Cowlishaw v. Armstrong Rubber Co., 76 C 884.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation425 F. Supp. 802
Docket NumberNo. 76 C 884.,76 C 884.
PartiesHenry W. COWLISHAW, Plaintiff, v. ARMSTRONG RUBBER COMPANY, Defendant.
Decision Date28 January 1977

Thomas J. Lilly, New York City (Doran, Colleran, O'Hara, Pollio & Dunne, New York City, of counsel), for plaintiff.

William J. Doyle, New Haven, Conn. (Brotman & Dolin, New York City, and Wiggin & Dana, New Haven, Conn., of counsel), for defendant.


DOOLING, District Judge.

Plaintiff was born on June 19, 1912, and worked for defendant Armstrong Rubber Company from July 1962 or 1963 until he was involuntarily retired on July 1, 1974. At that time he was Metropolitan New York distribution sales manager. Plaintiff contends that defendant forced his retirement solely because of his age in violation of the Federal Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq. Defendant answers that its action was not violative of the Act because it retired plaintiff, as permitted by Section 623(f)(2)of the Act, under the terms of a bona fide employee benefit plan, a retirement or pension plan. In addition defendant pleaded two affirmative defenses —

(1) that plaintiff failed to file with the Secretary of Labor a notice of his intention to file an action under Section 626(c) of the Act within one hundred eighty days after the allegedly unlawful practice occurred; and
(2) that under the provisions of Section 633(b) plaintiff may not institute a Section 626 suit before the expiration of sixty days after state proceedings have been commenced unless the state proceedings have been earlier terminated, and plaintiff did not, as is required by Section 626(d)(2) in cases within Section 633(b), give notice to the Secretary of his intention to sue within the earlier of (a) three hundred days after the allegedly unlawful practice occurred or (b) thirty days after he received notice of the termination of the state proceeding.

Plaintiff did not send a formal notice of intention to sue to the Secretary of Labor until April 4, 1975, a date more than one hundred eighty but less than three hundred days after the date the allegedly unlawful practice occurred; April 4, 1975, was also more than thirty days after plaintiff received his last communication from the Connecticut Commission on Human Rights and Opportunities.

Armstrong advised plaintiff in the period June 22-28, 1974, that his employment would be terminated on July 1, 1974. Although there was some discussion of an alternative arrangement, a distributorship of some sort, nothing was agreed on, and plaintiff was involuntarily retired effective July 1, 1974.

Plaintiff conceived himself aggrieved by the enforced retirement, and he went about the end of June 1974 to the Federal Department of Labor office in Hempstead. At that time he seems to have supplied the Department with a handwritten statement of grievance. On July 26, 1974, plaintiff filed a formal complaint with the Department of Labor charging discrimination because of age. He was told that his claim would be processed through the Department's Hartford office. The transfer to Hartford apparently was accomplished about August 4, 1974, and plaintiff received letters about his matter from several persons connected with the Department's Hartford office: from Arthur Lichtig, dated August 5, 1974; from John J. Reardon, dated August 19, 1974, and October 7, 1974, and March 21, 1975. Plaintiff wrote to Mr. Reardon at the Hartford office of the Department of Labor on September 24, 1974, and on January 10, 1975; and he wrote to Mr. Swirsky at the New Haven office of the Department on January 10, 1975. The Department of Labor evidently directed its efforts to trying to encourage reinstatement or a compromise arrangement. Not, however, until a letter of October 7, 1974, did it recommend to plaintiff that he file a complaint with the Connecticut Human Rights and Opportunities Commission.

Plaintiff prepared a complaint to the Connecticut Commission dated October 15, 1974, which the Commission stated that it did not receive until November 12, 1974. By letter of November 18, 1974, a supervisor of the Commission advised plaintiff that the Connecticut law does not apply to terminations of employment in which the employee is entitled to benefits under a bona fide retirement or pension plan, that if he was so entitled the Commission could not effectively handle a complaint, that plaintiff's termination occurred more than 90 days before he contacted the Commission, and that the complaint fell outside the period in which the Commission could take complaints. Plaintiff, by letter dated December 11, 1974, vigorously protested the rejection of his claim. Plaintiff then, about December 20, 1974, spoke to a Mr. Johnson of the Department of Labor of the State of New York, or some other state agency, and was told to await the outcome of his federal application. Shortly afterward, by letter dated January 3, 1975, the Connecticut Commission advised plaintiff that his December letter had been post-marked January 1st and had been received January 3rd, 1975, and that it was correct that his complaint could not be taken because it was presented beyond the 90 day statute of limitations.

