Marshall v. Sun Oil Co. (Delaware)
| Decision Date | 05 November 1979 |
| Docket Number | No. 77-1954,77-1954 |
| Citation | 21 FEP Cases 257,605 F.2d 1331 |
| Parties | 21 Fair Empl.Prac.Cas. 257, 21 Empl. Prac. Dec. P 30,345 Ray MARSHALL, Secretary of Labor, United States Department of Labor, (Equal Employment Opportunity Commission, substituted in the place and stead of Ray Marshall, Secretary of Labor, etc.), Plaintiff-Appellant, v. SUN OIL COMPANY (DELAWARE), a corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jacob I. Karro, Joseph Woodward, Attys., Dept. of Labor, Washington, D. C., for plaintiff-appellant.
Royal H. Brin, Jr., Rufus N. McKnight, Jr., G. David Neal, Susan F. Hamelin, Dallas, Tex., for defendant-appellee.
Frank C. Morris, Jr., McGuiness & Williams, Beatrice Rosenberg, Asst. Gen. Counsel, EEOC, Washington, D. C., for amicus curiae Equal Employment Advisory Council.
Appeal from the United States Court of Appeals for the Northern District of Texas.
Before TJOFLAT and VANCE, Circuit Judges, and ALLGOOD, District Judge. *
The Secretary of Labor 1 originally brought this action in October 1974 under the Age Discrimination in Employment Act (the Act or ADEA), 29 U.S.C. §§ 621-634, to enjoin Sun Oil Company of Delaware from violating the Act in the future and to obtain restitution and reinstatement for 121 employees who were wrongfully terminated from their jobs because of age. Sun Oil subsequently moved for summary judgment on the ground that before filing suit, the Secretary failed to satisfy his statutory duty to investigate and to attempt to effect voluntary compliance with the Act's requirements through informal methods of conciliation, conference, and persuasion. The district court agreed, granting summary judgment for Sun with respect to all but two of the 121 employees. The Secretary appeals. The district court's decision must be reversed.
This suit involves 121 of the 156 employees who were terminated by Sun Oil's North American Exploration and Production Group during a reorganization in December 1972. In separate letters, two of these employees, Cecil Dearman and Byron Herford, notified the Secretary of their intent to sue Sun under the Act. Dearman also complained that other employees were discharged because of age.
Meetings were held between Sun and Labor Department representatives to discuss Herford's and Dearman's charges. At the first meeting on February 16, 1973, the Secretary's compliance officer requested information needed to investigate the charges, which Sun supplied, and the parties discussed the Act's requirements as well as Dearman's case. Though Sun denied having a discriminatory purpose, it admitted that it had attempted to retain employees with "the most potential for future development."
After examining Sun's records and interviewing its employees, the compliance officer held a second meeting with Sun on April 3, 1973. Dearman's case was again discussed, and the compliance officer pointed out that Herford's complaint would also be investigated. Sun did not deny that employees who were younger and less qualified than Dearman had been retained in his department. Sun again stated that it had no discriminatory purpose.
A third meeting was held on April 27, 1973. The compliance officer informed Sun of documented findings showing that it had discriminated against Dearman and Herford on the basis of age. Dearman's position was filled by a younger, less qualified employee. Dearman was found to be more qualified for other positions in his department than the employees who had been retained to occupy those positions. Herford was fired while younger, less qualified employees were retained. Herford's former supervisor told him in the presence of witnesses that he had been terminated because he was too old. The compliance officer then told Sun that its treatment of Herford and Dearman violated the Act and that both men were entitled to reinstatement and back pay. Sun did not deny the Secretary's allegations. After reiterating its denial of discriminatory intent, however, Sun representatives stated that they could not settle with Dearman and Herford because doing so would invite claims from many other former employees. As a result, the compliance officer indicated that the case file would be forwarded to the Solicitor's office for appropriate legal action.
