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MARSHALL v. CHAMBERLAIN MFG. CORP.

November 16, 1977

RAY MARSHALL, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, Plaintiff
v.
CHAMBERLAIN MANUFACTURING CORPORATION, Defendant



The opinion of the court was delivered by: MUIR

 The Secretary of Labor of the United States Department of Labor (the Secretary) brought this complaint against Chamberlain Manufacturing Corporation (Chamberlain) alleging that Chamberlain has violated § 4 of the Age Discrimination and Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. and § 15 of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. According to the complaint, Chamberlain has been discharging, demoting and otherwise discriminating against many of its employees because they are between the ages of 40 and 65. On September 19 Chamberlain filed a motion for summary judgment accompanied by a brief. On October 11, 1977, the Secretary submitted to the Court a responsive brief. The last day for the filing of a reply brief was October 18, 1977.

 First, Chamberlain seeks summary judgment pursuant to F.R.Civ.P. 56 because it contends that the Secretary failed to seek redress initially from the appropriate state agency as required by 29 U.S.C. § 633(b) and therefore alleges that this Court lacks subject matter jurisdiction concerning the Secretary's complaint. Lack of jurisdiction over the subject matter should be raised by a motion to dismiss or in the responsive pleading and not by a motion for summary judgment. Solomon v. Solomon, 516 F.2d 1018 (3d Cir. 1975). The Court will follow the opinion of Professor Moore, consider the label attached to a motion unimportant and will treat this motion for summary judgment to the extent that it is based on lack of subject matter jurisdiction as a motion to dismiss pursuant to F.R.Civ.P. 12(b)(1). 6 Moore's Federal Practice Para. 5603 pages 56-60; Meench v. Raymond Corporation, 283 F. Supp. 68 (E.D. Pa. 1968); Navios Corporation v. National Maritime Union of America, 236 F. Supp. 657 (E.D. Pa. 1964).

 29 U.S.C. § 633(b) provides as follows:

 It is undisputed that the Secretary neither commenced proceedings pursuant to state law nor notified the appropriate state agency of the alleged age discrimination before filing this complaint. 29 U.S.C. § 633(b) only applies if the state in which the violation occurred has a law prohibiting discrimination in employment because of age and establishes a state agency to grant or seek relief from such a discriminatory practice. Pennsylvania, where the alleged illegal age discrimination in this case occurred, does have a law prohibiting discrimination in employment based upon age and an agency with authority to grant relief from such discrimination. 43 P.S. §§ 951 et seq. See Sutherland v. SKF Industries, Inc., 419 F. Supp. 610 (E.D. Pa. 1976).

 Only two reported decisions have been found by the Court and cited by the parties which deal with whether 29 U.S.C. § 633(b) applies to a complaint brought by the Secretary pursuant to the ADEA. One decision, Dunlop v. Crown Cork & Seal Company, Inc., 405 F. Supp. 774 (D. Md. 1976) held that 29 U.S.C. § 633(b) controls actions brought by aggrieved individuals but does not apply to actions brought by the Secretary for broad injunctive relief. In Cowlishaw v. Armstrong Rubber Company, 425 F. Supp. 802, 807 (E.D. N.Y. 1977), the Court, although it was not faced with this issue, stated that the Secretary is not required to seek relief for employees through any state agency or to wait on the state's processing of claims that the employees may have filed with the state before bringing a suit alleging a violation of the ADEA. No further discussion of this question is presented by the Court in that case. In an unpublished opinion, Marshall v. West Essex General Hospital, (D.N.Y., March 11, 1977), the Court concluded that 29 U.S.C. § 633(b) applied to an action brought by the Secretary pursuant to the ADEA and dismissed the complaint of the Secretary for failure to comply with that provision. The opinion of the Court in Marshall, supra, although cited by the Secretary in his brief, has not been provided to the Court despite the provision in the practice order issued June 14, 1977 in this case that copies of unreported decisions be appended to the brief.

