act’s provisions, thereby

preempting an aggrieved individual’s right to independ-

ently seek relief. 29 U. S. C. §626(d). Burgett v.

Cudahy Company, supra. But first, the Secretary, must

heed the terms of 29 U. S. C. § 626(b).

The unambiguous language of the statute, and the

holding of the cases construing the statute, place the em-

phasis on private settlement without formal litigation.

The House Education and Labor Report (H. R. Rep.

No. 805, Cong., Ist Sess. 1967, U. S. Code Cong. & Admin.

News, p. 2218) said:

“It is intended that the responsibility for enforcement

vested in the Secretary ° ° ° be initially and ex-

haustively directed through informal methods of con-

ciliation, conference, and persuasion and formal

methods applied only in the ultimate sense. ° ° °.”

District Court Memorandum and Order A33

The leading case in discussing the problem of concili-

ation and the Age Discrimination in Employment Act of

1967 is Brennan v. Ace Hardware Corporation, 495 F. 2d

368 (8th CCA 1974). Commencing at page 378, the

Eighth Circuit said: }

“We turn now to the specific major issue in this case.

The Secretary argues that the efforts of his compli-

ance officer through the two personal meetings and

one telephone call constituted substantial compliance

with the voluntary compliance requirements of the

Act. We disagree.

“An integral part of the Act is the express provision

allowing the employer or other organization the op-

portunity to voluntarily comply with its provisions

before legal action is initiated. The introductory

Congressional findings and purposes set the spirit and

standard to be followed in achieving the enacted

goals. Section 621(b) reads in part: ‘It is therefore

the purpose of this chapter ° ° ° to help employers

and workers find ways of meeting problems arising

from the impact of age on employment.’ To achieve

the goal of eliminating discriminatory employment

practices in relation to age, the Secretary's duties

should be seen as aiding also the employer in fulfilling

his obligations under the law. In this period in our

nation in which governmental regulations permeate

many facets of previously unregulated activity, gov-

ernment officials must approach their service with a

spirit and an attitude of helpfulness and concern for

all persons with whom they deal and not with am-

biguity, nonchalance, and heavy-handedness of an

all-pervasive federal bureaucracy.

“The Act expressly provides for giving the employer

or other organization the opportunity to voluntarily

A34 District Court Memorandum and Order

comply with the requirements of the Act. Section

626(b) reads in part: ° ° °. The legislative history

of the Act strongly indicates that conciliation, con-

ference, and persuasion must constitute strong, affirma-

tive attempts by the Secretary to effect compliance

before resorting to legal action. The House Report

makes this clear by stating:

“‘Tt is intended that the responsibility for enforce-

ment vested in the Secretary by section 7, be initially

and exhaustively directed through informal methods

of conciliation, conference, and persuasion and formal

methods applied only in the ultimate sense. H. R.

No. 805, pp. 2213, 2218 (1967).’” (Emphasis sup-

plied )

and at page 375:

“In this case, we think that the compliance officer did

not fulfill the affirmative burden of exhaustively em-

ploying informal methods to allow the Employer the

opportunity to comply voluntarily with the Act. In-

stead of actively pursuing resolution of the conflict,

the Secretary let the case lay dormant for almost four

months and filed this present action. Specifically,

we affirm the District Court’s finding that the compli-

ance officer improperly did not inform the Employer

that ‘back wages’ should be paid to Prichard. In

order for the Employer to comply voluntarily with the

Act, he must know specifically what the Secretary

desires him to do in order to reach that result. Per-

suasion cannot be accomplished if the desired goal is

unknown. The Secretary by not informing the Em-

ployer that back wages are recoverable under the Act

and by later instituting a law suit for such damages is

defeating the very purpose of attempting to persuade

District Court Memorandum and Order A35

the Employer to comply with the Act. The Secre-

tary’s desires and the requirements of the Act should

be clearly explained to the employer or alleged

violator.”

