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

363 corporate personal returns should Bugore’s and his prove attempted have read: (RUGOBE)

TAXABLE INCOME 1974 $27,507.47 $30,153.53 $35,005.14 $25,007.00 $28,410.96 Income Gross ........................ 12,235.00 18,196.00 17,071.00 9,597:00 17,615.00 Income Taxable .................... 2,692.00 4,003.00 3,756.00 2,111.00 3,875.00 Liability Tax ........................ (RUFFIN) INCOME TAXABLE In- in Taxable

Increase 5,050.00 3,791.55 1,000.00 None None 790.25 come ............................ Dividend) (Constructive Lia- Tax Increased 1,369.67 1,476.16 None None 285.97 217.32 bility ............................ REICH, Plaintiff-Appellant, D. Charles and Dow COMPANY BADISCHE

DOW Company,

Chemical

Defendants-Appellees. 76-7637. Docket

No. Appeals, Court of States

United Circuit.

Second

Argued May April

Decided

Secretary of Labor of his intention to file 2,1976. February 11 and March suit See 255(a). 626(c, d), 633(b), 29 U.S.C. §§ Appellant’s interrogatories answers production and his document assert New appellant “contacted” the York State Rights by telephone Division of Human a May December 1973 and 1974 and filed complaint against appellees verified with Division, la, 24, 1976, June Region on response, that there was no written or and (Coles Tesser, City New York Lewis F. any response, oral from the state record of Tesser, P.C., City, of New York Weiner he had agency. Appellant say did not counsel), plaintiff-appellant. for written notice Secretary of Labor Glassman, City New York J. Steven 1976, his intention to sue earlier than but of Scholer, Fieman, & Handler Hays (Kaye, that in December 19731 appellant asserted Landau, City, of coun- New York Mark and Acting spoke Bromberg, he to Norman defendants-appellees. sel), for Director, Employment Ad- Area Standards ministration, Division, Wage and Hour De- DANAHER,* and FEINBERG Before Labor, partment of about his difficulties in DOOLING,** District and Judges, Circuit retaining lawyer, a asked for a recommen- Judge. counsel, declined, which was and dation then DOOLING, Judge. District “I told him I would sue when I could find appellee Dow employed by Appellant was lawyer.” a 1965 when Company in October Chemical Bromberg wrote appellant on December in a old. He worked fifty years he was 1973, acknowledging receipt ap- from Badische appellee Dow capacity for sales pellant appellees’ information about which is the stock of 50% of Company, saying that the matter had been practices, until on Company, by Dow Chemical owned officer, and con- assigned compliance to a 29, 1973, he was dis- when June or about cluded: Dow nоt worked for he had charged. Since pamphlet summarizing provisions “A right had no vested years, appellant for ten your the Act is enclosed for informa- the Dow pension under a retirement page will on there you tion. As note plain- June Plan. On Retirement requirements specific are certain with alleging suit present tiff commenced the circumstances governing time limits age on his and discharge was based that his may file his employee under which an him and in favor of against discriminated suit under this Act.” own persons; sales experienced and less younger 2, 1974, the Area Di- April Under date of he had alleged generally that appellant there appellant rector wrote would be unavailingly through various sought relief delay investigation, and completing channels, and had notified and federal continued sixty days of Labor more than the Solicitor delay “In view of this and to avoid private- to sue suing of his intention

before misunderstanding, again attention is your to the gave written notice ly. Appellant * Circuit, sitting сonversation with Mr. Leo Friedman of the the District of Columbia Of Department designation. of Labor” that he had with (JA 27). Bromberg appears to be a mis- This ** York, sitting by meeting Eastern District of New December Of the taken reference to a designation. Friedman, appellant re- between and appellant of ferred to in Friedman’s letter Appellant’s states that December January (JA 54). affidavit experience same he “had much the page pamphlet. Appellant 4 of enclosed

