Vance v. Whirlpool Corp.

Decision Date10 May 1983
Docket NumberNo. 81-1568,81-1568
Parties31 Fair Empl.Prac.Cas. 1115, 31 Empl. Prac. Dec. P 33,580 Wilfred H. VANCE, Appellee, v. WHIRLPOOL CORPORATION, Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

David J. Parsons, Chicago, Ill. (Charles J. Griffin, Jr., Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., Hugh B. Campbell, Jr., Weinstein, Sturges, Odom, Groves, Bigger, Jonas & Campbell, Charlotte, N.C., on brief), for appellant.

Samuel M. Millette, Ernest S. DeLaney, III, Charlotte, N.C. (DeLaney, Millette, DeArmon & McKnight, P.A., Charlotte, N.C., on brief), for appellee.

Before FIELD, Senior Circuit Judge, and WIDENER and SPROUSE, Circuit Judges.

FIELD, Senior Circuit Judge:

This action arises under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. Secs. 621-634 (amended 1978). Wilfred H. Vance brought this suit against defendant Whirlpool Corporation (Whirlpool), alleging that Whirlpool terminated his employment in 1977 because of his age. 1 The jury returned a special verdict in favor of Vance. Whirlpool appeals from the judgment for Vance and from the district court's denial of Whirlpool's motion for judgment n.o.v. or in the alternative for a new trial. We vacate the judgment of the district court and dismiss Vance's claim with leave to refile, should Vance be so advised, at the conclusion of conciliation efforts by the Equal Employment Opportunity Commission (EEOC) pursuant to 29 U.S.C. Sec. 626(d).

On May 3, 1977, Vance was discharged from his job with Whirlpool as a territory manager for the Builder Department of the Charlotte Sales Division. At the time of the discharge, Vance was 47 years of age. At trial, Whirlpool asserted that Vance was discharged because of his violation of a well established conflict of interest policy prohibiting the sale or solicitation of orders for non-Whirlpool products by employees while traveling on behalf of Whirlpool. Vance alleged that his discharge was part of a Whirlpool plan to purge its southeast regional sales organization of older employees by replacing them with younger persons.

At the time of the discharge and for over two years thereafter, no notice was posted in Whirlpool's Charlotte sales office setting forth information regarding the rights of employees under the ADEA as required under 29 U.S.C. Sec. 627. 2 Although Vance learned of the ADEA in October of 1978, he asserted that he remained unaware of the possibility that he might have a cause of action under the ADEA until April 1979 when he retained legal counsel.

Vance contended at trial that the delay in learning of his rights under the ADEA rendered it impossible for him to comply with all of the time limitations for filing a charge and a private cause of action, particularly the requirement of Sec. 626(d)(1) that such charges of discrimination be filed within 180 days of the alleged discriminatory discharge. Furthermore, he pointed out that Sec. 626(e) of the ADEA contains a two year statute of limitations on causes of action for nonwillful violations which would have expired in Vance's case on May 2, 1979. Therefore, Vance claimed that it was impossible for him to file a civil suit within the limitations period and still bring a charge with the Secretary of Labor 3 60 days prior to the commencement of his civil action as required by Sec. 626(d). Faced with this dilemma, Vance decided to file suit and notify the Secretary of Labor of his charge simultaneously.

On May 3, 1979, the Charlotte Area Director of Labor wrote Whirlpool informing it of the charge and setting a conference for May 10, 1979. Whirlpool's attorney subsequently advised the Director that Vance's action in the district court precluded conciliation with the Department of Labor, and no conciliation efforts ensued. Whirlpool filed a motion for summary judgment, contending that Vance had failed to comply with the statutory mandate of the ADEA by not waiting 60 days after bringing a charge before filing suit in federal district court and by not filing his charge with the Department of Labor within 180 days of the allegedly discriminatory act. On May 13, 1980, the district court entered an order denying Whirlpool's motion.

The case was tried before a jury which returned a special verdict in favor of Vance. Based on the jury's verdict and its own findings, the district court entered an order on May 29, 1981, holding that the 180-day filing period of 29 U.S.C. Sec. 626(d)(1) was equitably tolled until April of 1979 when Vance retained an attorney and acquired actual knowledge of his rights under the ADEA. The district court further found that Whirlpool was equitably estopped from asserting the 60-day conciliation period in 29 U.S.C. Sec. 626(d) because of Whirlpool's failure to comply with its statutory duty to make Vance aware of his rights under the ADEA. The district court also determined that in any event, the statutory purpose underlying the 60-day conciliation period had been satisfied since Whirlpool was already aware of allegations of age discrimination in its Charlotte office 4 and since Whirlpool had been afforded a fair opportunity to conciliate the charge by both the Department of Labor and the district court. 5 Consequently, the district court ruled that it had jurisdiction to hear the action and entered judgment for Vance. Following the denial of its motion for judgment n.o.v., Whirlpool appealed to this Court.

