Bean v. Crocker Nat. Bank, 77-1822

• Citation: 20 FEP Cases 533,600 F.2d 754
• Decision Date: 13 July 1979
• Docket Number: No. 77-1822,77-1822
• Parties: 20 Fair Empl.Prac.Cas. 533, 20 Empl. Prac. Dec. P 30,092 David G. BEAN, Carol G. Comstock, Juanita F. Davenport, Elizabeth Dickos, Russell L. Greer, Leonard Hardtke, Paul Vernon Kellerer, Hada V. Nicholson, William Gordon Oldham, Dale L. Quist, Theodore R. Sherburne, and Eva G. Willard, on behalf of themselves and all others similarly situated, Plaintiffs- Appellants, v. CROCKER NATIONAL BANK, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 754

600 F.2d 754

20 Fair Empl.Prac.Cas. 533,

20 Empl. Prac. Dec. P 30,092

David G. BEAN, Carol G. Comstock, Juanita F. Davenport,

Elizabeth Dickos, Russell L. Greer, Leonard Hardtke, Paul

Vernon Kellerer, Hada V. Nicholson, William Gordon Oldham, Dale L. Quist, Theodore R. Sherburne, and Eva G. Willard, on behalf of themselves and all others similarly situated, Plaintiffs- Appellants, v. CROCKER NATIONAL BANK, Defendant-Appellee.

No. 77-1822.

United States Court of Appeals,

Ninth Circuit.

July 13, 1979.

David M. Blackman, David M. Blicker (argued), Blackmon, Wasserman & Blicker, Sacramento, Cal., for plaintiffs-appellants.

Dennis D. Clark, Atty., Washington, D. C., for amicus, U. S. Dept. of Labor.

James C. Paras, Bruce A. Nelson (argued), Morrison & Foerster, San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CARTER, CHOY and BRIGHT, ^* Circuit Judges.

BRIGHT, Circuit Judge.

Appellants, eleven former employees of the appellee Crocker National Bank (Crocker), appeal from a summary judgment dismissing their action, brought on behalf of themselves and others similarly situated, charging Crocker with discriminatorily terminating their employment because of age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 Et seq. (1976). The district court granted Crocker summary judgment on the ground that appellants' failure to commence state proceedings deprived the court of jurisdiction over the suit. In addition, the district court held that it lacked jurisdiction over the claim of appellant Hardtke because the court deemed his notice of intent to sue untimely and over the claim of appellant Bean because of his failure to provide notice of intent to sue. The district court entered an appropriate order rendering dismissal against some but not all plaintiffs appealable as a final judgment pursuant to Fed.R.Civ.P. 54(b). ¹

On appeal appellants, severally or individually as noted below, make the following claims:

1) failure to commence state proceedings with the California Fair Employment Practice Commission (FEPC) does not bar this action; alternatively, appellants effectively commenced proceedings with the FEPC; ²

2) the district court erred in finding that appellant Hardtke failed to timely file notice of intent to sue with the Secretary of Labor (Secretary); and

3) the district court erred in determining that, in order to participate in the representative ADEA action as a "similarly situated" party, appellant Bean was required to individually file a notice of intent to sue with the Secretary.

In light of the Supreme Court's recent decision in Oscar Mayer & Co. v. Evans, --- U.S. ----, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), we reverse the district court's determination that the appellants' failure to commence state proceedings deprived the court of jurisdiction (item 1) and remand the case for further consideration consistent with the Evans case. Additionally, we agree with appellants' claims numbered (2) and (3) and reverse the district court's dismissals of the actions of Hardtke and Bean.

I. Factual Background.

In the spring and summer of 1974, Crocker discharged more than 1,000 employees, including the appellants, from its employ. ³

On September 12, 1974, attorney David M. Blicker filed letters with the California FEPC and with the United States Department of Labor (Department), alleging that Crocker terminated several appellants because of their age. ⁴

The Department subsequently informed Blicker that it was "conducting an investigation of (Crocker) under the (ADEA)." Although Blicker spoke with an FEPC representative on several occasions, he never filed a formal verified complaint with the California FEPC setting forth the factual basis for the discrimination claims.