called to contends that he had been note, there you will are certain re- As from inception of his complaint to the specific gov- time limits quirements Secretary of Labor filing until the under erning the circumstances which an complaints with the State Human own employee may file his suit. The fact Rights Division with the district court you information concern- submitted “continuously June 1976 engaged in at- ing has not tempts competent to secure to rep- counsel to the been considered a notice resent mе privately, which efforts were to file suit. We do of Labor of intent well known to the U.S. of La- not, course, encourage discourage or Appellant’s bor.” affidavit detailed con- entirely up you.” such suits. This is tacts with some eleven lawyers different same tenor letter in the was sent Another commencing law July firms August the Area Director on continuing April October 13, 23,1975, January By letter of 1974, 1975, January February 11, March Regional of the Assistant Director office 1975, 1975, April 18, 1975, March 17 and the solicitor’s appellant informed that office April 23, 1975, 2, 1975, May and spring late was “no advised that there basis for had 1976, of Labor in litigation by Department Appellees dismiss, to moved or for sum- A conciliation effort on ap- behalf.” your mary judgment, on the complaint ap- and was, nevertheless, behalf made pellant’s pellants answers to the interrogatories. Depart- Area Office of the Richmond Judge Wyatt decided that 1976, without April-May success. ment “The requirements of 29 626(d) U.S.C. § the State Division So far as concerns of jurisdictional are and nоtice of intent to Rights, appellant’s affidavit in op- Human given sue was not in the required time for summary to the motion position judg- . . The motion has been treated on the spoke telephone stated that he ment as one for summary judgment and is 1973) to an (semble August unidentified granted.” of Rights, in the Division Human person that, appellees’ told him since home who Appellant contends that the court district and the office was out matter holding by erred in summary judgment that for federal “appropriate relief of seemed required notice had given not been sort”, would the case doubtless “end some within required time appel inasmuch as Labor”, with the up asserted, lant “clearly in his affidavit go to them appellant begin and “should to opposition . . that provided he to two Appellant with.” refers further tel- requisite notice.” His argument is that his Division of ephone calls to the Human oral statement he that would sue when he 1974, Rights 1973 May in December and could lawyer find a require satisfied the were negative “the results of which and in 626(d) (Woodford ment of Section Kinney v. discouraged coming I each case was from Corporation, N.D.Ga.1973, Shoe F.Supp. 369 complaint.” (It any appears down to file 911, 914-915; Sutherland v. SKF Indus Rights the Division of Human on April that tries, Inc., E.D.Pa.1976, 610, 419 F.Supp. 1977, 6, appellant’s complaint dismissed and 615-616), that his notice of intent sue did ground closed the file on the that the com- not any particular (cf. have to be in form had plaint to the Division not been filed Burgett Cudahy v. Company, D.Kan.1973, year within one after the discrimination 361 F.Supp. 621), and, any occurred, complained required Sec- event, appellant should have given been an 297(5) tion of the New York Executive opportunity at trial to show circumstances 297(1), Law. Law (5); See Executive might operate cure defect in Queensborough Matter of Community Col- filing his notice intention to sue. lege Board, Rights v. Appeal State Human 1977, 926, 625, 41 Appellees N.Y.2d 626(d) N.Y.S.2d contend that Section 349.) N.E.2d plainly bars appellant’s claims his because “jurisdictional” (i. e., intention is not notice of Section Decеmber Co., (Hays Republic preclusive), Skogulund Singer v. v. writing not in sue was 1307, 1976, 1975, 797, 802-803; F.2d F.Supp. 5th Cir. D.N.H. cf. Corp., Steel Co., filed in Goger supra, Rogers notices v. H. K. Porter 1312); the written 1977, the notices filing 834, because Exxon 3rd Cir. 550 F.2d were ineffective 626(d) 844; Industries, Section prescribed the time Bonham v. Dresser within suit to successful precedent appellant was a condition 3rd 569 F.2d Cir. (Hiscott v. court General district opportunity produce in the should 632; 6th Cir. pursue Electric evidence that his failure to his state Corp., 5th Cir. Signal v. Federal Adams remedy can be excused.2 made no 433), appellant F.2d Employment Discrimination in Age equitable relief entitlement showing of (“ADEA”), respects in these not unlike Act statutory bar. Cf. Powell from Rights VII of the Act of Title Civil Co., 5th Cir. Telephone Bell Southwestern dealing equal employment opportunity 485; v. Midland-Ross Ott 2000e-5(b), (c), (e) (f)(1)), (42 U.S.C § 1975, 523 F.2d Corp., 6th Cir. permit grievant sixty not to sue until does 10th Dartt v. Shell Oil his days presented charge after he has divid- 1256,1261-1262, by equally aff’d F.2d appropriate to the state au- discrimination Court, 1977, 98 S.Ct. 434 U.S. ed 626(d)4 thority.3 requires further Section further, contend, Appellees L.Ed.2d suing grievant before must in ev- he not because did is barred Secretary with ery case file the of Labor the Hu- complaint with State timely file a intention to sue for redress notice of his of Division, required by 29 as Rights man days before he sues. sixty the discrimination Co., K. Porter 633(b). Goger v. H. § U.S.C. creates a distinct substan- While the ADEA 15-16; Curry v. F.2d 3d Cir. right employees engaged tive in indus- Airlines, 1975, 513 F.2d 9th Cir. Continental (Section 623), the affecting tries commerce Inc., Foods, 693; v. RJR S.D.N. Davis it upon doubly qualified. is thus right to sue aff’d, Y.1976, 2d Cir. F.Supp. sixty day notice 555; Failure to meet the Syracuse cf. Weise v. F.2d 626(d) 633(b) requirements 411- of Sections and F.2d University, 2d Cir. ADEA, reading on a literal the that the —and argues, reply, Petitioner 412. concurrently— run periods notice could required by two state remedies deference given statutory period time after the discrimina- with certain the had waited If The text is: filing tion occurred. days 1976 com- his state June after of Division, Rights plaint his fed- the Human by any may “No civil action be commenced barred the three would have been suit eral this until the individ- individual under section 626(e), year §§ limitations. 29 U.S.C. statute of Secretary less' than ual has the not 255(a). sixty days’ notice of an intent to file such be filed— Such notice shall action. eighty days 633(b) patterned (1) language within one hundred and of Section The occurred, practice 2000e-5(c). alleged the unlawful The relevant after that 42 U.S.C. on reads, or portion (2) of in ‍​​‌‌‌‌​‌​​​​​​‌​​​‌​‌​‌‌​​‌​​‌​‌​​‌​‌‌‌​​​‌​‌​‌​‍a case to which section alleged practice unlawful of an “In the case days applies, within three hundred this title prohib- occurring which has a law in a State practice occurred unlawful after the employment iting because discrimination receipt by thirty days the after or within establishing authorizing a age or State of pro- of termination of individual of notice authority grant seek relief from such law, ceedings whichever is earli- under State may discriminatory practice, suit no er. brought 626 of this title before section under sue, receiving Upon intent the a notice of days proceedings sixty expiration after notify persons Secretary promptly all shall law, under State have been commenced prospective therein as defendants named proceedings earlier have been unless such promptly seek to elimi- the action and shall . .” terminated . any alleged infor- nate conference, conciliation, 626(d) giving provides both for the mal methods of 4. Section day requires persuasion.” sixty that it be notice and extinguish employee’s “promptly not substan- notify all persons does named [in right;. it does terminate individu- tive the notice of prospective de- intent] right private to commence a civil action al’s fendants in the action”. name, own but the retains in his Appellant’s alleged oral notice had neither right grievant’s to sue enforce nor the content the clarity expressed wholly without reference to the rights no- purpose needed to fulfill statutory its of- v. requirements. Dunlop tice Crown Cork fice. If so uncertain a notice could be Co., D.Md.1976, 774; F.Supp. & Seal sufficient, thought the result could often be 626(b), 216(c). Secretary’s U.S.C. The §§ protractions obscure pro- and confusion in to sue continues right expiration until ceedings that are be quickly intended to limitations, is, the statute of that for two prosecuted, while restoration to employ- least, or, of a years the-case willful with minimal derangement ment of the af- violation, years. for three 29 U.S.C. employer fairs of can still be 626(e), 255(a). employee §§ possible. Co., seen as Cf. Dartt v. Shell Oil requirements The notice reflect supra, 539 F.2d at Powell South- Congressional purpose achieve reme Co., Telephone Bell supra, western 494 F.2d primarily by managed diation conciliation at 489. through Labor or through appropriate agency, if say statute does not one, there is or both. “. . [P]rivate notice of intent to file an action must be secondary lawsuits are to administrative written, but 626(d), Section by requiring and suits brought remedies the Secre- filed, implies it be the notice must tary Rogers of Labor.” v. Exxon Research Hays Republic be written. Corp., Steel Engineering supra, F.2d at 841. cf. supra; Son, Charlier v. & S. C. Johnson Dean v. American See Sec. Ins. 5th Cir. 5th Cir. 764-765. 