Solimino v. Astoria Federal Sav. and Loan Ass'n

• Decision Date: 12 April 1990
• Docket Number: No. 441,D,441
• Citation: 901 F.2d 1148
• Parties: 52 Fair Empl.Prac.Cas. 1203, 53 Empl. Prac. Dec. P 39,832, 58 USLW 2643 Angelo J. SOLIMINO, Plaintiff-Appellant, v. ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee. ocket 89-7639. Second Circuit
• Court: U.S. Court of Appeals — Second Circuit

Page 1148

901 F.2d 1148

52 Fair Empl.Prac.Cas. 1203,

53 Empl. Prac. Dec. P 39,832, 58 USLW 2643

Angelo J. SOLIMINO, Plaintiff-Appellant, v. ASTORIA FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.

No. 441, Docket 89-7639.

United States Court of Appeals,Second Circuit.

Argued Nov. 16, 1989.

Decided April 12, 1990.

Leonard N. Flamm, New York City (Hockert & Flamm, New York City, Joseph J. Gentile, Long Island City, N.Y., of counsel), for plaintiff-appellant.

Anthony H. Atlas, New York City (Paul J. Siegel, Sara J. Herrin, and Roger S. Kaplan, Jackson, Lewis, Schnitzler & Krupman, New York City, of counsel), for defendant-appellee.

Lamont N. White, Atty., U.S. E.E.O.C., Washington, D.C. (Charles A. Shanor, Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Vincent Blackwood, Asst. Gen. Counsel, Washington, D.C., of counsel), for amicus curiae, U.S. E.E.O.C.

Robert L. Liebross, Washington, D.C. (Steven S. Zaleznick, Cathy Ventrell-Monsees, Washington, D.C., of counsel), filed a brief for amicus curiae, American Ass'n of Retired Persons.

Before LUMBARD, FEINBERG and MESKILL, Circuit Judges.

LUMBARD, Circuit Judge:

Angelo J. Solimino appeals from a summary judgment of the District Court for the Eastern District of New York, Glasser, J., which dismissed his complaint against Astoria Federal Savings and Loan Association under the Age Discrimination in Employment Act of 1967, 29 U.S.C. Secs. 621-634 ("ADEA"). The district court held that Solimino was estopped from proving his case by a judicially unreviewed finding of no discrimination made by the New York State Division of Human Rights ("DHR"). Because Congress intended that federal courts give no preclusive effect in ADEA suits to the judicially unreviewed fact-finding of a state agency, we reverse.

Solimino was employed by Astoria from October 4, 1945 until March 5, 1982, when, at age 63, Astoria terminated his employment as vice-president of the Mortgage Origination Department.

On March 18, 1982, Solimino filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC"). The EEOC referred the matter to the DHR pursuant to a

work-sharing agreement between the two agencies. Treating the case as a potential violation of both the ADEA and New York State Human Rights Law, the DHR assigned it to a human rights specialist, who issued an investigative report on October 5, 1982 and on November 29, 1982 conducted a hearing, attended by all parties and counsel, at which the witnesses of each party gave sworn testimony. On January 25, 1983, the DHR dismissed the complaint, finding that no probable cause existed to believe that the alleged discrimination had occurred. The State Human Rights Appeal Board affirmed on May 30, 1984, after giving Solimino the opportunity to submit a brief and to present oral argument. No court ever reviewed the DHR's findings.

While the administrative appeal was pending, Solimino commenced an action on July 29, 1983 in New York State Supreme Court, New York County, against certain Astoria and DHR employees and Astoria's law firm for wrongful termination, prima facie tort, perjury and conspiracy. This suit did not seek judicial review of the DHR's findings as to Solimino's age discrimination claim. The court dismissed the complaint against some defendants on April 16, 1984 and as to the remaining defendants on May 10, 1984. The Appellate Division affirmed. Solimino v. Drewitz, 111 A.D.2d 602, 489 N.Y.S.2d 439 (1st Dep't 1985).

On February 21, 1985, Solimino commenced this action against Astoria, alleging that, because of his age, Astoria denied him promotions and raises and terminated his employment in violation of the ADEA. On February 23, 1989, Astoria moved for summary judgment on the grounds that the suit was barred by the statute of limitations and that the DHR's prior unreviewed finding that Solimino's treatment and termination were not due to age discrimination precluded Solimino's federal suit.

In a Memorandum and Order dated May 31, 1989, Judge Glasser granted Astoria's motion on the administrative estoppel ground while denying it on the statute of limitations ground. He held that Congress intended preclusion in federal ADEA suits and that the DHR's finding of no age discrimination was sufficient under the due process clause of the fourteenth amendment to justify preclusion of Solimino's federal suit. Angelo J. Solimino v. Astoria Federal Savings and Loan Association, 715 F.Supp. 42, 51 (E.D.N.Y.1989). Solimino appeals. The EEOC, which administers the ADEA, has filed a brief amicus supporting Solimino's appeal.

