argument would fail in any event, for an entirely different reason: the requirement that a charge be filed before any civil action may be instituted is Jurisdictional, and thus is not subject to equitable doctrines such as estoppel.
True, the other time limitation contained in amended section 7(d) the requirement that the charge be filed within 180 days of the alleged unlawful practice is Not jurisdictional. This is clearly stated in the conference committee report on the Age Discrimination in Employment Act Amendments of 1978: "The conferees agree that . . . equitable modification for failing to file within the (180-day) time period will be available to plaintiffs under this Act." H.R.Conf.Rep.No.95-950, 95th Cong., 2d Sess. 12 (1978) (citations omitted), Reprinted in (1978) U.S.Code Cong. & Admin.News 1000, 1006. The rationale underlying this approach is unexceptionable: "Circumstances may exist where, notwithstanding plaintiff's failure to comply with the letter of the law, the purposes of the statutory requirement providing the Secretary of Labor with an opportunity to conciliate while the complaint is fresh and giving early notice to the employer of possible litigation have been substantially served." Bonham v. Dresser Indus., Inc., 569 F.2d 187, 193 (3d Cir. 1977), Cert. denied, 439 U.S. 821, 99 S. Ct. 87, 58 L. Ed. 2d 113 (1978).
Different considerations are involved where the plaintiff, rather than simply filing outside the 180-day period, fails to file at all. Congress, by providing that "(no) civil action may be commenced . . . until 60 days after a charge . . . has been filed with the Secretary," presumably sought to afford the Secretary an opportunity to conciliate Before the parties assumed the formal adversary posture of litigants. This purpose cannot be "substantially served" indeed, it cannot be served at all when an aggrieved employee institutes a civil action before filing any charge with the Secretary. Even if the district court were to hold the action in abeyance while the plaintiff belatedly gave the Secretary an opportunity to conciliate, the Secretary's efforts might well be hampered by the pendency of federal-court litigation. Dismissal of the complaint, on the other hand, would leave the plaintiff free to begin again by filing a charge, would permit the Secretary to then attempt conciliation in an atmosphere arguably more conducive to informal resolution of disputes, and would not by itself preclude a subsequent civil action arising from the same alleged unlawful practice.
Thus, after considering both the explicit statutory language and the likely legislative purpose underlying section 7(d), I conclude that a district court lacks subject-matter jurisdiction over a complaint based on the Age Discrimination in Employment Act if the plaintiff failed to file a charge with the Secretary of Labor before instituting the civil action. Accordingly, I cannot accept plaintiff's estoppel argument based on defendant's assertedly improper conduct. When jurisdiction is lacking, a plaintiff may not keep his case alive by seeking to prevent the opposing party from raising the jurisdictional defect. See Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.") I shall therefore dismiss the complaint for lack of subject-matter jurisdiction insofar as it asserts a claim under the Age Discrimination in Employment Act.
Defendant also seeks dismissal of plaintiff's claim based on section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b) (1976), As amended by Fair Labor Standards Amendments of 1977, Pub.L.No.95-151, § 10, 91 Stat. 1252. In essence, defendant argues that the facts alleged in the complaint, which were set out earlier in this memorandum, fail to state a claim upon which relief may be granted, and that dismissal pursuant to Rule 12(b)(6) is therefore appropriate. I agree.
Section 16(b) of the Fair Labor Standards Act imposes civil liability upon an employer who violates any one of three other provisions of the Fair Labor Standards Act. First, it establishes liability for violations of 29 U.S.C. § 206 (1976), As amended by Fair Labor Standards Amendments of 1977, Pub.L.No.95-151, § 2, 91 Stat. 1245, which (1) establishes minimum wages payable for certain types of employment, and (2) prohibits gender-based discrimination in the payment of wages. Second, it establishes liability for violations of 29 U.S.C. § 207 (1976), which establishes maximum hours and rates of overtime compensation for certain types of employment. Finally, section 16(b) also establishes liability for violations of 29 U.S.C. § 215(a)(3) (1976), which prohibits retaliation by any employer against an employee who either instituted, or testified at, any proceeding under the Fair Labor Standards Act or who "served or is about to serve on an industry committee." Thus, in order to state a claim under section 16(b), plaintiff must in effect allege a violation of one of these three provisions.
Plaintiff apparently contends that the request for back pay set out in his prayer for relief suffices to state a claim under section 16(b). His argument is as follows:
"Plaintiff has stated a claim in paragraph 14 of the complaint for wages unpaid in the sum of $ 7,186.40 to the date of the complaint. Said claim was based upon the willful failure and refusal to return Plaintiff to his position and contrary to Section 16 of the F.L.S.A.
The pleadings adequately and fully set forth the basis for the F.L.S.A. violation and acts of the defendant."