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SUTHERLAND v. SKF INDUS.

August 31, 1976

H. MONROE SUTHERLAND
v.
SKF INDUSTRIES, INC.



The opinion of the court was delivered by: FOGEL

 FOGEL, J.

 Plaintiff, H. Monroe Sutherland (Sutherland), instituted this action pursuant to the provisions of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. ; he claims that his discharge from employment by defendant, SKF Industries, Inc., (SKF), at the age of 53, after 34 years of service with that company, constitutes discriminatory action, based solely upon his age, in violation of the ADEA. Jurisdiction is grounded upon 29 U.S.C. §§ 626(b) and 216(b), and upon 28 U.S.C. § 1337.

 Presently before us is defendant's motion, filed pursuant to Fed. R.Civ. P. 12(b)(1), for dismissal of plaintiff's complaint on the ground that this court lacks jurisdiction over the subject matter of the dispute. SKF cites two points in support of its motion: first, that plaintiff failed to file a timely action before the appropriate state agency authorized to grant relief from the alleged discriminatory act, as required by 29 U.S.C. § 633(b); second, that he failed to give timely notice to the Secretary of Labor of his intent to file suit under the ADEA, pursuant to 29 U.S.C. § 626(d). *fn1" Our review and analysis of the briefs submitted in conjunction with the presentation at oral argument, together with our consideration of the entire record before us, has led us to determine that the motion to dismiss must be denied, on the basis of the following facts and legal principles.

 I. PROCEDURAL AND FACTUAL HISTORY OF THE CASE

 The controlling facts, read in a light most favorable to plaintiff (as they must be in view of the fact that we are entertaining a motion to dismiss) are as follows:

 Defendant SKF is a corporation engaged in the business of manufacturing ball and roller bearings, and is an "employer" within the meaning of the ADEA, 29 U.S.C. § 630(b). Prior to June 1, 1973, plaintiff had been employed by SKF for a period of 34 years; he last served as a manager in the computer programming area of the company. On June 1, 1973, Sutherland's employment was terminated by SKF; his discharge was characterized as "involuntary retirement". Although plaintiff was advised of his discharge on June 1st, his last day of work, nevertheless, he was paid through July 31, 1973, a period which included five weeks of accrued vacation pay. Plaintiff was 53 years of age at the time of his termination. Several weeks after his discharge, he went to the office of the Employment Standards Administration of the United States Department of Labor (Department) to lodge a complaint against SKF for wrongful termination of his employment, which he states was based solely upon his age. The Department recorded his complaint; neither at that meeting, nor at any time thereafter, did any Department employee inform plaintiff of the requirement that he first file an action under the Pennsylvania Human Relations Act, 43 P.S. §§ 951 et seq., before the Pennsylvania Human Relations Commission (PHRC); indeed, plaintiff was not even informed of the fact that such a state agency was in existence, let alone authorized to entertain his complaint. Plaintiff was led to believe by the personnel of the Department, that he had lodged his complaint in the appropriate forum, and that the agency was authorized to proceed, and would proceed, on his claim of discrimination.

 Following Sutherland's visit, the Department investigated his complaint, and determined that SKF had not violated the ADEA; indeed, it found that plaintiff had been discharged in accordance with a bona fide retirement plan, which was in accord with the provisions of 29 U.S.C. § 623(f)(2). Plaintiff was initially told orally of this finding sometime during October, 1973, when he made another visit to the Department. He was subsequently so informed in writing in a letter addressed to him dated November 8, 1973; that letter set forth the Department's finding that there had been no violation, but also relayed to him his right to bring a federal court action after fulfilling the requirements of the ADEA, including notice to the Secretary of Labor of his intent to file suit. Once again, however, plaintiff was not told that the filing of a state action before the PHRC was a prerequisite to institution of suit in the federal courts.

 During this entire period, plaintiff was not represented by counsel; on November 23, 1973, he retained his present attorney who immediately realized that the period within which to give notice of intent to sue was quickly expiring; 29 U.S.C. § 626(d) requires that this notice be given within one hundred eighty days of the alleged unlawful practice. *fn2" Plaintiff had been discharged on June 1st, and his attorney assumed that the one hundred eighty day period would expire on November 28th. Accordingly, either on November 23rd or 26, 1973, he telephoned the regional office of the Department and spoke to an attorney at that office; he informed the government attorney of his intent to file suit on behalf of Mr. Sutherland, and "inquired whether written notice [of intent to sue] was sufficient if it was only a day or two late." He was told that "such a minor deviation had never been questioned before and [the attorney] was sure that it would not present a problem." (Affidavit of Thomas S. Howland, at 2). Based upon this representation, plaintiff's counsel filed written notice with the Secretary of Labor on December 3, 1973, a date which was one hundred eighty-five days after June 1st.

 Almost one year later, in October, 1974, plaintiff and his lawyer first learned that the PHRC was a state agency which was competent to hear plaintiff's claim for relief from discrimination allegedly based upon age. On November 4, 1974, plaintiff filed a complaint against SKF with the PHRC. The Pennsylvania Human Relations Act provides, however, that any complaint brought before the PHRC must be filed within ninety days of the alleged act of discrimination. 43 P.S. § 959. Accordingly, plaintiff's action before the PHRC was dismissed on December 26, 1974, for lack of jurisdiction. The ensuing action before us was filed on April 3, 1975.

 II. THE CONTENTIONS OF THE PARTIES

 A. The failure to file a timely state action

 Defendant's first argument in support of the motion for dismissal of plaintiff's complaint centers upon Sutherland's failure to file a timely action with the PHRC before initiating suit in this court; SKF avers that the decision of the Court of Appeals for the Third Circuit in Goger v. H. K. Porter Co., 492 F.2d 13 (3d Cir. 1974) makes a prior state action a "jurisdictional prerequisite" to suit in federal court. While we agree with defendant that a timely complaint must normally be filed with the state agency before jurisdiction can vest in a federal court, equitable considerations in the case at bar convince us that plaintiff should be relieved from the consequences of his neglect in this regard.

 In analyzing this issue, we first parse the provisions of the ADEA. 29 U.S.C. § 633(b) states the following in relevant part:

 
In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated. . . .

 In Goger v. H. K. Porter Co., supra, this section was construed to require that an aggrieved individual initially bring an action under state law before instituting suit in federal district court under the ADEA, when such state law provides relief from discrimination based upon age. *fn3" Goger presented a situation substantially similar to the case at bar: following her discharge by her New Jersey employer, Virginia Goger had filed a notice of intent to sue with the Secretary of Labor, and the Department had attempted to conciliate the matter. This effort was not successful, and the Department compliance officer assigned to the case informed Ms. Goger that she was free to institute an action in federal court. Ms. Goger never brought an action before the New Jersey agency authorized to hear her complaint, nor did the Department ever tell her that such a proceeding was required; indeed, the federal compliance officer effectively misled Ms. Goger in this respect by stating that she was free to institute a federal suit after informal conciliation efforts had failed. The district court granted defendant's motion to dismiss based upon plaintiff's failure to bring a prior state action, and she appealed.

 The Court of Appeals affirmed the principle that section 633(b) mandates a prior state action, but vacated the dismissal of the complaint on equitable grounds. The court noted that section 633(b) does not on its face require a prior state action, and stated:

 
While we do not consider the failure to file a timely complaint with the appropriate state agency a mere "technical" omission [citations omitted], we nonetheless consider equitable relief to be appropriate in view of the total absence, to our knowledge, of any judicial decision construing section 633(b) during the period involved here and in view of the remedial purpose of the 1967 Act. In the future, however, we think the ...

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