 The starting point of the Court's analysis must be the decision of the United States Court of Appeals for the Third Circuit in Goger v. H.K. Porter Company, Inc., 492 F.2d 13 (3d Cir. 1974) in which the Court determined that 29 U.S.C. § 633(b) had to be complied with by an aggrieved individual before he could bring an action pursuant to the ADEA. The Court based its decision on the fact that § 633(b) has virtually identical language to that of 42 U.S.C. § 2000e-5(c) of Title VII of the Civil Rights Act of 1964. That parallel provision of the 1964 Act has repeatedly been interpreted by the courts as requiring that appropriate state agencies be given prior opportunity to consider discrimination actions before the aggrieved individual resorts to the federal courts. Love v. Pullman Company, 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972). The Court of Appeals in Goger, supra, stated that while it did not consider the failure to file a timely complaint with the appropriate state agency a mere technical omission, it did believe equitable relief to be appropriate in that case because of a total absence of any judicial decision construing § 633(b) during the period involved in that case and in view of the remedial purposes of the ADEA. Consequently, the Court did not dismiss the Plaintiff's complaint. The Court concluded that in the future the Congressional intent that state agencies be given the initial opportunity to act should be strictly followed and enforced. Id. at 17. In Rogers v. Exxon Research and Engineering Company, 550 F.2d 834 (3d Cir. 1977), the United States Court of Appeals for the Third Circuit held that 29 U.S.C. § 633(b) sets forth a jurisdictional requirement in that ordinarily a Plaintiff's failure to avail himself of state administrative remedies would be fatal to his cause of action. The Court nevertheless considered equitable relief to be appropriate in view of the total absence of any judicial decisions construing § 633(b) during the period involved in that case.

 In the light of these two opinions, the Secretary contends that § 633(b) only applies to actions brought by aggrieved individuals and does not act as a limitation upon him. Nothing in the language of § 633(b) supports such an interpretation. The relevant portion of the statute ". . . no suit may be brought under Section 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 . . ." does not distinguish between actions commenced by individuals and by the Secretary.

 The Secretary advances several arguments to support his interpretation of § 633(b). The Court will deal with them seriatim.

 First, the Secretary contends that the Goger opinion's analogy to Title VII of the Civil Rights Act of 1964 lacks relevance to the situation where the Secretary institutes the action. According to the Secretary, where Congress intended that the federal agency defer to the state under Title VII it set forth this requirement in clear language. No such explicit provision appears in the ADEA. The Court finds this argument unpersuasive. Because Title VII contains clear statements indicating that the federal government should defer to the state in certain circumstances does not mean that the lack of such language in the ADEA negates such a requirement. The Court also notes that 42 U.S.C. § 2000e-5(c) which directs that the individual defer to state or local enforcement proceedings under Title VII uses the following language:

 
"No charge may be filed under sub-section (b) of this section by the person aggrieved before the expiration of 60 days after proceedings have been commenced under the state or local law . . . ."

 Congress in Title VII specifically limited the state exhaustion requirements of 42 § 2000e-5(c) to an aggrieved individual. The language of 29 U.S.C. § 633(b) states that ". . . no suit may be brought . . .". This difference in language indicates to the Court that Congress intended 29 U.S.C. § 633(b) to apply to all suits, including those brought by the Secretary.

 Second, the Secretary contends that the fact that the Equal Employment Opportunity Commission normally has the limited requirement of notifying a state agency of a charge made by a commissioner and giving the state a reasonable time to act before it can take action pursuant to 42 U.S.C. § 2000e-5(c), Title VII of the 1964 Civil Rights Act, and that this requirement is stated explicitly and has no counterpart in the ADEA shows that, when Congress authorized the Secretary to bring suit under the ADEA, it clearly intended that the Secretary have the same direct access to federal court as the Attorney General of the United States was given under Title VII. The absence of provisions in the ADEA similar to those contained in Title VII establish and prove nothing. It is valid for a Court to be influenced by identical language in another statute and to give weight to the interpretation of that statute by other courts. But the absence of a provision from one statutory scheme that is contained in another constitutes a weak ...


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