*1 EKLUND, Plaintiff-Appellant, Carl W. al.,

The LUBRIZOL CORP. et

Defendants-Appellees.

No. 75-1535.

United Appeals, States Court of Sixth Circuit. 8,

Argued Oct. 1975. 21,

Decided Jan. 1976. Grogan, Robert J. A. Tuzi and Louis Ohio,

Cleveland, plaintiff-appellant. for Kohn, Barnard, Vilma L. H. Thomas Dunn, Cleveland, Ohio, for de- John P. fendants-appellees. McCREE, CELEBREZZE and

Before CECIL, Cir- Judges, and Senior Circuit Judge. cuit CELEBREZZE, Judge. appeal This is an from the United States District Court for the Northern Ohio, Division, District of Eastern which granted Dismiss, Appellees’ Motion to citing Appellant’s failure to provision the Age Discrimi- 1967, Employment nation in Act of seq. (1970) (hereinafter U.S.C. 621 et referred to as either “ADEA” or the “Act”).1 argument 1. Court, Prior to department’s request granted, oral before brief. The Department fully United arguments States and we Labor moved have considered its permission urging to file out-of-time an amicus reversal. curiae *2 by informal practice unlawful Appellant, discharged alleged by Appellee on conference, conciliation, July 11, 1973, of was methods sixty years old at the persuasion. time discharge of and and thus within the forty to sixty-five age range protected of Secretary notified Appellant by the ADEA. 29 (1970). U.S.C. § age dis- intent to file of his Labor the Act two action under

