Dreith v. National Football League

• Decision Date: 04 November 1991
• Docket Number: Civ. A. No. 91-C-1289.
• Citation: 777 F. Supp. 832
• Parties: Ben P. DREITH, Plaintiff, v. The NATIONAL FOOTBALL LEAGUE, Defendant.
• Court: U.S. District Court — District of Colorado

777 F. Supp. 832

Ben P. DREITH, Plaintiff, v. The NATIONAL FOOTBALL LEAGUE, Defendant.

Civ. A. No. 91-C-1289.

United States District Court, D. Colorado.

November 4, 1991.

Richard Vermeire, Denver, Colo., for plaintiff.

John Husband, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

Plaintiff Ben P. Dreith, a Colorado resident, commenced this action asserting claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (first through fifth claims), and a claim for outrageous conduct (sixth claim). Defendant National Football League (NFL), an unincorporated association with its principal place of business in New York, has moved: (1) to transfer the case to the Southern District of New York; (2) alternatively, to dismiss the plaintiff's ADEA claims; and (3) to dismiss the sixth claim pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has responded by opposing the motions. In addition the Equal Employment Opportunity Commission (EEOC) has filed a brief amicus curiae opposing the motions.

The parties have fully briefed the issues and oral argument would not materially facilitate decision. Jurisdiction exists under 28 U.S.C. § 1343, 29 U.S.C. §§ 216(b) and 626(c)(1) as well as this court's pendent jurisdiction.

I. Background.

The complaint alleges: In 1970 the NFL hired the plaintiff as a referee. In each of the subsequent eighteen years, the plaintiff was selected to referee post-season playoff games, including two Superbowls.

In December 1989, however, the NFL informed the plaintiff that he would not be allowed to officiate any of that year's playoff games. He was told in early 1990 that he would be demoted from referee to line judge for the 1990-1991 season. Plaintiff worked as a line judge that season, but again was not chosen to officiate any playoff games.

On March 5, 1990, the plaintiff filed a complaint with the Colorado Civil Rights Division alleging that he had been demoted because of his age. That complaint was transferred to the EEOC.

The NFL informed the plaintiff in January 1991 that it would not renew his contract for the coming season. On February 15, 1991, the EEOC issued a written determination that the NFL had violated the ADEA by demoting the plaintiff because of his age.

Plaintiff filed a second EEOC complaint on April 12, 1991, alleging that the NFL had discharged him because of his age. He amended that charge on April 30, 1991, to include the additional allegation that the NFL had discharged him in retaliation for filing his first EEOC complaint.

On May 15, 1991, the EEOC issued an amended determination of age discrimination that, in addition to restating the finding regarding the plaintiff's demotion to line judge, determined that the NFL's policy to unduly scrutinize its officials' on-field performance after they have reached age sixty violates the ADEA.

Plaintiff commenced this action on July 25, 1991. On August 13, 1991, the EEOC filed an action in the United States District Court for the Southern District of New York, alleging, inter alia, that the NFL had demoted the plaintiff because of his age. The district court in New York transferred the EEOC's action to the district of Colorado on October 9, 1991. (See plaintiff's supplement brief, Ex. A).

II. Analysis.

The NFL argues: (1) that this action should be transferred to the Southern District of New York pursuant to 28 U.S.C. § 1404(a); (2) that, alternatively, this action must be dismissed because it is barred by the EEOC's subsequently commenced suit; and (3) that, pursuant to Fed.R.Civ.P. 12(b)(6), the plaintiff's sixth claim must be dismissed.

A. Transfer Under 28 U.S.C. § 1404(a).

In its brief filed September 4, 1991, the NFL argues that this action should be transferred to the Southern District of New York. However, on October 9, 1991, that court granted the EEOC's unopposed motion to transfer its action to this district. Accordingly, the NFL's motion to transfer will be denied as moot.

B. Whether This Action is Barred by the EEOC's Subsequently Commenced Action.

The ADEA, 29 U.S.C. § 626(c)(1), provides, in pertinent part, that:

"Any person aggrieved by a violation of the ADEA may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee under this chapter." (emphasis added in part).

Relying primarily on Jones v. Janesville, 488 F.Supp. 795 (W.D.Wis.1980), the NFL argues that this action is precluded by the EEOC's subsequently filed case.¹ In Jones, the plaintiff had filed his complaint two days prior to commencement of the EEOC's action. Interpreting 29 U.S.C. § 626(c)(1), the Jones court found the words "to bring" ambiguous, and construed them to mean "to bring or maintain." Id. at 797 (emphasis added). The court therefore held that the plaintiff's action was precluded by the EEOC's later-filed action asserting the plaintiff's claims. Id.

