Powell v. Southwestern Bell Telephone Company, 73-1250.
| Decision Date | 06 August 1974 |
| Docket Number | No. 73-1250.,73-1250. |
| Citation | 494 F.2d 485 |
| Parties | Rosa POWELL, Plaintiff-Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Alvin A. Ohm, G. William Baab, Dallas, Tex., for plaintiff-appellant.
Joe L. Randle, J. H. Hand, Dallas, Tex., for defendant-appellee.
Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
Rehearing and Rehearing En Banc Denied August 6, 1974.
Appellant Rosa Powell sued Southwestern Bell Telephone Company (the Company) alleging that it had denied her employment as a telephone operator on the basis of her age, and thus in violation of the Age Discrimination in Employment Act (ADEA), Title 29, U.S.C., Sec. 621 et seq. The district court dismissed the action based on a finding that appellant had failed to give notice to the Secretary of Labor of her intent to file a private suit within 180 days of the alleged unlawful practice as required by Title 29, U.S.C. Sec. 626(d), Section 7(d) of the act. Agreeing with the finding of the district court and its dismissal thereunder, we affirm.
Some facts are in dispute, but those necessary to our review are not. We briefly delineate them. On February 6, 1970, Ms. Powell made a written application for employment as an operator to the company at its Cleburne, Texas office. From an affidavit of Dorothy Raney, the company employee responsible for hiring at that time it appears that ten operator job vacancies existed, nine for work as temporary operators and one as full time. Ms. Powell was informed that no operators were being hired.
Shortly thereafter appellant complained to the Department of Labor about what she believed to be unlawful discrimination by appellee against her because of her age. The Department acknowledged receipt of this information by letter dated February 17, 1970, and advised appellant to note the specific time limits governing the circumstances under which she could file her own suit. On June 12, 1970, the Department informed Ms. Powell that it could not substantiate her claim of discrimination by reason of age and thus could take no further action. The existence of specific time limits in connection with private lawsuits was reiterated, together with the fact that nothing done by appellant to that point was considered to be notice of her intent to file suit. Appellant responded by letter dated June 16, 1970, in which she indicated that it was her wish that the Department of Labor bring suit against Southwestern Bell.
The Compliance Officer handling her case, the Regional Solicitor for the Department, and finally the Department's litigation section in Washington, D.C. in turn reviewed Ms. Powell's request that the Department bring suit. On March 11, 1971, appellant was informed by the Area Director of the Wage and Hour Division of the Department that no action would be taken in her behalf. The reason was agreed by all involved to be a lack of evidence sufficient to sustain the required burden of proof. On March 23, 1971, appellant did give notice of her intent to file private suit, which the Regional Director, M. J. Parmenter, erroneously deemed to be timely, as evidenced by a letter written by him on April 27, 1971 to U.S. Congressman Olin E. Teague. During May of that year appellant provided the Department with additional information concerning the alleged discrimination. On June 28 the Department informed her by letter that the new information was not sufficient to alter its decision regarding litigation of her claim. This ended the Department's involvement in the case.
On appeal from the district court's dismissal of her case as filed out of time, appellant makes three separate claims of error alleging improper dismissal of her suit because (1) the 180 day time limit is not a jurisdictional requirement; (2) because material issues of fact had not been resolved; and (3) because the 180 day time limit, even if jurisdictional, had been tolled.
Appellant launches a broad based attack upon the district court's interpretation of Sec. 7(d) of the Act, Title 29, U.S.C. Sec. 626(d). Sec. 7(d) provides, in pertinent part, that:
Appellant argues that dismissal for failure to comply with the 180 day requirement is inconsistent with the existence of a separate statute of limitations, with the legislative history of the ADEA and with judicial interpretation of similar provisions of the Equal Employment Opportunity Act, (EEOA), Title 42, U.S.C., Sec. 2000e et seq., and hence that action of the district court was error. We are unpersuaded.
Sec. 7(e) of the ADEA expressly incorporates the statute of limitations found in the Portal-To-Portal Act, Title 29, U.S.C., Sec. 255. That limitation is two years for nonwillful violations of the statute and three years if the violation is shown to have been willful. Appellant argues that to dismiss an action for failure to file a notice of intent to sue within 180 days of the unlawful practice imposes an additional and considerably shorter limitation upon all prospective plaintiffs. Our perception of the two time limits is quite different and we find appellant's argument rather disingenuous. The 180 day limit is not upon the filing of suit, but upon notice to the Secretary that one intends to bring suit. Thus it is entirely possible to comply with the notice requirement, yet still be in violation of the limit on filing an action by exceeding the two or the three year provisions of the Portal-To-Portal Act. The notice requirement in no way supplants the statutory period of limitation engrafted from the Portal-To-Portal Act. Rather it is simply a prerequisite to the right to file any suit whatsoever under the ADEA.
Appellant goes on to cite the legislative history pertaining to the ADEA in support of the proposition that the 180 day limit is not jurisdictional in nature, but merely directory. While nothing in that history addresses the precise question, we find that there is some support for, if anything, a contrary view. House Report 805, in discussing the companion requirement of a 60 day waiting period between notice of intent and the actual filing of suit, characterizes the notice as a "condition precedent" to filing. A permissible inference is that the requirement of timeliness attending the notice is likewise a condition precedent to suit. H.R.Rep.No.805, 90th Cong., 1st Sess. (1967); 1967 U.S.Code Cong. and Admin.News pp. 2213, 2218. Later in the same report it is noted that "persons intending to file civil actions under this act must give the Secretary of Labor 60 days' notice before doing so." (emphasis supplied) 1967 U.S.Code Cong. and Admin.News p. 2223. More to the point, the Senate Report stated that "in the case of suits brought by individuals notice of intention to sue must be given the Secretary of Labor within 180 days after the alleged unlawful practice occurred, . . ." (emphasis supplied) S.Rep.No.723, 90th Cong., 1st Sess. (1967); 113 Cong.Rec. 31251.
Perhaps the most interesting feature of the origin of the 180 day notice limitation is that it appeared in the original bill as introduced in the Senate, was deleted from the House passed bill, and was restored by the amendment in the Senate when the House bill was returned for consideration by the upper chamber. The House concurred in the amendment. Its restoration, together with that of several other portions of the original Senate bill, was "intended to answer some of the disquiet in American business . . . keeping also in mind the practical problems of administration, . . ." 113 Cong.Rec. 35056 (Remarks of Senator Javits). It is logical that the 180 day notice was intended to insure that potential defendants would become aware of their status and the possibility of litigation reasonably soon after the alleged discrimination since the notice goes from the Secretary of Labor on to the employer involved. In turn this would promote the good faith negotiation of employers during the 60 day conciliation period and provide an opportunity for preservation of evidence and records for use at a trial necessitated by...
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