Evans v. Oscar Mayer & Co.

580 F.2d 298, 17 Fair Empl. Prac. Cas. (BNA) 1119, 1978 U.S. App. LEXIS 10318, 17 Empl. Prac. Dec. (CCH) 8422

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 6, 1978
• Docket: No. 77-1692
• Status: Published

Opinions

BRIGHT, Circuit Judge,

dissenting.

I respectfully dissent.

In my judgment, in a state such as Iowa, which has laws prohibiting age discrimination and an agency with authority to seek relief from such practice, filing a charge with the state agency is mandatory under the ADEA and is a prerequisite to the filing of an action in federal court, subject, however, to certain equitable considerations. See Reich v. Dow Badische Co., 575 F.2d 363 (2d Cir. 1978); Goger v. H. K. Porter Co., 492 F.2d 13, 16 (3d Cir. 1974).

Congress clearly intended that discrimination on the basis of age be remedied as quickly and efficiently as possible, for lengthy delays in the courts and administrative agencies could deprive older workers of an effective remedy. Section 626(d) of the ADEA expressly requires the claimant to notify the Secretary of Labor before filing suit and requires the Secretary to “seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.” Although Congress patterned much of the ADEA after Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1970), and other labor statutes, it rejected a proposed enforcement procedure that would have subjected ADEA complaints to the same delays that plague the EEOC and NLRB. Vazquez v. Eastern Air Lines, Inc., supra, 405 F.Supp. at 1354-55. Instead, the claimant need defer to the Secretary of Labor and the state agency for only sixty -days before bringing suit. Thus, in those cases in which the Secretary of Labor or the state agency is able to provide speedy relief, the claimant can escape the delay inherent in any federal court action. On the other hand, if prompt relief cannot be obtained, the claimant may bring an action after waiting only sixty days. Requiring a claimant to seek relief through a state agency designed specifically to handle this type of case is consistent with congressional intent. It increases the chances of conciliation while creating no additional delay, for the sixty-day period of deference to the state agency may run concurrently with the sixty-day period of deference to the Secretary of Labor. Bertsch v. Ford Motor Co., supra, 415 F.Supp. at 623.

Moreover, the pertinent language of section 633(b) is nearly identical to language in Title VII:

In the case of an alleged unlawful employment practice occurring in a State * * * which has a * * * law prohibiting the unlawful employment practice alleged and establishing or authorizing a State * * * authority to grant or seek relief from such practice * * , no charge may be filed * * * by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State * * * law, unless such proceedings have been earlier terminated * * *. [42 U.S.C. § 2000e-5(b) (1970) (currently at § 2000e-5(c)).]

This language of Title VII requires that state agencies be afforded an opportunity to consider the employment discrimination before suit for redress may be brought in a federal court. See Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975).

In the present cases, however, I would not dismiss the action outright, even though Evans failed to file a charge with the state agency. That requirement is not “jurisdictional”; it is a procedural requirement, which may be subject to equitable modification when necessary to effect the broad remedial purposes of the statute. A similar principle has been applied in interpreting various procedural requirements under Title VII, see Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 381, 50 L.Ed.2d 325 (1976); Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (8th Cir. 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 782, 46 L.Ed.2d 641 (1976); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975); Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), rev’d on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), and I feel it should apply to the present case.

In his resistance to Oscar Mayer’s motion to dismiss, Evans argued that he had relied on official advice from the Department of Labor that the only requirement under the ADEA was notice to the Secretary of Labor. Moreover, Evans had no interpretation of section 633(b) by this court to guide him. See Goger v. H. K. Porter Co., 492 F.2d 13, 16-17 (3d Cir. 1974). The district court did not reach this question in disposing of Oscar Mayer’s motion. I would, therefore, vacate the district court’s order and remand for further proceedings on the motion to dismiss.

ON PETITION FOR REHEARING EN BANC

Petition for rehearing en banc filed by counsel for appellee is denied.

Judges BRIGHT and ROSS would vote for petition for rehearing en banc essentially for the reasons set forth in Judge BRIGHT’s dissent to the opinion filed July 6, 1978.