Holliday v. Ketchum, MacLeod & Grove, Inc., 77-1867

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation584 F.2d 1221
Docket NumberNo. 77-1867,77-1867
Parties17 Fair Empl.Prac.Cas. 1175, 17 Empl. Prac. Dec. P 8441 James R. HOLLIDAY, Appellant, v. KETCHUM, MacLEOD & GROVE, INC., a corporation, Edward T. Parrack, William H. Genge, Charles E. McHugh and James E. Fuller.
Decision Date07 August 1978

Page 1221

584 F.2d 1221
17 Fair Empl.Prac.Cas. 1175, 17 Empl. Prac.
Dec. P 8441
James R. HOLLIDAY, Appellant,
KETCHUM, MacLEOD & GROVE, INC., a corporation, Edward T.
Parrack, William H. Genge, Charles E. McHugh and
James E. Fuller.
No. 77-1867.
United States Court of Appeals,
Third Circuit.
Argued Feb. 24, 1978.
Reargued In Banc May 11, 1978.
Decided July 14, 1978.
As Amended Aug. 7, 1978.

Stanley M. Stein, Feldstein, Grinberg, Stein & McKee, Pittsburgh, Pa., for appellant.

Carin Ann Clauss, Sol. of Labor, Donald S. Shire, Associate Sol., Dennis D. Clark, Paul D. Brenner, Attys., U. S. Dept. of Labor, Washington, D. C., for the Secretary of Labor as amicus curiae.

Page 1222

Donald T. O'Connor, John R. Johnson, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, Pa., for appellees.

Argued Feb. 24, 1978.

Before ADAMS and HIGGINBOTHAM, Circuit Judges, and BECHTLE, * District Judge.

Reargued May 11, 1978 In Banc.



GARTH, Circuit Judge.

The question before us today is the very same question which a panel of this court answered in 1974: must a private plaintiff who charges employment discrimination in violation of the federal Age Discrimination in Employment Act of 1967 (ADEA) 1 be required to utilize state remedies before filing a suit in federal court? In 1974, a majority opinion of a panel of this court answered that question in the affirmative, holding that initial resort to state remedies was required. Goger v. H. K. Porter Co., Inc., 492 F.2d 13 (3d Cir. 1974). 2 Today, having reconsidered this issue, we have arrived at a different answer. Thus we overrule Goger 3 and hold that resort to state age discrimination remedies is not a precondition to maintaining a federal suit for age discrimination.


On April 15, 1957, James R. Holliday entered into employment with Ketchum, MacLeod & Grove, Inc. (Ketchum), an advertising agency. Holliday served in the position of production manager at Ketchum for some nineteen years, until January 30, 1976. On that date, Holliday, aged 57, was terminated. Ketchum contends that Holliday was "involuntarily retired" "pursuant to the early retirement provisions of Ketchum's pension plan." 4 Holliday claims that Ketchum illegally discriminated against him because of his age, and that as a result he has suffered injury. 5

Holliday initially sought redress by filing a notice under the ADEA with the Secretary of Labor (Secretary). 6 Holliday filed

Page 1223

his notice on July 15, 1976 one hundred sixty-eight (168) days following his discharge thereby complying with the ADEA's one hundred eighty (180) day limitations period for notifying the Secretary of age discrimination complaints. 7 Holliday however did not file an age discrimination claim with the Pennsylvania Human Relations Commission (Commission) 8 until August 5, 1976 one hundred eighty-nine (189) days following his discharge. The Commission dismissed Holliday's complaint as untimely, because discrimination complaints must be filed with the Commission "within ninety days after the alleged act of discrimination." 9

In light of the Commission's dismissal of Holliday's claim, the district court granted Ketchum's motion to dismiss Holliday's federal complaint. The district court reasoned that under Goger and its progeny, "by failing to timely file with the (Commission) the Plaintiff has not afforded the state agency a reasonable opportunity to resolve the matter . . . and his (federal) suit is jurisdictionally defective." 10

Holliday appealed.


Section 623(a) of Title 29, United States Code, provides that:

It shall be unlawful for an employer

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, Because of such individual's age; . . . (Emphasis added). 11

A complainant seeking to invoke the protective provisions of the ADEA must, as noted, comply with certain time limits for filing a notice with the Secretary. 12 In addition, the relevant portion of section 14(b) of the ADEA, 29 U.S.C. § 633(b), provides as follows:

Federal-State relationship

(b) In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title (Quoted in part in n. 6 Supra ) before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated . . ..

