27 Fair empl.prac.cas. 53, 17 Empl. Prac. Dec. P 8422 Joseph W. Evans v. Oscar Mayer & Co., Robert M. Bolz, N. D. Ottens, Donald L. Paul, and Paul F. Gould

602 F.2d 183

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 25, 1979
• Docket: 77-1692
• Status: Published

Opinion

602 F.2d 183

27 Fair Empl.Prac.Cas. 53, 17 Empl. Prac.
Dec. P 8422
Joseph W. EVANS, Appellee,
v.
OSCAR MAYER & CO., Robert M. Bolz, N. D. Ottens, Donald L.
Paul, and Paul F. Gould, Appellants.

No. 77-1692.

United States Court of Appeals,
Eighth Circuit.

July 25, 1979.

Appeal from the United States District Court for the Southern District of Iowa.

James W. Gladden, Jr., of Mayer, Brown & Platt, Chicago, Ill., for appellants; Arthur J. Kowitt and William J. Reifman, Chicago, Ill., on brief.

Mark W. Bennett, of Allen, Babich & Bennett, Des Moines, Iowa, for appellee; Gordon E. Allen and Joseph Z. Marks, Des Moines, Iowa, on brief.

ORDER

Before BRIGHT and HENLEY, Circuit Judges.*

Pursuant to the mandate of the Supreme Court of the United States filed herein in this cause on July 2, 1979 and stemming from the decision of that Court issued on May 21, 1979,1 IT IS ORDERED that the opinion of this court on rehearing 580 F.2d 298 and any mandate based thereon be, and they hereby are, vacated. We direct that the cause be remanded to the district court with directions to hold the action in abeyance until plaintiff has an opportunity to comply with the requirements of 29 U.S.C. § 633(b) (§ 14(b) of the Act of December 15, 1967, P.L. 90-202, 81 Stat. 607) by filing a signed complaint with the Iowa State Civil Rights Commission which must be given an opportunity to entertain plaintiff's grievance before his federal litigation can continue. If plaintiff's state complaint is dismissed as untimely, he may return to federal court. But until that happens, or until sixty days have passed without a settlement, plaintiff must pursue his state remedy. (99 S.Ct. at 2076).

Plaintiff shall have his costs.

* The panel of the court in this case consisted of Judges Bright and Henley and the late Senior District Judge Talbot Smith of Michigan, sitting by designation, who died prior to the rendition of the decision of the Supreme Court of the United States presently to be mentioned

1 Oscar Mayer & Co. v. Evans, --- U.S. ----, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979)