Charles D. REICH, Plaintiff-Appellant, v. DOW BADISCHE COMPANY and Dow Chemical Company, Defendants-Appellees

575 F.2d 363, 1978 U.S. App. LEXIS 11858, 16 Empl. Prac. Dec. (CCH) 8224, 17 Fair Empl. Prac. Cas. (BNA) 363

• Court: Court of Appeals for the Second Circuit
• Decided: April 4, 1978
• Docket: 931, Docket 76-7637
• Status: Published

Opinions

DOOLING, District Judge.

Appellant was employed by appellee Dow Chemical Company in October 1965 when he was fifty years old. He worked in a sales capacity for appellee Dow Badische Company, 50% of the stock of which is owned by Dow Chemical Company, until on or about June 29, 1973, when he was discharged. Since he had not worked for Dow for ten years, appellant had no vested right to a retirement pension under the Dow Retirement Plan. On June 29, 1976, plaintiff commenced the present suit alleging that his discharge was based on his age and discriminated against him and in favor of younger and less experienced sales persons; appellant alleged generally that he had sought relief unavailingly through various state and federal channels, and had notified the Solicitor of Labor more than sixty days before suing of his intention to sue privately. Appellant gave written notice to the Secretary of Labor of his intention to file suit on February 11 and March 2,1976. See 29 U.S.C. §§ 626(c, d), 633(b), 255(a).

Appellant’s answers to interrogatories and his document production assert that appellant “contacted” the New York State Division of Human Rights by telephone in December 1973 and May 1974 and filed a verified complaint against appellees with the Division, Region la, on June 24, 1976, and that there was no written response, or record of any oral response, from the state agency. Appellant did not say that he had given the Secretary of Labor written notice of his intention to sue earlier than 1976, but appellant asserted that in December 1973¹ he spoke to Norman Bromberg, the Acting Area Director, Employment Standards Administration, Wage and Hour Division, Department of Labor, about his difficulties in retaining a lawyer, asked for a recommendation of counsel, which was declined, and then

“I told him I would sue when I could find a lawyer.” .

Bromberg wrote appellant on December 11, 1973, acknowledging the receipt from appellant of information about appellees’ practices, saying that the matter had been assigned to a compliance officer, and concluded:

“A pamphlet summarizing the provisions of the Act is enclosed for your information. As you will note on page 4, there are certain requirements with specific time limits governing the circumstances under which an employee may file his own suit under this Act.”

Under date of April 2, 1974, the Area Director wrote appellant that there would be a delay in completing the investigation, and continued

“In view of this delay and to avoid any misunderstanding, your attention is again called to page 4 of the enclosed pamphlet. As you will note, there are certain requirements with specific time limits governing the circumstances under which an employee may file his own suit. The fact that you submitted information concerning an alleged unlawful practice has not been considered a notice to the Secretary of Labor of intent to file suit. We do not, of course, encourage or discourage such suits. This is entirely up to you.”

Another letter in the same tenor was sent appellant by the Area Director on August 13, 1974. By letter of January 23,1975, the office of the Assistant Regional Director informed appellant that the solicitor’s office had advised that there was “no basis for litigation by the Department of Labor in your behalf.” A conciliation effort on appellant’s behalf was, nevertheless, made by the Richmond Area Office of the Department in April-May 1976, without success.

So far as concerns the State Division of Human Rights, appellant’s affidavit in opposition to the motion for summary judgment stated that he spoke on the telephone (semble in August 1973) to an unidentified person in the Division of Human Rights, who told him that, since appellees’ home office was out of state and the matter seemed “appropriate for federal relief of some sort”, the case would doubtless “end up with the U.S. Department of Labor”, and appellant “should go to them to begin with.” Appellant refers to two further telephone calls to the Division of Human Rights in December 1973 and May 1974, “the results of which were negative and in each case I was discouraged from coming down to file any complaint.” (It appears that the Division of Human Rights on April 6, 1977, dismissed appellant’s complaint and closed the file on the ground that the complaint to the Division had not been filed within one year after the discrimination complained of occurred, as required by Section 297(5) of the New York Executive Law. See Executive Law § 297(1), (5); Matter of Queensborough Community College v. State Human Rights Appeal Board, 1977, 41 N.Y.2d 926, 394 N.Y.S.2d 625, 363 N.E.2d 349.)

