Ray C. HAGEMAN, Plaintiff/Appellant, v. PHILIPS ROXANE LABORATORIES, INC., an Ohio Corporation, Defendant/Appellee

(f) Availability of Relief. Other Noth-

ing of, precludes this rule the issuance from, any stay, restraining

or relief or-

der, injunction when otherwise autho-

rized. a bankruptcy equi-

Since court is a court of

ty, clearly power had the to enforce a agreement.

settlement In this

irreparable by permitting harm stay

continue ap- involved harm not Crown,

pellee, judicial process but to the

itself, by permitting agree- a settlement

ment not to be enforced. That harm cer-

tainly justified bankruptcy the action the

court took.

We therefore affirm the

district court.

Ray HAGEMAN, Plaintiff/Appellant, LABORATORIES,

PHILIPS ROXANE

INC., Corporation, an Ohio

Defendant/Appellee.

No. 78-1914. Appeals,

United States Court of

Ninth Circuit.

Submitted Feb. 1980. Cochran-Bond, Cal., Angeles, Walter Los July Decided plaintiff/appellant. for Myers, Stephen Pepe, O’Melveny P. Cal., defendant/appellee. Angeles, Los TANG, he form that indicated that he believed had WALLACE and Before HANSON,* District because of his against and been discriminated Judges, Senior attaching three-page typewrit- Judge. age, and a leading up explanation of the events ten surrounding discharge. his On and HANSON, Judge. Senior District 28, 1975, telephone he was interviewed Age the Discrimi- This under gave fur- investigator; he then by a DOL (ADEA Employment Act of nation basis of his com- ther information about the Act), (1976), seq. the 621 et U.S.C. § 1975, 30, the DOL noti- On October plaint. filing with dismissed1 for want of investigate him letter that it would fied Secretary of the notice of the Labor of possible. the as soon as Such formerly required by to sue section intent out, may investigation was carried 7(d) Act, 626(d).2 U.S.C. § during of it that the course the assume us question before is whether Roxane) (Philips be- defendant/appellee the the of in- circumstances of case Hageman’s complaint to the came aware of requirement be either tent to sue 29, 1976, March less than seven DOL. On We conclude deemed satisfied waived. fired, Hageman re- he months after not, the that it should and affirm saying that ceived a from the DOL the district court. you investigation “revealed the had employment from your were released I. age,” than this firm for reasons other take DOL could no further the permitting plaintiff/ap- The case for not individual that this did affect his (Hageman) to the action is pellant maintain 31, August to sue. This suit was filed on fired following on the facts. He was based 1977, period limitations 3,1975. two-year within the job September Only on from his 7(e) later, 29,1975, provided by after days September lodged on new infor- had submitted some a In- which it refused (DOL) by filling “Employment upon out mation to the Form,” checking Citing the box on that Love v. Pullman formation act.

