Skoglund v. Singer Company

Citation403 F. Supp. 797
Decision Date13 November 1975
Docket NumberCiv. A. No. 75-212.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire


Robert A. Shaines, Shaines, Madrigan & McEachern, Portsmouth, N. H., for plaintiff.

Ronald L. Snow, Orr & Reno, Concord, N. H., for defendant.


BOWNES, District Judge.

This action arises under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. and concerns an act of alleged age discrimination by defendant against plaintiff on or about August, 1974. Jurisdiction is founded on 29 U.S.C. § 626(c) and 28 U.S.C. § 1331. Defendant contests the jurisdiction of this court and has moved to dismiss the case.

Plaintiff, a resident of Hampton, New Hampshire, has been employed by defendant, The Singer Company, for a total of thirty-six years. Plaintiff is a member of the class covered by ADEA. 29 U.S.C. § 631.

Defendant, The Singer Company, is an employer within the meaning of ADEA, is engaged in interstate commerce within the meaning of ADEA, and is, therefore, subject to the requirements of ADEA. 29 U.S.C. § 630(b) and (h).

Plaintiff, prior to August, 1974, had worked for defendant as a manager of a store in Boston, Massachusetts. In August, 1974, he was transferred to a smaller store in Stoneham, Massachusetts. Plaintiff alleges that this transfer took place solely because "he looked older than his actual age, which is now 54, and . . . the company needed someone younger to manage the Boston store." (Plaintiff's Complaint ¶ 10 at p. 2.) Plaintiff claims that this transfer constitutes a wilful violation of ADEA, 29 U.S.C. § 623(a)(1) which provides:

(a) It shall be unlawful for an employer —
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

The alleged act of discrimination occurred in early August, 1974.1 Plaintiff alleges that, by letter dated February 21, 1975, he notified the Employment Standards Administration of the United States Department of Labor of the alleged discrimination. He then notified the Massachusetts Commission Against Discrimination on March 4, 1975. On April 25, 1975, as required by 29 U.S.C. § 626(d), plaintiff notified the Secretary of Labor of his intent to bring suit under ADEA. These dates are not disputed by defendant.

Defendant has moved to dismiss this action for lack of jurisdiction in this court due to plaintiff's failure to timely comply with ADEA's filing requirements. 29 U.S.C. § 633(b); 29 U.S.C. § 626(d). Plaintiff claims that defendant's failure to comply with 29 U.S.C. § 627, the requirement that employers post notices concerning ADEA, excuses his failure to so comply. There is a factual dispute as to whether defendant failed to post the required notices.

There is an initial question as to the jurisdiction of this court raised by defendant: Is plaintiff barred from seeking relief in federal court due to his failure to fully comply with 29 U.S.C. § 633(b)?

Section 633(b) states:

In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 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 act of alleged age discrimination took place in Massachusetts. Massachusetts is a State which has a law prohibiting age discrimination in employment and establishing a State authority to grant or seek relief from such discrimination. Mass.Gen.Laws ch. 6 § 56. Mass.Gen.Laws ch. 151B § 4 provides:

It shall be an unlawful practice:
1. For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, age, or ancestry of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.

29 U.S.C. § 633(b), therefore, applies to this case.

Section 633(b), read strictly, requires that a complainant seek relief in a state proceeding before a suit may be brought in federal court under ADEA. Curry v. Continental Airlines, 513 F.2d 691 (9th Cir. 1975); Goger v. H. K. Porter Company, Inc., 492 F.2d 13 (3d Cir. 1974); Vaughn v. Chrysler Corporation, 382 F.Supp. 143 (E.D.Mich.1974); McGarvey v. Merck & Co., Inc., 359 F. Supp. 525 (D.N.J.1973), vacated, 493 F. 2d 1401 (3d Cir. 1974), cert. denied, 419 U.S. 836, 95 S.Ct. 64, 42 L.Ed.2d 63 (1975).

Massachusetts requires that:

Any complaint filed pursuant to this section must be so filed within six months after the alleged act of discrimination. Mass.Gen.Laws ch. 151B § 5 (Supp.).