The Court went on to say “we think that the District

Court's finding that the compliance officer did not clearly

and affirmatively tell the Employer that the file was in

fact being referred to the Secretary for review and possible

legal action is not clearly erroneous. The District Court

succinctly and perceptively held that “voluntary compli-

ance through conciliation, conference, and persuasion is

more likely to be effected when the employer clearly un-

derstands that the matter will proceed at a level beyond

that of the compliance officer if there is not a voluntary

resolution of the dispute.”

In connection with the Brennan v. Ace Hardware

Corporation case, supra, at page 1 of his Brief in Support

of Petition to Set Aside Findings and Recommendations of

the Magistrate, the following statement is found:

“With respect to conciliation, as was argued on behalf

of the plaintiff at the hearing, plaintiff contends that

the case of Brennan v. Ace Hardware Corporation,

495 F. 2d 368 (C. A. 8 1974) was improperly de-

cided.”

The unambiguous language of the statute indicates

that the emphasis is on private settlement and the elimina-

tion of age discrimination without formal litigation.

Burgett v. Cudahy Company, 361 F. Supp. 617 (DC D.

Kan. 1973).

In Dunlop v. Resource Sciences Corp., 11 EPD

{ 10,827 (N. D. Okla. 1976), the Court said:

“[A]t no time before suit was filed were defendant’s

officers, management, or counsel advised (1) that

A36 District Court Memorandum and Order

Plaintiff had administratively found Defendant in

violation of the Age Discrimination Act, or (2) what

Plaintiff required of the Defendant to comply vol-

untarily with the Age Discrimination Act, or (3) that

unless Defendant did the things specified by Plaintiff

to comply voluntarily with the Age Discrimination

Act it would be sued without further notice, nor did

Plaintiff (4) request Defendant to bring itself into

voluntary compliance with the Age Discrimination

Act in regard to his proceeding.”

The Court further said in Dunlop, supra, referring to the

Brennan case, supra:

“The District Court found that two personal meetings

and one telephone call between a compliance officer

from the Department of Labor and the employer

along with a four-month interval between the last

conversation and the filing of the lawsuit were not

sufficient to satisfy the requirements of § 626(b). In

affirming these findings the Eighth Judicial Circuit

concluded that compliance with § 626(b) is not a

rigid test but a program which must be flexible and

responsive to the attitudes of the employer. How-

ever, the Circuit agreed with the District Court when

it found that active pursuit of voluntary compliance

required some type of notification to the violator, 1)

of what the Secretary desires the violator to do in

order to comply, 2) informing the violator that back

wages may be recovered, 3) that the file was being

referred to the Secretary for review and possible legal

action, and 4) that the violator should be given an

opportunity to respond ‘to the violations in light of

a make whole remedy.’ Brennan at 375. In the eyes

of the District Court, active pursuit of compliance is

not allowing a case to lay dormant for four months.”

District Court Memorandum and Order A37

Further it was said in Dunlop, supra:

“To conciliate means to reconcile, compromise, placate

or otherwise satisfy the grievance of the complainant.

To attempt conciliation means to take some affirma-

tive action or to make some reasonable effort to re-

solve the differences. °**° Failure to cooperate in an

investigation does not relieve the Secretary of his

obligation to attempt conciliation.

“In the case of John T. Dunlop v. Sandia Corp., No.

75-150 (D. N. M. 1975) the District Court stated that

the burden to conciliate falls on the Secretary.

““In order to conciliate meaningfully, the Secretary

should demonstrate the validity of its claim notwith-

standing the fact that the data is available to defend-

ant in its own files.’ ”

The Court finds, based on the testimony of J. Dean

Speer, Assistant Area Director, Wage Hour, Tulsa, that the

plaintiff did not affirmatively comply with the mandate of

the Act. The legislative history of the Act strongly indi-

cates that conciliation, conference, and persuasion must

constitute strong, affirmative attempts by the Secretary to

effect compliance before resorting to legal action. Bren-

nan v. Ace Hardware Corporation, supra. Instead of ac-

tively pursuing resolution of the conflict, the plaintiff

allowed the case to remain dormant for almost eight

months (December of 1973 through July of 1974) and did

not, even after the file was returned to Mr. Speer (who

did, from his own testimony, some additional checking )

contact and meet with the defendant until October of

1974, about one month prior to the limitation running.