* Hanson, (1) eighty The Honorable Senior Unit- within one William C. hundred alleged practice Judge States District the Southern Dis- after oc- unlawful curred, Iowa, sitting by designation. . trict of summa- sue, 1. Defendant’s motion to dismiss or for receiving Upon notice of ry judgment was as a motion for sum- treated Secretary notify persons promptly all shall mary judgment. The district court had before prospective therein as defendants named copies of all letters and other documents promptly the action and shall seek to elimi- opinion, including in this the tran- referred to any alleged practice by infor- nate unlawful hearing script plaintiff’s deposition. conciliation, conference, A methods of mal 6, 1978, February held both the motion was persuasion. appearing by parties The district their counsel. 4(b)(1) Age Discrimination Section court found that “Plaintiff has never filed an 1978, Employment Act Amendments of Pub.L. Secretary intent to sue letter of Labor 95-256, 1978), (Apr. 92 Stat. 189 amended despite having knowledge requirement 7(d) by requirement substituting so,” that he do and concluded that it therefore charge alleging unlawful discrimination subject jurisdiction plain- lacked matter over Secretary, for the old tiffs ADEA cause of action. a notice of intent to sue be filed. Mutatis mutandis, 7(d) last remains sentence of pertinent formerly provided 4(b)(2) 2. Section same. Section of Pub.L. 95-256 part by para- provides that: that: “The made amendment (1) graph of this shall take effect subsection (d) may No civil action be commenced brought respect to civil actions any individual until this section [Apr. 1978].” date of enactment of this Act given individual has [of Labor] August brought action was This sixty days’ less than an intent to notice of be filed— file such action. Such notice shall notice, (1972) clearly on within approximately 30 L.Ed.2d 679 two cases, argues discharge, that his fil- months of similar of both the notice In- and the time ing with the DOL of should be considered to limit within which he would have to file formation Form bring the notice of intent such notice if he have satisfied wished own 7(d), requirement against Although and that even if it is Philips Roxane. considered, Hageman suggested the notice of intent to sue counsel for at oral ar- not so gument Hageman thought requirement should be waived this case could requirement proce- receiving a mere after the letter of 30 that because the is technicality purpose fully September whose he had filed on Employment require- satisfied satisfied the notice of intent to sue ment, subsequent summary events. in the Information Form and there is no indication record that he did think this. against permitting Hageman The case Again, 6,1976, January only on a little over essentially the action is on maintain based fired, four after he was months First, two facts. at no time sent another letter whose sub- Hageman literally comply suit did investigation stance was that an had been by filing with delayed, and that: scheduled but would be intention to any the DOL notice of his avoid delay In view of this and to particular, commence this action. misunderstanding, your again attention is that he Information Form page pamphlet. called to 4 of the enclosed provided September filed on 1975 itself you As will note there are certain such intention should be place no at which gov- limits quirements specific time indicated, nothing Hageman wrote on which an erning the circumstances under three-page attachment the form or his The fact employee may file his own suit. as an indication to the can be construed concern- you submitted information Philips DOL that he intended to sue Roxane ing practice has not alleged unlawful Second, Hageman under the ADEA. Secretary been considered a notice to very early stages known from the of this [Emphasis suit. of Labor of intent to file whole affair of the notice of intent 7(d) and of his failure to of § added.] Thus, in the letter that he have satisfied it. at the time of Although Hageman did not 30, 1975, received from DOL on October 1977) (December recall receiv- deposition he was fired and less than two months after letter, the letter of ing this he did recall complaint, one month after he had filed his 29, 1976, informing him that no March him that it the DOL not notified would found and that ADEA violation had been investigate complaint, it also en- take further action. the DOL would summarized pamphlet closed a that both enclosed, Again pamphlet the ADEA the text of the ADEA. The and contained again the letter concluded out that: specifically pointed following language, of which ad- you page As well note [of mits he took notice: pamphlet], there are certain can take no of Labor governing the specific time limits