1038. When notice is Hays not did discuss or cite Woodford v. given to the Secretary, imposes the ADEA Kinney Corp., supra, Hughes Shoe but both duty him the promptly to “seek to elimi- E.D.Tenn.1976, v. Beaunit 12 EPD any alleged nate practice by infor- If 11,092, Berry v. Crocker National conciliation, conference, mal methods of N.D.Cal.1976, 11,377 Bank, p. 13 EPD at If persuasion”, and he may institute suit to rejected 6252 noted and the Woodford case See, eliminate the e. g., discrimination. holding that oral insuffi notices were Goodyear Co., Marshall v. Tire & Rubber cient. The district v. court in Dartt Shell 1977, 730; Cir. 5th 554 F.2d v. Brennan Ace Co., N.D.Okla.1975, 1110,205 Oil 9 EPD at p. 1974, 368; Hardware 8th Cir. 495 F.2d Woodford; 7913, rejected appeal Wood- Hodgson Lines, Inc., Greyhound v. 7th Cir. cited with approval, ford was evident but 1974, 859; 499 F.2d Tamiami Usery v. Trail emphasis upon for interpreting its the Tours, Inc., 5th 1976, Cir. 531 F.2d 224. apply ADEA as a statute meant to lay to Even timely private when a Suit is com- may legal guidance men who often lack at timely menced after the giving of notice of sue, (539 1260-1261). to times intent a suit the critical F.2d at super- the private 626(c). sedes suit. policy denying There is no basis for U.S.C. statutory language its meaning. evident Appellant relies oral on the state beneficent, The statute is indeed but it en ment that he would sue when he could find terms, own beneficence on acts its its own lawyer, 1973, allegedly made in December to, terms are best and those adhered for satisfy requirement 626(d). to of Section related to the they statutory purpose are allegedly given The notice was ill-calculated seeking prompt relief. tax While the cases discharge function statutory 6511, what interpreting now 26 U.S.C. § presenting the Secretary unequivo with a claim for requiring refund tax be cal notice grievant sue, that intended to that, within certain periods, “filed” time involve consequence, he must under the statute complex considerations, other and more that, although a claim for advice was when time still remained. they are clear informal, 626(d) writ- it must be a notice was out of Appellant’s Section may refund States, time, presented nothing v. United S.D. has enti- Bеnenson and he ten claim. aff’d, 101, 108, N.Y.1966, 2d F.Supp. against relief his default.6 Cf. tling him to 26; 1967, Barenfeld v. United Corp., supra, Hays Republic Steel 1312; 194 Ct.Cl. States, Electric Hiscott v. General F.2d 903; Co., Radiator & Standard Sani- Bell American Powell v. supra; Southwestern States, F.2d tary Corp. v. United Dartt v. Telephone supra. Contrast: 1261-1262; 915, 920, Ritter v. United 162 Ct.Cl. supra, F.2d at Oil Shell States, F.2d 3rd Cir. Corp., supra. v.Ott Midland-Ross respect reached with was same conclusion in the district court Appellees advanced City: New York “filing” against claims failed appellant the further contention written implies a filing requirement requirement of Section comply 1896, 1 Dept. 1st Foley Mayor, claim. day 633(d) period within the three hundred 586, 37 App.Div. N.Y.S. 626(d)(2).7 did Appellant fixed Section appellant’s excuse No circumstances with the Hu- any complaint not file State re comply with the notice-to-sue failure to nearly three Rights man Division until 626(d).5 It is not con quirement Section years after the occurrence of tended resentatives had three had time to file on had time as well to file his state to file his notice to was time oral notice could Even if there were cases complaint and be theOn alleged oral notice meet if he meant for the second time reminded limitations, apprised him contrary, the letter of hundred had indicated to of Labor ample Department satisfy and even at that secure in the fact that of intent days sue. That notice he still that he had time limits April to sue. On that date representative time from appellant in which a clear to file a state to sue requirement of Labor June December complaint. when he sufficed. date, that his rep he he ADEA structure. The discrimination, but present action. asserts federal operation when the federal where federal suit. The voked, pp. When Report on the bill Rep.No.805, ^[1967] 2213, 2215) five procedure as a but Congress they “Deference” to state days equally U.S.Code 90th exist supremacy in the field of its observed and filed it not before he commenced the acted Cong., it reason is is fundamental that became insists on resort to the condition Cong. ADEA itself 1st & Sess., reprinted remedy is in plain Admin.News precedent procedures sixty days the House law enough. plainly to the (H.R. one, which have 626(d), now 24 present case is not “There are States Section type legislation of appellant age for the of Labor told discrimination years what he H.R. 13054. Over proposed that had submitted was not con reso- legislatures passed notice of intent have sidered a to file suit. That other State opinion Appellant by filing leading that the informa- 5. instituted suit his com- facts to the n 29, 1976, exactly years plaint supported June that there was three the conclusion tion appellant appel- allegation after the date “on or about” which that for the no factual basis complaint paragraph ap- age 10 of the that to his or that lant had been terminated due “wilfully discharged” pellee (JA 55-57). Badische him. any part Dow age played in the decision pencilled top appellant’s date at The appellee typewritten letter to Dow Chemical passed on was not 7. contention discharge protesting “this afternoon” is his court, may properly urged be but it district (JA 45) but June the verified com- support judg- appellees of the in this court Rights plaint the State Human Di- received Williams, 1970, Dandridge v. ment below. 24, 1976, appellant on June states that vision 491; 471, 475, 25 L.Ed.2d 90 S.Ct. (JA 40) June 1973.” was fired “on 379, 387, Steinberg, 419 U.S. Fusari v. 13). (and fn. 42 L.Ed.2d 521 Regional Jan- 6. The Solicitor’s Memorandum of uary investigation reflected an of the 195; be declaring age p. Equal discrimination to F.2d cf. Employment lutions Op- policy.” against public portunity Bank, Commission v. Union 9th Smith v. American against York law discrimination The New Lines, Ltd., President 2d Cir. was extended to cover discrimination have, indeed, granted 102. Cases relief age employment by 2 of against Section against noncompliance where circumstances 1958, Chapter the Laws of 738. See Execu- presented have been that indicate that 296(3-a). tive Law The State Human justice require interests of that equitable Law, Rights age which includes thе discrim- appellant relief. But makes out no claim forms provisions, ination Article entitling him to such relief. Appellant requires grievants Executive Law. It no any made reference to circumstance ex- Rights file with the Division of Human a plaining delayed his filing complaint in the (Section complaint writing verified he ultimately filed with the state Division 297(1)), requires promptly and the Division Rights (cf. of Human Stacy Matter of copy respondent to serve a of it on the McDaniel, supra). The prompt investigation; to make it authorizes statements in his conciliation, affidavit in the district attempt requires the division to court —that an uni- decisions, person dentified hearings it to conduct and render at the Division told him on telephone empowers it to enforce its orders that his “matter seemed to be appropriate in the through supreme action state court. for federal relief” and that he 297). The law (See requires go with,” com- “should to them begin Section and that plaints year to be filed within one after ‍​​‌‌‌‌​‌​​​​​​‌​​​‌​‌​‌‌​​‌​​‌​‌​​‌​‌‌‌​​​‌​‌​‌​‍the two further telephone calls to unidentified (Section alleged discriminatory persons at the “negative” Division had re- 297(5)), provision regarded and that sults and “in each case I was discouraged mandatory. Division of Human State coming from any down to file complaint”— Rights v. Westmoreland Central School Dis- these telephone statements three con- trict, Dept. 4th App.Div.2d tacts year within the filing allowed for a 207-208, 149, 151; 392 N.Y.S.2d cf. Matter state complaint are too insubstantial McDaniel, Stacy Dept. 1976, 1st 54 found a claim equitable against relief App.Div.2d 645, 387 N.Y.S.2d Unlike time bar. Rights the ADEA the Human State Law Much of appellant’s argument mistakenly permits grievant to elect forego com- proceeds on premise the tacit that resort to plaint to the Division and instead to sue the state remedy is a technical step devoid upon statutory cause of action “in content, that, therefore, substantive appropriate jurisdiction court of for dam- slightest showing will warrant set- ages and such other may remedies as ting 633(b) the bаr of Section aside. That appropriate.” 297(9); Section Moran v. ignores paramount circumstances, that Simpson, Sup.Ct.1974, Misc.2d remedies, the state remedy, or rather N.Y.S.2d presented appellant with a full and ade- Appellant’s failure to comply relief, quate system of that there was no with Section is a bar to maintenance for turning reason to the federal remedy of the action. The cases relied on by appel equally did not direct to the lant do not hold that resort proce to state remedies, and that the scheme of the required ADEA; dure is not by the all very requires ADEA explicitly agree proof of that resort is necessary grievant timely present his claim to the to make out the grievant’s case under the authority suing. state before ADEA. Hadfield v. Mitre Corp., 1st Cir. may appellant’s Whatever have been rea- 84; 1977, 562 F.2d Rogers see v. Exxon did, proceeding sons for he he did not Research & Engineering Co., supra, 550 satisfy statutory requirements the and sum- 844-845; F.2d at Curry v. Continental Air mary judgment properly given ap- was in lines, supra, 513 Goger F.2d at v. H. K. pellees’ favor. 15-16; Porter supra, 492 F.2d at Bon Industries, ham v. Dresser supra, judgment is affirmed.