Whether the 60-day waiting period of 29 U.S.C. Sec. 626(d) is a jurisdictional prerequisite to the maintenance of a suit under the ADEA has not been addressed by the Supreme Court, nor have we had occasion to consider the question. However, the legislative history of the ADEA provides substantial insight into the nature of the 60-day notice requirement of Sec. 626(d). The House Report on the original Act clearly indicates in three separate passages that Sec. 626(d) requires conciliation before any legal action may be instituted. In discussing enforcement of the provisions of the ADEA, the Report stresses the integral role of conciliation under the statutory scheme in actions brought by either the Secretary or private individuals, stating

It is intended that the responsibility for enforcement vested in the Secretary by section 7, be initially and exhaustively directed through informal methods of conciliation, conference, and persuasion and formal methods applied only in the ultimate sense.

H.R.Rep. No. 805, 90th Cong., 1st Sess. 5, reprinted in [1967] U.S.Code Cong. & Ad.News 2213, 2218 (emphasis supplied). In further discussing enforcement of the ADEA, the Report states that the legislation

Directs the Secretary to attempt to secure voluntary compliance through conciliation before instituting action, and requires 60 days' notice to the Secretary by persons intending to file civil actions to provide time for informal methods to bring about compliance with the act.

Id., reprinted in [1967] U.S.Code Cong. & Ad.News 2213, 2218 (emphasis supplied). A few pages later, we read in an analysis of the bill that

Subsection (d) requires that persons intending to file civil actions under this act must give the Secretary of Labor 60 days' notice before doing so. During the 60-day period, the Secretary would seek to eliminate unlawful practices by informal methods of conciliation, conference, and persuasion.

Id. at 9, reprinted in [1967] U.S.Code Cong. & Ad.News 2213, 2223 (emphasis supplied). This explicit discussion of the requirement of 60 days' notice stands in sharp contrast to the absence of any mention of the 180-day charge requirement under Sec. 626(d)(1) in the legislative history of the original Act and indicates that Congress intended conciliation efforts under Sec. 626(d) to be a strict condition precedent to the initiation of any litigation in federal courts.

The legislative history of the 1978 amendments lends further support to this interpretation of Sec. 626(d). The Conference Report explicitly points out that neither the 180-day requirement of Sec. 626(d)(1) nor the conciliation requirement of Sec. 626(b) (regarding actions initiated by the Secretary of Labor) was intended as a jurisdictional prerequisite to maintaining a cause of action under the ADEA. H.R.Conf.Rep. No. 950, 95th Cong., 2d Sess. at 12-13, reprinted in [1978] U.S.Code Cong. & Ad.News 504, 534. However, throughout this discussion of procedural amendments to the Act no reference is made to the 60-day waiting period of Sec. 626(d). It may reasonably be inferred that by this omission Congress intended the 60-day period to remain a jurisdictional prerequisite to the initiation of a private action, as it had indicated in the 1967 legislative history.

Finally, we note that in 1978 when Congress liberalized the requirements of Sec. 626(d) by requiring merely that a "charge" rather than a notice of intent to sue be filed with the Secretary, Congress reiterated the fact that the notice and conciliation requirements of Sec. 626(d) were central to the statutory scheme and stressed that these requirements remained unaltered by the amendment. The Conference Report on this point reads as follows:

This change in language is not intended to alter the basic purpose of the notice requirement, which is to provide the Department with sufficient information so that it may notify prospective defendants and to provide the Secretary with an opportunity to eliminate the alleged unlawful practices through informal methods of conciliation. Therefore, the conferees intend that the "charge" requirement will be satisfied by the filing of a written statement which identifies the potential defendant and generally describes the action believed to be discriminatory.

H.R.Conf.Rep. No. 950, 95th Cong., 2d Sess. 12, reprinted in [1978] U.S.Code Cong. & Ad.News 504, 534. We find this passage to be a clear statement that by the 1978 amendment to Sec. 626(d) Congress intended only to...

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