The Federal Department of Labor, through Compliance Officer Sam Swirsky, evidently continued efforts on plaintiff's behalf and, before completing the efforts, advised plaintiff by letter of March 21, 1975, that, as there might be delay in pursuing the settlement efforts with defendant, it was

". . . compelled to advise you that if you wish to institute a private action under the Age Discrimination in Employment Act you must, or through counsel, submit to our office a `notice of intent to sue' addressed to the Secretary of Labor. This must be done within 300 days of the alleged unlawful practice. From the information we have in hand it would appear that as of July 1, 1974, the 300 days commenced running."

Plaintiff sent a Notice of Intention to Sue to the Secretary of Labor under date of April 4, 1975, by registered mail. The present action was commenced on May 13, 1976, within two years after the allegedly unlawful practice. 29 U.S.C. 626(e), 255.

Defendant's argument is direct and clear-cut: sixty days notice must be given to the Secretary before the grievant may start an action; such notice must be given either (1) within 180 days after the allegedly unlawful practice occurred, or (2) if the state has an age discrimination law, then either within 300 days after the alleged unlawful practice occurred or within 30 days after the grievant receives notice of the termination of the state proceeding, whichever is earlier. Section 633(b) may seem inferentially to require that the grievant initiate a state proceeding where state law permits it. See Dubois v. Packard Bell Corp., 10th Cir. 1972, 470 F.2d 973, interpreting 42 U.S.C. 2000e-5(c), (d), (e). But cf. Bertrand v. Orkin Exterminating Co., 419 F.Supp. 1123, N.D. Ill.1976. Plaintiff, it is contended, did not meet the statutory time requirements because, if belatedly, he did commence a state proceeding, and he thereafter failed to serve notice of intention to sue within 30 days after he learned of the termination of the state proceeding.

Section 626(d) appears literally to produce the result for which defendant contends. (Section 633(b) adds the parallel requirement that the grievant not sue before 60 days after initiating a state proceeding unless that proceeding ends before the 60 days expire. That limitation would operate within the time strictures imposed by Section 626(d).)

Plaintiff here diligently pressed his claim both with the Federal Department of Labor and with defendant. But his failure to pursue his state remedy in a timely way, it is argued, deprives him of all right to relief. Federal deference to the state's remedial process thus ends, defendant contends, in a total loss of right. Such consequences are happily, not frequent in the law, and it would be well to be very certain that the statutes require it.

The statutes state and federal, create in individuals an important and new substantive right. Deference to state implementation of the state created right is not the dominant. The dominant is the creation of the new right and providing for its effective enforcement. The procedural implementation provided in the statute becomes a cheat unless it is read as directed to securing their substantive right to discharged employees. No defensive interest of the nation or of the state is sought to be protected by the time provisions of the statute. They exist solely to give the federal government, or in some cases that state government, the opportunity to eliminate the accused practice (29 U.S.C. 626(b), (d)), to commence an action on behalf of the aggrieved employee or employees (29 U.S.C. 216(c), 626(b), (c)), and to decide whether to permit the grievant to institute his own private action.

Clearly the cases have held that the right is lost if the discharged employee does not in some sense and form "file" a notice of intention to sue within one hundred eighty days after the unlawful practice occurred. Powell v. Southwestern Bell Telephone Co., 5th Cir. 1974, 494 F. 2d 485, now a leading case, took the view that complaining to the Federal Department of Labor was not enough; that, at least where the Department timely drew the grievant's attention to the specific time limits involved, the grievant was required to file a distinct notice of her intention to sue. A request to the Secretary to sue in the grievant's behalf was not considered to be an equivalent of a notice to sue. The Court observed that the two and three year statute of limitations invoked through Section 626(e) from 29 U.S.C. 255 served a different purpose: the grievant had not only to file the notice of intention to sue within 180 days, he had also to sue within the limitary period of 29 U.S.C. 255. Edwards v. Kaiser Aluminum & Chemical Sales,...

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