Appellant contends that he had been from the inception of his complaint to the Secretary of Labor in 1973 until the filing of the complaints with the State Human Rights Division and with the district court in June 1976 “continuously engaged in attempts to secure competent counsel to represent me privately, which efforts were well known to the U.S. Department of Labor.” Appellant’s affidavit detailed contacts with some eleven different lawyers or law firms commencing July 18, 1973, and continuing on April 4, 1974, October 18, 1974, January or February 1975, March 11, 1975, March 1975, April 17 and 18, 1975, April 23, 1975, May 2, 1975, and late spring 1976,

Appellees moved to dismiss, or for summary judgment, on the complaint and appellants answers to the interrogatories. Judge Wyatt decided that

“The requirements of 29 U.S.C. § 626(d) are jurisdictional and notice of intent to sue was not given in the required time . . The motion has been treated as one for summary judgment and is granted.”

Appellant contends that the district court erred in holding by summary judgment that the required notice had not been given within the required time inasmuch as appellant “clearly asserted, in his affidavit in opposition . . . that he provided the requisite notice.” His argument is that his oral statement that he would sue when he could find a lawyer satisfied the requirement of Section 626(d) (Woodford v. Kinney Shoe Corporation, N.D.Ga.1973, 369 F.Supp. 911, 914-915; Sutherland v. SKF Industries, Inc., E.D.Pa.1976, 419 F.Supp. 610, 615-616), that his notice of intent to sue did not have to be in any particular form (cf. Burgett v. Cudahy Company, D.Kan.1973, 361 F.Supp. 617, 619, 621), and, in any event, appellant should have been given an opportunity at trial to show circumstances that might operate to cure any defect in filing his notice of intention to sue.

Appellees contend that Section 626(d) plainly bars appellant’s claims because his alleged December 1973 notice of intention to sue was not in writing (Hays v. Republic Steel Corp., 5th Cir. 1976, 531 F.2d 1307, 1312); the written notices filed in 1976 were ineffective because filing the notices within the time prescribed in Section 626(d) was a condition precedent to successful suit in the district court (Hiscott v. General Electric Co., 6th Cir. 1975, 521 F.2d 632; Adams v. Federal Signal Corp., 5th Cir. 1977, 559 F.2d 433), and appellant made no showing of entitlement to equitable relief from the statutory bar. Cf. Powell v. Southwestern Bell Telephone Co., 5th Cir. 1974, 494 F.2d 485; Ott v. Midland-Ross Corp., 6th Cir. 1975, 523 F.2d 1367, 1370; Dartt v. Shell Oil Co., 10th Cir. 1976, 539 F.2d 1256,1261-1262, aff’d by equally divided Court, 1977, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270. Appellees contend, further, that appellant is barred because he did not file a timely complaint with the State Human Rights Division, as required by 29 U.S.C. § 633(b). Goger v. H. K. Porter Co., 3d Cir. 1974, 492 F.2d 13, 15-16; Curry v. Continental Airlines, 9th Cir. 1975, 513 F.2d 691, 693; Davis v. RJR Foods, Inc., S.D.N. Y.1976, 420 F.Supp. 930, 933, aff’d, 2d Cir. 1977, 556 F.2d 555; cf. Weise v. Syracuse University, 2d Cir. 1975, 522 F.2d 397, 411-412. Petitioner argues, in reply, that the deference to state remedies required by Section 633(b) is not “jurisdictional” (i. e., preclusive), Skogulund v. Singer Co., D.N.H. 1975, 403 F.Supp. 797, 802-803; cf. Goger v. H. K. Porter Co., supra, Rogers v. Exxon Corp., 3rd Cir. 1977, 550 F.2d 834, 844; Bonham v. Dresser Industries, Inc., 3rd Cir. 1977, 569 F.2d 187, and appellant should be given an opportunity to produce evidence that his failure to pursue his state remedy can be excused.²

The Age Discrimination in Employment Act (“ADEA”), in these respects not unlike Title VII of the Civil Rights Act of 1964, dealing with equal employment opportunity (42 U.S.C § 2000e-5(b), (c), (e) and (f)(1)), does not permit a grievant to sue until sixty days after he has presented his charge of discrimination to the appropriate state authority.³ Section 626(d)⁴ further requires that before suing the grievant must in every case file with the Secretary of Labor notice of his intention to sue for redress of the discrimination sixty days before he sues. While the ADEA creates a distinct substantive right in employees engaged in industries affecting commerce (Section 623), the right to sue upon it is thus doubly qualified.

