Bertrand v. Orkin Exterminating Co., Inc., 76 C 1337.

• Decision Date: 26 August 1976
• Docket Number: No. 76 C 1337.,76 C 1337.
• Citation: 419 F. Supp. 1123
• Parties: Duane BERTRAND, Plaintiff, v. ORKIN EXTERMINATING COMPANY, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

419 F. Supp. 1123

Duane BERTRAND, Plaintiff, v. ORKIN EXTERMINATING COMPANY, INC., Defendant.

No. 76 C 1337.

United States District Court, N. D. Illinois, E. D.

August 26, 1976.

John C. Ruppert, McBride, Baker, Wienke & Schlosser, Chicago, Ill., for plaintiff.

Fred R. Kimmel, Arvey, Hodes, Costello & Burman, Chicago, Ill., for defendant.

MEMORANDUM OPINION

DECKER, District Judge.

Duane Bertrand, the plaintiff in this action, has brought suit against Orkin Exterminating Company, Inc., alleging that he was demoted and constructively discharged by the defendant because of his age in violation of the Federal Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. The defendant has moved to dismiss the complaint or in the alternative to strike portions thereof and for a more definite statement.

I. Motion to Dismiss

The motion to dismiss charges that the plaintiff has failed to allege satisfaction of a purported jurisdictional prerequisite set forth in § 14(b) of the Act, 29 U.S.C. § 633(b).¹ This provision, which is headed "Limitation of Federal action upon commencement of State proceedings", applies when two conditions are satisfied. (1) The state must have a law prohibiting age-based discrimination. (2) There must be a state authority authorized to grant or seek relief from age-discrimination.

The defendant asserts that Illinois law satisfies these two conditions and that as a result this court cannot obtain jurisdiction in an age-discrimination case until sixty days after the commencement of proceedings under the state law.

The construction of § 633(b) has been the subject of considerable dispute. While various courts have attempted to harmonize their opinions, it is nonetheless evident that there is a substantial split of authority on this matter.

At one extreme may be found a case such as Vaughn v. Chrysler Corporation, 382 F.Supp. 143 (E.D.Mich.1974), which analogizes § 633(b) to the jurisdictional deference provisions of Title VII, 42 U.S.C. § 2000e-5(c), thereby constituting a bar to plaintiff's cause of action. Somewhat less harsh is the conclusion of the majority in Goger v. H. K. Porter Co., Inc., 492 F.2d 13 (3d Cir. 1974), that while § 633(b) is a jurisdictional requirement, it nonetheless will not compel dismissal of an action where a plaintiff can present an equitable claim justifying the hearing of his cause. Curry v. Continental Airlines, 513 F.2d 691 (9th Cir. 1975), also utilized the analogy of Title VII law to find jurisdictional import in § 633(b), but it strictly construed the words of that section to require a specific legislative mandate to the state authority concerning age-discrimination.

At the other extreme is the more recent opinion in Vazquez v. Eastern Airlines, Inc., 405 F.Supp. 1353 (D.P.R.1975), which concluded that § 633(b) did not establish resort to state law as a jurisdictional prerequisite for a federal age discrimination action. This opinion closely relies on the concurring opinion of Judge Garth in Goger, supra. A similar, but not identical, conclusion was reached in Skoglund v. Singer Co., 403 F.Supp. 797 (D.N.H.1975). Vazquez and the Goger concurrence maintain that the language of § 633(b) applies only to those cases where the plaintiff had already sought relief under state law prior to filing the federal action. This viewpoint holds that in such a situation the plaintiff must give the state authority the required sixty days to attempt to resolve the dispute. However, there is no obligation to utilize the state remedy. Skoglund holds that

"although Section 633(b) requires timely resort to state remedies before a complaint may be filed in federal court, this requirement is not jurisdictional; therefore, plaintiff's failure to notify the Massachusetts Commission Against Discrimination in a timely fashion does not bar him from this court." 403 F.Supp. at 802-03.

This holding differs from Vazquez in that it does not expressly treat § 633(b) as applying solely to actions in which the state remedy had previously been invoked. Instead it construes § 633(b) as an expression of congressional deference to the concept of federalism, but not as a formal jurisdictional precondition.

This survey of recent judicial opinion makes it apparent that no commonly accepted construction of § 633(b) has of yet emerged. This court has found no indication that the Seventh Circuit has expressed a view on this controversy.

