Chapman v. City of Detroit

• Decision Date: 30 December 1986
• Docket Number: No. 85-1634,AFL-CIO,85-1634
• Citation: 808 F.2d 459
• Parties: 42 Fair Empl.Prac.Cas. 1016, 42 Empl. Prac. Dec. P 36,778, 55 USLW 2383 Walter W. CHAPMAN, an Individual, Charles Master, an Individual, and John Does, Unknown Individuals, Plaintiffs-Appellants, v. CITY OF DETROIT, a Michigan Municipal Corporation, and Detroit Fire Fighters Association, Local 344, IAFF,, a Labor Organization, Defendants-Appellees. . Cause
• Court: U.S. Court of Appeals — Sixth Circuit

Page 459

808 F.2d 459

42 Fair Empl.Prac.Cas. 1016,

42 Empl. Prac. Dec. P 36,778, 55 USLW 2383

Walter W. CHAPMAN, an Individual, Charles Master, an Individual, and John Does, Unknown Individuals Plaintiffs-Appellants, v. CITY OF DETROIT, a Michigan Municipal Corporation, and Detroit Fire Fighters Association, Local 344 IAFF, AFL-CIO, a Labor Organization Defendants-Appellees.

No. 85-1634.

United States Court of Appeals Sixth Circuit.

Cause Argued Sept. 26, 1986.

Decided Dec. 30, 1986.

Dennis M. Rauss (argued), Donovan, Hammond, Ziegelman, Roach & Sotiroff, P.C., Detroit, Mich., for plaintiffs-appellants.

Thomas L. Walters, Sharon D. Webb (argued), Theodore Sachs (argued), Detroit, Mich., for defendants-appellees.

Before: LIVELY, Chief Judge; MERRITT, Circuit Judge; and TIMBERS, Senior Circuit Judge. ^*

LIVELY, Chief Judge.

This is an appeal from dismissal of an action brought by individual fire fighters who were involuntarily retired at age 60 under a charter provision of the City of Detroit. The plaintiffs-appellants sought relief under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq. (1982), and 42 U.S.C. Sec. 1983 (1982). They also asserted five pendent state claims. The district court dismissed all of the federal claims with prejudice, granting motions to dismiss or for summary judgment filed by the defendants City of Detroit and the fire fighters' union. The pendent state claims were dismissed without prejudice.

I.

It is necessary to set out some of the background in order to describe the procedural posture of the case in the district court.

On November 20, 1984 the Detroit Fire Fighters Association (DFFA), the union representing a majority of the City's firefighting forces, brought suit in a Michigan state court seeking an order requiring the City to enforce a charter provision for mandatory retirement of all fire fighters at age 60. The City raised the ADEA as an affirmative defense and notified the Equal Employment Opportunity Commission (EEOC) of the pending action. The EEOC did not respond immediately to this notification. The DFFA moved for summary judgment against the City on December 21, 1984. Thereafter, on March 29, 1985 the state trial court rendered an opinion holding that the charter provision did not violate the ADEA because age was a bona fide occupational qualification for fire fighters. The state judge relied on a federal court of appeals decision that was subsequently reversed by the Supreme Court of the United States. See Johnson v. City of Baltimore, 731 F.2d 209 (4th Cir.1984), rev'd, 472 U.S. 353, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985).

The state trial court entered its order granting summary judgment to the DFFA on April 26 (all dates are 1985), and entered an order on the same date granting the EEOC's unopposed motion to intervene in the action. The EEOC immediately sought to remove the action to the United States District Court. Following a hearing, a district judge remanded the case to the state trial court on April 29. On May 15 the EEOC filed a claim of appeal in the Michigan Court of Appeals and that court ultimately reversed the trial court's summary judgment on the basis of the Supreme Court's decision in Johnson v. City of Baltimore. The City of Detroit did not appeal, and the case is currently proceeding to trial in the state court system.

