Powell v. Southwestern Bell Telephone Company, 73-1250.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTHORNBERRY, SIMPSON and CLARK, Circuit
Citation494 F.2d 485
PartiesRosa POWELL, Plaintiff-Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant-Appellee.
Docket NumberNo. 73-1250.,73-1250.
Decision Date06 August 1974

494 F.2d 485 (1974)

Rosa POWELL, Plaintiff-Appellant,

No. 73-1250.

United States Court of Appeals, Fifth Circuit.

May 23, 1974.

Rehearing and Rehearing Denied August 6, 1974.

494 F.2d 486

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.

SIMPSON, Circuit Judge:

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

494 F.2d 487
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:

No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days\' notice of an intent to file such action. Such notice shall be filed —
(1) within one hundred and eighty days after the alleged unlawful practice occurred, . . .

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...

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