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PLATT v. BURROUGHS CORP.

December 22, 1976

J. THOMAS PLATT
v.
BURROUGHS CORPORATION, et al.



The opinion of the court was delivered by: GORBEY

 The plaintiff, a former employee of defendant Burroughs Corporation, has included in his second amended complaint, two counts, the first of which purports to state a claim against Burroughs Corporation under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., names five present or former employees of Burroughs, E. Gary Clark, Lucien Dick, Wilford Price, John Duff and John Scarpelli, as defendants, and alleges they conspired to deny him equal protection of the laws in violation of 42 U.S.C. §§ 1985(3) and 1986.

 The defendants, Burroughs Corporation, Wilford Price, John Duff, John Scarpelli, the other two named defendants not having been served at the time, have filed a motion to dismiss plaintiff's second amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on the grounds that:

 1. The court lacks jurisdiction over the subject matter of Count I of the second amended complaint because it does not allege that plaintiff has entirely complied with the jurisdictional prerequisite set forth in § 7(d) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(d); and

 2. Portions of Count I of the second amended complaint fail to state a claim upon which relief can be granted in that they are barred by the statute of limitations as contained in § 7(e) of the ADEA, 29 U.S.C. § 626(e); and

 3. Count II of the second amended complaint fails to state a claim upon which relief can be granted under 42 U.S.C. §§ 1985(3) and 1986 because:

 
(a) the general remedy of § 1985(3) is preempted by the more specific provisions of the ADEA;
 
(b) it fails to allege properly the existence of a class-based animus on the part of the individual defendants;
 
(c) it fails to allege properly and specifically the existence of a conspiracy among the individual defendants;
 
(d) it is barred in part by the applicable statute of limitations; and
 
(e) section 1986 liability presupposes the existence of a viable cause of action under § 1985(3) and items 3(a) and 3(d) refute such existence.

 The contention of Burroughs that Count I should be dismissed for failure to comply with the notice provisions of ADEA requires a consideration of the notice provisions of § 7 of the ADEA.

 The provisions of the Act which relate to notice are found in 29 U.S.C. § 626(d) which states:

 
"No civil action may be commenced by any individual under this section until the individual has given the Secretary [of Labor] not less than 60 days' notice of an intent to file such action. Such notice shall be filed (2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred or within 30 days after receipt by the individual of notice of termination of proceedings under state law, whichever is earlier.
 
"Upon receiving a notice of intent to sue, the Secretary shall promptly notify all persons named therein as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion."

 Section 633(b) provides:

 
"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 § 626 of this title before the expiration of 60 days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated . . . ."

 The Commonwealth of Pennsylvania, in 43 P.S. § 952 et seq., has prohibited age discrimination and designated the Pennsylvania Human Relations Commission as the supervising agency. Therefore the notice requirements of § 626(d)(2) are applicable in this case. Abundant case law has established the proposition that the notice requirements of § 626(d) are jurisdictional. RAYNOR v. GREAT ATLANTIC AND PACIFIC TEA CO., 400 F. Supp. 357 (E.D. Va. 1975); POWELL v. SOUTHWESTERN BELL TELEPHONE COMPANY, 494 F.2d 485 (5th Cir. 1974); EDWARDS v. KAISER ALUMINUM & CHEMICAL SALES, INC., 515 F.2d 1195 (5th Cir. 1975); GOGER v. H. K. PORTER, INC., 492 F.2d 13, 7 FEP Cases 71 (3d Cir. 1974); EKLUND v. LUBRIZOL CORP., 529 F.2d 247 (6th Cir. 1976); HISCOTT v. GENERAL ELECTRIC CO., 521 F.2d 632 (6th Cir. 1975).

 It is alleged in paragraph 15 that:

 
"In January, 1976, the plaintiff filed a Notice of Intention to Sue with the United States Department of Labor and filed a complaint with the Pennsylvania Human Relations Commission, charging the defendant with age discrimination."

 The original complaint was filed in this court on June 15, 1976.

 The acts of discrimination with respect to each of which the notice requirement applies, as alleged by plaintiff in his self-styled "amended complaint in equity", are found in the following paragraphs:

 
"5. In May, 1972, the plaintiff was informed by an agent of the defendant that he was being demoted from his position of Manager of Employee and Industrial Relations (hereinafter Manager) to that of Personnel Specialist. This demotion was to be 'without prejudice' and without any decrease in compensation."
 
"11. Beginning in July, 1974, and continuing until March, 1976, the defendant gradually diminished the plaintiff's responsibilities, assigning him to less and less desirable tasks."
 
"12. From January 2, 1973, until May 21, 1976, the plaintiff received no increase in pay, although prior to this time he had received regular increases in pay."
 
"13. After May, 1972, notwithstanding the plaintiff's experience in the position of Manager of Employee and Industrial Relations, when the position did become open the defendant passed over the plaintiff and, without notice to him of the pending openings in this position, placed younger men, who were no better qualified than plaintiff, in it."
 
"16. In March, 1976, the defendant placed the plaintiff on an involuntary leave of absence as the result of his having filed this age discrimination charges."

 Plaintiff has not alleged in his complaint the contents of the January 1976 notice of intention to sue, therefore we do not know whether the alleged acts of discrimination nor the dates thereof designated in the two notices were identical.

 It is also to be noted that the events stated in paragraphs 16 and 17 occurred after the plaintiff had filed a notice of intention to sue with the United States Department of Labor and a complaint with the Pennsylvania Human Relations Commission.

 The first act of discrimination, an alleged demotion, is asserted to have occurred in May, 1972. Plaintiff has not alleged that he satisfied the notice requirements with respect to that act. Consequently, neither the Secretary of Labor nor the Pennsylvania Agency was given the opportunity to deal with the alleged discriminatory act. Accordingly, the conclusion must be that the court is without jurisdiction as to the first alleged act of discrimination.

 The second alleged discriminatory act is a "failure to promote after May, 1972", which is certainly a foreseeable consequence of the alleged demotion in May, 1972. No dates were given with respect to the alleged failures. There is no allegation that timely notice was given with respect thereto. Next comes the allegation of discrimination based upon "failure to receive pay raises after January 3, 1973", another foreseeable consequence of his alleged demotion in May, 1972, and which might have been prevented had the plaintiff complied with the statute as respects the demotion itself. The fourth claim of discrimination rests upon "gradual ...


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