Marshall v. American Motors Corp.

• Decision Date: 20 September 1979
• Docket Number: No. 77-71249.,77-71249.
• Citation: 475 F. Supp. 875
• Parties: Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff, v. AMERICAN MOTORS CORPORATION, a corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

475 F. Supp. 875

Ray MARSHALL, Secretary of Labor, United States Department of Labor, Plaintiff, v. AMERICAN MOTORS CORPORATION, a corporation, Defendant.

No. 77-71249.

United States District Court, E. D. Michigan, S. D.

August 1, 1979.

On Motion for Clarification and Reconsideration September 20, 1979.

COPYRIGHT MATERIAL OMITTED

Allen H. Bean, U. S. Dept. of Labor, Detroit, Mich., for plaintiff.

W. Robert Chandler, Cross, Wrock, Miller & Vieson, Detroit, Mich., for defendant.

OPINION AND ORDER

CORNELIA G. KENNEDY, Chief Judge.

Plaintiff Ray Marshall, Secretary of Labor, commenced this action on May 20, 1977, on behalf of a number of employees whom he alleges were discharged, retired, demoted, not promoted, or otherwise discriminated against by defendant in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634. Plaintiff has now filed a Motion for Leave to File an Amended Complaint and a Motion for Partial Summary Judgment. Defendant has filed a Motion for Summary Judgment on the following issues: (1) Plaintiff's failure to conciliate as required by the ADEA; (2) Plaintiff's failure to file charges with the state agency at least sixty days before commencing suit; (3) The time barring of certain employees' claims; (4) The retirement of certain employees within the terms of the ADEA permitting employer discretion; and (5) Plaintiff's failure to sue the actual employer of certain employees.

Conciliation Requirements

The defendant asks this court to grant its motion for summary judgment on the grounds that the Secretary failed to engage in conciliation efforts as required by the Age Discrimination in Employment Act. The act provides: "Upon receiving such a charge, the Secretary shall promptly . . seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(d). According to the defendant, this requirement of conciliation is jurisdictional and thus no action may be maintained without adequate efforts to achieve a solution by amicable means. Those courts which have considered the question have generally found the requirement's fulfillment to be necessary to the maintenance of an action. However, they have held that dismissal is too drastic a sanction to impose for less than strict compliance with the requirement. The courts have therefore not dismissed in such a case but have granted a stay pending conciliation efforts. See, e. g., Marshall v. Baltimore & Ohio Railroad, 461 F.Supp. 362, 369 (D.Md.1978).

The parties in this matter undertook a series of discussions which extended over two years before the suit was filed. During that time there were at least five meetings between representatives of the plaintiff and defendant, on November 20, 1975, December 9, 1975, January 26, 1976, June 30, 1976, and January 17, 1977. In addition, there were a number of contacts by letter and telephone throughout the period. These meetings and discussions failed to bring about an amicable resolution of the grievances, and, as a result, the present suit was filed. According to the plaintiff, although conciliation efforts failed, the requirements of the statute were met. The Secretary states that agents of the Department of Labor informed the defendant of the nature and extent of the violations, explained the relief sought, and gave the defendant an opportunity to respond. Finally, the Secretary's agents told the defendant that the case would be reviewed for possible legal action if conciliation failed. Case law has interpreted the conciliation statute to require just these sorts of statements and actions as conciliatory efforts. Brennan v. Ace Hardware Corp., 495 F.2d 368 (8th Cir. 1974); Marshall v. Hartford Fire Ins. Co., 78 F.R.D. 97 (D.Conn.1978). The plaintiff contends that it was not required to negotiate individually in a pattern and practice case but could seek a blanket make-whole remedy. If the Secretary seeks only prospective relief, then a period of conciliation dedicated to generalized discriminatory practices would be adequate. In such a case the concern is with establishing nondiscriminatory practices and guidelines to be applied to all employees in the future. However, if it seeks retrospective relief, such as back pay, then it follows that there must be some discussion of the merits of individual cases.