DANAHER, Judge, con- with reports Senior Circuit of the opinions of the federal curring: which, courts in varying situations, have purported to resolve aspects of disputes in agree Judge Dooling’s opin- with quite I consideration, the area under I think this court, with special for the prepared ion Circuit should act definitively. If I could the array of the facts disclosed approval persuade my respected colleagues Clearly my and by adequately our record. the approach, point I would guidance the of the law for opinion represents in in it, might as I read and one these principles this Circuit situations to the announced suppose say I should no more. That McCord, in Texas Cement Co. v. (1914), 233 opinion especially disposes so since 34 S.Ct. 58 L.Ed. where the issue before us. at at we read: support In further of our instant conclu- The cause of action did not exist beforе sion, respectfully I submit an alternative and is the creature of the statute. The approach to control situations such as act place does not a limitation upon a claims on a case Comparable here. case cause of action theretofore existing, but great will confront this basis otherwise creates a upon new one the terms named judge lacking No in this Circuit is court. in the statute. The right of action . . . impulse, an of humanitarian appreciation is specifically upon conditioned the fact sympathetic with reference to a especially that no brought suit shall be by the Unit- possibilities of discrimi- consideration of ed States within named, the six months against employees on account of the nation only for it is in that event that the credi- Javits, age. immutable factor of Senator right tors shall have a of action. years, expressed concern in this area as for The statute thus creates a new liability Al- legislative record demonstratеs. gives special it, and remedy for though acutely plight aware of the of an upon well principles settled the limita- employee may who become the victim of upon tions liability part such become a “solely” age discrimination because of —and right conferred compliance emphasized page he so 31255 of the Con- them is made essential to the assertion 6,1967 gressional Record for November —he (Cita- and benefit of the liability itself. was not employers unmindful have omitted, emphasis supplied). tions rights also. See reference Edwards Sales, Inc., v. Kaiser Aluminum & Chemical To me it seems inevitable that Congress (CA 1975). expected Secretary, pursuant to 29 626(a), investigations, make U.S.C. § study by The extensive the committees of particularly, powers to exercise the defined Congress period years gave over a 211(a). respecting in 29 U.S.C. Even § findings rise to the to be noted 29 U.S.C. possibility bringing of his an action against 621. In furtherance of the congressional § employer, Secretary an was directed to purpose it will be seen that Congress im- attempt discriminatory prac- to eliminate posed specific upon duties the Secretary of effectuate voluntary compli- tices and to 626(c). Labor Rights U.S.C. were § upon allegedly requirements conferred ance with the aggrieved Act. indi- employee by Moreover, vidual 626(d).1 29 U.S.C. no civil action was to be com- Where we find that replete allegedly books are menced a victim of discrimina- 1. For thus: individual under this section until the individ- days’ Such notice shall be filed after the ual has No (1) present purposes, civil action notice of an intent within one hundred and may be commenced we — to file such action. may paraphrase not less than 60 eighty days occurred, by any informal methods of conciliation. eliminate ants Upon receiving sons named therein as Secretary ^[*] the action and shall any alleged ^[*] shall [that] ^[*] promptly notify notice of intent unlawful prospective ^[*] promptly ^[*] practice by all ^[*] defend- seek to per- sue, 372

