a complaint and granted equitable relief from the requirements of section 633(b) under circumstances which were akin to those in Goger.
We conclude that the instant case presents a factual situation which merits equitable relief from the failure to file a prior state action, under the principles enunciated in Goger and McGarvey. Plaintiff was discharged on June 1, 1973; the Goger case was decided by the court of appeals on January 31, 1974, which was well beyond the 90 day period within which Sutherland was required to file an action before the PHRC. 43 P.S. § 959. While the district court opinions in both Goger and McGarvey were rendered prior to termination of his employment, we do not believe that those decisions from the District Court of New Jersey, should, or could, reasonably have put Sutherland on notice that prior state action was required; such knowledge cannot fairly be charged to plaintiff until the date that the decision of the Court of Appeals was announced, at the very least. By that date, January 31, 1974, plaintiff was already time-barred from presenting any claim before the PHRC.
In addition, Sutherland's contacts with the Department of Labor did not give him any reason to believe that any state action was necessary before institution of a federal suit; to the contrary, he was led to believe that he was proceeding correctly by seeking relief directly under the ADEA. The facts cry out for equitable relief, just as they did in Goger and McGarvey ; accordingly, defendant's first ground for dismissal of plaintiff's complaint is and will be denied.
B. The failure to file timely notice of intent to sue
Defendant's second argument is predicated on the failure of plaintiff to give written notice of intent to sue to the Secretary of Labor within 180 days of the alleged discriminatory act. SKF claims that section 626(d) makes timely notice to the Secretary a jurisdictional prerequisite to suit under the ADEA. Since written notice was not given to the Secretary until 185 days after plaintiff was informed of his termination on June 1st, defendant claims that the action must be dismissed.
Plaintiff presents four points in opposition to SKF's position: first, he argues that under section 626(d)(2), the applicable time period within which notice had to be filed was not 180 days, but rather was 300 days; second, he contends that, even if the 180 day period is held to apply, the date of the alleged act of discrimination was not June 1, 1973, the date that Sutherland was notified of discharge and also his last day of work, but rather was July 31, 1973, the time period through which he received compensation; third, plaintiff avers that the Secretary did in fact receive notice within 180 days of June 1, 1973, by reason of the telephone call made by plaintiff's counsel to the Department of Labor seeking to ascertain if written notice filed a few days late, would constitute effective notice to the Secretary that plaintiff intended to sue under the ADEA; fourth, and finally, plaintiff claims that irrespective of the date of notice, the thrust of section 626(d) has been satisfied in the case at bar, because both the Secretary and the defendant had notice of plaintiff's complaint well before the expiration of the 180 day period.
We need not resolve the first two issues, for defendant's argument must be rejected based upon our determination of the third and fourth points; focus upon the particular facts before us, and cognizance of the remedial purposes of the ADEA, satisfies us that the telephone call of plaintiff's counsel to the Department on November 23rd or 26th constituted sufficient notice of intent to sue under the statute. Therefore, assuming, arguendo, that the 180 day time limit applies, and that the meter began to run on June 1, 1973, we find that the notice of intent to sue was nevertheless timely, even though that notice was oral, and was followed by untimely written notice.
In reaching this conclusion, we do not hold that oral notice is always sufficient; to the contrary, we believe that written notice is normally required under section 626(d). However, First, the section does not explicitly require written notice; Second, plaintiff's counsel relied upon the representation of a Department attorney that written notice was sufficient although it was a few days late; and Third, defendant has not been prejudiced by the late filing of written notice; therefore, considerations of equity direct that we give full weight to oral notice in the case at bar.
(i) Oral vs. Written Notice Under Section 626(d)
29 U.S.C. § 626(d), which requires that notice of intent to sue be given to the Secretary of Labor within 180 days of the alleged violation, does not by its terms mandate that such notice be in any particular form, nor that it necessarily be in writing; the legislative history of the ADEA gives us no guidance in this respect -- there is no requirement that notice must be in writing. See 1967 U.S. Code Cong. & Adm. News, p. 2213. The Department has stated in an opinion letter that notice should be in writing, but this direction is not unequivocal; to the contrary, the statement reads as follows:
No particular form is necessary in order to notify the Secretary of Labor of an intent to file suit under the Age Discrimination in Employment Act. However, such notice should be provided in writing and properly addressed to the Department of Labor. Administrative Opinion signed by Assistant Secretary of Labor Donahue, August 26, 1968; FEP manual 401:5213.
In Woodford v. Kinney Shoe Corp., 369 F. Supp. 911 (N.D. Ga. 1973), the court was confronted with a situation akin to that before us; it construed the Department opinion letter to encourage, albeit not demand, that notice of intent to sue be in writing. In holding that oral notice was sufficient under section 626(d), it stated:
The construction of a statute by the government agency charged with its enforcement is entitled to great weight. [citations omitted]. But in this case, the court is uncertain what the Labor Department has said. The language in the opinion [letter] could mean that any type notice is acceptable, as long as it is in writing or it might mean that any type notice is acceptable, although written notice is desirable. The opinion is ambiguous. . . . Id. at 914.