The circumstances of each case circumscribe the rea-

sonableness of the conciliation on the part of the Secretary.

This Court is in agreement with Dunlop v. Resource

Sciences Corp. and Brennan v. Ace Hardware Corporation,

A38 District Court Memorandum and Order

in finding and holding that plaintiff has failed to conciliate

the charges of alleged age discrimination as required by

Title 29 U. S. C. § 626(b) and that attempted conciliation

is a jurisdictional prerequisite to maintaining this litiga-

tion in this Court.

This Court is aware that the rights of individual em-

ployees are affected by the actions of the Secretary in carry-

ing out the mandate of the Act, but the circumstance of

the case dictate that the Motion for Summary Judgment be

sustained.

Turning to the claim asserted on behalf of R. C. Hol-

comb, he was retired early on September 1, 1971. (Plain-

tiffs Answers to Defendant's Interrogatories to Plaintiff-

Set No. 1, filed February 26, 1975). Defendant, by

Motion for Summary Judgment, has raised the question or

defense of Statute of Limitations as to any claim asserted

on behalf of R. C. Holcomb. Plaintiff maintains that the

retirement of R. C. Holcomb constitutes a “continuing vio-

lation”.

The Act’s statute of limitations provides:

ooo

“Any action may be commenced within two years

after the cause of action accrued, and every such

action shall be forever barred unless commenced

within two years after the cause of action accrued,

except that a cause of action arising out of a willful

violation may be commenced within three years after

the cause of action accrued.” 29 U. S. C. § 255,

626(e).

In Dartt v. Shell Oil Company (No. 75-1277, Tenth

Circuit, decided July 22, 1976) the Tenth Circuit said:

“Because of the similarities between the ADEA and

Title VII of the Civil Rights Act of 1964, courts some-

times refer to interpretations of provisions in Title VII

for assistance in defining analogous sections of the

District Court Memorandum and Order A39

ADEA. Moses v. Flagstaff Brewing Corp., 8 Cir., 525

F, 2d 92, 94; Curry v. Continental Airlines, 9 Cir., 513

F. 2d 691, 693; Goger v. H. K. Porter Co., 3 Cir., 492

r.g2in Bw ***.

In Cisson v. Lockheed-Georgia Company, 392 F.

Supp. 1176 (USDC N. D. Ga. 1975) the Court said in a

Title VII case:

“In the instant case, plaintiff would have this court in

effect adopt a rule which has uniformly been rejected

elsewhere that the insertion of the word ‘continuing’

in the EEOC complaint invariably excuses the un-

timely filing of that complaint. As noted above, a

lay-off or discharge does not give rise to a per se claim

of continuing discrimination. This court recognizes

the general rule that a layman should be given wide

latitude in his efforts to envoke the processes provided

by Title VII; strict, over-technical application of the

procedural intricacies of the Act is not consistent with

its remedial purposes. Conversely, when over-liberal

interpretations of EEOC complaints would actually

frustrate the intent of Title VII, such interpretations

should be rejected. Thus, this court rejects the argu-

ment espoused by plaintiff herein that whenever the

term ‘continuing’ is inserted in an EEOC complaint,

the court and the EEOC should assume that the plain-

tiff actually desires to raise claims of discriminatory

failure to rehire, repromote, or retransfer, rather than

the discharge or demotion claim actually asserted.

Such a rule would permit the bypass of orderly EEOC

procedures whenever a layoff or discharge occurs and

would completely frustrate the purpose of Title VII to

foster conciliation by the parties rather than judicial

confrontation.”

A40 District Court Memorandum and Order

See Law v. United Air Lines, Inc., 519 F. 2d 170 (10th

CCA i974) holding denial of employment is not a con-

tinuing violation; Terry v. Bridgeport Brass Company, 519

F. 2d 806 (7th Cir. 1975) holding termination through

discharge or resignation is not a continuing violation.

