Woodard v. Western Union Telegraph Co., 80-7383

• Decision Date: 13 July 1981
• Docket Number: No. 80-7383,80-7383
• Citation: 650 F.2d 592
• Parties: 26 Fair Empl.Prac.Cas. 881, 27 Empl. Prac. Dec. P 32,265 John G. WOODARD, Plaintiff-Appellant, v. WESTERN UNION TELEGRAPH COMPANY, Defendant-Appellee. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 592

650 F.2d 592

26 Fair Empl.Prac.Cas. 881,

27 Empl. Prac. Dec. P 32,265

John G. WOODARD, Plaintiff-Appellant, v. WESTERN UNION TELEGRAPH COMPANY, Defendant-Appellee.

No. 80-7383.

United States Court of Appeals, Fifth Circuit.

Unit B

July 13, 1981.

John L. Green, Hapeville, Ga., for plaintiff-appellant.

Hicks, Maloof & Campbell, Bruce M. Edenfield, Robert E. Hicks, Charles E. Wilson, III, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, Chief Judge, FRANK M. JOHNSON, Jr. and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, Circuit Judge:

John G. Woodard appeals from the dismissal of his complaint of age discrimination against his former employer the Western Union Telegraph Company ("Western Union"). The district court granted Western Union's motion for summary judgment on the ground that Woodard had failed to file a legally sufficient notice of intent to sue with the Secretary of Labor within 180 days of the alleged unlawful act. 29 U.S.C.A. § 626(d)(1) (1975) (amended 1978). We affirm.

Appellant Woodard was employed by Western Union from 1946 to September 30, 1973, when he was terminated allegedly as a result of a reduction in force. At that time, he was 51 years of age. It appears that appellant filed a written complaint of age discrimination with the Department of Labor shortly after his discharge; however, the parties stipulated that he has never given written notice to the Secretary of Labor of his intention to file suit and that he did give oral notice of his intention to file suit in August, 1974. R. at 180. The oral notice in August, 1974, was more than 180 days after the alleged unlawful act, which occurred on September 30, 1973. He filed this action on September 25, 1975.

Mr. Woodard testified by deposition that, during his conversations with Department of Labor officials immediately after his termination, he told them that he "was going to have to go the full route" (Woodard's deposition at 37) and that he was contemplating hiring an attorney. He also testified, in the most general terms, that the Labor Department officials had advised him to "remain quiet and they would run the whole thing through." (Woodard's deposition at 37).

The district court dismissed the complaint on the ground that the appellant had failed to file a legally sufficient notice of intent to sue. The notice requirement, as it existed at the relevant time, provided:

(d) No civil action may be commenced by any individual under this section until the individual has given the Secretary (of Labor) not less than sixty days' notice of an intent to file such action. Such notice shall be filed

(1) within one hundred eighty days after the alleged unlawful practice occurred

29 U.S.C.A. § 626(d)(1) (1975). ¹ The purpose of the notice requirement is to inform the Labor Department that the aggrieved person intends to file a lawsuit; the department, in turn, must inform all persons named as prospective defendants and seek informal conciliation. 26 U.S.C.A. § 626(d). Therefore, it is not sufficient for the aggrieved person simply to complain of age discrimination to the Department of Labor or even to request the department to file suit on his behalf. See Hageman v. Philips Roxane Laboratories, Inc., 623 F.2d 1381 (9th Cir. 1980); Newcomer v. International Business Machine Corp., 598 F.2d 968 (5th Cir.), cert. denied, 444 U.S. 984, 100 S.Ct. 491, 62 L.Ed.2d 413 (1979); Powell v. Southwestern Bell Telephone Co., 494 F.2d 485 (5th Cir. 1974). Appellant's written and verbal complaints of age discrimination to the Labor Department did not satisfy the notice of intent to sue requirement.

The parties stipulated that the appellant gave oral notice of intent to sue in August, 1974, but that was more than 180 days after his discharge. ² Furthermore, Mr. Woodard states in his deposition that he made known his intention to file suit to employees of the Labor Department in his early (i. e., within 180 days) conversations with them, even if he did not state his intention in so many words. This court has never definitively resolved the issue of whether oral notice of intent ³ to sue is sufficient under the Act. In Hays v. Republic Steel Corp., 531 F.2d 1307 (5th Cir. 1976), we touched upon the question. In that case, the complainant, believing that he had been discriminated against on account of his age, orally complained to the Labor Department that he "wanted to do something about it." He was told that he would have to give written notice, but the 180-day period elapsed before he was able to file the written notice. He argued that his oral complaint should suffice. We disagreed.

The most that can be said is that Massey gave the Department oral notice that he "wanted to do something about it" which is not the same as filing a notice of intent to bring a civil action against Republic Steel.

531 F.2d at 1312. It is not clear from our holding whether the notice was insufficient because it was oral or because it did not clearly express his intent to file suit. The opinion does cite United States v. Lombardo, 241 U.S. 73, 76, 36 S.Ct. 508, 509, 60 L.Ed. 897 (1916), which defined the word "file" in another statute as meaning the delivery and receipt of a paper, document or written instrument by the proper official. The implication of the Hays case is that, before a notice can be "filed" as required by § 626(d), it must be reduced to writing. This reasoning has been accepted by the Second Circuit Court of Appeals in Reich v. Dow Badische Co., 575 F.2d 363 (2d Cir.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978), which held that oral notice of intent to sue did not satisfy § 626(d). The court stated:

Appellant relies on the oral statement that he would sue when he could find a lawyer, allegedly made in December 1973, to satisfy the requirement of Section 626(d). The notice allegedly given was ill-calculated to discharge the statutory function of presenting the Secretary with an unequivocal notice that the grievant intended to sue, and that, in consequence, he must under the statute

"promptly notify all persons named (in the notice of intent) as prospective defendants in the action".

Appellant's alleged oral notice had neither the content nor the clarity of expressed purpose needed to fulfill its statutory office. If so uncertain a notice could be thought sufficient, the result could often be obscure protractions and confusion in proceedings that are intended to be quickly prosecuted, while restoration to employment with minimal derangement of the affairs of employer and employee can still be seen as possible. Cf. Dartt v. Shell Oil Co., supra, 539 F.2d (1256) at 1259 ((10th Cir. 1976), aff'd. by an equally divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977)); Powell v. Southwestern Bell Telephone Co., supra, 494 F.2d at 489.

The statute does not say that the notice of an intent to file an action must be written, but Section 626(d), by requiring that it be filed, implies that the notice must be written. Hays v. Republic Steel Corp., supra.

575 F.2d at 368.

We conclude that oral notice of intent to sue will not suffice under § 626(d). The necessity of a writing is fairly implicit in the requirement of the statute that the notice must be "filed." Furthermore, the requirement of a written notice is desirable for practical and policy reasons. It will provide certainty with respect to compliance with the 180-day limitation period for filing the notice and it will facilitate the Labor Department's task of notifying all persons named as prospective defendants of that fact and the reasons for the complaint. See Reich v. Dow Badische Co., supra. ⁴

Our inquiry does not end, however, with a determination that appellant failed to give legally sufficient notice of his intent to sue. In Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981) (en banc), we held that the filing of the notice...