The Secretary states, however, that he was unable to achieve a settlement with AMC as a result of actions of the defendant which hampered the plaintiff in his negotiating efforts. According to the Secretary, AMC refused to admit that any discrimination existed or could exist and documented its position with a ten-page statistical analysis. (Benedict Affidavit ¶ 4). In addition, AMC refused to discuss the claims of those individuals which AMC considered to be barred by the statute of limitations. (Benedict Affidavit ¶ 6; Bean Affidavit ¶ 8). The plaintiff also contends that the defendant failed to supply information requested by the Secretary as necessary to its investigation. (See generally Bean Affidavit). The result of these actions, according to the plaintiff, was to render any settlement negotiations fruitless.

According to the defendant, conciliation efforts failed because the Secretary improperly conducted them in the following respects:

As prerequisites for conciliation discussions, the Secretary required that:

(a) AMC admit its guilt;

(b) AMC submit a blanket offer to make whole all employees within the protected age class who have been terminated, demoted or refused hire since 1970;

(c) AMC waive its rights under the statute of limitations;

(d) AMC abandon its position that the three-year limitations period applied to ADEA claims.

Defendant's Brief at 13.

It is evident from the statements of the parties that they are in substantial disagreement as to the tenor of the discussions which took place and the requirements they were to meet. It does not appear from the frequency of the parties' contacts that the discussions were clearly inadequate to meet minimum requirements of the statute. Cf. Hodgson v. Approved Personnel Service, Inc., 529 F.2d 760, 764 (4th Cir. 1975). There is no requirement in the statute that the conciliation process be in the nature of an adjudicative process, complete with a presentation of evidence and marshalling of defenses. In fact, courts have held that the Secretary is not required to continue efforts after the defendant has stated that it believes it has not been guilty of wrongdoing but may proceed to litigation to determine that issue. See Marshall v. Hartford Fire Insurance Co., 78 F.R.D. 97, 105 (D.Conn. 1978). It therefore does not appear that the conciliation requirements have not been met as far as efforts to conciliate are involved. The case should proceed to trial and a presentation of the proofs on this issue.

Accordingly, the defendant's Motion for Summary Judgment on the issue of conciliation is DENIED.

Section 4(f)(2)

The defendant asks also for summary judgment on the claims of eighteen individuals who were retired under the terms of the Salaried Employees Retirement Pension Plan. The defendant claims that any retirements under the terms of the plan, including those at the discretion of the employer based on the employee's age, do not violate the ADEA. The defendant interprets various court decisions, and in particular United Airlines v. McMann, 434 U.S. 192, 98 S.Ct. 444, 54 L.Ed.2d 402 (1977), to permit such retirements if the plan was instituted before the ADEA was enacted, provides for the payment of substantial benefits, and is not a subterfuge to evade the intent of the act. In the instant case, the pension plan was established in July 1950 and provides for early retirement at the option of the corporation of employees over fifty-five years of age and with more than ten years of continuous service. According to the Hinsberg Affidavit, the retirees involved in this case received benefits in the following ranges: less than $250 a month—1; $250-$300—2; $300-$400—4; $400-$500—2; above $500—8, amounts, which the defendant believes satisfy the requirement of substantiality. Finally the defendant contends that it relied in its actions upon the interpretation of this section provided by the Department of Labor and set forth in the Code of Federal Regulations.

According to the Secretary, the actions taken by the defendant are not protected by 29 U.S.C. § 623(f)(2). That section formerly stated:

It shall not be unlawful for an employer . . .

. . . . .

(2) to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual;

(3) to discharge or otherwise discipline an individual for good cause.

It was revised in 1978 to read as follows:

It shall not be unlawful for an employer . . .

. . . . .

(2) to observe the terms of a bona fide seniority system to any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no such employee benefit plan shall excuse the failure to hire any individual, and no such seniority system or employee benefit plan shall require or permit the involuntary retirement of any individual specified by section 631(a) of this title because of the age of such individual.

The Secretary contends that the defendant's interpretation of congressional intent is incorrect. According to the Secretary, it was the intent of Congress to promote the hiring of older workers without necessarily including them in normal retirement plans established for younger workers. See also 1978 U.S.Code Cong. & Admin.News, pp. 504, 512. The act itself states that Congress was concerned with the problems older workers experienced in retaining...