tory subject conduct unless that individual shall to be to equitable modifications days 180 after the have filed within such “tolling and estoppel” as sometimes of a notice that complained individual applied to statutes of limitation. To the private to file the civil intended action anticipated extent that we possible guid- which the statute authorized. time Such ance Supreme Court, from the our hopes limitations, clearly stated, so are not and when, were dissolved 29,1977, November never were intended be statutes of limi- the Tenth opinion Circuit was affirmed by tation, opinions as some of the of some of equally an divided court in Compa- Shell Oil suggest. Congress the courts would was Dartt, ny 99, 600, 434 98 U.S. S.Ct. 54 imposing impose preconditions and did (1977). L.Ed.2d 472 the institution of such civil action.2 much, But the Court taught us this we congressional objective two-fold, was reasonably may deduce, justices four refus only affording not in terms of the Secretary accept ed to proposition rights that the opportunity an to eliminate the allegedly of an employee discharged because of “age” discriminatory practice but to accord to the were be determined by some сourt’s ap employer adequate notice that a failure to praisal of “equities” where the might be improper practice eradicate could lead Judge said to lie. Mulligan writing for litigation. litigation, it Such could well Judges himself and Friendly and Smith has seen, might result in a class action with possible heretofore considered the effect of devastating impact upon employer’s the Supreme Court’s action in the Dartt actions, business. discriminatory Such impasse. He recognized in Smith v. Ameri grounds, on other already nature have in- Lines, Ltd., can President al., et damages volved awards of in the millions of 102, (1978), 109 that affirmance in Dartt dollars. an equally divided prevented court had already In some of the cases by my cited case becoming from an authority for the colleagues judges able we find in—and determination of other cases either in the many judges instances district acting Supreme Court or in lower courts. Wheth making their own decisions as to alone — er the failure to comply with a time limita “equities” whether or not the run in favor tion in Title VII cases strictly “jurisdic is party of the one suggest other. I —or tional or is in the nature of a statute of 4 periods specified the time in Section subject limitations tolling open still 626(d) limitation; are not at all statutes of this circuit and remains so.” I venture to rather, repose statutes of are in no sense suggest that as to Title VII cases we well equivalent preconditions3 to the com- may take account of Alexander v. Gardner- mencement of an action. 36, Denver 1011, 415 U.S. 94 S.Ct.