The Act crimination addresses itself to the elimi- after his ninety-nine days age nation of as an hundred and arbitrary criterion in This, notice dismissal. employment alleged unlawful decisions. The purpose of with the one hundred and the Act is not 621(b): embodied in did § 626(d)(1)of day requirement of eighty § (b) It purpose is therefore the of Act. chapter promote to employment of question of thus turn to the persons older We based on ability their falls within the ambit age; Appellant rather than whether prohibit to arbitrary 626(d)(2), given can be age where notice discrimination in of employment; § to al- help period following an employers 300-day within a and workers ways find practice. of Subsection meeting problems leged unlawful arising from the impact peri- more liberal notice (d)(2) of affords its employment. in which only od in those situations prescribes The Act alternative notice applicable. of the Act is Sec- 633(b)2 § requirements, these requirements are 633(b) to those actions in applies tion contained in 626(d): § practice alleged unlawful oc- which the (d) No may civil action be com- (1) which has a law curred in a state by any menced individual under this prohibiting section until the individual given has (2) and a state authorized ment Secretary sixty not less than days’ suffering seek relief for individuals to notice anof intent to file such action. Appellant contends age discrimination. Such notice shall be filed— 633(b) is a state and there- that Ohio (1) within one hundred eighty and suit, giv- of intent to file fore his notice days alleged after unlawful days after the Secretary to the en challenged practice occurred, or dismissal, proper. (2) in a case to which section discrimination in employ- 633(b) of this title applies, within ment law is contained in Ohio Rev.Code three hundred days after the alleged 4101.17: practice unlawful occurred or within No employer shall refuse opportuni- thirty days receipt by after the indi- ty of interview for employment ap- of vidual of notice of termination of plicants discharge just without proceedings law, under State which- any employee cause ages between the ever is earlier. forty of and sixty-five who are physi- of intent receiving cally perform a notice able to the duties Upon and noti- promptly shall sue, Secretary otherwise meet established re- pro- quirements therein as industry named of the persons all and laws fy and pertaining action to the relationship spective defendants between any employer eliminate employee. seek to and promptly shall 633(b): twenty 2. Section shall be extended to hundred one and days during year the first after the effective (b) alleged prac- In the case of an unlawful any requirement date of such State law. If occurring pro- tice in a State which has a law proceedings the commencement of such is im- hibiting employment discrimination in because by posed authority other than a re- State establishing authorizing a State quirement filing signed of a written and grant or seek relief from such upon pro- statement of the facts which the discriminatory practice, may no suit be based, ceeding proceeding is shall be brought under section 626 of this title before pur- deemed to have been commenced for the expiration sixty days proceedings after poses of this subsection at the time such state- law, have been commenced under the State by registered appro- ment is sent mail to the proceedings unless such have been earlier ter- priate authority. State Provided, sixty-day period minated: That such “The Department, Resolution of the only however, issue raised had no personnel assigned turns on whether to handling age Ohio has a dis- state authority complaints crimination and, established or in fact, authorized potential or seek advised plaintiffs relief from discriminato- take ry practices complaints their based on local law age. Appellant enforce- contends that it officials or does. the federal Appellees govern- and the *3 Secretary, ment. in Nor was any specific his amicus there leg- brief submitted in support islative mandate of Appellant, directing the position Depart- take the that Ohio ment to act in has the field age no state of authority discrim- estab- lished or ination.3 authorized to seek relief from such discriminatory practices. Section We thus affirm the District 633(b) a envisions state Court’s conclusions that Ohio is not a equipped to investigate age discrimina- 633(b) state and § that the 300-day filing claims, tion to genuine mediate disputes, period 626(d)(2) of § was therefore not to attempt to disputes resolve through Appellant. to available voluntary compliance and if necessary, to Court, initiate This administrative in judicial or Hiscott v. General pro- Elec- ceedings Co., to tric 521 compliance (6th secure F.2d 632 Cir. 1975), with the state following a review of the legisla- law. Act’s Appellant contends history, that tive either the concluded that compliance Ohio Depart- ment of with the requirements Industrial notice Relations or the Ohio contained Attorney General, in jurisdictional 626 is a § prerequisite the two agencies jointly, filing are the of an action under the enforce ADEA. The Hiscott Court that discrimination law. noted the However, Fifth a thorough in Powell of review Ohio Southwestern Bell yields statutes Co., no Telephone section authorizing (5th 494 the F.2d 485 Ohio Cir. Depart- 1974), ment of and Relations, Industrial numerous District Courts have the Ohio Attorney General, reached the same conclusion. any other State perform such functions. contends, Secretary The Appellant’s behalf, The note that the following special the facts of this Ohio case age dis- are crimination law Page’s appropriate in for the Ohio creation of an Code an- notated exception should to the imperative have strongly nature suggested of the lack of requirements. Act’s notice enforcement The Ap mechanism to Appellant’s pellant in counsel: Hiscott made much the same argument. The in Hiscott cit No penalty provision has provid- been Bishop ed section, Associates, v. Jelleff 398 ed for this (emphasis added.) F.Supp. (D.D.C.1974),in support of The District Court’s conclusion that Ohio argument. its The Bishop Court con is not 633(b) a § state is further but- cluded that an employer’s failure to post by tressed the decision in Curry v. Conti- required informational notices by Airlines, nental Inc., 513 F.2d (9th 627 of the Act plaintiff’s § excused fail 1975). Cir. The Ninth Circuit concluded ure to with provisions. the notice in Curry California, that at the time the Miller, Judge writing for this Court in action was in Court, filed District was Hiscott, rejected the reasoning of Bishop not a 633(b) state. The Curry Court by stating: noted that the California discrimina- tion in employment law part was of that ruling, Bishop we Despite find State’s Unemployment Code, Insurance nothing legislative in the Act in its nor general enforcement which was vest- history compliance to indicate ed Department California of Hu- provision intended man Resources. The Court then stated: tolled or be excused 3. 513 F.2d at 693. failure, here, post