In University of Tennessee v. Elliott, 478 U.S. 788, 795-96, 106 S.Ct. 3220, 3224, 92 L.Ed.2d 635 (1986), the Supreme Court held, with respect to suits under Title VII, which prohibits employment discrimination on the basis of race, color, sex, religion or national origin, that Congress intended to give no preclusive effect to judicially unreviewed findings of a state agency. In contrast, the Court held that Congress did intend to give preclusive effect to such findings in suits under 42 U.S.C. Sec. 1983, which prohibits deprivation of civil rights by state officials acting under color of state law. Id. at 796-99, 106 S.Ct. at 3224-26. Since Elliott, two circuit courts have differed as to whether, in enacting the ADEA, Congress intended to give preclusive effect to findings of a state agency which have not been judicially reviewed. See Duggan v. Board of Education of East Chicago Heights, 818 F.2d 1291 (7th Cir.1987) (finding for grievant on issue at bar); Stillians v. State of Iowa, 843 F.2d 276 (8th Cir.1988) (contra ) (one judge dissenting). ¹

We are persuaded from our review of the ADEA that Congress intended that a finding of no discrimination by a state agency which has not been judicially reviewed should have no preclusive effect in federal court.

First, Section 14(b) of the ADEA, 29 U.S.C. Sec. 633(b), provides that, when alleged age discrimination occurs in a state which has an age discrimination law, the plaintiff may not sue under the ADEA "before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated " (emphasis added). The natural reading of the emphasized clause is that, if the state proceedings have been earlier terminated, the plaintiff may bring suit in federal court--assuming there has been no state court review of the agency findings--before the sixty-day period ends. We therefore think that Congress would not have allowed plaintiffs to bring suit under the ADEA following termination of state administrative proceedings if it had intended a judicially unreviewed fact-finding in such proceedings to have preclusive effect in the federal suit. Furthermore, under the ADEA, a person may file a complaint with both a state agency and the EEOC, and in such a situation, both agencies undertake their own inquiry. See 29 U.S.C. Secs. 626(d) and 633(b). If Congress had intended preclusion from judicially unreviewed state agency findings, "the concurrent or subsequent EEOC investigation would be superfluous." Duggan, 818 F.2d at 1295.

Second, Section 14(a) of the ADEA, 29 U.S.C. Sec. 633(a), provides:

Nothing in this chapter shall affect the jurisdiction of any agency of any State performing like functions with regard to [age discrimination] except that upon commencement of action under this chapter such action shall supersede any State action.

(Emphasis added.) Congress clearly required that "any" state action, which necessarily includes prior agency fact-finding, be superseded for the purposes of the federal suit by federal proceedings and federal fact-finding. ² Indeed, Congress enacted the sixty-day deferral mechanism "to give state agencies a limited opportunity to resolve problems of employment discrimination," Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) (ADEA grievant may not sue in federal court until he commences state agency proceedings, but the dismissal of the complaint as untimely by the agency does not preclude federal suit), and "to screen from the federal courts those discrimination complaints that might be settled to the satisfaction of the grievant in state proceedings," id. at 756, 99 S.Ct. at 2071 (emphasis added). There would be little reason to give a grievant a second bite at the apple if prior judicially unreviewed fact-finding, adverse to the grievant, were intended to bar a federal court from an independent determination of the matter.

Third, the legislative history clearly indicates that Congress enacted the ADEA because some state age discrimination laws were ineffective or inadequately enforced. See 113 Cong.Rec. 31254 (1967) (remarks of Sen. Javits); The Older American Worker: Age Discrimination in Employment, Report of the Secretary of Labor to the Congress Under Section 715 of the Civil Rights Act of 1964, at 10, reprinted in Legislative History of the Age Discrimination in Employment Act of 1967, U.S. Equal Opportunity Employment Commission, at 27. Given this articulated dissatisfaction with some state remedies to redress age discrimination, we believe that Congress intended the federal courts to give no preclusive effect to the judicially unreviewed fact-finding of a state administrative agency.

Fourth, in Title VII cases, the Supreme Court has stated that decisions of the EEOC do not preclude de novo fact-finding by a federal court and that Congress could not have intended the federal courts to be bound by the fact-finding of state administrative agencies when they are not bound by findings of the EEOC. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 470 n. 7, 102 S.Ct. 1883, 1891 n. 7, 72 L.Ed.2d 262 (1982) (Full Faith and Credit Statute bars federal courts from relitigating state agency's finding, affirmed by state court, of no discrimination under Title VII). As the Seventh...