The file including the officer's report was submitted to the Solicitor's Dallas office on May 11, 1973, where it was analyzed further. Six days later, the file was forwarded to the Solicitor's central office in Washington, D. C., for independent review in accordance with department policy for cases involving national corporations. The file was returned fifteen months later with instructions to expand the investigation to include all employees over 40 years of age terminated by Sun in 1972. On September 10, 1974, the compliance officer again met with a Sun representative. The officer explained the expansion of the investigation and secured Sun's cooperation in supplying necessary information such as terminated employees' names, ages and personnel records.
During the next month, the Secretary's representatives, while remaining in contact with Sun, interviewed Sun employees and examined the personnel records of all the terminated employees. Based on this information, the Secretary compiled a statistical analysis which demonstrated that more than 60% Of the employees terminated were over 50, although before the reorganization only 29% Of Sun's employees were in this age group. Twenty-four percent of Sun's employees over 60 were terminated, although employees over 60 comprised only 3% Of Sun's total work force. Though 33.5% Of all employees were under 40, only 15% Of that age group were terminated in 1972.
These findings were taken to Sun on October 17, 1974. The Secretary's representatives then stated that based on these statistics and on a careful inquiry into the cases of Dearman, Herford and a number of other individuals, they had concluded that in the 1972 terminations Sun, in violation of the ADEA's requirements, had engaged in an unlawful "pattern and practice of selecting employees over forty for termination because of their ages while retaining younger workers whenever possible." The Secretary contended that the wrongfully terminated employees must be reinstated, paid back wages, or given relief through a combination of both. Sun denied the relevance of the Secretary's statistics, insisting that termination decisions had been made individually based on merit. Sun stated that it would only consider individual settlements in cases in which the Secretary proved to its satisfaction that a specific individual was a victim of discrimination. The Secretary's earlier findings with respect to Dearman and Herford did not satisfy Sun's desired proof. Sun did not, however, attempt to produce evidence indicating that any of the individuals the Secretary found entitled to relief had not in fact been victims of discrimination. The Secretary's representatives warned that litigation would be commenced if Sun refused to conciliate and to waive the statute of limitations, which was to expire within six weeks for some members of the class. Sun again refused to attempt to conciliate, explaining that payments made pursuant to a conciliation agreement, unlike a payment of a judgment, could not be justified to Sun's stockholders. A few weeks later the Secretary brought this action.
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 (Act) through informal methods of conciliation, conference, and persuasion.
We must determine whether the Secretary satisfied this requirement.
Because conciliation requires flexibility as well as responsiveness to the other participants' attitudes and to the evolving positions they take in discussions, Brennan v. Ace Hardware Corp., 495 F.2d 368, 376 (8th Cir. 1974), what constitutes an "attempt . . . to effect voluntary compliance" will necessarily differ from case to case. Nevertheless, we have no difficulty concluding that on the facts of this case the Secretary satisfied his obligation to attempt conciliation. The court below erred in concluding otherwise.
Relying on Dunlop v. Resource Sciences Corp., 410 F.Supp. 836 (N.D.Okl.1976), the district court recognized a two-step test to be used in evaluating the Secretary's efforts to comply with his statutory duty. First, he must investigate the employer's practices to determine whether a violation has taken place. Second, the Secretary must attempt to achieve voluntary compliance. The second task was held to involve (1) informing the violator of ways in which he can bring himself into compliance with the Act, (2) telling him that terminated employees may recover back pay, (3) notifying him that the Department may institute legal action, and (4) assuring him that he may respond to the violations, in light of the possible remedy.
The trial court's basic error rests in its too narrow and abstract view of conciliation under the Dunlop test. Rather than evaluating the Secretary's efforts, including investigation, in light of the conciliation that actually occurred, the trial court imposed inflexible requirements unsupported by the statute. Under the trial court's standard, the Secretary must first determine the exact extent of each violation, then separately document all 121 of the individual cases for the discriminating employer. This holding seriously distorts the nature of conciliation, the appropriate manner in which proof should be viewed in the conciliation of large-scale discrimination claims and the Secretary's role in resolving such claims. Further, this test forces the courts to engage in a standardless and burdensome review of the Secretary's decisions as to...
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