Cornett v. AVCO Financial Services, 84-2120
| Decision Date | 06 June 1986 |
| Docket Number | No. 84-2120,84-2120 |
| Citation | 792 F.2d 447 |
| Parties | 40 Fair Empl.Prac.Cas. 1763, 40 Empl. Prac. Dec. P 36,306 Jack CORNETT, Appellant, v. AVCO FINANCIAL SERVICES, ONE, Inc., a corporation, and AVCO Financial Services, Inc., a corporation, and AVCO Financial Services Management Inc., a corporation, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John Boettner, Jr. (Boettner & Clark, Charleston, W.Va., on brief), for appellant.
Charles M. Surber, Jr. (Jackson, Kelly, Holt & O'Farrell, Charleston, W.Va., on brief), for appellees.
Before PHILLIPS and ERVIN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.
Jack Cornett appeals the dismissal of his claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 to Sec. 634. The district court held that Cornett's failure to commence state age discrimination proceedings in the proper state forum violated 29 U.S.C. Sec. 633(b), which requires that in states with agencies empowered to remedy age discrimination, a claimant may not bring an ADEA suit until sixty days after commencing a proceeding with that state agency. Cornett challenges this ruling on the basis that the Equal Employment Opportunity Commission's (EEOC) mistake in referring his charge to an improper state agency should not be charged against him.
We disagree, and affirm. We agree with the district court that under the ADEA, Cornett was required to commence state proceedings in West Virginia, and that the deferral of his claim to California did not satisfy the ADEA's requirement. We further conclude that the district court did not abuse its discretion in failing under the circumstances to waive the state proceeding requirement because of the EEOC's erroneous deferral of Cornett's claim to the wrong state.
Cornett was employed by AVCO Financial Services Management Company as branch manager of its Huntington, West Virginia, office, from 1959 until his discharge in August of 1978. In that same month, Cornett filed a charge of discrimination with the United States Labor Department at its West Virginia office, alleging discharge because of his age. The Labor Department transferred Cornett's charge to the EEOC as required by presidential Reorganization Plan Number 1 of 1978. In January of 1980, the EEOC forwarded the complaint to its Philadelphia office, because AVCO was located within that office's geographical jurisdiction. The EEOC Philadelphia office then referred Cornett's complaint to the Los Angeles, California district office where AVCO has its principal place of business and home office. 1
The Labor Department and the EEOC later advised Cornett that conciliation efforts had been unsuccessful and that they would take no further action on his complaint. Both noted he could proceed as a private litigant. Meanwhile, in October of 1980, the California State Department of Fair Employment and Housing notified Cornett of receipt of his EEOC complaint referred to them by the EEOC Los Angeles office. The letter explained that by filing with the Department, Cornett obtained the right to file a private suit under California law.
On August 1, 1980, Cornett and Roy Tully, not a party to this appeal, brought the present action for age discrimination in the District Court for the Southern District of West Virginia. One month later, in its answer to the Tully-Cornett complaint, AVCO raised a number of affirmative defenses, one of which was that Cornett's claims were barred by his failure to have commenced appropriate state proceedings.
On June 9, 1982, AVCO filed, among other motions, a motion to dismiss, again raising the commencement of state proceedings defense and included a letter memorandum supporting the motions. AVCO premised the defense upon Cornett's failure to file a state claim in the appropriate state forum, West Virginia, asserting that because the alleged act of discrimination occurred in West Virginia, the California filing clearly did not fulfill the "commencement" requirement of 29 U.S.C. Sec. 633(b). 2 In September of 1982, AVCO again submitted a letter memorandum supporting its motion to dismiss upon those grounds.
Two years later, in September of 1984, after settlement of Tully's claim, the district court granted AVCO's motion and dismissed Cornett's action for failure to have commenced state proceedings. The court noted that under Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), an ADEA claimant must file with the appropriate state agency before bringing suit under the Act. The filing of Cornett's claim with the California agency, however, did not satisfy this mandate. Rather, the court held, Cornett should have filed his administrative claim in West Virginia where the alleged act of discrimination occurred.
This appeal followed.
The only real issue presented is whether the district court erred as a matter of law, or, if not that, abused its discretion, in declining to waive, or treat as "tolled," the state filing requirement and to allow Cornett belatedly to "commence a proceeding" in the proper state, West Virginia, while holding the federal action in abeyance.
The district court correctly applied the substantive rule of Oscar Mayer in holding that the commencement of state proceedings requirement of Sec. 633(b) is mandatory and not optional; that it mandated for Cornett commencement of state proceedings in West Virginia; and that Cornett's failure so to proceed legally barred this action.
Cornett contends, however, that Oscar Mayer also mandated that under the circumstances of this case, the EEOC's fault in referring Cornett's proceeding to the wrong state, California, entitles Cornett now to the opportunity belatedly to commence a state administrative proceeding in West Virginia to validate his pending federal ADEA action. 3 We do not agree that this relief was compelled--either as a matter of law, or because its withholding was an abuse of discretion under the circumstances.
The Oscar Mayer Court did, itself, extend such an opportunity to the claimant in that case, after finding an agency-induced failure to comply with Sec. 633(b) which, absent the relief, would have barred the claim. 441 U.S. at 764, 99 S.Ct. at 2075-74. Cornett seems to suggest that this either established a per se rule of entitlement to comparable relief in any case where agency error causes a failure to comply with Sec. 633(b), or at least sets a standard for discretionary grant of the...
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