Jones obviously is not controlling precedent and the Tenth Circuit has not spoken on the issue presented. I conclude that the better reasoned analysis is found in cases decided after Jones, and that the weight of authority is contrary to it. As those later cases conclude, the Jones court's interpretation of the words "to bring" in 29 U.S.C. § 636(c)(1) engrafts upon the statute a meaning not justified by its plain language, Congress' intent or relevant policy concerns.

In interpreting a statute, a court obviously must begin with the statutory language. Demarest v. Manspeaker, ___ U.S. ___, 111 S.Ct. 599, 602, 112 L.Ed.2d 608 (1991). It is a basic tenet of statutory construction that if a statute is clear and unambiguous on its face, it must be given its plain meaning. Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1510 (10th Cir.1985); Nevada Power Co. v. Watt, 711 F.2d 913, 920 (10th Cir.1983). In the absence of a clearly expressed legislative intention to the contrary, the unambiguous language of the statute itself ordinarily must be regarded as conclusive. Burlington N.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461, 107 S.Ct. 1855, 1859-60, 95 L.Ed.2d 404 (1987).

Indeed the United States Supreme Court has held that if a statute's terms are unambiguous, judicial inquiry into Congressional intent that potentially may require a contrary interpretation is inappropriate, unless exceptional circumstances dictate otherwise. Id.; Demarest, 111 S.Ct. at 603. Thus absent ambiguity in the statutory language, lower federal courts are bound to apply a literal interpretation to a statute's words. Id. (both cites); United States v. Colorado Dept. of Health et al., 89-C-1646, slip op. at p. 7, 1991 WL 193519 (D.Colo., Aug. 14, 1991).

In United States v. Durre, 87-CR-386 (D.Colo.1987), this court looked beyond literal statutory language to conclude that 28 U.S.C. § 1821(a)'s legislative history indicated that Congress did not intend prison inmates to be paid witness fees when subpoenaed and brought by writ to court to testify on behalf of fellow inmates. Similarly interpreting congressional intent, the Tenth Circuit affirmed in a split decision sub nom Demarest v. Manspeaker, 884 F.2d 1343 (10th Cir.1989).

But the United States Supreme Court reversed, holding that resort to legislative history was improper because the statute was unambiguous. Demarest, 111 S.Ct. at 604. Ninety-one days after the Supreme Court announced its decision in Demarest, the President signed into law a bill plainly stating that incarcerated witnesses are not entitled to witness fees under § 1821, thus expressing the intent this court initially, but erroneously, had found to be implied.

Interpreting the language of the ADEA § 626(c)(1), I find its words "to bring" plain and unambiguous, susceptible only to the interpretation "to commence" or "to file." It follows that a private ADEA action is not extinguished by a later commenced EEOC action that asserts, in whole or in part, the private plaintiff's claims. If Congress intends a different result, it is for Congress to amend the statute.

That conclusion reflects the majority view. Indeed since Jones was decided, courts virtually unanimously have concluded, in well reasoned and persuasive opinions, that commencement of an ADEA action by the EEOC does not preclude or require dismissal of an earlier-filed private ADEA action. See, e.g., Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1465 (11th Cir.1984), later proceeding rev'd on other grounds, 837 F.2d 1550 (11th Cir.1988); EEOC v. Eastern Airlines, Inc., 736 F.2d 635, 639-41 (11th Cir.1984); Burns v. Equitable Life Assur. Soc., 696 F.2d 21, 23-24 (2d Cir.1982), cert. denied, 464 U.S. 933, 104 S.Ct. 336, 78 L.Ed.2d 306 (1983); Howard v. Daiichiya-Love's Bakery, Inc., 714 F.Supp. 1108, 1111 (D.Haw.1989). Those courts have assigned to § 636(c)(1)'s words "to bring" their ordinary meaning "to commence," refusing to construe that statutory language as meaning "to commence and maintain." See Eastern Airlines, 736 F.2d at 639-40; Burns, 696 F.2d at 23-24; Howard, 714 F.Supp. at 1111.

The NFL, however, cites Chapman v. Detroit, 808 F.2d 459 (6th Cir.1986), for the proposition that where the EEOC's case and a private plaintiff's ADEA case are commenced "virtually simultaneously," the plaintiff's action is precluded. Chapman reached that result where the individual action had been commenced only fourteen minutes prior to the EEOC's separate action. Id. at 463-464.

Even were I to accept the Chapman court's conclusion that § 636(c)(1) allows the EEOC's nearly simultaneous but later filing to preempt an individual plaintiff's prior-commenced action, the plaintiff filed this action eighteen days before the EEOC commenced its case. Obviously there was no virtually simultaneous...