In Terry v. Bridgeport, supra, the Court went on to

say:

“° © © to construe loosely ‘continuing’ discrimination

would undermine the theory underlying the statute of

limitations. While the continuing discrimination

theory may be available to present employees, cf.

Griggs v. Duke Power Co., 401 U. S. 424 (1971), even

though on layoff, Cox v. United States Gypsum Co.,

409 F. 2d 289 (7th Cir. 1969); Sciaffra v. Oxford Paper

Co., 310 F. Supp. 891 (D. Me. 1970), we do not think

this theory has validity when asserted by a former

employee. For such a former employee the date of

discharge or resignation is the controlling date under

the statute, and a charge of employment discrimina-

tion must be timely filed in relation to that date.”

In Olson v. Rembrandt Printing Co., 511 F. 2d 1228

(8th Cir. 1975), at 1234, the Court said:

“The rationale underlying the allowance of actions for

continuing discrimination is to provide a remedy for

past actions which operate to discriminate against the

complainant at the present time. Marquez v. Omaha

District Dales Office, 440 F. 2d 1157, 1160 (8th Cir.

1971). See Developments in the Law—Employment

Discrimination and Title VII of the Civil Rights Act

of 1964, 84 Harv. L. Rev. 1109, 1210-12 (1971). Ter-

mination of employment either through discharge or

resignation is not a ‘continuing’ violation. It puts at

rest the employment discrimination because the indi-

vidual is no longer an employee.

District Court Memorandum and Order A4l

“As we noted in Richard, to construe loosely ‘continu-

ing’ discrimination would undermine the theory under-

lying the statute of limitations. While the continuing

discrimination theory may be available to present em-

ployees, cf. Griggs v. Duke Power Co., 401 U. S. 224

(1971), even though on layoff, Cox v. United States

Gypsum Co., 409 F. 2d 289 (7th Cir. 1969); Sciaffra

v. Oxford Paper Co., 310 F. Supp. 891 (D. Me. 1970)

we do not think this theory has validity when asserted

by a former employee. For such a former employee

the date of discharge or resignation is the controlling

date under the statute, and a charge of employment

discrimination must be timely filed in relation to that

date.”

It is apparent from the file that any claim for any al-

leged violation of the Act with respect to R. C. Holcomb

was filed more than three years after Mr. Holcomb was

retired and is barred by the applicable statute of limitations

provided in the Statute.

Based on all of the foregoing, the Court finds that the

Motion for Summary Judgment filed by the defendants

should be sustained and the objections to the Findings and

Recommendations on file herein overruled.

It Is, THEREFORE, OrpDERED that defendant’s Motion

for Summary Judgment be and the same is hereby sus-

tained and the cause of action and complaint dismissed

with prejudice premised on the following grounds:

1. That this Court lacks subject matter jurisdiction or,

in the alternative, that the Complaint fails to state a claim

upon which relief can be granted as a result of plaintiff's

failure to comply with the statutory directive of attempt-

ing to effect voluntary compliance through informal

methods of conciliation, conference and persuasion pur-

suant to 29 U. S. C. § 626(b) before instituting action; and

A42 District Court Memorandum and Order

2. That the applicable statute of limitations, 29 U. S. C.

§ 225, 626(e), bars any action or relief claimed on behalf

of R. C. Holcomb.

Ir Is FurrHeR Orverep that the objections filed by

the plaintiff to Findings and Recommendations be and the

same are hereby overruled.

ENTERED this 3rd day of November, 1976.

/s/ ALLEN E. Barrow,

Chief United States District Judge.

Court of Appeals Opinion A43

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 77-1210 (74-C-474-B )

RAY MARSHALL, Secretary of Labor,

United States Department of Labor,

Plaintiff-Appellant,

v.