Perhaps (1974), 47, we L.Ed.2d 147 now note where at should that we at S.Ct. purposefully had the Court releasing deferred said that the Act there opinion in the instant considered had specified case while we await- precision “with Supreme jurisdictional ed Court prerequisites consideration of Dartt v. that an individu Shell Oil Company, (CA al must satisfy 539 F.2d 1256 before he is entitled to insti 1976). lawsuit”; The Dartt court in tute light of the fac- see Lines, also United Air tual Evans, situation presented there found the Inc. v. 431 U.S. 97 S.Ct. filing periods “jurisdictional” not to be but (1977). L.Ed.2d 571 entirely observed, In a not dissimilar connection we find 4. The Smith Court note Congress saying may primary underlying no civil action be com- consideration statutes of by any menced individual under U.S.C. limitations is that of fairness to the defendant. 633a(d) until upon individual has The latter should not be called to defend a days’ Commission not lost, less than notice of an suit when “evidence has been memories (Emphasis supplied). intent to file such action. disappeared.” have faded and witnesses have Telegraphers Railway Express Order of R.R. Agency, Compare preconditions spelled out GSA, (1944). such detail L.Ed. 788 in Brown v. 425 U.S. (1976). 96 S.Ct. 48 L.Ed.2d 402 disregard provisions Title VII cases the of fairly may the Fair We Labor Standards issue under Act.”6 point the here at respecting

