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MC CRACKEN v. SHENANGO INC.

November 22, 1977

Frances MCCRACKEN et al.
v.
SHENANGO INCORPORATED



The opinion of the court was delivered by: KNOX

KNOX, District Judge

 Plaintiffs, former employees of defendant Shenango Incorporated, bring this action under the Age Discrimination in Employment Act, 29 USC § 621, et seq., alleging that on June 30, 1975, defendant subjected them to involuntary retirement before the age of 65 in violation of § 4(a)(1) of the Act. Plaintiffs seek relief in the form of unpaid minimum wages, overtime compensation, liquidated damages and an injunction directing defendant to re-employ them at its offices and plant at Neville Island, Pittsburgh, Pennsylvania.

 Pending before the court is defendant's motion to dismiss filed under Rules 12(b)(1) and 12(b)(6). Defendant asserts that the court lacks subject matter jurisdiction, or in the alternative, that plaintiffs have failed to state a claim for which relief can be granted. Specifically, defendant alleges that plaintiffs failed to give timely notice of their intention to sue to the Secretary of Labor, as required by 7(d) of the Act, 29 USC § 626(d), also, that plaintiffs failed to comply with 14(b), 29 USC § 633(b), requiring commencement of proceedings under state age discrimination statutes before the filing of a federal action.

 The issue before the court is whether plaintiffs have complied with 14(b)'s requirements by filing a complaint with the Pennsylvania Human Relations Commission after the running of the ninety-day state statute of limitations, but within the one hundred and eighty-day federal period, set forth in 7(d) of the Act. After a careful review of the briefs submitted by the parties, the court concludes that the defendant's motion must be denied.

 In their brief, plaintiffs allege that they filed an age discrimination in employment complaint with the United States Department of Labor in Pittsburgh on October 3, 1975. On October 17, 1975, plaintiffs filed a complaint with the Pennsylvania Human Relations Commission (hereinafter Pa. H.R.C.). On October 24, 1975, plaintiffs' attorney notified the Department of Labor of plaintiffs' intent "to pursue the matter fully". Plaintiffs' Brief at 2.

 By letter of January 21, 1976, Merwyn R. Markel, a representative of the Pa. H.R.C., informed plaintiffs that the Commission could not process their complaint, filed more than ninety days after June 30, 1975, the date of the alleged unlawful practice.

 By letter of March 8, 1977, plaintiffs' attorney notified the Department of Labor of plaintiffs' intention to file suit under the Act. Plaintiffs then filed the present action in this court on June 2, 1977.

 (I) The Act.

 The purpose of the Age Discrimination in Employment Act is "to promote employment of older persons based on their ability rather than age (and) to prohibit arbitrary age discrimination in employment". 29 USC § 621(b). The Act provides that an aggrieved individual may bring a civil action in federal court to enforce the Act, 29 USC § 626(c), provided that certain procedural prerequisites are met. These prerequisites are set forth in 7(d), 29 USC §§ 626(d), and 14(b), 29 USC § 633(b) of the Act. 7(d) provides that a plaintiff must file a notice of intention to sue with the Secretary of Labor at least sixty days before instituting an action in federal court. Further, this notice must be filed either within one hundred and eighty days of the alleged unlawful practice or, where 633(b) applies, within three hundred days of the discriminatory act. The purpose of this notice is to allow the Secretary an opportunity to attempt to resolve the problem through "conciliation, conference and persuasion". 29 USC § 626(d). 7(d) provides as follows:

 
"(d) No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days' notice of an intent to file such action. Such notice shall be filed --
 
(1) within one hundred and eighty days after the alleged unlawful practice occurred, or
 
(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty 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 ...

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