SUN OIL COMPANY OF PENNSYLVANIA,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES District CouRT FOR THE

NORTHERN DIsTRICT OF OKLAHOMA

OPINION.

(Filed February 1, 1979)

Lois G. Williams, Attorney, United States Department of

Labor (Carin Ann Clauss, Solicitor of Labor; Carl W.

Gerig, Jr., Acting Associate Solicitor, Paul D. Brenner, At-

torney, U. S. Department of Labor, and Ronald M. Gas-

wirth, Regional Solicitor, with her on the brief) for Ap-

pellant.

John J. Runzer, Pepper, Hamilton & Scheetz, Philadelphia,

Pennsylvania (Nancy J. Gellman, with him on the brief)

for Appellee.

Before Lewis, McKay and Locan, United States Circuit

Judges.

A44 Court of Appeals Opinion

Lewis, Circuit Judge.

This is an appeal from a judgment of the United States

District Court for the Northern District of Oklahoma dis-

missing a complaint brought by the Secretary of Labor

against defendant under the Age Discrimination in Em-

ployment Act of 1967 (29 U. S. C. § 621 et seq.). Plain-

tiff has raised two issues in this appeal:

1. Whether the Secretary made sufficient efforts to

effect voluntary compliance through informal con-

ciliation as required by §7(b) of the ADEA, 29

U. S. C. § 626(b).

2. Assuming failure of the Secretary to sufficiently

pursue informal conciliation, whether the district court

should have stayed proceedings rather than dismiss

the complaint.

The factual setting to this action begins in May, 1973,

when Emory Osgood notified the Secretary of Labor of his

intent to sue defendant under the ADEA for allegedly

forcing him to take early retirement because of his age.

Dean Speer, a Labor Department compliance officer, met

with representatives of defendant in June, 1973 for two

hours to discuss the Osgood case. Speer then conducted

an investigation concerning possible ADEA violations by

defendant with regard to other employees. In December,

1973, Speer notified Robert Webster, a representative of

defendant, that remedial action in the form of re-employ-

ment or a cash settlement should be taken with respect to

Osgood and another former employee, George Sokol.

Sokol had not filed a notice of intent to sue, and defendant

had not been previously informed that Sokol’s case was

specifically under investigation. When Webster re-

sponded that such remedial measures would not be taken,

Court of Appeals Opinion A45

Speer advised him that the file would be forwarded to the

Labor Department’s legal office for analysis and a decision

as to further action.

In May, 1974, James Daniels filed a notice of intent

to sue defendant in Philadelphia. The Philadelphia com-

pliance officer contacted defendant about Danicls, but

later turned the matter over to Mr. Speer in Tulsa.

The Osgood/Sokol file was returned to Speer in July,

1974, with advice and instructions as to additional infor-

mation to be developed. Pursuant to these instructions

Speer furthered his investigation, and on October 23, 1974

Speer and a Labor Department attorney met with Webster.

At that time Speer advised Webster of the government's

finding that defendant had engaged in a pattern of age

discrimination with regard to seven named individuals, in-

cluding Osgood, Sokol and Daniels. This was the first

indication to defendant from Speer that a specific investi-

gation had been conducted with respect to the other four

persons alleged to be discriminatees. Speer asked if de-

fendant would agree to extend re-employment and lost

wages to the seven individuals, but Webster answered that

he did not have enough information about all of them to

respond. Webster said he would like to review the matter

and would be prepared to discuss it at some later time.

The Labor Department officials would not agree to fur-

ther negotiations, however, unless defendant agreed to

waive the statute of limitations which would run with re-

spect to some of the named individuals on December 1.

Defendant refused to consent to the waiver, and the

Secretary filed this suit the following month, alleging age

discrimination against the seven former employees. The

district court sustained defendant’s Motion for Summary

Judgment and dismissed the complaint with prejudice on

grounds that the court lacked subject matter jurisdiction

A46 Court of Appeals Opinion

or, in the alternative, the complaint failed to state a claim

upon which relief can be granted as a result of plaintiff's

failure to attempt to effect voluntary compliance through

informal methods."

