Ewald v. Great Atlantic and Pacific Tea Co., Inc.

Decision Date09 May 1980
Docket NumberNo. 77-1600,77-1600
Citation620 F.2d 1183
Parties22 Fair Empl.Prac.Cas. 1263, 23 Empl. Prac. Dec. P 30,930 Gilbert EWALD, Plaintiff-Appellant, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Joseph J. Mellon, Cheboygan, Mich., for plaintiff-appellant.

Sheldon S. Toll, Patrick T. Duerr, Honigman, Miller, Schwartz & Cohn, Detroit, Mich., Robert W. Hartland, Reed, Smith, Shaw & McClay, Pittsburgh, for defendant-appellee.

Before LIVELY, BROWN and JONES, Circuit Judges.

LIVELY, Circuit Judge.

The issues in this case relate to time requirements contained in the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (1976) (ADEA or the Act). The Act provides that before a civil action may be brought by an individual, the plaintiff must give the Secretary of Labor "not less than sixty days' notice of an intent to file such action." 1 The two subsections of § 626(d) following the quoted language then establish the time requirement for giving notice to the Secretary as follows:

Such notice shall be filed

(1) within one hundred and eighty days after the alleged unlawful practice occurred, or

(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

ADEA § 7(d)(1), (2); 29 U.S.C. § 626(d)(1), (2).

The Act also encourages settlement of claims of age discrimination in employment by conciliation at the state level. States which have a law prohibiting age discrimination in employment and an agency authorized to grant or seek relief from such discrimination are known as "deferral states." Though initial complaints and notices may be filed with a state agency and the U. S. Department of Labor simultaneously where a claimed act of discrimination occurs in a deferral state, no federal court action may be filed until the expiration of 60 days after proceedings have been commenced under the state law. 2 While the Supreme Court has held that the commencement of state proceedings is mandatory in deferral states, this step may be taken after a federal court action is begun and that action may be held in abeyance pending the outcome of state proceedings. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 2076, 60 L.Ed.2d 609 (1979).

Thus the scheme of the Act is to require resort to state procedures in deferral states, with the state agency having 60 days to effect conciliation before its efforts are superseded by court proceedings. Further, in cases from both deferral and non-deferral states the Secretary of Labor is given 60 days to attempt conciliation before an individual may seek relief in court.

I.

In the present case the plaintiff-appellant, Ewald, was terminated by the defendant-appellee, A&P, on April 21, 1975. Ewald was 42 years old and entitled to the protection of the Act. The alleged act of discrimination occurred in Michigan, a deferral state. See Rucker v. Great Scott Supermarkets, 528 F.2d 393 (6th Cir. 1976). On January 26, 1976 Ewald notified the Secretary of Labor of his intent to bring an action under ADEA. This was more than 180 days and less than 300 days after his termination. However, Ewald did not file a complaint with the Michigan Civil Rights Commission (MCRC) until March 25, 1976, 319 days after his termination. Plaintiff's counsel was advised that the MCRC could take no action on his complaint because it was filed more than 90 days after the alleged discriminatory act. See Michigan Compiled Laws §§ 423.301 et seq.

This action was filed in the district court on August 19, 1976. After discovery had been completed by the defendant it moved for summary judgment on the ground that the action was barred for failure of the plaintiff to pursue his state remedies in a timely manner and failure to notify the Secretary of Labor of his intention to sue within 180 days. The plaintiff responded that he had not filed suit until more than 60 days after tendering a complaint to the MCRC and that his notice to the Secretary was given within the 300-day period provided for deferral states. Observance of these limits made his filing timely, he claimed. He also argued that there were equitable reasons for not requiring strict adherence to the notice requirement. The district court granted the motion for summary judgment and dismissed the action upon finding that Ewald had not timely filed with the MCRC or notified the Secretary of Labor within the time limits established by § 626(d). The district court further found no basis for permitting a deviation from the requirements of the Act on equitable grounds.

II.