matter. respect further action with to this employee which an circumstances under This does not individual your affect Act. may file his own suit under this rights, explained page 4 of note, will pamphlet. you As 7(d) begins The text of at the bottom of enclosed spe- there are certain page pamphlet 4 of the and continues the circum- periods governing cific time page during dep- admitted can stances under which an individual osition that he received and read both fact Act. The his own suit under this pamphlet. He was thus letter and and certain similar statutes are initiated you information concern- submitted laymen in the law unassist- practice has not unschooled ing alleged unlawful lawyers, trained the courts should a notice to been considered ambiguities any procedural resolve found We do to file suit. complaining par- not, such statutes favor course, discourage encourage or ties, and should in the construction entirely up to such The decision is suits. the multiplica- avoid particularly statutes you. [Emphasis added.] May- tion shibboleths. Oscar Although 29 was sent the letter of March Evans, er & Co. Hageman was more than (1979); Pull- L.Ed.2d 609 Love v. fired, appear does man give notice of his reason he did not then (1972); Nat. L.Ed.2d 679 Bean Crocker Rather, ap- and file sue suit. Bank, (9th Cir.1979); F.2d 754 Ramirez let the parently simply intended to matter Corp., 586 v. Nat. Distillers & Chemical drop: (9th Cir.1978); F.2d Moses v. Falstaff 1315 got I the Depart- The information from Co., (8th Cir.1975); 525 92 Brewing F.2d they’d investigat- was ment of Labor that Albany 499 Chang Corp., Wah EEOC v. violation, no and that I had and found (9th Cir.1974); F.2d 187 Sanchez v. Stan- counsel, lawyer opportunity to seek Brands, Inc., (5th F.2d Cir. dard 431 455 on, I at time and so that didn’t accept 1970). principle. We of course this pursue it further. case, however, there can be this effect, They me a to this sent 7(d) ambiguity that § why I reasons I then found out later on might Hageman. resolve favor of go pursue. ahead and requirement, of to sue noted, Hageman deposition 81. As this at 30, by Hageman aware which was later, year filed more than a 1975, unambiguous its is face: 1977; August 31, time to at no to complaint that a the Labor hold [t]o Hageman notify suit did DOL of alleged discriminatory Department of an his intention to do so. practice complies with the employment though requirement even II. never mentions an intent would be civil action it, As we see case is controlled complete disregard language Hageman early fact that so so well Act. intent informed of the notice of to sue 1256, 7(d) Co., his failure to 1259 requirement of and of Oil 539 F.2d § Dartt v. Shell (10th Cir.1976), equally divided permit it. could not aff’d satisfied We 2646, 936, 53 court, Hageman on these to maintain the Accord, (1977). Newcomer facts, L.Ed.2d 253 doing substituting without less than 598 Corp., Business Machines International “complaint” “charge” wholesale a (5th Cir.), denied, 968, cert. 444 F.2d 969 intent quirement for the notice of 62 413 L.Ed.2d Congress 7(d), itself Son, (1979); Charlier v. S. C. Johnson did, (see only, in 1978 n.2 su- prospectively Inc., (5th Cir.1977); His F.2d pra). This we refuse to do. Co., F.2d cott v. Electric General Cir.1975); (6th Powell v. Southwestern A. (5th Co., Telephone Bell 494 F.2d Many of the cases relied on contrary Cir.1974). disagree We Hageman apply principle Kinney Corp., articulate and in Woodford v. Shoe holding the ADEA which proceedings (N.D.Ga.1973), that because F.Supp. Moreover, Son, Inc., supra; Johnson & Dartt v. principally relies.3 Shell Hageman Hageman supra. Op that found Cf. Reeb v. Economic there is no evidence Oil Inc., requirement am Atlanta 516 F.2d 924 portunity notice of intent to sue Cir.1975) that the com biguous (discussing equitable that he believed it; complied and even plaint he filed modification of the so, any ambiguity were not Rights of Title VII of the Civil Act of 1964 perceived must have been cleared may have permissible). Assuming, without decid 29, 1976 and up early at least as as March 7(d) ing, are earlier, when he was informed possibly modification, subject we con equitable satisfy the notice re did not has not made the sort clude Unnecessary pro quirement of the statute. equitable showing permit that would us technicality though cedural the notice require to waive the notice of intent to sue requirement may appear in ment as to him. be, requirement clearly this case to it is a point begin We out to with that no other imposed by Congress, which Appeals permitted complete Court of satisfy unambiguous even after he had sue re- waiver of the notice of intent of it. quirement. per- Those that have Circuits equitable mitted modification of the re-