Failure to meet the sixty day notice requirements of Sections 626(d) and 633(b) —and on a literal reading of the ADEA, the two notice periods could run concurrently— does not extinguish the employee’s substantive right;. it does terminate the individual’s right to commence a private civil action in his own name, but the Secretary retains the right to sue to enforce the grievant’s rights wholly without reference to the notice requirements. Dunlop v. Crown Cork & Seal Co., D.Md.1976, 405 F.Supp. 774; 29 U.S.C. §§ 626(b), 216(c). The Secretary’s right to sue continues until the expiration of the statute of limitations, that is, for two years at least, or, in the-case of a willful violation, for three years. 29 U.S.C. §§ 626(e), 255(a).

The notice requirements reflect the Congressional purpose to achieve remediation primarily by conciliation managed through the Department of Labor or through the appropriate state agency, if there is one, or both. “. . . [P]rivate lawsuits are secondary to administrative remedies and suits brought by the Secretary of Labor.” Rogers v. Exxon Research Engineering Co., supra, 550 F.2d at 841. See Dean v. American Sec. Ins. Co., 5th Cir. 1977, 559 F.2d 1036, 1038. When notice is given to the Secretary, the ADEA imposes on him the duty promptly to “seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion”, and he may institute suit to eliminate the discrimination. See, e. g., Marshall v. Goodyear Tire & Rubber Co., 5th Cir. 1977, 554 F.2d 730; Brennan v. Ace Hardware Corp., 8th Cir. 1974, 495 F.2d 368; Hodgson v. Greyhound Lines, Inc., 7th Cir. 1974, 499 F.2d 859; Usery v. Tamiami Trail Tours, Inc., 5th Cir. 1976, 531 F.2d 224. Even when a timely private Suit is commenced after the giving of timely notice of intent to sue, a suit by the Secretary supersedes the private suit. 29 U.S.C. § 626(c).

Appellant relies on the oral statement that he would sue when he could find a lawyer, allegedly made in December 1973, to satisfy the requirement of Section 626(d). The notice allegedly given was ill-calculated to discharge the statutory function of presenting the Secretary with an unequivocal notice that the grievant intended to sue, and that, in consequence, he must under the statute

“promptly notify all persons named [in the notice of intent] as prospective defendants in the action”.

Appellant’s alleged oral notice had neither the content nor the clarity of expressed purpose needed to fulfill its statutory office. If so uncertain a notice could be thought sufficient, the result could often be obscure protractions and confusion in proceedings that are intended to be quickly prosecuted, while restoration to employment with minimal derangement of the affairs of employer and employee can still be seen as possible. Cf. Dartt v. Shell Oil Co., supra, 539 F.2d at 1259; Powell v. Southwestern Bell Telephone Co., supra, 494 F.2d at 489.

The statute does not say that the notice of an intent to file an action must be written, but Section 626(d), by requiring that it be filed, implies that the notice must be written. Hays v. Republic Steel Corp., supra; cf. Charlier v. S. C. Johnson & Son, Inc., 5th Cir. 1977, 556 F.2d 761, 764-765. Hays did not discuss or cite Woodford v. Kinney Shoe Corp., supra, but both Hughes v. Beaunit Corp., E.D.Tenn.1976, 12 EPD If 11,092, and Berry v. Crocker National Bank, N.D.Cal.1976, 13 EPD If 11,377 at p. 6252 noted and rejected the Woodford case in holding that oral notices were insufficient. The district court in Dartt v. Shell Oil Co., N.D.Okla.1975, 9 EPD 1110,205 at p. 7913, rejected Woodford; on appeal Wood-ford was cited with evident approval, but for its emphasis upon interpreting the ADEA as a statute meant to apply to laymen who may often lack legal guidance at the critical times (539 F.2d at 1260-1261). There is no policy basis for denying the statutory language its evident meaning. The statute is indeed beneficent, but it enacts its own beneficence on its own terms, and those terms are best adhered to, for they are related to the statutory purpose of seeking prompt relief. While the tax cases interpreting what is now 26 U.S.C. § 6511, requiring a claim for refund of tax be “filed” within certain time periods, involve other and more complex considerations, they are clear that, although a claim for refund may be informal, it must be a written claim. Benenson v. United States, S.D. N.Y.1966, 257 F.Supp. 101, 108, aff’d, 2d Cir. 1967, 385 F.2d 26; Barenfeld v. United States, 1971, 442 F.2d 371, 375, 194 Ct.Cl. 903; American Radiator & Standard Sanitary Corp. v. United States, 1963, 318 F.2d 915, 920, 162 Ct.Cl. 106; Ritter v. United States, 3rd Cir. 1928, 28 F.2d 265, 267. The same conclusion was reached with respect to “filing” claims against New York City: the filing requirement implies a written claim. Foley v. Mayor, 1st Dept. 1896, 1 App.Div. 586, 37 N.Y.S. 465.

