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GRIFFIN v. FIRST PENNSYLVANIA BANK

October 25, 1977

Richard F. GRIFFIN
v.
FIRST PENNSYLVANIA BANK, N.A.



The opinion of the court was delivered by: HUYETT

 HUYETT, District Judge.

 Invoking the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., plaintiff's amended complaint charges that his employment with the First Pennsylvania Bank, N.A. (Bank) was unlawfully terminated by reason of his age. Plaintiff, Richard Griffin, is a forty-seven year old man initially hired by the Bank as a management trainee in 1968. During the course of his employment he received commendable performance ratings, and he was promoted to the position of commercial officer. Plaintiff alleges that in August 1975, departing from its customary practice of giving employees whose performance is unsatisfactory two warnings and an opportunity to correct inadequacies, the Bank notified plaintiff that his employment would be terminated in six weeks. When plaintiff sought unsuccessfully to secure an internal transfer, a Senior Vice President at the Bank informed plaintiff that "there was a possibility that his release would be a temporary lay-off wherein he could be recalled without loss of seniority." (Amended Complaint para. 11). On September 25, 1975, plaintiff was terminated. Plaintiff contends that approximately one month later he learned that three younger persons had been transferred into his former department soon after his departure.

 In January 1976, plaintiff alleges that he learned for the first time that First Pennsylvania had adopted a "new policy of reviewing terminations of older employees" (para. 17), and he concluded that he had been terminated because of his age. On March 30, 1976, plaintiff reported his employment grievance to the Secretary of Labor. Plaintiff alleges that no one at the Department of Labor advised him of the necessity of filing a complaint with the Pennsylvania Human Relations Commission (PHRC); rather, the Department unsuccessfully undertook conciliation efforts. In October 1976 plaintiff filed his first complaint in this action.

 The ADEA makes it an unlawful employment practice "to discharge any individual . . . because of such individual's age," 29 U.S.C. § 623(a)(1), and it creates a federal cause of action for aggrieved employees, 29 U.S.C. § 626(c). As a prerequisite to filing a case under the ADEA, an employee must satisfy certain prerequisites. He must give the Secretary of Labor at least sixty days notice of his intent to file a civil action, 29 U.S.C. § 626(d), so that the Secretary may undertake "to effect voluntary compliance with the requirements of [the Act] through informal methods of conciliation, conference, and persuasion." 29 U.S.C. § 626(b).

 Further, plaintiff must file his notice of intent to sue with the Secretary either within 180 days of the occurrence of the unlawful employment practice, 29 U.S.C. § 626(d)(1), or, in the event that the forbidden practice occurs in a state that has a law prohibiting age discrimination and a state agency which affords a remedy for such practices, 29 U.S.C. § 633(b), within 300 days of the unlawful practice or within thirty days of receiving notice of the termination of state proceedings, whichever is sooner. 29 U.S.C. § 626(d)(2) (Supp.1975).

 Plaintiff in the instant case filed his complaint with the Department of Labor 187 days after his termination, and, in addition, filed no claim with the PHRC at any time. The Bank has moved to dismiss the amended complaint for lack of subject matter jurisdiction on the ground that plaintiff has failed to comply with the statutory prerequisites to suit. We shall deny the motion for the reasons that follow.

 I.

 We first address the question of whether plaintiff's failure to file a notice of intent to sue letter with the Department of Labor within 180 days after his termination by the Bank, in itself, deprives him of his cause of action under the ADEA. Since plaintiff did not resort to the PHRC at all, he cannot claim the benefit of the longer 300-day filing period provided in 29 U.S.C. § 626(d)(2) for those employees who do avail themselves of a state remedy. Thus, he must comply with the 180-day filing period of 29 U.S.C. § 626(d)(1). Cf. Dubois v. Packard Bell Corp., 470 F.2d 973 (10th Cir. 1972) (under analogous provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., a plaintiff who fails timely to file with the state agency is deprived of the benefit of the longer federal time period). Thus, if the 180-day period begins to run on the date of plaintiff's termination regardless of the circumstances of the case, this action is time-barred.

 The question of whether the 180-day filing requirement in the ADEA is an inflexible jurisdictional limitation or a provision analogous to a statute of limitation, and thus open to the application of the equitable doctrines of tolling and estoppel, has not been decided by the Third Circuit. Other courts which have addressed the issue are sharply divided. While there is ample authority for the proposition that the 180-day filing requirement is jurisdictional: e.g., Ott v. Midland-Ross Corp., 523 F.2d 1367 (6th Cir. 1975); Hiscott v. General Electric Co., 521 F.2d 632 (6th Cir. 1975); Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195 (5th Cir. 1975); Powell v. Southwestern Bell Telephone Company, 494 F.2d 485 (5th Cir. 1974); we nevertheless conclude that the filing period in section 626(d)(1) is more closely akin to a statute of limitation and may be equitably tolled given the proper circumstances. Accord, Dartt v. Shell Oil Company, 539 F.2d 1256 (10th Cir. 1976), cert. granted, 429 U.S. 1089, 97 S. Ct. 1097, 51 L. Ed. 2d 534 (Feb. 20, 1977); Skoglund v. Singer Company, 403 F. Supp. 797 (D.N.H.1975).

 We reach this conclusion based upon an examination of the legislative history of the ADEA and the cases construing section 626(d)(1). The legislative history of the ADEA does not address the exact question of whether the 180-day filing requirement is jurisdictional; however, the notice requirement of section 626(d)(1) was characterized in the House Report as a "condition precedent" to the filing of a private suit. H.R.Rep.No.805, 90th Cong., 1st Sess., reprinted at 1967 U.S.Code Cong. & Admin. News p. 2213. The Fifth Circuit summarized the purpose of the notice requirement as follows:

 
It is logical that the 180 day notice was intended to insure that potential defendants would become aware of their status and the possibility of litigation reasonably soon after the alleged discrimination since the notice goes from the Secretary of Labor on to the employer involved. In turn this would promote the good faith negotiation of employers during the 60 day conciliation period and provide an ...

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