I.

The ADEA places primary emphasis on conciliation

to resolve disputes. §7(b) of the statute provides:

® © © Before instituting any action under this section,

the Secretary shall attempt to eliminate the discrim-

inatory practice or practices alleged, and to effect

voluntary compliance with the requirements of this

chapter through informal methods of conciliation,

conference, and persuasion.

The legislative history of the Act manifests the con-

gressional intent that enforcement be effected wherever

possible without resorting to formal litigation. The House

Report states:

It is intended that the responsibility for enforcement

vested in the Secretary by section 7, be initially and

exhaustively directed through informal methods of

conciliation, conference, and persuasion and formal

methods applied only in the ultimate sense. (Em-

phasis added. )

H. R. No. 805, 90th Cong., Ist Sess., U. S. Code Cong. &

Admin. News 2213, 2218 (1967).

At the October 23 meeting, plaintiff failed to follow

this legislative directive by conditioning further negoti-

1. The court below also ruled that the statute of limitations

bars any claim on behalf of R. C. Holcomb, one of the seven named

individuals. No appeal has been taken from this ruling, and the

dismissal as to Holcomb still stands.

hei a Dae

Court of Appeals Opinion A47

ations on defendant agreeing to waive the statute of limita-

tions. Defendant had indicated a willingness to continue

informal conciliation without the waiver, and over one

month was available to that end before the December 1

deadline. Defendant was under no obligation to waive

the statute of limitations, and it was reasonable for defend-

ant to require time to review the case histories of the

named individuals before formulating a response to plain-

tiffs demand for reinstatement and lost income. Marshall

v. Hartford Fire Ins. Co., D. Conn., 78 F. R. D. 97. By

insisting on waiver of the limitations period as a condition

to further negotiations, plaintiff prematurely restricted the

conciliation process and thus failed to fully exhaust the

informal enforcement avenues as contemplated by § 7(b).

Brennan v. Ace Hardware Corporation, 8 Cir., 495 F. 2d

368.

Il.

Our consideration of this case, however, does not end

with the conclusion that plaintiff failed to fully perform

his conciliatory function. The congressional desire that

the Secretary “exhaustively” seek informal compliance be-

fore resorting to litigation places a heavy burden indeed

upon the plaintiff, for an employer can almost always

point to some avenue of conciliation which has not been

“exhaustively” exploited. Marshall v. Hartford Fire Ins.

‘Co., supra, at 104. Were the courts to demand full com-

pliance with this exacting standard upon pains of dismis-

sal, enforcement of the ADEA would be severely

hampered. We have previously noted that “[t]he ADEA

is remedial and humanitarian legislation and should be

liberally interpreted to effectuate the congressional pur-

pose of ending age discrimination in eraployment.” Dartt

v. Shell Oil Co., 10 Cir., 539 F. 2d 1256, 1260, affd per

A48 Court of Appeals Opinion

curiam by an equally divided court, 434 U. S. 99. The

drastic step of dismissal in this action is incompatible with

the humanitarian nature of the Act.

We are aided here by the recent decision of this

court in E. E. O. C. v. Zia Company, 10 Cir., 582 F. 2d

527. Zia was concerned with the sufficiency of EEOC

conciliation efforts in an action arising under Title VII of

the Civil Rights Act of 1964. Title VII contains a concili-

ation provision essentially identical to that of the ADEA,’

and interpretations of one provision are useful in cases

arising under the other. Dartt v. Shell Oil Co., supra, at

1259.

In Zia, the EEOC had failed to sufficiently exhaust

conciliation possibilities in good faith, and the district

court therefore concluded that it was without jurisdiction

to grant relief. Remanding to the court below, we held

that where there had been only a limited effort at concili-

ation, the district court nevertheless had jurisdiction over

the cause of action. Our opinion then states:

The inquiry into the duty of “good faith” on the part

of the EEOC is relevant to whether the court should

entertain the claim? or stay the proceedings for fur-

ther conciliation efforts, not to its power over the

cause. 582 F. 2d at 533.