whose assistance ADEA in had tee on March had tion ination aligned with himself various other senators lays taken by private remedies VII Lorillard made cies. S.Ct. Court Labor Standards Court ing the courts rather than a bureaucracy (1967).5 ing largely behind in particularly so in the case of older citi- In few zens to Thеre delay proposed refused to testified before the Labor had become contemplated by for support allegedly aggrieved by under the abundantly productive years made perceived that EEOC, because actions had is . as the forum to hear cases aris- was and the ADEA 55 L.Ed.2d 40 (1978), avoided. view whom, always Pons, disposing clear, Administration bill. Congress. for good 15, 1967, of his adopt law, Act. procedures he actions.. example, —— clear that age required unfortunate, the Court’s reason for the action incorporated fully required plague many agen- these amendment, Congress specifically definition, of its docket. Such U.S.--,-, Section Congress are left. procedures Senator Javits had victim of discrim- Cong.Rec. is Definitely, delays may of the Federal inordinate de- already timely Subcommit- 626(d). opinion where the amending in ADEA relatively but By he had of Title expedi- action utiliz- years it He commencement of vidual shall have commenced an action on dition to litigation. involved with own limitations. No more are we presently sen with precision and constituted a precon- his own account that action must terminate upon the commencement of an action by concerned with defenses which may be ferred vides, as the Court has noted ‍​​‌‌‌‌​‌​​​​​​‌​​​‌​‌​‌‌​​‌​​‌​‌​​‌​‌‌‌​​​‌​‌​‌​‍in Lorillard v. employee. 29 seek relief. The time limits had been cho- age were that victims of discrimination because of we read not within the contemplation section mained open to the Secretary the authority available but with the exercise of a con- Pons, supra. Remember we are not here Code Cong., 1st persuasion. We may methods of would seek to the notice before doing so. During the 60- day period, eliminate unlawful Secretary The very wording indicates that tending to file civil actions under this act must act Subsection Cong, under the right 626(b). Indeed, give an afforded Sess. analysis turn to the Secretary of Labor 60 days’ in a statute which contains its possible conciliation, U.S.C. Section (Emphasis supplied). (d) requires сircumstances Admin.News, enforce the reprinted of the bill greater private H.R.Rep.No.805, practices Of remedies even where an indi- course, conference, and leeway in the civil action to 626(c) right prescribed 2213, where by informal where ^[1967] persons page there re- Congress of that so it was 2223: ineq- 90th pro-- in- By November he was able to uities born sympathetic of our consideration greatest possi- announce that “to the extent may from time to time arise. Preconditions incorporated ble the amended S. 830 had civil actions Congress, created Railway Express Agency, In Johnson v. objectives, employ- to remain as desirable but (1975) potential U.S. 454 the Court at note ers as defendants had to be con- 1716 at L.Ed.2d said explained: sidered. Senator Javits significant are not unmindful We of the de- plan We how have the enforcement which I lays pro- that have attended administrative adapted carry age- think is best out this ceedings in the EEOC. discrimination-in-employment ban with the Javits, enough overanxiety difficulty part It is clear least Senator Senator on the Yarborough colleagues business, complete and others of their American and with fair- consideration, whose ideas had been under had ness to the workers. I think that is one of hearings important collaborated at and in aspects conferences to the most of the bill. 113 proposed legislation, work out details of Cong.Rec., S. (1967). only rights employees 830. Not were the view, thereafter, strictly be adhered the official my shall with whom appellant spoke judiciary.7 receipt confirmed of information con- cerning the alleged age discrimination, and in already Judge concurred Dool- I have indicated Department’s that the conciliation what only because of he ing’s opinion, not function had been letter, initiated. This my ap- written but because has so well accompanied by which was an informational thoughts I have re- proach8 includes pamphlet, also warned appellant that spectfully submitted. “there are requirements certain specif- ic time governing limits FEINBERG, Judge circumstances (dissenting): Circuit under which an employee may file his own that majority summary concludes suit under this Act.” later, Four months here judgment ap- was warranted because another Department of Labor official from pellant comply procedur- failed to with two Newark, an office in Jersey, New arguably requirements Age of the Discrimination al appellant’s unaware of oral notice of intent (ADEA), Act of 1967 Employment sue, sent Reich á specifical- second letter I seq. respectfully 621 et dissent. U.S.C. § ly informing him that while an investiga- first, hold, that unequivocal I would oral tion of scheduled,” defendant “has been sue, notice of intent to which has the effect Reich’s submission of “information concern- initiating Department of Labor’s me- ing an alleged has not Act, can satisfy diation function under the been considered a notice to the second, 626(d), that section section Labor of intent to file suit.” not, law, does as a mаtter of bar appellant’s Accepting appellant’s suit. 1974, In August the second official wrote true, summary judgment averments as was appellant again, this time informing him here, this case improper should be re- that failed, conciliation had but of crucial manded for determination issues investigation was continuing. The general fact, particularly whether sufficient oral warning about the time limits regarding given. notice actually was private reiterated, suits was although the second official did not specifically state

I again that no intent to sue had been re- Reich was fired defendant Dow in apparent ceived. It is also from this corre- year, June 1973. In December of that with- spondence and from Reich’s affidavit 180-day period 626(d)(1), in the of section there ongoing were oral communications appellant apparently went to the New York between him Department and the at this City Department office of the of Labor and time. Finally, January Depart- told an official there that “I sue would ment notified Reich that it would not sue when I a lawyer.”1 Shortly could find on his behalf. principle definitely See, important part generally,

7. The Powell v. Southwestern Bell my problem. Telephone Co., consideration of the instant (CA 1974); 494 F.2d 485 His- preconditions, While hereinbefore dis- (CA cott v. General Electric 521 F.2d 632 cussed, 1974); to the commencement of an action are Corp., Eklund v. Lubrizol 529 F.2d 247 suit, prosecution Congress vital (CA of the 1976) and Charlier v. S. C. Johnson & Although Son, has so Inc., ordained. there are variants (CA 1977) 556 F.2d 761 and cases in different statutes at one time or other con- cited therein. courts, succinctly sidered none has more my Supreme stated view than did the Court spoke 1. Reich’s affidavit states that “I with Mr. Noble, Kavanagh 332 U.S. 68 S.Ct. Bromberg Depart- Norman . . (1947): L.Ed. Labor, Plaza, York, ment of at 26 Federal New periods Such are established to cut off appellant N.Y.” It is therefore unclear whether not, rights, justifiable might otherwise alleges spoke person Bromberg, he with Mr. they strictly be asserted and must be adhered spoke phone or whеther he over the with Mr. judiciary . Remedies for Bromberg, who was at 26 Federal Plaza. resulting inequities provided by are to be Congress, not the courts. Id. 68 S.Ct. (Emphasis supplied). search, Meanwhile, ap- laymen. after an extended terms of this statute The. should After present liberally counsel. obtained his construed as pellant so as to avoid notices of sending written frustrating potentially meritorious claims February and March sue in intent hypertechnical grounds. See Bonham v. complaint with the New lodged a Industries, Dresser Rights2 Human Division of York State (3d 1977); Cir. Moses v. Falstaff Brewing in the federal district instituted suit also (8th 93-94 1973); cf. In December in June 1976. court Love v. Pullman 404 U.S. summary judgment Wyatt granted Judge 616, 30 (1972) (Title L.Ed.2d 679 VII ground that suit on the sole in the federal case). Moreover, sparse the legislative his- of give Department not the plaintiff did tory point on this that unequivocal indicates notice of intent to ‍​​‌‌‌‌​‌​​​​​​‌​​​‌​‌​‌‌​​‌​​‌​‌​​‌​‌‌‌​​​‌​‌​‌​‍sue within the Labor oral notice should be sufficient. The Act as 626(d). appeal of section This time limit congressional a whole reflects “a desire to followеd. avoid some of the administrative logjams

