Dunlop v. Resource Sciences Corp., 74-C-316.

• Decision Date: 13 February 1976
• Docket Number: No. 74-C-316.,74-C-316.
• Citation: 410 F. Supp. 836
• Parties: John T. DUNLOP, Secretary of Labor, United States Department of Labor, Plaintiff, v. The RESOURCE SCIENCES CORPORATION, a corporation, Defendant.
• Court: U.S. District Court — Northern District of Oklahoma

410 F. Supp. 836

John T. DUNLOP, Secretary of Labor, United States Department of Labor, Plaintiff, v.The RESOURCE SCIENCES CORPORATION, a corporation, Defendant.

No. 74-C-316.

United States District Court, N. D. Oklahoma.

January 23, 1976.

Order Sustaining Motion to Dismiss February 13, 1976.

Wm. J. Kilberg, Ronald M. Gaswirth, Wm. E. Everheart, Richard L. Collier, Dallas, Tex., for plaintiff.

Harry L. Seay, III, Hall, Estill, Hardwick, Gable, Collingsworth & Nelson, Tulsa, Okl., for defendant.

Order Sustaining Defendant's Motion to DismissFebruary 13, 1976.

COOK, District Judge.

ORDER

The Court has before it for consideration the Motion of the defendant, Resource Sciences Corporation, to Dismiss paragraph VIII and all other parts of the Complaint which seek relief under the Age Discrimination Act on the grounds that plaintiff, John T. Dunlop, failed to comply with the jurisdictional prerequisites before bringing this case to this Court.The Age Discrimination Act, 29 U.S.C. § 626(b) provides in part,

"Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion."

Defendant relies on Brennan v. Ace Hardward Corp.,495 F.2d 368, 374(8th Cir.1974) as support for its proposition that the quoted language of § 626(b) requires the Secretary of Labor to ". . . initially use exhaustive, affirmative action to achieve conciliation before legal action is begun."In affirming the District Court's judgment in favor of the defendant the Eighth Judicial Circuit placed a heavy burden on the Secretary to actively pursue a resolution to the conflict.

The District Court found that two personal meetings, and one telephone call between a compliance officer from the Department of Labor and the employer along with a four-month interval between the last conversation and the filing of the lawsuit were not sufficient to satisfy the requirements of § 626(b).In affirming these findings the Eighth Judicial Circuit concluded that compliance with § 626(b) is not a rigid test but a program which must be flexible and responsive to the attitudes of the employer.However, the Circuit agreed with the District Court when it found that active pursuit of voluntary compliance required some type of notification to the violator, 1) of what the Secretary desires the violator to do in order to comply, 2) informing the violator that back wages may be recovered, 3) that the file was being referred to the Secretary for review and possible legal action, and 4) that the violator should be given an opportunity to respond "to the violations in light of a `make whole' remedy."Brennanat 375.In the eyes of the District Court, active pursuit of compliance is not allowing a case to lay dormant for four months.

In support of its Motion to Dismiss, the defendant, through the affidavit of Harold J. Wages, Vice President and General Counsel of defendant, asserts the following contacts with the Secretary of Labor.On November 19, 1973, the affiant conferred with Mr. Spear from the Department of Labor on defendant's premises.The affiant was informed of the complaint filed by Victor Houser.Mr. Spear interviewed employees of defendant on November 19, 1973.In January, 1974, Mr. Spear demanded to conduct interviews of defendant's employees without the presence of defendant's officials.Defendant refused such a request and demanded to see copies of the complaints lodged against it.Shortly thereafter the affiant contacted the Dallas office of the plaintiff and requested copies of the complaints.Each of the parties reiterated its demands.The defendant was advised that the Department of Labor"would either seek the records through administrative discovery or file suit, but we were specifically advised by the Department in Dallas that we had not at that time been found guilty of discrimination as charged, and that we would be advised later when the investigation was complete."(Affidavit of Wagespage 2).According to affiant on January 30, 1974, the last telephone conversation between the parties took place before plaintiff filed suit on August 5, 1974.This last contact consisted of a demand by defendant to have counsel present at any interviews on company premises and a demand for copies of the complaints against defendant.Defendant refused to allow further document discovery or interviews unless these demands were met by plaintiff.Affiant has knowledge of interviews with at least two of defendant's employees by plaintiff which were conducted off defendant's premises.Affiant Wages asserts that,

"At no time before suit was filed were defendant's officers, management, or counsel advised (1) that Plaintiff had administratively found Defendant in violation of the Age Discrimination Act, or (2) what Plaintiff required of Defendant to comply voluntarily with the Age Discrimination Act, or (3) that unless Defendant did the things specified by Plaintiff to comply voluntarily with the Age Discrimination Act it would be sued without further notice, nor did Plaintiff(4) request Defendant to bring itself into voluntary compliance with the Age Discrimination Act in regard to this proceeding."