Though an ADEA claimant in a deferral state must commence an action under state law, his federal rights are not affected by a state provision which requires filing or notice within a period which is shorter than the 180-day notice period of § 626(d)(1). State limitations provisions "cannot govern the efficacy of the federal remedy." Oscar Mayer & Co. v. Evans, supra, 441 U.S. at 762, 99 S.Ct. at 2074; Gabriele v. Chrysler Corp., 573 F.2d 949, 956 (6th Cir. 1978) (concurring opinion), vacated and remanded on other grounds, 442 U.S. 908, 99 S.Ct. 2819, 61 L.Ed.2d 273 (1979); Bonham v. Dresser Industries, Inc., 569 F.2d 187, 194 (3d Cir. 1977). Thus the fact that Ewald failed to file with the MCRC within 90 days was of no consequence. However, we must decide whether the fact that he neither commenced a state action nor notified the Secretary of Labor of his intent to bring suit within 180 days after his termination required dismissal of his action. The question is: Does the fact that an alleged violation of the Act occurred in a deferral state give the plaintiff 300 days in which to notify the Secretary of intent to sue, even though no state action is begun within 180 days of the occurrence?

The Ninth Circuit had this question before it in Bean v. Crocker National Bank, 600 F.2d 754 (1979), and held that Oscar Mayer, supra, and the plain language of the Act compel the conclusion that "in a deferral state, an ADEA claimant may provide notice of intent to sue to the Secretary within 300 days of an alleged discriminatory act regardless of whether or not state proceedings have been timely commenced." 600 F.2d at 759. We respectfully decline to follow the Bean decision. As we read Oscar Mayer, it holds that a deferral state complainant may not ignore the state procedures and that failure to comply with a state requirement for commencing proceedings in a period shorter than 180 days does not bar a federal action. However, since the plaintiff in Oscar Mayer did notify the Secretary within 180 days, that case did not involve entitlement to the benefit of the extended notification period. One footnote statement in Oscar Mayer indicates that if this question had been before the Court it would have decided the matter as we do in this opinion. 3 Referring to the second basis of the Bean decision, a casual reading of the statute might lead one to the conclusion that a deferral state claimant has no duty to give notice or commence an action within 180 days. However, when the overall structure and scheme of the Act are considered, we find this conclusion untenable.

Congress appears to have concluded that 180 days is a reasonable time for an aggrieved party to determine that a claim under the ADEA exists. The only discernible reason for extending the notification period for a claim arising in a deferral state is to give the state an opportunity to conciliate the dispute. One purpose of the notice provisions of § 626(d) is to protect the employer and any other prospective defendants from the necessity of defending stale claims. The Secretary is required to notify prospective defendants "promptly" upon receiving notice of intent to sue. 29 U.S.C. § 626(d). The 300-day provision will not work to the detriment of prospective defendants if state proceedings are begun within 180 days because they will learn of the claims through the state agency which is seeking to conciliate them. However, if a deferral state plaintiff takes no steps during the 180-day period the claim may be as much as 300 days old when the prospective defendants receive their first notice of it.

To require a deferral state plaintiff, within 180 days of the occurrence, either to commence state proceedings or to notify the Secretary of intent to sue would impose upon him the same basic time limit for initiating action as that imposed by the Act on a claimant in a non-deferral state. If he chooses to exhaust his state remedies before resorting to any federal procedure, a claimant may defer giving notice to the Secretary for as long as 300 days after the alleged discriminatory act. During that period the matter may be resolved through state efforts and no notice to the Secretary will be required. However, if the claimant fails to commence state proceedings within 180 days, he should be required to give the Secretary notice of intent to sue within that time. Otherwise, claimants in deferral states who make no effort to use the state procedures would have 120 days longer to initiate an ADEA claim than those with identical claims in non-deferral states. The purpose of the extended period would not be served, and prospective defendants would be denied prompt notice of the impending action. Thus we agree with the district courts which have required claimants in deferral states either to commence state proceedings or to notify the Secretary within 180 days. See Bertsch v. Ford Motor Co., 415 F.Supp. 619 (E.D.Mich.1976); Skoglund v. Singer Co., 403 F.Supp. 797 (D.N.H.1975). The extended (300-day) period for notification of intent to sue is not available to a deferral state claimant who fails to commence state proceedings within 180 days...

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