Marshall v. Chamberlain Mfg. Corp., 78-1194

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Citation: 601 F.2d 100
• Docket Number: No. 78-1194,78-1194
• Parties: 20 Fair Empl.Prac.Cas. 147, 20 Empl. Prac. Dec. P 30,083 Ray MARSHALL, Secretary of Labor, United States Department of Labor, Appellant, v. CHAMBERLAIN MANUFACTURING CORPORATION, Appellee.
• Decision Date: 29 June 1979

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601 F.2d 100 20 Fair Empl.Prac.Cas. 147,
20 Empl. Prac. Dec. P 30,083 Ray MARSHALL, Secretary of Labor, United States Department
of Labor, Appellant,
v.
CHAMBERLAIN MANUFACTURING CORPORATION, Appellee. No. 78-1194. United States Court of Appeals,
Third Circuit. Argued June 6, 1979.
Decided June 29, 1979.

Carin Ann Clauss, Sol. of Labor, Donald S. Shire, Associate Sol., Dennis D. Clark, Kerry L. Adams (argued), Attorneys, U.S. Dept. of Labor, Washington, D. C., for appellant.

Marshall H. Harris, Regional Sol., Philadelphia, Pa., Obermayer, Rebmann, Maxwell & Hippel, Andrew S. Price (argued), H. Thomas Felix, II, Philadelphia, Pa., for appellee.

Before WEIS and GARTH, Circuit Judges, and BECHTLE, ^* District Judge.

OPINION OF THE COURT

GARTH, Circuit Judge.

An issue which has perplexed the courts since the passage of the Age Discrimination in Employment Act of 1967 ¹ is whether a litigant must resort to appropriate state administrative proceedings before commencing an action in federal court. In Goger v. H. K. Porter Co., 492 F.2d 13 (3d Cir. 1974), we held that section 14(b) of the Act ² imposes this obligation on a private litigant. Subsequently in Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1978), this court sitting En banc overruled Goger, and held that neither an individual nor the Secretary of Labor is required to resort to state age discrimination remedies as a precondition to maintaining a federal suit for age discrimination. ³ The most recent chapter in this controversy has been written by the Supreme Court: in Oscar Mayer & Co. v. Evans, --- U.S. ---- - ----, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), it

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held that " § 14(b) mandates that a grievant not bring suit in federal court under § 7(c) of the ADEA until he has first resorted to appropriate state administrative proceedings." ⁴

Today we are called upon to decide whether this holding should be extended to require The Secretary, when he brings suit under § 7(b) of the ADEA, to resort first to the age discrimination remedies provided by state law. Although we tread warily in light of the Supreme Court's rejection of our interpretation of § 14(b) as it pertains to a private right of action, we conclude nonetheless that different considerations are involved when it is the government, rather than a private individual, which has brought an action to enforce the Act. We therefore hold that § 14(b) imposes no obligation on the Secretary to defer to state administrative proceedings.

I

On June 13, 1977, the Secretary brought this action in the district court, alleging that the defendant, Chamberlain Manufacturing Corporation, was violating § 4 of the Age Discrimination in Employment Act (the "ADEA") ⁵ and § 15 of the Fair Labor Standards Act (the "FLSA"), ⁶ by discharging, demoting and otherwise discriminating against its employees between the ages of forty and sixty-five. The Secretary asked that these practices be enjoined, that the victims be reinstated, and that they receive backpay.

The defendant moved for summary judgment on two grounds, alleging (1) that the Secretary did not commence proceedings before the Pennsylvania Human Relations Commission (the "PHRC"), as section 14(b) requires; and (2) that the Secretary did not seek voluntary compliance through conciliation, as 29 U.S.C. § 626(b) requires.

