Reich v. Dow Badische Co.

• Decision Date: 04 April 1978
• Docket Number: D,No. 931,931
• Citation: 575 F.2d 363
• Parties: 17 Fair Empl.Prac.Cas. 363, 16 Empl. Prac. Dec. P 8224 Charles D. REICH, Plaintiff-Appellant, v. DOW BADISCHE COMPANY and Dow Chemical Company, Defendants-Appellees. ocket 76-7637.
• Court: U.S. Court of Appeals — Second Circuit

Page 363

575 F.2d 363

17 Fair Empl.Prac.Cas. 363, 16 Empl. Prac.

Dec. P 8224

Charles D. REICH, Plaintiff-Appellant, v. DOW BADISCHE COMPANY and Dow Chemical Company, Defendants-Appellees.

No. 931, Docket 76-7637.

United States Court of Appeals, Second Circuit.

Argued May 23, 1977.

Decided April 4, 1978.

Lewis F. Tesser, New York City (Coles Weiner Tesser, P.C., New York City, of counsel), for plaintiff-appellant.

Steven J. Glassman, New York City (Kaye, Scholer, Fierman, Hays & Handler and Mark Landau, New York City, of counsel), for defendants-appellees.

Before FEINBERG and DANAHER, ^* Circuit Judges, and DOOLING, ^** District Judge.

DOOLING, District Judge.

Appellant was employed by appellee Dow Chemical Company in October 1965 when he was fifty years old. He worked in a sales capacity for appellee Dow Badische Company, 50% of the stock of which is owned by Dow Chemical Company, until on or about June 29, 1973, when he was discharged. Since he had not worked for Dow for ten years, appellant had no vested right to a retirement pension under the Dow Retirement Plan. On June 29, 1976, plaintiff commenced the present suit alleging that his discharge was based on his age and discriminated against him and in favor of younger and less experienced sales persons; appellant alleged generally that he had sought relief unavailingly through various state and federal channels, and had notified the Solicitor of Labor more than sixty days before suing of his intention to sue privately. Appellant gave written notice to the Secretary of Labor of his intention to file suit on February 11 and March 2, 1976. See 29 U.S.C. §§ 626(c)(d), 633(b), 255(a).

Appellant's answers to interrogatories and his document production assert that appellant "contacted" the New York State Division of Human Rights by telephone in December 1973 and May 1974 and filed a verified complaint against appellees with the Division, Region 1a, on June 24, 1976, and that there was no written response, or record of any oral response, from the state agency. Appellant did not say that he had given the Secretary of Labor written notice of his intention to sue earlier than 1976, but appellant asserted that in December 1973 ¹ he spoke to Norman Bromberg, the Acting Area Director, Employment Standards Administration, Wage and Hour Division, Department of Labor, about his difficulties in retaining a lawyer, asked for a recommendation of counsel, which was declined, and then

"I told him I would sue when I could find a lawyer."

Bromberg wrote appellant on December 11, 1973, acknowledging the receipt from appellant of information about appellees' practices, saying that the matter had been assigned to a compliance officer, and concluded:

"A pamphlet summarizing the provisions of the Act is enclosed for your information. As you will note on page 4, there are certain requirements with specific time limits governing the circumstances under which an employee may file his own suit under this Act."

Under date of April 2, 1974, the Area Director wrote appellant that there would be a delay in completing the investigation, and continued

"In view of this delay and to avoid any misunderstanding, your attention is again called to page 4 of the enclosed pamphlet. As you will note, there are certain requirements with specific time limits governing the circumstances under which an employee may file his own suit. The fact that you submitted information concerning an alleged unlawful practice has not been considered a notice to the Secretary of Labor of intent to file suit. We do not, of course, encourage or discourage such suits. This is entirely up to you."

Another letter in the same tenor was sent appellant by the Area Director on August 13, 1974. By letter of January 23, 1975, the office of the Assistant Regional Director informed appellant that the solicitor's office had advised that there was "no basis for litigation by the Department of Labor in your behalf." A conciliation effort on appellant's behalf was, nevertheless, made by the Richmond Area Office of the Department in April-May 1976, without success.

So far as concerns the State Division of Human Rights, appellant's affidavit in opposition to the motion for summary judgment stated that he spoke on the telephone (semble in August 1973) to an unidentified person in the Division of Human Rights, who told him that, since appellees' home office was out of state and the matter seemed "appropriate for federal relief of some sort", the case would doubtless "end up with the U.S. Department of Labor", and appellant "should go to them to begin with." Appellant refers to two further telephone calls to the Division of Human Rights in December 1973 and May 1974, "the results of which were negative and in each case I was discouraged from coming down to file any complaint." (It appears that the Division of Human Rights on April 6, 1977, dismissed appellant's complaint and closed the file on the ground that the complaint to the Division had not been filed within one year after the discrimination complained of occurred, as required by Section 297(5) of the New York Executive Law. See Executive Law § 297(1), (5); Matter of Queensborough Community College v. State Human Rights Appeal Board, 1977, 41 N.Y.2d 926, 394 N.Y.S.2d 625, 363 N.E.2d 349.)

