Dartt v. Shell Oil Co.

• Citation: 539 F.2d 1256
• Decision Date: 19 August 1976
• Docket Number: No. 75-1277,75-1277
• Parties: 13 Fair Empl.Prac.Cas. 12, 12 Empl. Prac. Dec. P 11,119 Anne M. DARTT, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1256

539 F.2d 1256

13 Fair Empl.Prac.Cas. 12, 12 Empl. Prac.

Dec. P 11,119

Anne M. DARTT, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.

No. 75-1277.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Jan. 29, 1976.

Decided July 22, 1976.

Rehearing Denied Aug. 19, 1976.

Jefferson G. Greer of Greer & Greer, Tulsa, Okl., on the brief, for appellant.

Mary T. Matthies of Kothe, Nichols & Wolfe, Tulsa, Okl., for appellee.

Jacob I. Karro, Washington, D. C. (William J. Kilberg, Sol. of Labor, Carin Ann Clauss, Associate Sol., Sylvia S. Ellison, Paul D. Brenner, Washington, D. C., and Ronald M. Gaswirth, Regional Sol., Dallas, Tex., of counsel, on the brief), for The Secretary of Labor as amicus curiae.

Before LEWIS, Chief Judge, and BREITENSTEIN and BARRETT, Circuit Judges.

LEWIS, Chief Judge.

Mrs. Anne M. Dartt sued the defendant Shell Oil Company alleging violations of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 et seq., and the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 et seq. The trial court dismissed Dartt's action for lack of subject matter jurisdiction because of Dartt's failure to file her notice of intent to sue within the 180-day period as required under 29 U.S.C. § 626(d)(1). ¹

Dartt had been employed at Shell's Credit Card Center in Tulsa, Oklahoma, from January 3, 1966, to July 31, 1973, at which time she was discharged. Ostensibly, Dartt was terminated by Shell because a reorganization of the credit card department had left her without any work. Dartt, who was fifty-one years of age at the time of her termination, believed that her discharge was prompted because of her age and therefore contacted an attorney. She was told by this attorney that it was unnecessary to have an attorney and that she should instead contact the Federal Wage and Hour Division. Pursuant to this advice, on August 9, 1973, Dartt met with J. Dean Speer, the Assistant Area Director of the Department of Labor's Wage and Hour Division in Tulsa. Mr. Speer interviewed Dartt, filled out the Department's complaint form, and instructed Dartt that he would investigate. When asked how long the investigation would take, Speer responded that it might take a year.

Believing that he had a good working relationship with Shell, Speer called Shell immediately following Dartt's visit to his office in an attempt to conciliate Dartt's complaint. Speer met several times with Shell's manager of employee relations, but concluded that his conciliation efforts with Shell were unsuccessful and moved into what he termed "an investigative posture." At this time Shell agreed to make internal studies and to prepare statistical information on its hiring and promotion practices as requested by Speer in his investigation of Dartt's complaint.

Finally, after not having received the requested information from Shell, Speer notified Dartt by letter dated March 5, 1974, that there would be some delay in completing the investigation. In this letter Speer discussed her private right to sue, enclosed a pamphlet detailing the provisions of the ADEA, and directed Dartt's attention to the time limitations for filing one's own lawsuit. Dartt testified that the letter and pamphlet constituted her first actual notice of her right to bring a private action and the 180-day notice requirement. She immediately retained private counsel who on March 14, 1974, mailed a letter to the Tulsa office of the Department of Labor giving notice of Dartt's intention to file a private lawsuit against Shell for violation of the ADEA.

After receiving this notice, Speer attempted to "reconciliate" Dartt's complaint, again without success. Speer notified Dartt's attorney on May 16, 1974, that the Department's efforts had proved unsuccessful and that she was free to take whatever action she wished. The present lawsuit was filed as a class action on May 21, 1974.

Dartt advances essentially two arguments on appeal: (1) While admitting that filing a notice of intent to sue is a prerequisite of a private civil action under the ADEA, Dartt contends that the 180-day period for doing so is not jurisdictional in the sense that it can never be extended and asserts that this is a proper case for such extension; and (2) Even if the 180-day period is not subject to equitable modifications, Dartt's initial complaint to the Wage and Hour Division was adequate to satisfy the requirement of filing a notice of intent to sue. Dartt's latter argument is supported by the Department of Labor in its amicus curiae brief.