No circumstances excuse appellant’s failure to comply with the notice-to-sue requirement of Section 626(d).⁵ It is not contended that the Department of Labor representatives indicated to appellant that his alleged oral notice of intent to sue sufficed. On the contrary, the letter of December 13, 1973, apprised him that he had time limits to meet if he meant to sue. On that date appellant had ample time to file a state complaint and be secure in the fact that he had three hundred days from June 29, 1973 to file his notice to sue. That notice he still had time to file on April 4, 1974, when he was for the second time reminded by the Department of Labor representative of the time limitations, and even at that date, he had time as well to file his state complaint. Even if there were cases in which a clear oral notice could satisfy the requirement of Section 626(d), the present case is not one, for the Department of Labor told appellant that what he had submitted was not considered a notice of intent to file suit. That advice was given when time still remained. Appellant’s Section 626(d) notice was out of time, and he has presented nothing entitling him to relief against his default.⁶ Cf. Hays v. Republic Steel Corp., supra, 531 F.2d at 1312; Hiscott v. General Electric Co., supra; Powell v. Southwestern Bell Telephone Co., supra. Contrast: Dartt v. Shell Oil Co., supra, 539 F.2d at 1261-1262; Ott v. Midland-Ross Corp., supra.

Appellees advanced in the district court the further contention that appellant failed to comply with the requirement of Section 633(d) within the three hundred day period fixed by Section 626(d)(2).⁷ Appellant did not file any complaint with the State Human Rights Division until nearly three years after the occurrence of the alleged discrimination, and filed it not sixty days but five days before he commenced the present action.

“Deference” to state procedures where they exist is fundamental to the ADEA structure. The ADEA itself plainly asserts federal supremacy in the field of its operation when the federal remedy is invoked, but equally it insists on resort to the state procedure as a condition precedent to federal suit. The reason is plain enough. When Congress acted in 1967, the House Report on the bill that became law (H.R. Rep.No.805, 90th Cong., 1st Sess., reprinted in [1967] 2 U.S.Code Cong. & Admin.News pp. 2213, 2215) observed that

“There are now 24 States which have age discrimination legislation of the type proposed in H.R. 13054. Over the years other State legislatures have passed resolutions declaring age discrimination to be against public policy.”

The New York law against discrimination was extended to cover discrimination against age in employment by Section 2 of the Laws of 1958, Chapter 738. See Executive Law § 296(3-a). The State Human Rights Law, which includes the age discrimination provisions, forms Article 15 of the Executive Law. It requires grievants to file with the Division of Human Rights a verified complaint in writing (Section 297(1)), and requires the Division promptly to serve a copy of it on the respondent and to make prompt investigation; it authorizes the division to attempt conciliation, requires it to conduct hearings and render decisions, and empowers it to enforce its orders through action in the state supreme court. (See Section 297). The law requires complaints to be filed within one year after the alleged discriminatory practice (Section 297(5)), and that provision is regarded as mandatory. State Division of Human Rights v. Westmoreland Central School District, 4th Dept. 1977, 56 App.Div.2d 205, 207-208, 392 N.Y.S.2d 149, 151; cf. Matter of Stacy v. McDaniel, 1st Dept. 1976, 54 App.Div.2d 645, 387 N.Y.S.2d 631. Unlike the ADEA the State Human Rights Law permits a grievant to elect to forego complaint to the Division and instead to sue upon the statutory cause of action “in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate.” Section 297(9); Moran v. Simpson, Sup.Ct.1974, 80 Misc.2d 437, 362 N.Y.S.2d 666.