Appellant contends that he had been from the inception of his complaint to the Secretary of Labor in 1973 until the filing of the complaints with the State Human Rights Division and with the district court in June 1976 "continuously engaged in attempts to secure competent counsel to represent me privately, which efforts were well known to the U.S. Department of Labor." Appellant's affidavit detailed contacts with some eleven different lawyers or law firms commencing July 18, 1973, and continuing on April 4, 1974, October 18, 1974, January or February 1975, March 11, 1975, March 1975, April 17 and 18, 1975, April 23, 1975, May 2, 1975, and late spring 1976.

Appellees moved to dismiss, or for summary judgment, on the complaint and appellants answers to the interrogatories. Judge Wyatt decided that

"The requirements of 29 U.S.C. § 626(d) are jurisdictional and notice of intent to sue was not given in the required time . . . . The motion has been treated as one for summary judgment and is granted."

Appellant contends that the district court erred in holding by summary judgment that the required notice had not been given within the required time inasmuch as appellant "clearly asserted, in his affidavit in opposition . . . that he provided the requisite notice." His argument is that his oral statement that he would sue when he could find a lawyer satisfied the requirement of Section 626(d) (Woodford v. Kinney Shoe Corporation, N.D.Ga.1973, 369 F.Supp. 911, 914-915; Sutherland v. SKF Industries, Inc., E.D.Pa.1976, 419 F.Supp. 610, 615-616), that his notice of intent to sue did not have to be in any particular form (cf. Burgett v. Cudahy Company, D.Kan.1973, 361 F.Supp. 617, 619, 621), and, in any event, appellant should have been given an opportunity at trial to show circumstances that might operate to cure any defect in filing his notice of intention to sue.

Appellees contend that Section 626(d) plainly bars appellant's claims because his alleged December 1973 notice of intention to sue was not in writing (Hays v. Republic Steel Corp., 5th Cir. 1976, 531 F.2d 1307, 1312); the written notices filed in 1976 were ineffective because filing the notices within the time prescribed in Section 626(d) was a condition precedent to successful suit in the district court (Hiscott v. General Electric Co., 6th Cir. 1975, 521 F.2d 632; Adams v. Federal Signal Corp., 5th Cir. 1977, 559 F.2d 433), and appellant made no showing of entitlement to equitable relief from the statutory bar. Cf. Powell v. Southwestern Bell Telephone Co., 5th Cir. 1974, 494 F.2d 485; Ott v. Midland-Ross Corp., 6th Cir. 1975, 523 F.2d 1367, 1370; Dartt v. Shell Oil Co., 10th Cir. 1976, 539 F.2d 1256, 1261-1262, aff'd by equally divided Court, 1977, --- U.S. ----, 98 S.Ct. 600, 54 L.Ed.2d 472. Appellees contend, further, that appellant is barred because he did not file a timely complaint with the State Human Rights Division, as required by 29 U.S.C. § 633(b). Goger v. H. K. Porter Co., 3d Cir. 1974, 492 F.2d 13, 15-16; Curry v. Continental Airlines, 9th Cir. 1975, 513 F.2d 691, 693; Davis v. RJR Foods, Inc., S.D.N.Y.1976, 420 F.Supp. 930, 933, aff'd, 2d Cir. 1977, 556 F.2d 555; cf. Weise v. Syracuse University, 2d Cir. 1975, 522 F.2d 397, 411-412. Petitioner argues, in reply, that the deference to state remedies required by Section 633(b) is not "jurisdictional" (i. e., preclusive), Skogulund v. Singer Co., D.N.H. 1975, 403 F.Supp. 797, 802-803; cf. Goger v. H. K. Porter Co., supra, Rogers v. Exxon Corp., 3rd Cir. 1977, 550 F.2d 834, 844; Bonham v. Dresser Industries, Inc., 3rd Cir. 1977, 569 F.2d 187, and appellant should be given an opportunity to produce evidence that his failure to pursue his state remedy can be excused. ²

The Age Discrimination in Employment Act ("ADEA"), in these respects not unlike Title VII of the Civil Rights Act of 1964, dealing with equal employment opportunity (42 U.S.C § 2000e-5(b), (c), (e) and (f)(1)), does not permit a grievant to sue until sixty days after he has presented his charge of discrimination to the appropriate state authority. ³ Section 626(d) ⁴ further requires that before suing the grievant must in every case file with the Secretary of Labor notice of his intention to sue for redress of the discrimination sixty days before he sues. While the ADEA creates a distinct substantive right in employees engaged in industries affecting commerce (Section 623), the right to sue upon it is thus doubly qualified.

Failure to meet the sixty day notice requirements of Sections 626(d) and 633(b) and on a literal reading of the ADEA, the two notice periods could run concurrently does not extinguish the...