APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-140)
Before Adams and Higginbotham, Circuit Judges, and Bechtle,*fn* District Judge. Argued Feb. 24, 1978. Reargued May 11, 1978 In Banc. Before Seitz, Chief Judge, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth and Higginbotham, Circuit Judges.
The question before us today is the very same question which a panel of this court answered in 1974: must a private plaintiff who charges employment discrimination in violation of the federal Age Discrimination in Employment Act of 1967 (ADEA)*fn1 be required to utilize state remedies before filing a suit in federal court? In 1974, a majority opinion of a panel of this court answered that question in the affirmative, holding that initial resort to state remedies was required. Goger v. H. K. Porter Co., Inc., 492 F.2d 13 (3d Cir. 1974).*fn2 Today, having reconsidered this issue, we have arrived at a different answer. Thus we overrule Goger*fn3 and hold that resort to state age discrimination remedies is not a precondition to maintaining a federal suit for age discrimination.
On April 15, 1957, James R. Holliday entered into employment with Ketchum, MacLeod & Grove, Inc. (Ketchum), an advertising agency. Holliday served in the position of production manager at Ketchum for some nineteen years, until January 30, 1976. On that date, Holliday, aged 57, was terminated. Ketchum contends that Holliday was "involuntarily retired" "pursuant to the early retirement provisions of Ketchum's pension plan."*fn4 Holliday claims that Ketchum illegally discriminated against him because of his age, and that as a result he has suffered injury.*fn5
Holliday initially sought redress by filing a notice under the ADEA with the Secretary of Labor (Secretary).*fn6 Holliday filed his notice on July 15, 1976 one hundred sixty-eight (168) days following his discharge thereby complying with the ADEA's one hundred eighty (180) day limitations period for notifying the Secretary of age discrimination complaints.*fn7 Holliday however did not file an age discrimination claim with the Pennsylvania Human Relations Commission (Commission)*fn8 until August 5, 1976 one hundred eighty-nine (189) days following his discharge. The Commission dismissed Holliday's complaint as untimely, because discrimination complaints must be filed with the Commission "within ninety days after the alleged act of discrimination."*fn9
In light of the Commission's dismissal of Holliday's claim, the district court granted Ketchum's motion to dismiss Holliday's federal complaint. The district court reasoned that under Goger and its progeny, "by failing to timely file with the (Commission) the Plaintiff has not afforded the state agency a reasonable opportunity to resolve the matter . . . and his (federal) suit is jurisdictionally defective."*fn10
Section 623(a) of Title 29, United States Code, provides that:
It shall be unlawful for an employer
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, Because of such individual's age; . . . (Emphasis added).*fn11
A complainant seeking to invoke the protective provisions of the ADEA must, as noted, comply with certain time limits for filing a notice with the Secretary.*fn12 In addition, the relevant portion of section 14(b) of the ADEA, 29 U.S.C. § 633(b), provides as follows:
(b) 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 section 626 of this title (Quoted in part in n. 6 Supra ) before the expiration of sixty days after proceedings ...