Franci v. Avco Corp.

Decision Date21 September 1978
Docket NumberCiv. No. B-77-22.
Citation460 F. Supp. 389
CourtU.S. District Court — District of Connecticut
PartiesAlfred P. FRANCI, Robert H. Graff, Sr., on behalf of themselves and all others similarly situated, Plaintiffs, v. AVCO CORPORATION, Avco Lycoming Division, Defendant.

COPYRIGHT MATERIAL OMITTED

Beverly J. Hodgson, Koskoff, Koskoff, Rutkin & Bieder, P. C., Bridgeport, Conn., for plaintiffs.

Edward Maum Sheehy, Pullman, Comley, Bradley & Reeves, Bridgeport, Conn., Don A. Banta, William T. Coleman, Naphin, Banta & Cox, Chicago, Ill., for defendant.

RULING ON MOTION FOR SUMMARY JUDGMENT

DALY, District Judge.

Plaintiffs seek redress from Avco Lycoming Division's1 (Avco) alleged violations of the Age Discrimination in Employment Act of 1967 (ADEA) 29 U.S.C. § 621 et seq. and of the due process clause of the Fifth Amendment of the Constitution. Plaintiffs have brought this class action to obtain damages and injunctive relief on behalf of all past and present employees of Avco who are between the ages of forty and sixty-five and who have been subjected to discrimination on the basis of their age. Avco has moved to dismiss the complaint, or in the alternative, for summary judgment on the grounds that: (1) this Court lacks jurisdiction over the statutory claims because plaintiffs failed to file notice of intent to sue within the 300 days prescribed by 29 U.S.C. § 626(d); and (2) plaintiffs have failed to state a cause of action under the due process clause of the Fifth Amendment. The motion for summary judgment is denied.

The complaint tells the story of two responsible Avco employees who, after years of service, believe they were discharged solely because of their age. Plaintiff Graff worked for Avco for sixteen years until February 21, 1975. On this date, at the age of fifty-eight, he was notified that he was being laid off and was told that he would be recalled if work became available. Mr. Graff asked why he was being discharged when employees with less seniority and experience were being retained, but he was not given an answer. When he was not recalled after six weeks he filed a complaint with the Federal Labor Department alleging age discrimination against himself and other older employees by Avco. Even after filing his complaint, Mr. Graff periodically called Avco to ascertain the likelihood of being recalled. Some six months subsequent to his discharge Mr. Graff was told by an Avco employee, whom he believed to be responsible for hiring, that his recall was likely. Upon learning this, Mr. Graff requested that the Labor Department discontinue its investigation of his complaint because he feared it would jeopardize his chances of being recalled. Although told repeatedly over the ensuing thirteen months that his recall was imminent, Mr. Graff was not recalled. In October of 1976 Mr. Graff contacted an attorney. She had the Labor Department resume its investigation and assisted Mr. Graff in filing notice of intent to sue on October 8, 1976 as required by 29 U.S.C. § 626(d). During the next three months the Labor Department orchestrated conciliation procedures between the parties. On January 4, 1977 Avco's attorney terminated the discussion between the parties,2 and on January 14, 1977 plaintiffs filed this suit.

Mr. Franci, the other named plaintiff, had been in Avco's employ for thirteen years when he was forced to take early retirement on April 4, 1975. Mr. Franci was then sixty years old and had an excellent work record. Like Mr. Graff, Mr. Franci inquired unsuccessfully of his superiors at the time of his discharge why younger employees with less experience and seniority were being retained. Five months after being laid off Mr. Franci filed a complaint with the Connecticut Commission on Human Rights & Opportunities (CHRO) alleging that he and several others had been discriminated against on the basis of their age. Although Mr. Franci has neither filed a complaint with the Labor Department, nor filed a notice of intent to sue, a letter from Avco's attorney which halted conciliation discussions clearly indicates that Avco was aware of Mr. Franci's claim.3 Approximately two years after he had been forced to take early retirement, Mr. Franci discovered a newspaper advertising placed by Avco that announced an opening at his earlier position. As a result of Mr. Franci's pursuit of this ad, he was rehired by Avco on March 29, 1977.

The plight of plaintiffs and the class of persons they purport to represent takes on an increased significance as both the number and the percentage of the country's elderly population grows.4 Congressional awareness of the problems of the elderly in the area of employment resulted in the enactment of ADEA. See 29 U.S.C. § 621(a). The express purposes of ADEA are "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. § 621(b). It is with these remedial objectives in mind that the Court turns to scrutinize the unsuccessful efforts of plaintiffs to negotiate the maze of procedural prerequisites to ADEA suits.