Appellant’s failure to comply with Section 633(b) is a bar to maintenance of the action. The cases relied on by appellant do not hold that resort to state procedure is not required by the ADEA; all agree that proof of that resort is necessary to make out the grievant’s case under the ADEA. Hadfield v. Mitre Corp., 1st Cir. 1977, 562 F.2d 84; see Rogers v. Exxon Research & Engineering Co., supra, 550 F.2d at 844-845; Curry v. Continental Airlines, supra, 513 F.2d at 693; Goger v. H. K. Porter Co., supra, 492 F.2d at 15-16; Bonham v. Dresser Industries, Inc., supra, 569 F.2d at p. 195; cf. Equal Employment Opportunity Commission v. Union Bank, 9th Cir. 1969, 408 F.2d 867; Smith v. American President Lines, Ltd., 2d Cir. 1978, 571 F.2d 102. Cases have, indeed, granted relief against noncompliance where circumstances have been presented that indicate that the interests of justice require that equitable relief. But appellant makes out no claim entitling him to such relief. Appellant made no reference to any circumstance explaining his delayed filing in the complaint he ultimately filed with the state Division of Human Rights (cf. Matter of Stacy v. McDaniel, supra). The statements in his affidavit in the district court — that an unidentified person at the Division told him on the telephone that his “matter seemed to be appropriate for federal relief” and that he “should go to them to begin with,” and that two further telephone calls to unidentified persons at the Division had “negative” results and “in each case I was discouraged from coming down to file any complaint”— these statements of three telephone contacts within the year allowed for filing a state complaint are too insubstantial to found a claim to equitable relief against the time bar.

Much of appellant’s argument mistakenly proceeds on the tacit premise that resort to the state remedy is a technical step devoid of substantive content, and that, therefore, the slightest of showing will warrant setting the bar of Section 633(b) aside. That ignores the paramount circumstances, that the state remedy, or rather remedies, presented appellant with a full and adequate system of relief, that there was no reason for turning to the federal remedy that did not equally direct appellant to the state remedies, and that the scheme of the ADEA very explicitly requires that the grievant timely present his claim to the state authority before suing.

Whatever may have been appellant’s reasons for proceeding as he did, he did not satisfy the statutory requirements and summary judgment was properly given in ap-pellees’ favor.

The judgment is affirmed.

1 . Appellant’s affidavit states that in December 1973 he “had much the same experience and conversation with Mr. Leo Friedman of the U.S. Department of Labor” that he had with Bromberg (JA 27). This appears to be a mistaken reference to a meeting of December 3, 1974, between appellant and Friedman, referred to in Friedman’s letter to appellant of January 23, 1975 (JA 54).

2 . If appellant had waited the statutory period of 60 days after filing his state June 1976 complaint with the Human Rights Division, his federal suit would have been barred by the three year statute of limitations. 29 U.S.C. §§ 626(e), 255(a).

3 . The language of Section 633(b) is patterned on that 42 U.S.C. § 2000e-5(c). The relevant portion reads,

“In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated . . .”

4 . Section 626(d) provides both for the giving of the sixty day notice and requires that it be

given with a certain time after the discrimination occurred. The text is:

“No civil action may be commenced by any individual under this section until the individual has given the Secretary not less' than sixty days’ notice of an intent to file such action. Such notice shall be filed—

(1) within one hundred and eighty days after the alleged unlawful practice occurred, or

(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

Upon receiving a notice of intent to sue, the Secretary shall promptly notify all persons named therein as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.”

5 . Appellant instituted suit by filing his complaint on June 29, 1976, exactly three years after the date “on or about” which appellant in paragraph 10 of the complaint alleged that ap-pellee Dow Badische “wilfully discharged” him. The date pencilled at the top of appellant’s typewritten letter to appellee Dow Chemical protesting his discharge “this afternoon” is June 25, 1973 (JA 45) but the verified complaint received by the State Human Rights Division on June 24, 1976, states that appellant was fired “on June 29, 1973.” (JA 40)

6 . The Regional Solicitor’s Memorandum of January 7, 1975, reflected an investigation of the facts leading to the opinion that the informa- ■ tion supported the conclusion that there was no factual basis for the allegation that appellant had been terminated due to his age or that age played any part in the decision (JA 55-57).

7 . The contention was not passed on by the district court, but it may be properly urged by appellees in this court in support of the judgment below. Dandridge v. Williams, 1970, 397 U.S. 471, 475, 90 S.Ct. 1153, 25 L.Ed.2d 491; Fusari v. Steinberg, 1975, 419 U.S. 379, 387, 95 S.Ct. 533, 42 L.Ed.2d 521 (and fn. 13).