Hageman v. Philips Roxane Laboratories, Inc.

• Decision Date: 28 July 1980
• Docket Number: No. 78-1914,78-1914
• Citation: 623 F.2d 1381
• Parties: 23 Fair Empl.Prac.Cas. 1345, 23 Empl. Prac. Dec. P 31,140 Ray C. HAGEMAN, Plaintiff/Appellant, v. PHILIPS ROXANE LABORATORIES, INC., an Ohio Corporation, Defendant/Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1381

623 F.2d 1381

23 Fair Empl.Prac.Cas. 1345,

23 Empl. Prac. Dec. P 31,140

Ray C. HAGEMAN, Plaintiff/Appellant, v. PHILIPS ROXANE LABORATORIES, INC., an Ohio Corporation Defendant/Appellee.

No. 78-1914.

United States Court of Appeals Ninth Circuit.

Submitted Feb. 6, 1980.

Decided July 28, 1980.

Walter Cochran-Bond, Los Angeles, Cal., for plaintiff/appellant.

Stephen P. Pepe, O'Melveny & Myers, Los Angeles, Cal., for defendant/appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and TANG, Circuit Judges, and HANSON, ^* Senior District Judge.

HANSON, Senior District Judge.

This private suit under the Age Discrimination in Employment Act of 1967 (ADEA or the Act), 29 U.S.C. § 621 et seq. (1976), was dismissed ¹ for want of prior filing with the Secretary of Labor of the notice of intent to sue formerly required by section 7(d) of the Act, 29 U.S.C. § 626(d). ² The question before us is whether under the circumstances of the case the notice of intent to sue requirement should be either deemed satisfied or waived. We conclude that it should not, and affirm the judgment of the district court.

I.

The case for permitting the plaintiff/appellant (Hageman) to maintain the action is based on the following facts. He was fired from his job on September 3, 1975. Only 26 days later, on September 29, 1975, he lodged a complaint with the Department of Labor (DOL) by filling out an "Employment Information Form," checking the box on that form that indicated that he believed he had been discriminated against because of his age, and attaching a three-page typewritten explanation of the events leading up to and surrounding his discharge. On October 28, 1975, he was interviewed by telephone by a DOL investigator; he then gave further information about the basis of his complaint. On October 30, 1975, the DOL notified him by letter that it would investigate the complaint as soon as possible. Such an investigation was carried out, and we may assume that during the course of it the defendant/appellee (Philips Roxane) became aware of Hageman's complaint to the DOL. On March 29, 1976, less than seven months after he was fired, Hageman received a letter from the DOL saying that the investigation had "revealed that you were released from your employment with this firm for reasons other than age," that the DOL could take no further action, but that this did not affect his individual right to sue. This suit was filed on August 31, 1977, within the two-year limitations period provided by § 7(e) of the ADEA, after Hageman had submitted some new information to the DOL upon which it refused to act. Citing Love v. Pullman Co., 404 U.S 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972) and similar cases, Hageman argues that his filing with the DOL of the Employment Information Form should be considered to have satisfied the notice of intent to sue requirement of § 7(d), and that even if it is not so considered, the notice of intent to sue requirement should be waived in this case because the requirement is a mere procedural technicality whose purpose was fully satisfied by the filing of the Employment Information Form and subsequent events.

The case against permitting Hageman to maintain the action is based on essentially two facts. First, at no time prior to filing suit did Hageman literally comply with the notice requirement of § 7(d) by filing with the DOL any notice of his intention to commence this action. In particular, the Employment Information Form that he filed on September 29, 1975 itself provided no place at which such intention should be indicated, and nothing Hageman wrote on the form or in his three-page attachment can be construed as an indication to the DOL that he intended to sue Philips Roxane under the ADEA. Second, Hageman has known from the very early stages of this whole affair of the notice of intent to sue requirement of § 7(d) and of his failure to have satisfied it. Thus, in the letter that he received from the DOL on October 30, 1975, less than two months after he was fired and one month after he had filed his complaint, the DOL not only notified him that it would investigate the complaint, but it also enclosed a pamphlet that both summarized and contained the text of the ADEA. The letter specifically pointed out that:

As you well note on page 4 (of the pamphlet), there are certain requirements with specific time limits governing the circumstances under which an employee may file his own suit under this Act.

