ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 79-0692)
Before Seitz, Chief Judge, and Weis and Higginbotham, Circuit Judges.
Plaintiff Lawrence E. Davis appeals from a final order of the district court that granted defendant Calgon Corporation's motion to dismiss. The district court dismissed plaintiff's age discrimination complaint because it found that plaintiff had not satisfied the preconditions to suit specified in the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (1976) (ADEA).
Plaintiff's complaint alleges that he was employed as an executive by defendant from 1967 until his employment was terminated on June 30, 1978, at age 55. Plaintiff asserts that his discharge violated the ADEA*fn1 because it was done in furtherance of a general corporate policy adopted by defendant of demoting and terminating its executives solely on account of age and replacing them with individuals under the age of 40.
On January 29, 1979, 213 days after his discharge, plaintiff filed a complaint alleging age discrimination with the Pennsylvania Human Relations Commission (the PHRC). Ten days later, he filed a charge with the Secretary of Labor (the Secretary).*fn2 After receiving notice from the PHRC that it had terminated state proceedings and from the Secretary that he had concluded conciliation efforts, plaintiff filed suit in the district court.
Defendant moved to dismiss plaintiff's complaint on the ground that plaintiff had not filed his charge with the Secretary within the time limits prescribed in the ADEA, 29 U.S.C.A. § 626(d) (West 1979 Supp.). Section 626(d) provides that such a charge shall be filed:
(1) within 180 days after the alleged unlawful practice occurred; or
(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.
Section 633(b), which deals with the relationship between federal and state age discrimination actions, applies to ADEA claims based on alleged unlawful practices occurring in "deferral states." These are states having a law prohibiting age discrimination in employment and establishing a state authority to grant or seek relief from such discrimination.
Plaintiff filed both his state and federal claims after 180 days but before 300 days. Because Pennsylvania is a deferral state, see Bonham v. Dresser Industries, Inc., 569 F.2d 187, 194 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S. Ct. 87, 58 L. Ed. 2d 113 (1978); Pa.Stat.Ann. tit. 43, §§ 955-957 (Purdon 1964 & 1979 Supp.), plaintiff argues that he is entitled to the 300-day period specified in § 626(d)(2) and that therefore his charge of age discrimination was timely filed with the Secretary. The district court disagreed, finding that the 300-day filing period was available only where "timely invocation of the State remedy occurred." The court found that plaintiff's filing with the PHRC was not timely and that a 180-day period for filing with the Secretary applied in this case. Therefore, it concluded that plaintiff's failure to file a charge with the Secretary within 180 days precluded this suit.
The basis of the district court's conclusion that plaintiff's filing with the PHRC was not timely is unclear. The court may have found the filing untimely either because plaintiff did not file with the PHRC within the 90-day state statute of limitations, see Pa.Stat.Ann. tit. 43, § 959 (Purdon 1979 Supp.), or because he did not make the state filing within 180 days. We are unable to determine which of these time limits was relied upon by the district court. Therefore, we ...