experienced under Title VII” simpli- and to II fy Comment, enforcement mechanisms. Procedural Prerequisites to Private Suit precluding possibility the that While not Age the Under Discrimination Employ- might notice in some circumstances oral Act, ment 44 U.Chi.L.Rev. (1977) 467 626(d), satisfy requirements the of section (hereinafter “Comment, referred to as Pro- al- majority holds that the oral notice the Prerequisites”). cedural See also 113 Cong. neither the content legedly given here “had (1967) Rec. 7076 (testimony of Sen. Javits needed clarity expressed purpose nor the of before the Labor Subcommittee of the Sen- If an oral statutory its office.” to fulfill ate Labor and Public Welfare Committee statute, it is satisfy can ever the notice regarding ADEA). Thus, the in enacting imagine that would more difficult one ADEA, Congress require declined to than the required intent clearly express that notice “shall writing be in under made here. oath appellant allegedly statement .,” or affirmation . . event, majority’s that as wаs done I submit In VII, incor- Title factually legally 2000e-5(b). 42 U.S.C. holding is both Addi- tionally, Department Labor, rect. charged agency with administering the 626(d) provides that a civil action Section ADEA, urged has that oral notice can satis- complain- be commenced until the may not fy 626(d). section Brief See for the United not less than ant “has Curiae, as Amicus States Shell Oil Co. v. sixty days’ notice of an intent to file such Dartt, 434 98 S.Ct. 54 The section then states that action.” (1977) L.Ed.2d (leave 270 denied). to file In shall be filed . . . with- notice “[s]uch light strong of the policy favoring simpli- a eighty days hundred and after the in one procedural fied construction of require- alleged occurred 3 ADEA, ments under the pertinent legis- . . It must be conceded at the out- history Department lative and the of La- implies that set that use of the word “filed” interpretation, bor’s administrative I would writing. the notice should be in But unequivocal satisfy hold oral notice can requirement section does not make that ex- 626(d). See, g., section e. Woodford v. Kin- plicit compelling and there are reasons for ney (N.D. 369 F.Supp. Shoe 914 reading into the statute. The ADEA not it Ga.1973); Assoc., Bishop v. legislation whose enforcement Jelleff 398 is remedial F.Supp. (D.D.C.1974); the efforts large part depends upon and Suther- necessary procedure not to the was subse- to consider whether this section 2. Recourse Co., Skoglund Singer untimely. quently rejected applies v. Cf. here. (D.N.H.1975). F.Supp. 626(d)(2) filing Section also extends the time days under certain circumstances. It is Industries, Inc., 419 F.Supp. official, letter from a Labor Department v. SKF land quite who was (E.D.Pa.1976).4 possibly unaware of the ear- 615-16 Indeed, lier oral notice.6 appears since it in its con- Furthermore, majority errs that conciliation is attempted not until the did not oral notice appellant’s clusion Department sue, receives notice of intent to office.” The statutory its “fulfill in fact see Smith Jos. Schlitz Brewing supra, to force an 626(d) is section purpose F.Supp. appellant might well notify the De- promptly party aggrieved have believed that at part least the De- to seek intent Labor of an partment partment of Labor deemed his notice oral (1) can redress, so operative.7 lawsuit employer possible of a inform discrimination; (2) on the based Ill and informal simultaneously early seek an majority also holds that Reich’s “fail- (3) decide parties; reconciliation comply ure to with section a bar aggrieved on behalf of the to sue whether n maintenance of the again, action.” Here I Dartt Shell Oil party.5 See disagree with both legal and factual mem., 1976), (10th aff’d premises of the majority’s conclusion. (1977) Court); (equally divided S.Ct. Brewing Corp., supra, 525 v. Falstaff Moses matter, As an initial it seems that section 94; Armstrong v. Rub- at Cowlishaw F.2d 633(b) not require does age a victim of 802, (E.D.N.Y. Co., 807 F.Supp. 425 ber discrimination to first file a suit with the Comment, Prerequisites, 1977); Procedural applicable agency. Rather, state this sec- contacted at 469-70. Since Dow was supra, tion ensures that once an aggrieved person as a result attempted was conciliation and invokes remedies, state administrative the notice, his specific oral actions of Reich’s agency state will have sixty days in which and, I be- amply spirit satisfied the here Thereafter, to effect informal compliance. 626(d). lieve, the letter section See a separate federal may action be com- Co., 539 supra, v. Oil F.2d at See, Dartt Shell g., Comment, menced. e. Procedural Co., v. Rubber Armstrong Cowlishaw 475-80; Prerequisites, supra, Vazquez v. Co., Brewing v. Jos. supra; Lines, Smith Schlitz Eastern Air F.Supp. 405 1353 (D.N.J.1976). F.Supp. (D.P.R.1975). 776-77 Thus, 419 Congress viewed sec- Moreover, given, such could not once notice tion “provid[ing] 633 as for concurrent Fed- retroactively invalidated months later be eral and State actions . .”. H.R. majority Hays Republic cites Steel timely 4. The v. I would Since hold that the oral notice (5th 1976), Corp., 626(d), 1312 Cir. as section satisfied I do not reach the requiring question a different result. But case is justify whether these circumstances distinguishable tolling do, since the oral statement in- the time limit of that section. I equivocal, Depart- however, agree there was аnd the majority’s implied volved with the periods of Labor official to the oral com- ment whom conclusion that the time of section given immediately plaint 626(d)(1) (2) may was told appropriate, be tolled in specific written intent that a notice of sue circumstances. See Dartt v. Shell Oil su- Similarly, required. pra; cases the tax relied on v. was Eklund Lubrizol F.2d majority inapposite they (6th 1976) (McCree, J., the are because dissenting). Cir. involve, majority recognizes, “other and complex considerations.” more 633(b) provides part; 8. Section in relevant (b) prac- In case of an imposes section limits on 5. The two time occurring tice in a State which has a law complainant first must discriminatee. The file prohibiting employment discrimination in be- then, timely sue, notice of intent a after age establishing authorizing cause of notice, filing sixty days before must wait authority grant a State or seek relief from commencing suit. discriminatory practice, may such no suit brought under section 626 of this title before allegedly 6. The oral notice to an was expiration sixty days proceedings after office, in the official New York whereas law, have been commenced under the State Jersey second official was in office of the New proceedings such unless have been earlier of Labor. terminated .... (1967), superseded by a Cong., Thus, 1st Sess. federal action. 90th Rep.No.805, reprinted ^[1967] U.S.Code Cong. & Ad ADEA reflects less deference to state supplied). (emphasis min.News mechanisms than does Title VII. See also have Moreover, eral serted concurring). is also entitled to Title agency charged struction of an L.Ed.2d 616 State Tallman, In provision VII cases already been addition, law.” See that the questionable. Cf. Lorillard 380 U.S. great (1965).9 And such a reasonable Secretary of apply “only limitations of this ambiguous statute with its administration is Goger v. H. (3d construing deference, initiated under majority’s 1974) if Labor has as K. Porter section S.Ct. see Udall proceedings reliance (Garth, J., state-fed existing by the 633(b) Pons, con 492 F.2d at Admin.News the Federal action undеr § of a event would be sional doubt as to effectiveness of existing statement tion). need not be concluded and which tion of a Federal (1967), reprinted in H.R.Rep.No.805, Congress State agencies I therefore proceeding to require, prior to the institu- Goger in curbing age discrimina- that it was not “the intent superseded 90th action, agree 2215 (indicating congres- ^[1967] v. H. K. which, Cong., the commencement U.S.Code 633(a).” under § Judge Porter, 1st Sess. 2-3 filing Cong. Garth’s in. 633(b), supra, & if, arguendo, 633(b) Even -U.S.-, general n. section -& comparison (1978). A careful ly requires complainant 55 L.Ed.2d to first commence supports ADEA VII with the of Title proceeding, a state summary judgment was not re- does that section conclusion erroneously granted here. Those courts administrative resort to state quire prior which have held that resort to state admin Porter, Goger v. H. K. See procedures. istrative prerequisite remedies is a to suit v. Eastern Vazquez 492 F.2d at supra, have, nevertheless, almost uniformly sub Lines, Inc., F.Supp. 405 at 1355— supra, Air jected 633(b) equitable section doctrines. history indicates that legislative 57. See, g., e. Hadfield Corp., supra, v. Mitre intended different re- Congress generally 88; Rogers 562 F.2d at v. Exxon Research approaches for the procedural medial Co., Engineering (3d & 550 F.2d in Title employed had been ADEA than 1977), denied, Cir. cert. VII, similarity in substantive despite the (1978). 54 L.Ed.2d 770 Appellant See, g., e. the two statutes. goals of claims to have had a telephone conversation Javits); (Sen. Loril- Cong.Rec. (1967) New York with a state official who stated Further, Pons, supra. the state-fed- lard that since the home office of the defendant VII, Title 42 U.S.C. provision eral state, appellant was out of should invoke 2000e-5(c), appears in the same section § his federal remedies. Reich then steadily, procedural with provisions concerned other slowly, pursued rights albeit his under the suit, whereas section prerequisites lawyer ADEA. When a was finally obtain involved part solely is of a section ed, grievance a was unsuccessfully lodged relationships. impor- More state-federal aрpropriate agency. with the state In or in Title VII to tantly, equivalent there is no running der to avoid the ADEA, three-year of the 633(a) provides which section claim,10 proceeding pending, even if a state is it statute of limitations on his ADEA International, Sagner incongruous say it 9. Note also that 989-90 (1st complaint 1976), by the failure to file a with the New Cir. limited Hadfield v. Mitre Rights (1st 1977). bars a federal York Division of Human 86-87 action, a when New York law itself allows grievant bypass agency direct relief and sue complaint alleged 10. Since this a wilful dis- jurisdiction.” ly any appropriate “in court of criminatory firing, 626(e) and 255 §§ U.S.C. Indeed, 297(9). the First Cir N.Y.Exec.Law three-year limitations, yield a statute of which jurisdiction cuit has held that a with such law day apparently expired the would have after qualify within the did not as a “deferral state” this action was filed. 633(b). Lugo meaning See Garces v. of section action in federal court Democratic filed this Committee of Bronx Coun- ty, County Bronx Committee of the appellant’s allega- If Con- days five later. only Party servative New York State true, certainly equity might then are tions George McGuinness, Chairman, its resort to the state reme- excuse the belated County Bronx Committee of the Liberal light appellant’s re- dial mechanism Party by Gyory, Nicholas its Chairman advice, official’s see Ma- liance on state Sydney Burnstein, Treasurer, its F.Supp. Motor galotti v. Ford County Republican the Bronx Com- appel- in turn forced (E.D.Mich.1976), which Calandra, mittee Chairman, John its sixty action less than lant to file his federal Respondents. were com- days proceedings after the state No. Docket 78-7033. Skoglund Singer supra, menced. Cf. United States Court of Appeals, F.Supp. (untimely at 802-03 resort Second Circuit. case, excused). In remedy Argued Feb. equi- should not decide this appellate court instance, in the first and I would table issue April Decided a determination the district remand for Corp., supra.

court. Hadfield v. Mitre See ‍​​‌‌‌‌​‌​​​​​​‌​​​‌​‌​‌‌​​‌​​‌​‌​​‌​‌‌‌​​​‌​‌​‌​‍reasons, all these I dissent.

For MONTANO,

Armando Gilberto Gerena

Valentin and Jose Melendez on their behalf,

own and on behalf of all others situated,

similarly Plaintiffs-Appellants, LEFKOWITZ, Attorney

Louis J. General York, Hugh Carey, State New York,

Governor of the State of New Sclafani, Feur, Herbert

Salvatore J. Al- Sachs, Avarello,

ice A. Charles Elrich A.

Eastman, Cassidy, Elizabeth A. Matteo Lumina, Previte, Joseph Anthony J. Sa- Bass, dowski and James Commissioners City

of the Board of Elections in the York, of,

New as members and constitu-

ting Elections, the said Board of Demo- County by

cratic of Bronx Committee Galiber, Joseph L. its Chairman and Agnes Jones, Treasurer, L. its Patrick J.

Cunningham, Individually and as Chair-

man of the Executive Committee of the

Case Details

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

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 4, 1978

Citation: 575 F.2d 363

Docket Number: 931, Docket 76-7637

Court Abbreviation: 2d Cir.