er’s as the infor- opinions Goger The District Court mational notices. the fact that both turn on and Mereck Jersey has an New The Secretary advances two rea Jersey Depart- and that the New law in support equitable sons relief for Safety is the of Law and Public first, Appellant, Appellant’s counsel has Jersey agency which been New State made reasonable attempt to comply “responsibility] with the “vested” and, second, with the Act that at discrimina- elimination of unlawful Appellant’s discharge time of there was Goger v. H. K. employment.” tion in judicial no pro clarification notice Co., page ¶ 5 EPD 8562 at Porter visions of the ADEA. Jersey, Michigan like (1973). New The Secretary’s two reasons are inter Ohio, 633(b) is a state and unlike twined. The Secretary contends that an 626(d)(2) of 300-day period notice in § attempt to comply with then existing arising actions ADEA would apply *4 prompted case law Appellant’s counsel to occurring in employment out of practices ignore plain language the of the Act and Jersey. New contact various agencies state seeking we do not For the reasons enumerated enforcement of discrimination of this case war- that the facts believe law. applicable law, As then case the The equitable Appellant. relief for rant Secretary points holdings Goger the in Court is af- judgment District Co., v. H. K. (D.N.J. ¶ Porter 5 EPD 8562 firmed. 1973), and v. McGarvey Co., Mereck & Inc., F.Supp. 359 (D.N.J.1973), 525 both McCREE, Judge (dissenting). later vacated the Third Circuit on facts, special opinion consolidated I in respectfully dissent. I do not view Vaughn Chrysler v. Corp. and Prange v. Hiscott v. General Co., Electric 521 F.2d Co., Ford Motor 382 F.Supp. (E.D. 143 (6th 1975) Cir. as holding the re Mich.1974), quirements and Smith v. Crest 626(d) Commu jurisdic to be nities, Inc., 10,053 ¶ 9 EPD in tional se (W.D.Ky. .isen that noncompliance 1974). Appellant notified Secretary with them deprive would a court of its 6, 1974, May on that he intended power to insti to entertain a suit. Although tute a federal action. The compliance consolidated with these notice require opinion Vaughn in was issued April ments is a statutory prerequisite to 30, 1974, and the Crest bringing suit, Communities an exceptional case merit opinion was issued on 21, November ing equitable relief presented is where a 1974, thus it is unlikely that they would claimant can show that his state had a have afforded Appellant’s guid counsel statute prohibits that employment dis ance in selecting proper forum for crimination upon based age, but a person resolving dispute in the months fol of ordinary intelligence with the exercise lowing Appellant’s 11, July 1973,dismiss of reasonable diligence could not deter event, al. In any Appellant’s reliance on mine within a day period whether Vaughn was misplaced because Vaughn the state also had established arose in Michigan, a state which has or or seek relief. I both an discrimination law and an would hold that in such a case the reme agency, Michigan Civil Rights Com dial purpose of the Act is served by af mission, empowered fording to enforce that law.4 the claimant the benefit of the Michigan Laws, terms, Compiled 4. privileges Section 423.- conditions ” 303a(a), provides part in as follows: . . Michigan Compiled Laws, Section 423.- employment prac- “Sec. 3a. It is an unfair 307(a), provides part as follows: tice: empowered “The commission is (a) any direct- employer, any For because individu- ed, provided, as prevent any hereinafter ages al is between the of 18 and 60 . . . person engaging from employment in unfair to refuse to hire or otherwise to discriminate practices.” against hire, respect tenure, him with period 300 day in which give

notice “required by 626(d). Juan LUGO, To hold Sanchez claimants who were misled by Plaintiff-Appellant, such cir- to the 180 day cumstances requirement congressional would frustrate intent by The penalizing intended beneficiaries of EMPLOYEES RETIREMENT FUND OF Act who have substantially complied ILLUMINATION al., with the PRODUCTS fendants-Appellees. statutory preconditions INDUSTRY et to suit. De- The Act should not be construed to make

it a trap the unwary, nor should it 150, No. Docket 75-7128. require every claimant to retain counsel United States of Appeals, Court experienced technicalities of Second Circuit. litigation. Frequently the monetary amount in controversy is so Argued 13, Nov. 1975. small such a wooden approach 14, Decided Jan. 1976. would, matter, a practical as prevent re- covery by many members of the class the Act adopted protect.

Goger Co., H. Inc., v. K. Porter 492 F.2d (3rd 1974) Cir. provides precedent for

flexibility in the interpretation of the

Act. *5 it

Since is undisputed that Ohio has a

statute prohibits age discrimination

in employment, inquiry should be person

whether a of ordinary intelli-

gence, exercising reasonable diligence,

would have been able to discover within

the 180 day period whether Ohio had an established

grant or seek relief. commu-

nicated with both the Ohio Rights Civil

Commission and the Ohio Attorney Gen-

eral in attempt to obtain enforcement

of the statute. court, Before the district appellant suggested that the Ohio Indus-

trial Commission had to en- force Nevertheless, the statute. ma- a.

jority holds, of this court as did the dis- court,

trict does Ohio not have a

state agency established or authorized to seek relief in

cases. In this appellant situation should be held to have complied substantially requirement of section 626(d) by filing within It days. entirely reasonable for Eklund to assume

after Ohio adopted specific prohibition against ment, that one of agencies with as-

signed authority over the enforcement of

labor practices, rights, or civil or at least

the chief state officer, law enforcement

would attempt to enforce the statute.