At the start we reject Dartt's second argument. Section 626(d) specifically requires a "notice of an intent to file" a private civil action. To hold that a complaint to the Labor Department of an alleged discriminatory employment practice complies with this requirement, even though the complaint never mentions an intent to file a private civil action under the ADEA, would be in complete disregard of the language of the Act. Powell v. Southwestern Bell Telephone Co., 5 Cir., 494 F.2d 485, 489.

The remaining issue in this case is whether the filing of a notice of intent to sue within the 180-day period provided for in section 626(d)(1) is jurisdictional in the traditional sense that failure to comply is an absolute bar to bringing an action or whether the time limitation is more analogous to statutes of limitation and subject to equitable modifications. Admittedly, ample authority supports the trial court's conclusion that compliance with section 626(d)(1) is a "jurisdictional prerequisite" to any private action under the ADEA. ² However, after examining the cases and the legislative history, we remain unconvinced that Congress intended the failure to file notice within the 180-day notice period to be an absolute bar to bringing an ADEA private action.

Because of the similarities between the ADEA and Title VII of the Civil Rights Act of 1964, courts sometimes refer to interpretations of provisions in Title VII for assistance in defining analogous sections of the ADEA. Moses v. Falstaff Brewing Corp., 8 Cir., 525 F.2d 92, 94; Curry v. Continental Airlines, 9 Cir., 513 F.2d 691, 693; Goger v. H. K. Porter Co., 3 Cir., 492 F.2d 13, 15. Title VII requires the complainant to file a charge of alleged unlawful employment practices with the Equal Employment Opportunities Commission (EEOC) within 180 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e). Faced with the issue of whether this Title VII time period was jurisdictional or more like a statute of limitations, the Fifth Circuit held:

The ratio decidendi, however, of the leading cases dealing with timing requirements in general under the Act compels the conclusion that the ninety day requirement (amended in 1972 to 180 days) is not "jurisdictional" in the sense that compliance with it vel non determines the jurisdiction of the district court, without respect to any of the other circumstances in a particular case. We accept the view that the requirement should be analogized to statutes of limitations. Equitable modifications, such as tolling and estoppel, that are applied to them should also be applied here.

Reeb v. Economic Opportunity Atlanta, Inc., 5 Cir., 516 F.2d 924, 928. Reeb is not alone in allowing equitable considerations to toll the time limitations established by Title VII. See, e. g., Culpepper v. Reynolds Metals Co., 5 Cir., 421 F.2d 888, 891; Antonopulos v. Aerojet-General Corp., E.D.Cal., 295 F.Supp. 1390, 1395. The Reeb court's holding that the notice period was not jurisdictional in the strict sense was based on the arguments that: (1) Since the complainants under the Act would most likely be laymen, they should not be held to "the technical rules of common law pleading" in filing their charges; (2) Title VII was remedial legislation and therefore entitled to a liberal construction; and (3) Many of the cases calling the time limitation "jurisdictional" were suffering from a "conceptual confusion" since having labeled the requirement jurisdictional they proceeded to toll the time limitation for equitable reasons.

This court has also determined that under certain conditions the 180-day period for filing charges with the EEOC may be tolled. Sanchez v. Trans World Airlines, Inc., 10 Cir., 499 F.2d 1107, 1108. See also Archuleta v. Duffy's Inc., 10 Cir., 471 F.2d 33 & n.1 (where this court referred to the time limitation for filing a civil action after receiving a right-to-sue notice from the EEOC as a "statute of limitations").

Many of the arguments advanced for tolling Title VII time limitations are applicable to the time limitations in the ADEA. In a recent case discussing section 626(d)(1) time limitations, a court observed that the confusing use of the term "jurisdictional" in some Title VII cases was also occurring in ADEA cases: "Many courts have labeled the filing requirements 'jurisdictional' but have treated them as analogous to statutes of limitations and subject to equitable modifications." Skoglund v. Singer Co., D.N.H., 403 F.Supp. 797, 804. For example, a recent Fifth Circuit case held that section 626(d)(1) prerequisites were jurisdictional, but proceeded to outline several instances where the 180-day notice period might be tolled. Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 5 Cir., 515 F.2d 1195, 1198. In dictum, the court suggested that the period might be tolled until an aggrieved employee obtained legal counsel or acquired an actual knowledge of his rights under the ADEA. The court concluded, however, that it need not determine whether tolling was allowable because the plaintiff in that case had failed "to file notice within 180 days of securing counsel or within 180 days of actual knowledge." Id. Thus, it appears that even though the Fifth Circuit was the first court of appeals to label section 626(d)(1) requirements as jurisdictional, Powell, supra, it has left the door open for possible equitable modification of...