The defendant has attempted by way of Requests for Admissions to determine whether any actions other than those recited above had been taken by the plaintiff before filing suit.Plaintiff filed Plaintiff's Answers to Defendant's Request for Admissions on September 8, 1975, wherein the plaintiff does not dispute the assertions of non-compliance by the plaintiff with § 626(b) but wherein plaintiff takes the position that defendant's "unwillingness to cooperate on the part of the Defendant effectively prevented Plaintiff from following the procedures and making the determinations which normally are a part or by-product of Plaintiff's investigatory and conciliatory efforts and, further, said unwillingness to cooperate rendered futile any attempts by Plaintiff to continue those investigatory and conciliatory efforts."(Answer I of Answers to Request for Admissions).

Plaintiff denies that more than six months expired between the last contact between the parties and the filing of this lawsuit on August 5, 1974.(Answer to Request for Admission V filed Sept. 8, 1975).On November 14, 1975, the plaintiff answered Defendant's Second Requests for Admissions by inserting "Denied" after each request except for Request for AdmissionsNo. 1andNo. 8 after which plaintiff inserted the word "Admitted".With few exceptions the plaintiff appears to admit the requests of defendant and to explain its actions by alleging uncooperativeness on the part of the defendant.Defendant contends that the responses to the Request for Admissions have not met the substance of the requested admission and that the Court should rule that the requests are admitted pursuant to Rule 36(a) of the Fed.R.Civ.P.

The plaintiff responds to the allegation of non-compliance with Title 29 U.S.C. § 626(b) by citing a recent yet unpublished case from the Fourth Judicial Circuit, Hodgson v. Approved Personnel Service, Inc.,529 F.2d 760, Decided October 28, 1975, and arguing that where the defendant refuses to cooperate in the investigation or attempts to conciliate the Department of Labor has no alternative but to file suit.At the outset one distinction between HodgsonandBrennan v. Ace Hardward Corp.,supra, is obvious.Where the compliance officer in Ace Hardware Corp. met with denials of a violation and thus a requirement that the Department of Labor find a violation the compliance officer in Hodgson met with an admission to the violation and a firm promise to comply with the act.It appears that the officer in Hodgson conciliated the violation.The problem was that Approved Personnel Service, Inc., did not honor its promise.

Plaintiff submits the affidavit of Richard L. Collier, attorney for the United States Department of Labor, wherein affiant states that he supervised the investigation in this case and found that Victor Houser was discharged because of his age.Affiant states that this was brought to the attention of officials of defendant on November 19, 1973.Affiant asserts that defendant refused to allow the plaintiff to conclude its investigation by examining the records of Resource Sciences Corp. and interviewing employees of defendant on corporate premises.Affiant states that subsequent telephone conversations were conducted between Mr. Harry Seay, counsel for defendant, and George T. Avery, Regional Solicitor for the Department of Labor, and that one such conversation occurred in February, 1974.On December 26, 1975, defendant filed Plaintiff's Answers to Defendant's Second Interrogatories wherein the plaintiff states that George T. Avery had no record of a telephone conversation with Mr. Harry Seay in February, 1974.Affiant states that he has discussed the re-employment of Mr. Houser with Mr. Seay as late as November 7, 1975, and was unable to secure re-employment.

Plaintiff argues that "The statute requires an employer to make his records available for examination by the United States Department of Labor."

Title 29 U.S.C. § 626(a) provides that,

"The Secretary shall have the power to make investigations and require the keeping of records necessary or appropriate for the administration of this chapter in accordance with the powers and procedures provided in sections 209and211 of this title."

Title 29 U.S.C. § 209 refers to "sections 49and50 of Title 15(relating to the attendance of witnesses and the production of books, papers, and documents)," in effecting an investigation, and Title 29 U.S.C. § 211 grants the Secretary authority to enter and inspect such places and such records and to question employees as he may deem necessary.Title 15 U.S.C. § 49 provides for...