On February 13, 1975, Blicker filed a notice of intent to sue with the Department on the age discrimination claim under 29 U.S.C. § 626(d), "on behalf of the named individuals (naming appellants and Juanita Davenport) and all other persons similarly situated." ⁵ The Department notified appellants of the receipt of the notice of intent to sue and directed appellants' counsel's attention to section 14(b) of the ADEA, 29 U.S.C. § 633(b), which requires the commencement of state proceedings in an age discrimination action. The Department also informed the California FEPC and Crocker of the notice of intent to sue.

The Department's attempts to conciliate the dispute failed and, on May 7, 1975, the Department advised appellants that no further conciliation efforts would be undertaken. On July 3, 1975, appellants filed the present action in federal district court.

The district court granted Crocker summary judgment against all but one of the complainants, ⁶ holding that appellants' failure to commence proceedings with the FEPC pursuant to 29 U.S.C. § 633(b), deprived the court of jurisdiction. In addition, the court dismissed the actions of appellants Hardtke and Bean because neither filed notice of intent to sue within 180 days following their terminations, as specified in 29 U.S.C. § 626(d).

II. Whether appellants' failure to formally commence proceedings under the California FEPC bars the federal action. ⁷

The district court ruled that 29 U.S.C. § 626(d) compels appellants to resort to state remedies, under 29 U.S.C. § 633(b) as a jurisdictional prerequisite to initiating their federal action under the ADEA. 29 U.S.C. § 633(b) provides that in a deferral state ⁸ a grievant must commence proceedings with the appropriate state agency by "the filing of a written and signed statement of the facts upon which the proceedings is based(.)" The district court held that appellants failed to commence state proceedings and dismissed the actions of all appellants for lack of jurisdiction.

In light of Oscar Mayer & Co. v. Evans, supra, we reverse the district court's order of summary judgment. In Evans the Supreme Court held that under 29 U.S.C. § 633(b) a grievant must resort to appropriate administrative remedies in deferral states before seeking relief in federal court. Oscar Mayer & Co. v. Evans, supra, --- U.S. at ----, 99 S.Ct. at 2073. However, the Court added that the failure to file a complaint with a local agency in a deferral state does not bar a grievant's federal court action. Where federal litigation has been commenced, the suit "should be held in abeyance" so as to give the appropriate state agency the "opportunity to entertain respondent's grievance(.)" Oscar Mayer & Co. v. Evans, supra, --- U.S. at ----, 99 S.Ct. 2066.

Accordingly, we reverse the district court's order of summary judgment against all of the appellants except Bean and Hardtke, and we remand the case to the district court for further proceedings consistent with the Supreme Court's decision in Evans.

III. Whether Hardtke's failure to file a notice of intent to sue within 180 days of his termination bars his claim.

Crocker discharged Hardtke from its employ on June 28, 1974. Thereafter, Hardtke filed notice of his intent to sue Crocker with the Department on February 13, 1975, 229 days after his termination. Hardtke claims that so long as he filed notice to sue within 300 days of his discharge, he preserves his federal right of action. The district court stated that Hardtke's failure to file notice of intent to sue within 180 days required dismissal of Hardtke's federal age discrimination claim and concluded that it lacked subject matter jurisdiction over the claim. We disagree.

Section 626(d), in pertinent part, reads as follows:

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 (a deferral state, See n.8 Supra ), 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.

In our view, this statutory language expressly permits a complainant in a deferral state to bring an action within 300 days after an alleged discriminatory discharge for reasons of age.

The district court stated that the extended filing period of 300 days comes into play "only where the complainant filed (with the state agency) In fact, and that such period was not intended as a bonus for those who fortuitously reside in deferral states." To support its conclusion that 29 U.S.C. § 626(d) required Hardtke to file notice of intent to sue within 180 days of his termination, the district court relied on Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir. 1975), a case brought under Title VII of the Civil Rights Act of 1964 dealing with time limitations for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC).

In Olson, the complainant filed an employment discrimination charge with the EEOC more than 180 days after her allegedly discriminatory termination. In addition, she did not institute state proceedings relating to the alleged unlawful discharge within the ninety day state limitation period. ⁹ The court held that in a deferral state a charge of employment discrimination must be filed with the state agency within 180 days of an alleged unlawful act to trigger the extended 300-day filing period with the EEOC. ¹⁰ Because the Olson complainant did not institute state proceedings within 180 days of her discharge, the court concluded that she was not entitled to the 300-day period for filing with the EEOC and dismissed her action. Olson v. Rembrandt Printing Co., supra, 511 F.2d at 1233. Cf. Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976) (in a deferral state, where a complainant files a...