We likewise hold that in an ADEA case, once there

has been significant effort by the Secretary to effect volun-

tary compliance, if the district court finds that further

conciliation efforts are required the proper course is to

stay proceedings until such informal conciliation can be

concluded. Opportunity for full and exhaustive concili-

ation is thereby afforded without jeopardizing the injured

persons’ right of ultimate access to the courts. Such pro-

2. Compare 42 U. S. C. § 2000e-5(b) with 29 U. S. C. § 626(b).

Court of Appeals Opinion A49

cedure harmonizes optimally with the dual purposes of

the statute: “to prohibit arbitrary age discrimination in

employment; [and] to help employers and workers find

ways of meeting problems arising from the impact of age

on employment.” 29 U.S. C. §621(b).

In the instant case the Labor Department officials

made a substantial initial effort to effect voluntary com-

pliance. In particular, plaintiff informed the defendant

of the specific allegations of misconduct and what action

was required to comply with the Act. While plaintiff's

efforts fell far short of what might reasonably be con-

sidered “exhaustive,” there was nevertheless a sufficient

attempt at conciliation to meet the minimum jurisdictional

requirement.

The matter is therefore remanded for further proceed-

ings consistent with this opinion.

A50 Court of Appeals Judgment

UNITED STATES COURT OF APPEALS

For THE TENTH CrimcuirT

No. 77-1210

(D. C. No. 74-C-474-B )

JANUARY TERM—February 1, 1979

Before Honorable David T. Lewis, Honorable Monroe G.

McKay, and Honorable James K. Logan, Circuit Judges

RAY MARSHALL, Secretary of Labor,

United States Department of Labor,

Plaintiff-Appellant,

v.

SUN OIL COMPANY OF PENNSYLVANIA,

a corporation,

wi itaatln i

EQUAL EMPLOYMENT ADVISORY COUNCIL,

Amicus Curiae.

JUDGMENT.

This cause came on to be heard on the record on

appeal from the United States District Court for the

Northern District of Oklahoma, and was argued by counsel.

Upon consideration whereof, it is ordered that the

judgment of that court is reversed. The cause is remanded

to the United States District Court for the Northern

District of Oklahoma for further proceedings consistent

with the opinion of this Court.

/s/ Howarp K. PHILLIps,

Howard K. Phillips, Clerk.

Court of Appeals Order A51

UNITED STATES COURT OF APPEALS

For THE TENTH CIRCUIT

No. 77-1210.

JANUARY TERM—March 9, 1979

Before Honorable Oliver Seth, Chief Judge, Honorable

David T. Lewis, Honorable William J. Holloway, Jr.,

Honorable Robert H. McWilliams, Honorable James

E. Barrett, Honorable William E. Doyle, Honorable

Monroe G. McKay, and Honorable James K. Logan,

Circuit Judges

RAY MARSHALL, Secretary of Labor;

United States Department of Labor,

Plaintiff-Appellant,

v.

SUN OIL COMPANY OF PENNSYLVANIA,

a corporation,

Defendant-Appellee,

EQUAL EMPLOYMENT ADVISORY COUNCIL,

Amicus Curiae.

ORDER.

This matter comes on for consideration of appellee’s

untimely petition for rehearing and suggestion for rehear-

ing en banc.

Upon consideration whereof, the petition is ordered

filed as of February 16, 1979.

A52 Court of Appeals Order

a

It is the further order of the Court that the petition is

denied by Circuit Judges Lewis, McKay and Logan to

whom the case was argued and submitted.

The petition for rehearing having been denied by the

panel to: whom the case was argued and submitted and no

member of the panel nor judge in regular active service on

the Court having requested that the Court be polled on

rehearing en banc, Rule 35, Federal Rules of Appellate

Procedure, the suggestion for rehearing en banc is denied.

Howarp K. Pues, Clerk.

/s/ Rosert L. HOEcKER,

By Robert L. Hoecker, Chief Deputy.