Quinn v. Bowmar Pub. Co., Civ. No. Y-77-161.

• Decision Date: 25 January 1978
• Docket Number: Civ. No. Y-77-161.
• Parties: Kirk QUINN v. BOWMAR PUBLISHING COMPANY et al.
• Court: U.S. District Court — District of Maryland

445 F. Supp. 780

Kirk QUINN v. BOWMAR PUBLISHING COMPANY et al.

Civ. No. Y-77-161.

United States District Court, D. Maryland.

January 25, 1978.

COPYRIGHT MATERIAL OMITTED

L. Robert Evans, Towson, Md., for plaintiff.

Monte Fried, Baltimore, Md., for defendants.

MEMORANDUM AND ORDER

JOSEPH H. YOUNG, District Judge.

The plaintiff, Kirk Quinn, suing under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., alleges that, upon the recommendation of the two individual defendants, Robert J. Jachino and George Campbell, President and National Sales Manager, respectively, of Bowmar Publishing Company, the defendant Bowmar Publishing Company willfully and wrongfully discharged the plaintiff because of his age, in violation of 29 U.S.C. § 623(a)(1) and (3). He requests reinstatement to his former position of Sales Representative, back pay and lost benefits with 6% interest per annum, an additional, equal amount as liquidated damages, one million dollars punitive damages, restoration of his pension and retirement rights, attorney's fees and costs, and such other legal and equitable relief as may be appropriate to effectuate the purposes of the ADEA. In addition, the plaintiff demands a jury trial on all issues triable as of right by a jury.

The defendants move to dismiss on five grounds: 1) 12(b)(3), Fed.R.Civ.Proc., for improper venue; 2) 12(b)(1) or (6) Fed.R. Civ.Proc., for failure to exhaust state remedies as required by the ADEA, 29 U.S.C. § 633; 3) 12(b)(6) Fed.R.Civ.Proc., dismissal of the claim for punitive damages as not recoverable under the ADEA; 4) 12(b)(2) Fed.R.Civ.Proc., dismissal of the claims against the two individual defendants for lack of personal jurisdiction; 5) 12(b)(1) or (6) Fed.R.Civ.Proc., dismissal of the claims against the individual defendants for failure to name them as prospective defendants in the proceeding before the Secretary of Labor, as required by the ADEA, 29 U.S.C. § 626(d). In addition, the defendants move pursuant to 28 U.S.C. § 1404(a) to transfer to the Central District of California, and to strike the plaintiff's demand for a jury trial.

MOTION TO DISMISS

a. IMPROPER VENUE

The Court has subject matter jurisdiction under 29 U.S.C. § 623(a)(1) and (2). Venue is governed by 28 U.S.C. § 1391(b), which provides that an action not founded solely upon diversity may be brought only in the judicial district in which all defendants reside, or in which the claim arose. As the two individual defendants are residents of California, venue is properly in the District for Maryland only if the claim arose here.

A claim generally arises where the injury occurs. See generally, 15 Wright, Miller & Cooper, Federal Practice and Procedure, § 3806 (1976); 1 Moore's Federal Practice, ¶ 0.142 5.-2 at 1426 (2d Ed. 1977). However, because the injury in some types of suits typically occurs in more than one place, the court in an anti-trust case, Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., suggested a "weight of the contacts" test: venue is proper if significant sales causing substantial injury were made in the district in which venue is asserted, or some other overt act constituting a significant and substantial element of the offense occurred there. If, however, an insignificant element (such as one sale or a meaningless meeting) occurred in the district, venue does not lie. 291 F.Supp. 252, 260 (E.D.Pa. 1968).

It is not clear how far the weight of the contacts tests may be extended from anti-trust cases. A number of courts have used the test in trademark infringement cases; e. g., Honda Associates, Inc. v. Nozawa Trading Co., 374 F.Supp. 886 (S.D.N.Y. 1974). The test is appropriate for trademark infringement suits because the injury occurs in every district in which an infringing product is sold. However, the test need not be extended to suits charging age discrimination in employment, since that injury typically occurs in the one district in which the plaintiff lost, or was unable to obtain, employment. One court did apply the weight of the contacts test to an ADEA action, but without discussing whether the test was appropriate to the ADEA. Weil v. New York State Department of Transportation, 400 F.Supp. 1364 (S.D.N.Y.1975). In addition, the facts of that case were peculiarly similar to anti-trust and trademark infringement cases: it was a class action brought by the plaintiffs working in numerous judicial districts in New York, against the state as an employer. In the case before this Court, the alleged injury occurred only in Maryland, where the plaintiff lives and worked. The basic test is therefore appropriate: the cause of action arises and venue lies in the district in which the injury occurs.