Page 1224

As we stated at the outset of this opinion, the issue decided four years ago in Goger, and reconsidered today, is whether section 633(b) requires, or merely permits, a plaintiff to resort to available state age discrimination remedies before instituting federal suit. The resolution of that issue depends upon the interpretation of two statutory provisions: section 626(d), Quoted in part in n. 6 Supra, and section 633, Quoted in part in text above.

When Goger was decided, the majority of the Goger panel, relying primarily on the near-identity of language of section 633(b) and a comparable provision found in Title VII of the Civil Rights Act of 1964 13 reasoned that:

The minor differences between section 633 and its counterpart under the 1964 Act (Title VII) are insignificant and provide no support for an interpretation of the former which is contrary to the Supreme Court's construction in Love v. Pullman, (404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972) (requiring resort to state remedies)). . . . We therefore conclude that section 633(b) Required appellant to seek relief from the appropriate (state) agency prior to instituting her suit in the federal district court.

492 F.2d at 16 (emphasis added). 14

Relying on a different statutory analysis, the concurrence concluded that section 633(b) afforded litigants an initial choice of forum. 492 F.2d at 17-18.

The proper interpretation of Section 633(b), requiring as it does the harmonization of admittedly mixed statutory signals, has understandably given rise to a multitude of cases 15 and, inevitably, to differences in result. Those courts which followed our Goger decision have in large part adopted the majority's analysis and, by analogizing section 633(b) to the purportedly comparable provision in Title VII (42 U.S.C. § 2000e-5(c)), have required resort to state age discrimination remedies before federal suit may be instituted. 16 Other courts 17 and jurists, 18 the administrative agency charged with enforcement of the

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ADEA, 19 a joint congressional committee, 20 and certain commentators 21 have cited the Goger concurrence and have agreed with the analysis in that opinion that section 633(b) of the ADEA affords the plaintiff an initial choice of forum.

Recognizing the conflict that existed among the various statutory interpretations 22 and faced with increased instances of claimants who had not resorted to state remedies, or had done so in an untimely fashion, and further aware of the policy considerations which inclined toward the complainant's choice of forum, 23 we deemed it appropriate to once more examine the issue decided in Goger, and insofar as this circuit is concerned, to resolve it definitely by In banc decision. In arriving at our determination to reexamine, and ultimately to overrule, Goger, we were aided by the Supreme Court's discussion in Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978), and by the recent statutory amendments to the ADEA which, although not controlling, buttress our conclusion that resort need not be had to state administrative machinery prior to filing a federal action.

While the narrow holding of Lorillard (that claimants under the ADEA are entitled to a jury trial) 24 is not relevant to our present determination, we find highly relevant the discussion in Lorillard which concerns the proper interpretation of the entire ADEA. There a unanimous Court 25 ruled that "but for" specific exceptions contained in the ADEA, Congress "intended to incorporate fully (into the ADEA) the remedies and procedures of the (Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201 Et seq.)". 98 S.Ct. at 871. The Court explicitly Rejected the relevance of Title VII procedures to lawsuits which allege age discrimination. In this connection, albeit in the

Page 1226

context of entitlement to a jury trial, the Supreme Court stated:

(T)he rights created by the ADEA are to be "enforced in accordance with the powers, remedies and procedures" of specified sections of the FLSA. 29 U.S.C. § 626(b).

Petitioner strives to find a contrary congressional intent by comparing the ADEA with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., which petitioner maintains does not provide for jury trials. We, of course, intimate no view as to whether a jury trial is available under Title VII as a matter of either statutory or constitutional right. (Citation.) However, after examining the provisions of Title VII, we find petitioner's argument by analogy to Title VII unavailing. There are important similarities between the two statutes, to be sure, both in their aims the elimination of discrimination from the workplace and in their substantive prohibitions. In fact, the prohibitions of the ADEA were derived In haec verba from Title VII. But in deciding whether a statutory right to jury trial exists, It is the remedial and procedural provisions of the two laws that are crucial and there we find significant differences.

(R )Ather than adopting the procedures of Title VII for ADEA actions, Congress rejected that course in favor of incorporating the FLSA procedures even while adopting Title VII's substantive...

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