NOTICE OF INTENT TO SUE

Section 626(d) of Title 29 of the United States Code contains two procedural hurdles that must be successfully cleared by ADEA claimants. First, it requires claimants to file notice of their intent to sue with the Secretary of Labor at least sixty days before bringing suit. Second, it requires that this notice of intent to sue be filed no later than a certain number of days after the alleged discriminatory act. The number of days after which notice becomes untimely varies; generally, notice of intent to sue must be filed no later than 180 days after the discriminatory act is alleged to have occurred, 29 U.S.C. § 626(d)(1). However, in states that have their own legislation prohibiting age discrimination in employment,5 notice of intent to sue must be filed either no later than 300 days after the alleged discrimination, or within thirty days of the time the claimants learn of the termination of their state proceedings, whichever is earlier. 29 U.S.C. § 626(d)(2). In the instant case, the 300 day limitation obtains because Connecticut has a statute prohibiting age discrimination,6 and the 300 days ran before the termination of any state proceedings.

The key issue raised by defendant's motion is whether the filing of notice of intent to sue is a mandatory jurisdictional prerequisite or a precondition to suit that is subject to equitable modification. Although this issue has been the subject of much litigation, there is neither Supreme Court nor Second Circuit precedent that controls this ruling. In 1977 the Supreme Court affirmed in a per curiam decision a ruling of the Tenth Circuit that § 626(d) notice was subject to equitable modification. Shell Oil Co. v. Dartt, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977). However, since the affirmance was by an equally divided Court, Dartt cannot serve as an authoritative determination in subsequent cases either in the Supreme Court or in lower courts. Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978). See Laird v. Tatum, 409 U.S. 824, 837-39, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (memorandum of Rehnquist, J.). Quite recently in Reich v. Dow Badische Co., 575 F.2d 363 (2d Cir. 1978), the Second Circuit had occasion to rule on the effect of a claimant's failure to file timely, written notice of intent to sue. In order to understand the import of this ruling it is necessary to examine the three separate opinions filed by the three-judge panel. Judge Dooling, writing for the "Majority," neither explicitly held that notice was jurisdictional nor that it was subject to equitable modification. However, in arriving at the conclusion that plaintiff's claim was barred because of his failure to give written notice of sufficient content and clarity, Judge Dooling expressly considered whether there were circumstances that would excuse this failure. Reich v. Dow Badische Co., supra at 369. The fact that the claimant in Reich had been repeatedly apprised by representatives of the Labor Department of the notice requirement was critical to Judge Dooling's opinion. Id. Possibly the best indication of Judge Dooling's position is the concurring opinion of Judge Danaher. While he concurs in the result, Judge Danaher states that he feels compelled to advocate the "alternate approach" of requiring timely, written notice of intent to sue as a mandatory prerequisite in all ADEA suits. In his dissenting opinion, Judge Feinberg takes issue with Judge Danaher and concludes that the claimant's oral notice satisfies § 626(d). Judge Feinberg bases his conclusion on the principle that the terms of ADEA should be construed liberally in order "to avoid frustrating potentially meritorious claims on hyper-technical grounds." Reich v. Dow Badische Co., supra at 375. Given these divergent opinions, the most that can safely be said of Reich is that it does not stand for the proposition that written notice, given in a timely fashion, is an absolute jurisdictional prerequisite to ADEA suits.

Not surprisingly there is also substantial disagreement among the district courts of this circuit as well as among the circuits over the notice requirement of § 626(d). Not only is there an absence of unanimity among the district courts within the Second Circuit, but there is disagreement even within the District of Connecticut. Compare Cowlishaw v. Armstrong Rubber Co., 425 F.Supp. 802, 807 (E.D.N.Y.1977) (filing of notice of intent to sue waived) and Postemski v. Pratt & Whitney Aircraft, 443 F.Supp. 101, 103 (D.Conn.1977) (equity may require waiver of notice) with Gooman v. Heublein, 12 F.E.P. ¶ 11,190, 13 F.E.P. 26 (D.Conn.1976) (notice is jurisdictional requirement) and Acford v. Exxon Corp., 12 F.E.P. ¶ 1500 (D.Conn.1975) (notice is...

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