Finally, even under the weight of the contacts test, the fact that the decision to discharge the plaintiff was made in California does not defeat venue in Maryland. Under the test as initially delineated in Philadelphia Housing, a significant and substantial, if not essential, element of the cause of action—the loss of the plaintiff's employment—occurred in Maryland.

b. FAILURE TO EXHAUST STATE CLAIMS

29 U.S.C. § 633(b) provides that, where the alleged unlawful act took place in a state which prohibits age discrimination in employment, ". . . no suit may be brought under § 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: . . .." The plaintiff has submitted with his answer to the defendants' motion to dismiss two letters which demonstrate that he has met this requirement, one from the State of Maryland Commission on Human Relations, and one from the State of California Fair Employment Practice Commission. Each has rejected his state discrimination claim for lack of jurisdiction.

c. PUNITIVE DAMAGES

29 U.S.C. § 626 provides that the ADEA shall be enforced in accordance with 29 U.S.C. § 216(b) and 217 (the enforcement provisions of the Fair Labor Standards Act FLSA). Section 216 provides for relief in the form of unpaid minimum wages, unpaid overtime compensation, liquidated damages, attorney's fees and costs. Section 626 of the ADEA restricts liquidated damages to cases of willful violation, and provides that the court may grant such legal and equitable relief as will effectuate the purposes of the ADEA. The Act does not mention compensatory or punitive damages.

The great weight of authority holds that punitive damages are not recoverable under the ADEA. While the Act specifically provides for back pay and an equal, additional amount for liquidated damages for willful violation, it does not specify punitive damages, raising the reasonable inference that Congress chose not to provide for punitive damages. Hannon v. Continental National Bank, 427 F.Supp. 215 (D.Colo.1977). Nor should they be awarded as a legal or equitable remedy to effectuate the purposes of the Act. The requirement in § 626(d) that a plaintiff bring a complaint with the Secretary of Labor before suing in federal court, so that the Secretary can attempt a conciliation between the parties, manifests a congressional purpose of promoting administrative mediation over judicial action. A threat of punitive damages would hinder rather than promote conciliation. Platt v. Burroughs Corp., 424 F.Supp. 1329 (E.D.Pa. 1976). In addition, since administrative agencies do not generally award pain and suffering or punitive damages, it is reasonable to assume that had Congress desired plaintiffs to receive these damages it would have given the Secretary of Labor some guidance in awarding them. Rogers v. Exxon Research and Engineering Co., 550 F.2d 834 (3d Cir. 1977); Fellows v. Medford Corp., 431 F.Supp. 199 (D.Or.1977). Finally, Congress provided a form of punishment to deter age discrimination without discouraging conciliation by specifying liquidated damages for willful violation of the Act. The double damages for willful violation acts as a substitute for punitive damages. Looney v. Commercial Union Assurance Cos., 428 F.Supp. 533 (E.D.Mich.1977). The one case allowing punitive damages in an ADEA action does not mention any of these considerations. Murphy v. American Motors Sales Corp., 410 F.Supp. 1403 (N.D.Ga. 1976). Punitive damages are unavailable in actions for violation of the ADEA.

d. FAILURE TO NAME INDIVIDUAL DEFENDANTS IN PROCEEDINGS BEFORE THE SECRETARY OF LABOR

29 U.S.C. § 626(d) provides 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. . . . Upon receiving a notice of intent to sue, the Secretary shall promptly notify all persons named therein as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.

There has been little litigation of the issue of notice required by this section. However, procedural interpretations of Title VII may be utilized to interpret the ADEA in view of the almost identical language and similar purpose of the two statutes. Gabriele v. Chrysler Corp., 416 F.Supp. 666 (E.D.Mich.1976), which considered the identical requirements of state action before judicial action. To sue any defendant in federal court under Title VII, 42 U.S.C. § 2000e-5(f), the plaintiff must have named the defendant in the proceeding before the Commission. Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967), cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166 (1967). The purpose of the notice requirement is to afford the Secretary of Labor the opportunity to negotiate a conciliation between the plaintiff and the prospective defendant(s). Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F.Supp. 318 (D.Mass.1976), aff'd, 545 F.2d 222 (1st Cir. 1976)....