Davis v. Boy Scouts of America, Civ. No. 77-2226.

• Decision Date: 16 August 1978
• Docket Number: Civ. No. 77-2226.
• Citation: 457 F. Supp. 665
• Parties: Joseph J. DAVIS, Plaintiff, v. BOY SCOUTS OF AMERICA, a corporation, Defendant.
• Court: U.S. District Court — District of New Jersey

457 F. Supp. 665

Joseph J. DAVIS, Plaintiff, v. BOY SCOUTS OF AMERICA, a corporation, Defendant.

Civ. No. 77-2226.

United States District Court, D. New Jersey.

August 16, 1978.

Young, Rose & Millspaugh, P. C. by Frederick W. Rose, Peter M. Burke, Newark, N. J., for plaintiff.

Keywell & Rosenfeld, by Thomas W. H. Barlow, Troy, Mich., Shanley & Fisher, by Louis John Dughi, Jr., Newark, N. J., for defendant.

MEMORANDUM

CLARKSON S. FISHER, District Judge.

This case presents an issue which federal courts, and to some degree state courts, have been seeing with ever increasing frequency; that is, the right of an employer to mandatorily or involuntarily retire an employee upon his or her reaching a certain age. The recent enactments of legislation in this area, both federal and state, has resulted in a substantial change from the decisional law interpreting the legislation.¹ Thus this case is, in large measure, one of first impression.

This matter comes before the Court on various motions of the defendant to dismiss;² for a protective order; and to extend time for discovery.

A brief statement of the facts as alleged by the plaintiff is needed to put this matter in perspective. Davis was involved in scouting as an Eagle Scout and volunteer leader prior to commencing his employment with the Boy Scouts of America (hereinafter BSA). From 1942 to 1965 he was employed as a deputy scout executive and scout executive. From 1965 until 1974 he was employed as a director of a scout ranch. During 1974 he made a decision to retire, however, it is alleged that his superiors induced him to continue to work. The plaintiff alleges that he was persuaded not to retire at that time based upon promises of the creation of a new position specifically for him and that he would be allowed to remain in that position until his scheduled retirement in March of 1977. Plaintiff was, in fact, involuntarily retired on July 1, 1976, some nine months prior to that date.

The first hurdle that the defendant sets up is the filing requirement. This motion is in two parts, as is the other motion to dismiss. By the first part of this motion the defendant alleges that the Court lacks subject matter jurisdiction over the first count because of a failure to comply with the statutory requirements regarding filing. By the second part the defendant states that since jurisdiction in this matter is predicated upon the Age Discrimination in Employment Act (hereinafter ADEA) of 1967, a dismissal of count one will, of necessity, require the dismissal of counts two and three.

The defendant states that for the purpose of this motion certain facts have been stipulated. No stipulation of facts was ever filed nor is such a stipulation mentioned in the plaintiff's brief. The plaintiff's statement of facts, however, is identical to the defendant's stipulated facts. At the hearing the attorney for the defendant mentioned the stipulation and the plaintiff's attorney did not protest, thus it would appear that there is a stipulation though its exact contents were not made known. (Any apparent discrepancy will be indicated by italics.) The facts are as follows:

On May 27, 1976, Davis was verbally informed by John M. Clarehout, BSA's National Director of Operations, of the defendant's decision to place him on early retirement. By letter dated June 1, 1976 the May 27 conversation was "recapped" and Davis was given written notification that he ". . . would retire pre-normally from the Boy Scouts of America on June 30, 1976."

Davis continued to perform services for BSA at the defendant's national headquarters until June 9, 1976. On or about June 10, 1976, Davis travelled to Cimarron, New Mexico in his capacity as BSA's Manager of Philmont and High Adventure to give a speech at BSA's Philmont Scout Ranch. (Defendant does not state in what capacity Davis travelled, only that "while he was not additionally compensated for the engagement, his travel expenses were paid by the Boy Scouts of America.") (Defendant's brief, p. 1) (emphasis added). The speech was given on or about June 12, 1976 to approximately five hundred attendees of Philmont's Staff Opening Banquet, the event that marks the commencing of another season at Philmont. Following his speech at the banquet, Davis spent approximately one week at Philmont. (At the hearing it was indicated that the reason he stayed was to use up his vacation time prior to his retirement, as he was directed to do by his superiors). During this period of time and throughout the month of June, 1976, Davis continued to draw his regular salary from BSA.