As noted, the courts that view § 633(b) as a jurisdictional requirement are greatly influenced by the similarity of the language of that provision to language found in Title VII at § 2000e-5(c).² The latter provision has been generally perceived as a jurisdictional requirement. Abshire v. Chicago and Eastern Illinois Railroad Co., 352 F.Supp. 601 (N.D.Ill.1972). Judge Hunter cited in Goger, supra, portions of the legislative history indicating that Title VII served as a model for the drafting of this portion of the Age Discrimination in Employment Act. 492 F.2d at 16 (fn. 13).

Although this is a well argued position, the court finds that a persuasive argument has also been made by Judge Pesquera in Vazquez, supra, and by Judge Garth in his concurrence to Goger for the proposition that § 633(b) does not mandate resort to state procedures as a jurisdictional prerequisite for an action under the Act.

These arguments agree that Title VII was a significant model for the Act, but note that various provisions from Title VII procedure were considered and specifically rejected by Congress in the drafting of the 1967 Age Discrimination Act. Congress evidently was concerned about the impact of bureaucratic delay imposed by the establishment of an additional administrative impediment to adjudication of grievances. The concept of age discrimination itself made it clear that the typical plaintiff under the Act would be elderly, and thus particularly afflicted by the burdens of administrative tardiness. See the statement of Senator Javits in the hearings on the Act quoted in part at 405 F.Supp. 1355.

Vazquez correctly notes that the jurisdictional requirements for a suit brought under the 1967 Age Discrimination Act are found in § 7 of that Act, 29 U.S.C. §§ 626(c)-(e). These provisions bear the express label of "jurisdiction" in the United States Code, and are the more likely analogue to § 2000e-5(b)-(d) of Title VII. Both Title VII and the Age Discrimination Act establish as a jurisdictional requirement the filing of notice of a proposed action prior to the commencement of the suit. But while the jurisdictional notice requirement appears in the same section of Title VII with the language dealing with deference to state law remedies, the reference to state law deference in § 633(b) is isolated from the other jurisdictional provisions and is removed to the tail end of the Act. It is found only after the section establishing an annual report from the Secretary of Labor to Congress on age discrimination matters.

While the provisions of § 626 are expressly labeled jurisdictional, § 633(b) is part of a section entitled "Federal State relationship", and is captioned "Limitation of Federal Action upon commencement of State proceedings." The language of this section, which admittedly is not artfully worded, does not expressly command the commencement of proceedings under state law. Semantically the sentence "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 . . ." can be read to accord with an interpretation that after the commencement of proceedings under the state law, no suit may be brought under § 626 for sixty days. Thus a construction that "the limitation upon the right to file suit under the ADEA would be applicable only if proceedings had already been initiated under existing State law", 405 F.Supp. at 1356, makes grammatical sense and is consistent with the concerns expressed by Senator Javits.

Judge Garth and Judge Pesquera both gave substantial deference to the construction of the statute given by Secretary of Labor Wirtz, which was summarized by Judge Garth as an assertion "that the sole Congressional purpose underlying the enactment of 29 U.S.C. § 633(b) was to give the State time to act on a complaint if an aggrieved individual chose to proceed there first." 492 F.2d at 17-18. This interpretation does buttress the non-jurisdictional thesis, and comports with congressional concern to provide concurrent federal and state alternatives for victims of age discrimination.

It is noteworthy that § 633(a) of the Age Discrimination Act,³ a provision with no exact counterpart in Title VII, mandates that an action under the 1967 Act will supersede any state action. Judge Garth's comment upon the interaction of these sections is particularly cogent:

"I do not believe that it was the intent of Congress to require, prior to the institution of a Federal action, the commencement of a State proceeding which, under § 633(b), need not be concluded and which in any event would be superseded by the filing of the Federal action under § 633(a)." 492 F.2d at 18.

A construction of § 633(b) as a jurisdictional prerequisite implies a belief that Congress would choose to defer to federalism by burdening victims of age discrimination with an obligation to file what will ordinarily be nothing more than a pro forma gesture. Mandatory recourse to state remedies, which need not be exhausted, would normally be a dilatory exercise or a "procedural pitfall for unsuspecting individuals." 405 F.Supp. at 1357. The history of litigation over this section underscores how easily problems may arise from such a construction. Judge Pesquera and Judge Garth find it more credible to assume that Congress sought by drafting § 633(b) to affirm its commitment to a federal system by enabling a complainant to initially elect a pursuit of state remedies, and to give substance to such an election by...