The district court filed an opinion and order on November 16, 1977, in which it treated the defendant's motion as a motion to dismiss for lack of subject matter jurisdiction (See Fed.R.Civ.P. 12(b)(1)). Marshall v. Chamberlain Manufacturing Corp., 443 F.Supp. 159 (M.D.Pa.1977). Finding that it was "undisputed" that the Secretary had neither commenced proceedings before the PHRC nor even notified the PHRC that a complaint had been filed, the district court concluded that the Secretary had not complied with section 14(b). It viewed compliance with section 14(b) as a jurisdictional prerequisite for both government and private litigants, ⁷ and therefore entered an order dismissing the action, ⁸ without reaching the defendant's alternative argument that the Secretary had not complied with 29 U.S.C. § 626(d).

The Secretary has appealed from this order.

II

Section 14(b) of the ADEA provides in pertinent part:

(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 before the expiration of sixty days after proceedings have been

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commenced under the State law, unless such proceedings have been earlier terminated . . .

29 U.S.C. § 633(b). In Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1978) (en banc), we held that this provision does not require "resort to state age discrimination remedies (as) a precondition to maintaining a federal suit for age discrimination." ⁹ In dictum, we also decided the question before us today: "A fortiori the Secretary of Labor need not resort to state age discrimination remedies before prosecuting charges under the ADEA." ¹⁰

In Oscar Mayer & Co. v. Evans, ¹¹ the Supreme Court rejected the Holding in Holliday without reaching the issue which we had discussed in Dictum. In the context of a private litigant's action, the Court interpreted § 14(b) as a requirement "that a grievant not bring suit in federal court under § 7(c) of the ADEA until he has first resorted to appropriate state administrative proceedings." ¹² Oscar Mayer involved a claim for individual relief under § 7(c) of the ADEA (which pertains only to private actions), and the Court limited its inquiry to "whether § 14(b) requires an Aggrieved person to resort to appropriate state remedies before bringing suit . . ." (emphasis added). ¹³ Therefore, it did not consider the issue which is before us today: whether § 14(b) imposes any precondition on the Secretary's right of action.

Section 14(b) applies to all suits which are brought "under section 626" and which involve employment practices "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 . . . ." ¹⁴ The parties here do not dispute that Chamberlain's allegedly unlawful employment practices occurred in Pennsylvania, which has a statute authorizing the Pennsylvania Human Relations Commission (the "PHRC") to grant relief to the victims of age discrimination. 43 Pa.Stat.Ann. §§ 955, 956 (Supp.1978). Like many comparable statutes in other states, the Pennsylvania statute permits only an "aggrieved" "individual," the Commission or the Commonwealth's Attorney General to file a complaint with the PHRC. 43 Pa.Stat.Ann. § 959 (Supp.1978). Although the Pennsylvania courts have not considered this issue, this restriction would appear to exclude the Secretary as an eligible complainant.

By itself, this restriction would not preclude the application of § 14(b) to suits brought by the Secretary. The proviso to § 14(b) only requires that a litigant file a written and signed statement in order to commence state administrative proceedings:

If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority.

29 U.S.C. § 633(b). Pennsylvania's requirement that the party commencing the proceeding be the "aggrieved" "individual" therefore becomes, in the terms of § 14(b), a "requirement . . . other than . . . the filing of a written and signed statement . . . ." See Oscar Mayer & Co. v. Evans, --- U.S. ----, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979); Marshall v. West Essex General Hospital, 575 F.2d 1079 (3d Cir. 1978).

Therefore, if we were to decide that § 14(b) restricts the Secretary's right of action, the Secretary could comply with § 14(b) by notifying the PHRC of the alleged age discrimination sixty days before bringing suit. ¹⁵ Therefore, restating the question presented by this appeal, it is whether § 14(b), in view of its language and the purpose and nature of the Secretary's right of action, requires the Secretary to notify the PHRC of alleged

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acts of age discrimination sixty days before the Secretary commences an action in federal court. ¹⁶ A

By its terms, § 14(b) only conditions the right to bring suit "under section 626." ¹⁷ Therefore, a threshold question is whether an enforcement action by the Secretary is a "suit . . . brought under section 626." The Secretary's right of action is authorized by § 7(b) of the ADEA, 29 U.S.C. § 626(b), which provides:

(b) The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: . . . Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.

The first two sentences of § 626(b) incorporate many of the enforcement provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 211(b), 216, 217....