APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 75-2216)
Before Seitz, Chief Judge, and Rosenn and Garth, Circuit Judges.
Again, we are presented with an appeal involving an employee's failure to resort to state age discrimination remedies before instituting federal suit under the Age Discrimination in Employment Act of 1967 (ADEA).*fn1 Our court in Goger v. H. K. Porter Co., Inc., 492 F.2d 13 (3d Cir. 1974), had previously required that resort must first be had to state administrative proceedings. We had then held in Rogers v. Exxon Research & Engineering Corp., 550 F.2d 834, 844 (3d Cir. 1977), Cert. denied, 434 U.S. 1022, 98 S. Ct. 749, 54 L. Ed. 2d 770 (1978), that such prior state resort was a "jurisdictional" prerequisite. Today, however, we have overruled Goger and its progeny, and have "held that resort to state age discrimination remedies is not a precondition to maintaining a federal suit for age discrimination." Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 at 1222 (3d Cir. 1978) (in banc). Thus, we reverse the district court's order of summary judgment in favor of Joseph Schlitz Brewing Company (Schlitz), the employer, and remand for further proceedings.
The plaintiff, Robert E. Smith, a New Jersey resident, was hired by Schlitz on October 20, 1952. Throughout his employment, he served as Industrial Relations Manager of the Schlitz brewery in Brooklyn, New York. As early as 1969, Schlitz began formulating plans to close its Brooklyn brewery. Beer production at the Brooklyn plant ceased in March, 1973. The plant was sold toward the latter part of that year, and from March through December of 1973 Smith continued to serve as resident manager. Although Schlitz was then planning to open a new brewery in Syracuse, New York, at no time did Schlitz offer to employ Smith at, or relocate him to, the new facility. Thus, on December 31, 1973, Smith was forced into involuntary retirement at age 62.*fn2
Smith, claiming that Schlitz's actions violated the ADEA,*fn3 sought assistance from those administrative agencies charged with combating age discrimination in employment.*fn4 Smith alleged that he first visited the New York City office of the United States Department of Labor (Department). There he was advised to file his complaint with that Department's office in Paterson, New Jersey because he resided in that state. Despite this direction, Smith contends that he nevertheless placed a telephone call to the New York State Human Rights Division in Manhattan.*fn5 "After a considerable conversation, consisting mostly of (the state representative) questioning (Smith),"*fn6 Smith was again advised to file his complaint with the Department office nearest his home. This advice was predicated upon the consideration that Schlitz was no longer conducting business directly in New York, and had no corporate or regional office there.*fn7
Having been advised by both the Department and the New York Division of Human Rights that the proper office in which to lodge his complaint was the Department's office in Paterson, New Jersey, Smith did just that.
After the Department's conciliation attempts with Schlitz had failed, Smith instituted in federal court the present action charging age discrimination. Thereafter, Schlitz moved to dismiss the complaint, or in the alternative for summary judgment. Among other grounds for its motion,*fn8 Schlitz asserted that Smith had failed to satisfy the jurisdictional prerequisite contained in 29 U.S.C. § 633(b) requiring prior resort to state age discrimination remedies.*fn9
The district court, construing Rogers v. Exxon Research & Engineering Corp., supra, to require strict compliance with this jurisdictional prerequisite, entered judgment for Schlitz.*fn10 The sole ground for this ruling was Smith's asserted failure to commence state age discrimination proceedings.*fn11
On February 17, 1978, the date on which we heard oral argument in Smith's appeal, our court had pending before it at least one other appeal brought by an ADEA claimant who had been denied relief because he too had failed to resort to state age discrimination remedies prior to instituting a federal action.*fn12 In addition, our court in yet a third case was considering whether the Secretary of Labor must resort to state remedies before bringing an age discrimination suit in federal court.*fn13 These filings brought to a total of at least six the number of section 633(b) cases instituted within just the last four years before our court alone.*fn14 Thus, our court entered an order to reconsider In banc the "jurisdictional prerequisite" issue as presented in Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (Order granting reconsideration In banc dated Mar. 13, 1978), one of the pending section 633(b) appeals.
Recognizing that the outcome of the In banc proceeding would control the instant case, we postponed decision in this appeal pending this court's decision in Holliday.*fn15 As earlier noted, today we have held, "contrary to our holding in Goger, that no prior resort to state agency procedures is required as a precondition to commencing a federal action charging age discrimination under the ADEA." Holliday v. Ketchum, MacLeod & Grove, Inc., at 1221. Our opinion in Holliday, then, influenced as it is by the recent Supreme Court decision in Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978), as well as by "public policy concerns, congressional predilection, and our own unease with a judicial impediment to remedial legislation," 584 F.2d at 1230, overturns the jurisdictional requirement imposed by Goger and Rogers, and instead now affords complainants under the ADEA an initial choice of forum.*fn16
Here the district court, understandably relying upon this court's precedents, entered judgment for Schlitz, the employer, because Smith had failed to commence state proceedings before filing his federal action. Our decision in Holliday v. Ketchum rejects such a requirement. That ruling now controls this appeal, making it unnecessary to consider in Smith's case the need for, or possibility of, equitable relief. Thus, in light of Holliday v. Ketchum, the ...