On June 28, 1976, Davis returned to BSA's national headquarters and remained there throughout the week up to and including July 2, 1976. This final week at headquarters was spent bidding friends farewell and filling out the retirement and other forms necessary to disengage him from BSA in an orderly fashion.

On November 30, 1976 the United States Secretary of Labor was advised by counsel for Davis that Davis intended to sue BSA for age discrimination pursuant to the ADEA of 1967. Thereafter, notice of this intent to sue was reduced to writing by an intent to sue letter dated December 15, 1976. This letter was received by the Secretary of Labor's representative on December 16, 1976. On December 17, 1976 a verified complaint was received by the New Jersey Department of Law and Public Safety, Division on Civil Rights, in which Mr. Davis alleged age discrimination on the part of BSA.

While the filing requirements under the ADEA is not an area marked by severe variations in decisional law, it is, nonetheless, a notably murky region. In the Third Circuit the case of Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir. 1978) is the leading case in this area. The case here is not markedly different from Bonham, supra, but it is a variation of sorts. This case furthers the understanding of when an "alleged unlawful practice" is deemed to have occurred. By it the law becomes more refined and hopefully defined.

The Age Discrimination in Employment Act of 1967 was designed to promote the employment of persons between the ages of 40 and 64³ by prohibiting discriminatory employment decisions based on age. See 29 U.S.C. § 631. The substantive provisions of the Act are enforceable both by governmental actions and by private suits brought by aggrieved persons. Prior to the commencement of any action, the Secretary of Labor must be given an opportunity to eliminate the allegedly discriminatory practice through informal methods. 29 U.S.C. § 626(d). In order to provide the Secretary this opportunity to attempt conciliation, an aggrieved person must notify the Secretary that he intends to sue 60 days before commencing an action.

The Act imposes two additional procedural requirements on private litigants. Section 626(d)(1) provides that the 60 day notice of intent to sue must be filed with the Secretary of Labor "within one hundred and eighty days after the alleged unlawful practice occurred . . .."

Section 633 provides, in pertinent part:

"(b) In the case of an alleged unlawful practice occurring in a state which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 . . . before the expiration of sixty days after proceedings have been commenced under the State law, unless proceedings have been earlier terminated . . .."

Bonham v. Dresser, supra at 191. (Footnote added).

In this case, as in Bonham, both procedural requirements are in issue. The defendant correctly points out that, though other circuits have construed these time limitations as jurisdictional prerequisites, see Hiscott v. General Electric Co., 521 F.2d 632 (6th Cir. 1975); Powell v. Southwestern Bell Telephone Co., 494 F.2d 485 (5th Cir. 1974), the Third Circuit has agreed with the Tenth Circuit, Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), aff'd. per curiam, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977), in holding that they are merely in the nature of a statute of limitations, see Bonham v. Dresser, supra, and thus subject to the equitable principles of tolling and estoppel. Before it becomes necessary to determine the applicability of these equitable principles, I must determine which of the procedural requirements applies.

The plaintiff's first contention is that the extended 300 day limitation must apply as New Jersey has a law against age discrimination and an authority to grant the relief as specified by § 14(b) of the ADEA, 29 U.S.C. § 633(b).

In order for § 14(b) to apply, the State must have a law prohibiting discrimination in employment because of age and establishing a state authority capable of granting or seeking relief from the discrimination.

It can not be denied that the State of New Jersey has civil rights legislation which prohibits discrimination against persons with certain generic characteristics, age being one, see N.J.S.A. 10:5-1 et seq., specifically N.J.S.A. 10:5-12(a); Marshall v. West Essex General Hospital, 575 F.2d 1079 (3d Cir. 1978); Goger v. H. K. Porter Co., 492 F.2d 13, 15 (3d Cir. 1974), nor that it has an apparatus, i. e. a state agency, whereby one so aggrieved may seek redress.

Until recently the position of the Third Circuit had been that where a state had both a law prohibiting discrimination because of age and an agency empowered to act on such an allegation, resort to the state remedy was a jurisdictional prerequisite to suit in the federal courts. Rogers v. Exxon Research and Engineering Co., 550 F.2d 834 (3d Cir. 1977), cert. denied 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978); Goger v. H. K. Porter Co., supra; McCracken v. Shenango, Inc., 440 F.Supp. 1163 (W.D.Pa. 1977). But see Evans v. Oscar Mayer & Co., 580 F.2d 298 (1978) (on rehearing); Smith v. Jos. Schlitz Brewing Co., 419 F.Supp. 770, 773-4 (D.N.J...