Meanwhile, on May 3, the individual plaintiffs, Chapman, Master and others filed this action, and almost simultaneously the EEOC filed an enforcement action in the same district court. (The two complaints were filed 14 minutes apart and their file numbers are only two apart, 85-1982 for the Chapman complaint and 85-1984 for the one filed by the EEOC). The two district court cases were consolidated. After denying plaintiffs' motion for temporary restraining orders, the district court heard arguments on motions of the City and the DFFA to dismiss or grant summary judgment. The district court determined that the EEOC's action was barred by res judicata and that the individual plaintiffs' ADEA action was preempted by the EEOC's intervention in the state court proceedings and by the plaintiffs' failure to give the EEOC 60 days notice of their claims before filing suit, a requirement of 29 U.S.C. Sec. 626(d)(1). The district court also stated in its oral opinion that the individual ADEA action was barred by collateral estoppel and that the allegations of constitutional violations failed to state a claim upon which relief could be granted. The district court dismissed the EEOC's action with prejudice, dismissed the claims of the individual plaintiffs under the ADEA and 42 U.S.C. Sec. 1983 with prejudice, and dismissed their pendent state claims without prejudice. Only the individual plaintiffs appealed to this court.

II.

THE ADEA CLAIMS

A.

Section 7(d) of the ADEA, 29 U.S.C. Sec. 626(d) provides:

(d) Filing of charge with Commission; timeliness; conciliation, conference, and persuasion

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed-- (1) within 180 days after the alleged unlawful practice occurred; or

(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.

The district court correctly held that an ADEA action is subject to dismissal if it is commenced without first giving the EEOC 60 days in which to attempt conciliation. This court has held that the 60-day requirement is jurisdictional, distinguishing it from the 180 or 300-day filing requirement of 26 U.S.C. Sec. 621(d)(1) and (2) which is a non-jurisdictional condition akin to a statute of limitations. Wright v. Tennessee, 628 F.2d 949, 953 (6th Cir.1980) (en banc); McTighe v. Mechanic's Educational Society, 772 F.2d 210, 213 (6th Cir.1985). The Ninth Circuit recently reached the same conclusion in Dempsey v. Pacific Bell Co., 789 F.2d 1451, 1453 (1986). The decisions cited by the appellants are not to the contrary. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Stearns v. Consolidated Management, Inc., 747 F.2d 1105 (7th Cir.1984); Vance v. Whirlpool Corp., 707 F.2d 483 (4th Cir.1983), supp. opinion on pet. for reh., 716 F.2d 1010, 1011-12 (4th Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1600, 80 L.Ed.2d 130 and 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 873 (1984). These cases all dealt primarily with the filing requirements of Sec. 626(d)(1) and (2) (180 or 300 days), not with the 60-day requirement. Moreover, the court in Vance expressly held that the 60-day requirement is jurisdictional, citing Wright and other decisions. 707 F.2d at 489. The distinction between the two sets of time requirements in Sec. 626(d) is generally recognized.

The plaintiffs did not plead or attempt to prove that they had filed a charge with the EEOC at least 60 days before commencing this action. When this requirement became an issue in the case the plaintiffs did not tender an amended complaint to allege that the requirement had been satisfied or offer any proof to that effect. Thus, the complaint was subject to dismissal. However, if this were the only basis for dismissing the action, we would be compelled to vacate the judgment dismissing the ADEA claim with prejudice and remand with directions to dismiss it without prejudice. The purpose of the 60-day requirement is to notify the EEOC of the claim and give the Commission an opportunity to attempt conciliation before a court action is commenced. Dempsey, 789 F.2d at 1452; Vance, 707 F.2d at 489. A party whose action is dismissed for failure to satisfy this requirement could promptly give notice by filing a charge with the EEOC, and if conciliation is not successful, 60 days thereafter commence a new action. If the new action should be commenced more than 180 (or 300) days after the occurrence of the alleged unlawful practice, then the plaintiff would be required to plead and prove the existence of equitable grounds for tolling that filing requirement. Dempsey, 789 F.2d at 1453; Vance, 707 F.2d at 489. The complaint in this case was silent with respect to both Sec. 626(d) requirements.

B.

We conclude, however, that the district court properly dismissed the plaintiffs' action with prejudice under the proviso of section 7(c)(1) of the ADEA, 29 U.S.C. Sec. 626(c)(1):

(c) Civil actions; persons aggrieved; jurisdiction; judicial relief; termination of individual action upon commencement of action by Commission;

(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee under this chapter.

The district court held that the EEOC had commenced an action for the enforcement of the plaintiffs' rights under the ADEA by intervening on their behalf in the state court action between the DFFA and the City, and thus had terminated the plaintiffs' right to bring an action.

The state trial court entered its order granting the EEOC's motion to intervene on April 26. The plaintiffs maintain that the EEOC's attempt to intervene was ineffective because it was untimely and because the motion was not accompanied by an intervenor's...