Here, plaintiff notified the state agency in March, 1975, seven months after the alleged act. Plaintiff was barred, therefore, at the time of notification from pursuing any state relief. The question thus arises whether plaintiff's failure to timely file with the Massachusetts Commission precludes this court from taking jurisdiction of this case.2

The filing requirements of ADEA, 29 U.S.C. § 626(d), is similar to that of the Massachusetts law. It provides:

(d) 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, . . .

ADEA's filing requirement has been held to be mandatory and to be a condition precedent to jurisdiction in a federal court. Powell v. Southwestern Bell Telephone Company, 494 F.2d 485 (5th Cir. 1974); Oshiro v. Pan American World Airways, Inc., 378 F.Supp. 80 (D.Hawaii 1974); Burgett v. Cudahy Company, 361 F.Supp. 617 (D.Kan. 1973); Cochran v. Ortho Pharmaceutical Company, 376 F.Supp. 302 (E.D.La. 1971). However, this court notes that, to its knowledge, Mass.Gen.Laws ch. 151B § 5 has not been interpreted by the Massachusetts courts, and it has not been decided whether Section 5 is a jurisdictional requirement in Massachusetts.

Plaintiff is seeking to enforce Congressionally created rights and remedies, and federal courts are not free to loosely interpret the requirements set in such legislation.

. . . where statutory rights are asserted in a court, strict compliance with the statute in question is a jurisdictional prequisite to the commencement of a civil action based upon that statute. McGarvey, supra, 359 F. Supp. at 528.

Abshire v. Chicago & Eastern Illinois Railroad Co., 352 F.Supp. 601 (N.D.Ill. 1972).

On the other hand, ADEA is remedial legislation with the broad purpose of ending age discrimination in the United States. 29 U.S.C. § 621. Remedial legislation should not be so narrowly read as to preclude achievement of its purpose; form should not be raised over substance.

The Age Discrimination Act is remedial and humanitarian in its nature as is Title VII. Courts construing Title VII's procedural limitations have been extremely reluctant to allow technicalities to bar claims brought under that statute. Limitations which would take away a right from one for whom the statute was enacted have been required to be express and not subject to varying interpretations. Woodford v. Kinney Shoe Corp., 369 F.Supp. 911, 914 (N.D.Ga.1973).

Cf. Evans v. Sheraton Park Hotel, 164 U.S.App.D.C. 86, 503 F.2d 177 (1974); EEOC v. Wah Chang Albany Corp., 499 F.2d 187 (9th Cir. 1974); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). This is particularly so in a statutory scheme in which lay persons are expected to enforce their statutory rights. This court is aware of the admonition of the Supreme Court in Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972):

Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.

The purpose of Section 633(b) is to further state-federal relations. 1967 U.S.Code Cong. and Admin.News, pp. 2218, 2219. Section 633(b) manifests Congressional intent to defer to the states' efforts to remedy age discrimination within their own boundaries. It allows the states a minimum of sixty days to attempt to redress a grievance prior to any federal judicial action in the case.

We agree with the district court, however, that although the Act does not require an aggrieved person to exhaust state remedies as a condition precedent to the institution of a federal suit, it does require that the State be given a threshold period of sixty days in which it may attempt to resolve the controversy, normally by voluntary compliance. Goger, supra, 492 F.2d at 15.

Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., the Equal Employment Opportunity Act (hereinafter Title VII), has an almost identical deferment requirement. 42 U.S.C. § 2000e-5(c).3 Section 2000e-5(c) has been interpreted to require that appropriate state agencies be given a prior opportunity to redress the alleged grievance. Love v. Pullman Co., supra, 404 U. S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679; Wah Chang, supra, 499 F.2d 187; Crosslin v. Mountain States Telephone & Telegraph Co., 422 F.2d 1028 (9th Cir. 1970), vacated and remanded, 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971);4International Bro. of Electrical Wkrs. v. EEOC, 398 F.2d 248 (3d Cir. 1968), cert. denied, 393 U.S. 1021, 89 S.Ct. 628, 21 L.Ed.2d 565 (1969).

A fundamental policy of the Equal Employment Opportunity Act Act is to avoid federal action

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