The text of § 7(d) begins at the bottom of page 4 of the pamphlet and continues on page 5. Hageman admitted during his deposition that he received and read both the letter and the pamphlet. He was thus clearly on notice, within approximately two months of his discharge, of both the notice of intent to sue requirement and the time limit within which he would have to file such notice if he wished to bring his own suit against Philips Roxane. Although counsel for Hageman suggested at oral argument that Hageman could have thought after receiving the letter of October 30 that the complaint he had filed on September 29 satisfied the notice of intent to sue requirement, there is no indication in the summary judgment record that he did think this. Again, on January 6, 1976, only a little over four months after he was fired, the DOL sent Hageman another letter whose substance was that an investigation had been scheduled but would be delayed, and that:

In view of this delay and to avoid any misunderstanding, your attention is again called to page 4 of the enclosed pamphlet. As you will note there are certain requirements with specific time limits governing the circumstances under which an employee may file his own suit. The fact that you submitted information concerning an alleged unlawful practice has not been considered a notice to the Secretary of Labor of intent to file suit. (Emphasis added.)

Although Hageman did not at the time of his deposition (December 1977) recall receiving this letter, he did recall the letter of March 29, 1976, informing him that no ADEA violation had been found and that the DOL would take no further action. Again the ADEA pamphlet was enclosed, and again the letter concluded with the following language, of which Hageman admits he took notice:

The Department of Labor can take no further action with respect to this matter. This does not affect your individual rights, as explained on page 4 of the enclosed pamphlet. As you will note, there are certain requirements with specific time periods governing the circumstances under which an individual can file his own suit under this Act. The fact that you submitted information concerning an alleged unlawful practice has not been considered a notice to the Secretary of Labor of intent to file suit. We do not, of course, encourage or discourage such suits. The decision is entirely up to you. (Emphasis added.)

Although the letter of March 29 was sent more than 180 days after Hageman was fired, if does not appear that this is the reason he did not then give notice of his intent to sue and file suit. Rather, he apparently simply intended to let the matter drop:

The information I got from the Department of Labor was that they'd investigated and found no violation, and that I had the opportunity to seek counsel, a lawyer and so on, and at that time I didn't pursue it any further.

They sent me a letter to this effect, and then I found out later on reasons why I should go ahead and pursue.

Hageman deposition at 81. As noted, this suit was filed more than a year later, on August 31, 1977; and at no time prior to filing suit did Hageman notify the DOL of his intention to do so.

II.

As we see it, this case is controlled by the fact that Hageman was so early and so well informed of the notice of intent to sue requirement of § 7(d) and of his failure to have satisfied it. We could not permit Hageman to maintain the action, on these facts, without doing less than substituting wholesale a "complaint" or "charge" requirement for the notice of intent to sue requirement of § 7(d), as Congress itself did, prospectively only, in 1978 (see n.2 supra ). This we refuse to do.

A.

Many of the cases relied on by Hageman articulate and apply the principle that because proceedings under the ADEA and certain similar statutes are initiated by laymen unschooled in the law and unassisted by trained lawyers, the courts should resolve any procedural ambiguities found in such statutes in favor of complaining parties, and should in the construction of the statutes particularly avoid the multiplication of procedural shibboleths. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979); Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Bean v. Crocker Nat. Bank, 600 F.2d 754 (9th Cir.1979); Ramirez v. Nat. Distillers & Chemical Corp., 586 F.2d 1315 (9th Cir.1978); Moses v. Falstaff Brewing Co., 525 F.2d 92 (8th Cir.1975); EEOC v. Wah Chang Albany Corp., 499 F.2d 187 (9th Cir.1974); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.1970). We of course accept this principle.

In this case, however, there can be no question of an ambiguity in § 7(d) that we might resolve in favor of Hageman. The notice of intent to sue requirement, of which Hageman was aware by October 30, 1975, is unambiguous on its face:

(t)o hold that a complaint to the Labor Department of an alleged discriminatory employment practice complies with the requirement even though the complaint never mentions an intent to file a private civil action under the ADEA, would be in complete disregard of the language of the Act.

Dartt v. Shell Oil Co., 539 F.2d 1256, 1259 (10th Cir.1976), aff'd by an equally divided court, 431 U.S. 936, 97 S.Ct. 2646, 53 L.Ed.2d 253 (1977). Accord, Newcomer v. International Business Machines Corp., 598 F.2d 968, 969 (5th Cir.), cert. denied, 444 U.S. 984, 100 S.Ct. 491, 62...