Cochran v. Ortho Pharmaceutical Company
| Decision Date | 20 December 1971 |
| Docket Number | Civ. A. No. 71-1022. |
| Citation | 376 F. Supp. 302 |
| Parties | Robert F. COCHRAN v. ORTHO PHARMACEUTICAL COMPANY. |
| Court | U.S. District Court — Eastern District of Louisiana |
William J. Everhardt, Everhardt & Martinez, Metairie, La., for plaintiff.
John E. McFall, Kullman, Lang, Keenan, Inman & Bee, New Orleans, La., for defendant.
This cause came for a hearing on a previous day and was taken under submission by the Court.
After consideration of the briefs and the law, the Court is of the opinion that the motion to dismiss must be granted.
Plaintiff, age 47, brought this action against his former employer, alleging that he was discharged in violation of the Age Discrimination in Employment Act.1 The question presented in this motion is whether plaintiff's suit can be maintained when the alleged discriminatory act occurred on April 13, 1970, and the notice of intent to file a civil action under the act was not given to the Secretary of Labor until February 15, 1971.
The pertinent parts of that act are:
Section 2553 establishes a two-year statute of limitations.
Plaintiff contends that the 180-day notice requirement is "directory" only and that the failure to file the notice within such time should not be fatal. Defendants, on the other hand, maintain that the 180-day requirement is a jurisdictional prerequisite.
Plaintiff's contention that the word "shall" is directory in nature is clearly contrary to the well-established rules of construction. "Shall" is mandatory, not permissive.4
Congress has utilized this method of forcing complainants to speedily present their claims and allow a neutral outside agency an opportunity to mediate, conciliate or arbitrate the matter while it is fresh.5 Plaintiff would have us ignore this plain language of Congress and hold that notice of intention to file suit and the commencement of a civil action are fungibles. Needless to say, had Congress meant this, it would have omitted Section (d) altogether.
We think the clear meaning of the Act is that a complainant must give notice of his intention to file suit within 180 days of the act complained of and that having done so, he must actually file suit within two years from the date of the act. The argument that the legislation is remedial and humanitarian and should be construed so as not to deny relief in this case is addressed to the wrong instrumentality of the government. Congress, not we, should decide this. In cases of other laws with similar purposes, other Courts have reached the same conclusion.6
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...Airways, Inc., 378 F.Supp. 80 (D.Hawaii 1974); Burgett v. Cudahy Company, 361 F.Supp. 617 (D.Kan. 1973); Cochran v. Ortho Pharmaceutical Company, 376 F.Supp. 302 (E.D.La. 1971). However, this court notes that, to its knowledge, Mass.Gen.Laws ch. 151B § 5 has not been interpreted by the Mass......
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