B. quirements of have limited them- Hageman’s The fact remains extending cases the 180- selves some of his with the DOL day period during which the statute re- unquestionably many purposes serve of the quires prospective plaintiffs to file their was the notice of intent to sue notices of intent to sue with the DOL. See Philips serve: intended to preceding paragraph. the cases cited in the given timely of Roxane were notice The central consideration those cases has complaint, and the DOL carried out uniformly plaintiff knew and been what prompt investigation. We next consider when he knew it: no Circuit has tolled the justifies waiving the no whether this fact 180-day plaintiff limitation on behalf of a requirement as to tice of intent who, 180-day period, within the knew or Hageman in this case. the ADEA violation should have known of rights and re- alleges he later and of his This Court has never decided the sponsibilities Act. A second con- compliance proce with the strict prejudice sideration has been whether 7(d) (once ambigui requirements of § plaintiff’s to the defendant because resolved) juris is an absolute ties have been Finally, to the court. delay apparent Act, prerequisite diction to suit under the modifi- permitted “equitable no Circuit has subject to requirements whether those are 7(d) simply requirements of cation” of the by the courts in equitable modification because, 180-day period, within v. proper point cases. On this see Nielsen aware of the defendant became DOL and Inc., Co., Western Elect. 603 F.2d 741 and the DOL sub- plaintiff’s complaint Cir.1979); v. Kephart Institute of Gas Tech complaint. To sequently investigated the (7th Cir.1978); Reich nology, 581 F.2d 1287 permit of Co., modification (2nd v. Dow Badische 575 F.2d 363 would, ground alone as denied, the statute on this Cir.), 99 cert. suggested, simply amount we have (1978); Bonham v. 58 L.Ed.2d 683 “complaint” of a Industries, Inc., (3rd by substitution the courts Dresser 569 F.2d 187 for the notice of Cir.), denied, “charge” requirement cert. requirement enacted Con- (1978); 58 L.Ed.2d 113 Charlier S. See Newcomer v. Inter- disap- 3. We note that Woodford has been which it was decided. Corp., supra. least, Machine national Business proved, implication in the Circuit in at Hage similar to Mr. equitable plaints than modifica- that made gress, rather basis, (D.O.L.) case-by-case of the statute on a man to the tion equities satisfy No to “intent to sue” no on the in each case. sufficient depending instance, requirement. Lang gone this far.4 tice For Co., F.Supp. man v. Western Electric just we have None of considerations (S.D.N.Y.1980), court for the district particular, Hageman. favors mentioned held: District of New York Southern exercising equita- our we see no reason complaints “While the Sec- any there powers under if ble captioned, not retary were in fact ‘notice exercise in on his behalf. be to sue,’ agree to we must stumbling again is chief once block Dooling’s that ‘the Judge statement early knowledge of the notice of Hageman’s to sue is not intention failure intent to sue and of his incantatory formality as an required he was Fully have satisfied it. aware as practical purpose for the definite in- required preserve he was do to of what ducing to initiate concilia- can tion and to alert him that he should con- no claim on this consciencefor make Court’s grievant whether to sider sue before Furthermore, we are particular. himself Armstrong himself sues.’ Cowlishaw that, suggests, convinced as Co., (E.D.N.Y.1977), 15 FEP Rubber Philips prejudiced Roxane be would not 1108.” Cases permitted Hageman maintain this despite comply action failure to Kinney Corp., Woodford v. Accord Shoe 7(d). Philips Roxane F.Supp. (N.D.Ga.1973); Burgett v. Cud- rely protections on the entitled (D.Kan.1973). ahy F.Supp. (d) Congress pose afforded disagreed circuits Other have such statute; prejudice wrote there would approach adopted a more for repose sim- allowing to be unsettled interpretation malistic of the ADEA “intent decided, year over a ply because However, requirement. in an to sue” Philips justifiably Roxane believed law, area of VII this court analogous Title closed, the case was that he wanted to construed a a more action after his own all. Saulsbury pragmatic manner. v. Wis See is AF- The of the district court Becker, Inc., mer No. 77-2855 1980). FIRMED. Cir. In VII, as in Title the there agency, is a state a complainant longer period has a in which to TANG, Judge, dissenting. VII, complaint. longer file his the In Title respectfully I dissent. triggered complainant period if the “ini Although tially date has so proceedings” circuit court to institute^] held, 2000e-5(e). com agency. several district courts have found state In U.S.C. § Co., supra, pamphlet. pamphlet This 4. In Dartt Shell Oil the facts and the letter ac- complaint companying a with- Dartt had filed with the DOL first actual no- constituted her days complaint bring and that had been in 180 the tice of her action and a promptly investigated attempt- 180-day Immediately requirement. and conciliation the notice DOL, pri- the to be were both considered after she received she retained this notice 180-day promptly the who her notice relevant vate counsel filed of However, DOL, limitation should be the evi- to sue with be- tolled. yond 180-day period. dence in that case when Dartt was also that The contrast appar- complained in- first was not facts of this be more the DOL she case could not Moreover, noted, rights responsibilities court formed of her ent. as we have specifically of 7 of the ADEA. She in fact not informed Dartt held that Dartt’s her them, required despite frequent of her calls to check did constitute the case, progress 180-day period in her of intent to sue. until run, finally its had when the sent her Saulsbury, complainant contact proper agency, state but had not Application In the Matter of the of Ronnie a formal state. CHEESEMAN; Pollack; Lewis Rocco Saulsbury’s This court held that contacts LaBella, Jr.; Mann; C. James Peter initially proceedings institute state even Scannell; Watson; Richard Robert Vos- though complaint, formal its tech- per; Gummoe; Ryan; Brian Thomas requirements, was not filed. Id. at nical O’Connell; Burger; Richard F. Ambrose analyzed -. In so this court holding, Stephen Kott; Kurpil; Ted Bruce contacts, Saulsbury’s the character of Smith; Mullen; Gundrum; James David compared pur- them with the needs and Individually behalf of all others “initially to be institut- poses served situated, similarly Plaintiffs-Appellants, requirement. ed” Id. at---. In the instant filed an Mr. Hugh CAREY, duly as the elected Gover Form with the Information nor and Executive Chief Officer of the D.O.L., along with statement typewritten York; State of New The Governor’s Of age complaint. of discrimination Employee Relations; Meyer fice of S. filings, provided these D.O.L. with Frucher, as Director of the New York regarding Philips Roxane Laboratories data Employee Relations; State Office of Ed there, employment history as well Regan, Comptroller ward as the leading as detailed account of events York; Coughlin, State of New Thomas discharge. complaint fully

to his satis- This Acting as the Director the New York purposes the “intent to fied behind sue” State Correctional Serv ices; Prevost, requirement. majority’s opinion James A. as the Commis sioner Hygiene; interpretation refers to Office Mental itself its literal Wharton, Clifton R. as the Chancellor “unnecessary proce- as an University York; the State of New technicality ... in this case.” O’Shea, James the Commissioner No of the ADEA is fur- goal substantial of the Office of General Services of the here, majority’s decision nor thered York, Defendants-Appel State of New appear there does reason to divert from lees. policy liberally interpreting remedial our No. Docket 80-7142. legislation. supplied by The information fully Mr. sufficient to Appeals, United Court of States satisfy the of “intent to ADEA’s notice sue” Circuit. Second more, requirement. anything require To Argued June in an area elevates form over substance July Decided confusing already beset and intricate requirements. proof

Case Details

Case Name: Ray C. HAGEMAN, Plaintiff/Appellant, v. PHILIPS ROXANE LABORATORIES, INC., an Ohio Corporation, Defendant/Appellee

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 28, 1980

Citation: 623 F.2d 1381

Docket Number: 78-1914

Court Abbreviation: 9th Cir.