ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Adams and Higginbotham, Circuit Judges, and Teitelbaum,*fn* District Judge.
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
This is an appeal from the district court's dismissal of the plaintiff's complaint under the Age Discrimination in Employment Act (ADEA), Pub. L. 90-202, 81 Stat. 602 (1967), as amended, Pub. L. 95-256, 92 Stat. 189 (1978), 29 U.S.C. § 621 et seq. (1982). The district court's granting of the defendant's motion to dismiss was based upon its conclusion that the plaintiff's filing of a charge of unlawful age discrimination with the Equal Employment Opportunity Commission (EEOC) was untimely under 29 U.S.C. § 626(d) (2). We will affirm the district court in part, but we must remand for further proceedings on one aspect of the case.
We accept as true the allegations of the plaintiff's complaint, as we must in reviewing the granting of a motion to dismiss under Rule 12(b) (6), F.R. Civ. P. Plaintiff Shelton C. Sharpe alleges that he was hired by defendant Philadelphia Housing Authority (PHA) in 1970, as a Housing Patrolman. By 1973, Sharpe, then fifty years old, had attained the rank of Captain in the Housing Police Department. However, in 1975, Sharpe was demoted to Lieutenant, allegedly because such a reduction in rank was, according to his employer, "good for an old man." On January 19, 1979, Sharpe was again demoted, from Lieutenant to Sergeant. Finally, on August 1, 1979, Sharpe was informed of PHA's intention to terminate his employment, effective August 15, 1979.
Sharpe left work as of August 15, 1979, but continued an administrative appeal of his discharge within PHA. Nearly a year and a half later, on January 29, 1981, PHA offered to reinstate Sharpe as a patrolman, which offer Sharpe rejected. PHA then denied Sharpe's appeal of his termination and notified him on January 29, 1981, that the August 15, 1979 discharge would stand. Sharpe was fifty-eight years old at that time.
On July 1, 1981 Sharpe filed a charge with the EEOC alleging age discrimination in employment, and on August 14, 1981, he filed this civil action in the district court. The defendant moved to dismiss on the grounds that (1) Sharpe's administrative charge was not timely filed; (2) service of process was defective; (3) the complaint failed to state a claim on which relief could be granted. The district court granted the motion to dismiss on the first ground only, that is, for the plaintiff's asserted failure to file timely a charge with the EEOC.
The ADEA includes time limits during which administrative charges must be filed and during which civil suits must be commenced. The time limits for commencing suit were not asserted as defenses in this case;*fn1 rather, the defendant relied upon the limitation periods governing administrative filing, 29 U.S.C. § 626(d) (1) and (2). Those sections read as follows:
§ 626(d). No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed --
(1) within 180 days after the alleged unlawful practice occurred; or
(2) in a case to which § 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.*fn2
29 U.S.C. § 633(b) provides in pertinent part:
(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 before the expiration of sixty days after proceedings have ...