Burgett v. Cudahy Company, Civ. A. No. W-4765.
| Decision Date | 15 May 1973 |
| Docket Number | Civ. A. No. W-4765. |
| Citation | 361 F. Supp. 617 |
| Parties | Everett F. BURGETT et al., Plaintiffs, v. CUDAHY COMPANY, Defendant. |
| Court | U.S. District Court — District of Kansas |
Wilmer E. Goering, Wichita, Kan., David Egan, Peabody, Kan., for plaintiffs.
Thomas D. Kitch, Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., for defendant.
ORDER OVERRULING DEFENDANT'S MOTION TO DISMISS
This is an action for damages and to compel compliance with the recently enacted Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. Plaintiffs Everett Burgett, C. K. Price, Philip G. Egan, and Art Walker, instituted the action on December 23, 1971, alleging that the defendant, Cudahy Company, had discriminatorily discharged them from its employ solely on the basis of their age. They subsequently amended their original complaint, and the action is presently being maintained in the name of plaintiff Burgett individually and as representative for the claims of the other three allegedly "similarly situated" plaintiffs.
The matter is now before the Court by motion of the defendant to dismiss the original and amended complaints insofar as they relate to the claims of Price, Egan and Walker. Specifically, the defendant asserts that their failure to comply with the administrative notice provisions established by 29 U.S.C. § 626(d) precludes them from seeking any relief under the Act and prohibits the maintenance of a representative suit brought on their behalf. There has been a paucity of litigation dealing with this newly enacted legislation, and the issue herein presented is one of first impression. After reviewing the pleadings and submitted exhibits, the Court makes the following findings and orders.
The salient facts are substantially not in dispute. The plaintiffs were discharged from their employment on or about the 6th day of June, 1970, pursuant to a managerial decision to reduce the manpower force of the Wichita, Kansas, Cudahy plant in anticipation of a future shutdown. At the time of discharge, each employee plaintiff was between the ages of sixty and sixty-five years and occupied a supervisory position. Each had been employed by Cudahy the majority of his adult life.
On June 18, 1970, the plaintiffs orally communicated the nature and suspected reasons for their discharges to the United States Department of Labor, Wage and Hour and Public Contract Division, Wichita, Kansas. Thereafter, on August 6, 1970, plaintiff Burgett's attorney sent a letter of complaint to the Regional Attorney for the Department of Labor, Kansas City, Missouri, and the Secretary of Labor. Burgett's attorney informed the Department of his understanding that the Wage and Hour Division in Wichita had made a finding of age discrimination practiced against Burgett by Cudahy. He explained the circumstances evidencing possible age discrimination and gave the Department notice of his client's intention to file suit against Cudahy if departmental action was not initiated. Although Burgett was the only employee mentioned by name, Price, Egan and Walker were alluded to as follows:
On or about the 12th day of October, 1970, the plaintiffs were rehired by Cudahy. Although they were all restored to the positions which they had occupied prior to being discharged, they were not compensated for the back wages which had not been received during their period of unemployment.
There was no further formal correspondence between any of the plaintiffs and the Department of Labor until April 7, 1971, at which time another attorney, representing all of the plaintiffs in conjunction with Burgett's attorney, sent a second letter to the Secretary of Labor and the Department's Regional Attorney. This letter inquired as to whether the first letter had satisifed the notice requirements of 29 U.S.C. § 626(d). The "other three gentlemen" referred to in the August letter were therein named, and it was requested that the second letter be accepted as notice that all of the named employees intended to file suit against Cudahy.
On April 12, 1971, the Regional Solicitor of the Department of Labor responded to the plaintiffs' second letter. The Solicitor expressed the opinion that the first letter had not constituted sufficient notice of intention to file suit except as to Burgett, who was specifically named therein. In response to the substantive claim of age discrimination, the Solicitor expressed the following findings:
The Solicitor further stated that, although he was aware of the fact that all of the men had been reinstated to their prior positions with Cudahy, "the reinstatements were made, Cudahy claimed for reasons other than the demands of the Labor Department."
On December 23, 1971, this action was instituted by the filing of a complaint naming each of the four employees as party plaintiffs. The complaint alleged that the acts of discrimination were "continuing" in nature, and the plaintiffs each prayed for lost wages, merit raises, court costs, and any other relief deemed appropriate.
The defendant moved to dismiss the action on March 9, 1972, contending that the Court lacked subject matter jurisdiction due to the plaintiffs' failure to give the Department of Labor timely notice of their intentions to sue Cudahy as required by 29 U.S.C. § 626(d). Prior to the Court's ruling on Cudahy's motion, the plaintiffs amended their original complaint and reframed it as a representative suit by plaintiff Burgett, brought individually and on behalf of the other three allegedly "similarly situated" plaintiffs pursuant to 29 U.S.C. § 216(b), and Price, Egan and Walker filed written consents to be represented by Burgett. The defendant moves to dismiss the amended complaint insofar as it relates to the claims of Price, Egan and Walker.
A general over-view of the Age Discrimination in Employment Act's basic provisions serves as an instructive prelude to the resolution of the defendant's motion to dismiss. The Act was enacted in 1967 for the express purpose of promoting "employment of older persons on their ability rather than age," and prohibiting "arbitrary age discrimination." 29 U.S.C. § 621(b). The Act makes it unlawful for employers, employment agencies, and labor organizations to discriminate on the basis of age, the protected group being those persons between the ages of forty and sixty-five years. 29 U.S.C. § 621. With a few minor exceptions, the prohibitions of the statute are in terms identical to those of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., except that "age" has been substituted for "race, color, religion, sex, or national origin."
The primary responsibility for the enforcement of the Act is vested with the Secretary of Labor, who is empowered to undertake appropriate studies (§ 624), delegate responsibilities to other agencies (§ 625(a)), issue appropriate rules and regulations (§ 628), and make investigations (§ 626(a)). The Secretary is also authorized to bring actions to enforce the Act's provisions, thereby preempting an aggrieved individual's right to independently seek relief. 29 U.S.C. § 626(d). The Act provides, however, that before any action may be initiated by the Secretary, he must:
". . . attempt to eliminate the discriminatory practice or practices alleged, and . . . effect voluntary compliance with the requirements of the chapter through informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(b).
In addition to granting the Secretary the authority to bring an action, the Act also provides that any individual covered by it who believes that he has been injured as the result of a prohibited practice may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of the Act. 29 U.S.C. § 626(c). It provides, however, that:
The notice is not required to meet any formal specifications, as evidenced by the opinion letter of August 26, 1968, issued by the Wage and Hour Division of the Department of Labor, which states:
It must, however, contain the basic facts which will enable the Secretary to perform his functions. It should be provided in writing in a letter properly addressed to the Secretary; it should contain an identification of the parties involved; and it should include a general description of the alleged discriminatory action.
Upon receiving such notice, the Act directs the Secretary to notify the persons named as prospective defendants and seek the elimination of the alleged unlawful practice by informal means of conciliation. 29 U.S.C. §...
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