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BUMPERS v. INTERNATIONAL MILL SERVS.

August 17, 1984

Jay C. BUMPERS
v.
INTERNATIONAL MILL SERVICES, INC., and Clarence A. Hackett, Inc., and IU International Corporation



The opinion of the court was delivered by: KELLY

 JAMES McGIRR KELLY, District Judge.

 Defendant's moved to dismiss plaintiff's amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), (2) and (6). Defendants alleged that this court lacks jurisdiction over the subject matter and over the parties; and the complaint fails to state a claim upon which relief can be granted.

 PROCEDURAL HISTORY

 The plaintiff, Jay C. Bumpers, was employed by defendant Clarence A. Hackett, Inc. ("Hackett"), a New York corporation with its principal place of business in Philadelphia, since December 1954. In 1981, Hackett was acquired as a subsidiary by defendant, International Mill Services, Inc. ("IMS"), a Pennsylvania corporation. Plaintiff continued to work for both IMS and Hackett until he was terminated on March 15, 1982. On January 1, 1984, Hackett was merged into its parent IMS. Plaintiff also alleged that at the time of his discharge from employment, IMS and Hackett were controlled by their parent corporation IU International Corporation ("IU"), a Maryland corporation. IMS and IU have their corporate headquarters in Philadelphia.

 Plaintiff claims that his employment performance was always satisfactory or better, and was never criticized. Plaintiff avers that the determining factor leading to his termination was his age of fifty-six (56) years. Plaintiff alleges that agents of IU, IMS and Hackett informed employees that they could no longer justify employing the older employees with higher salaries. At the time of his termination plaintiff was earning $58,000 per year and was receiving valuable insurance and pension benefits which increased in value annually. Plaintiff further contends that although he was qualified to perform other jobs within IMS and/or Hackett, he was not offered a comparable or lesser position, while younger employees with less service remained employed performing these duties.

 Plaintiff filed a claim under the Age Discrimination in Employment Act ("ADEA") with the Equal Employment Opportunity Commission ("EEOC"), in Florida on September 16, 1982. That office transferred the case to its Philadelphia District Office. The charge, which named defendants IMS and Hackett, is still pending. Plaintiff commenced this action more than sixty (60) days after filing the EEOC charge. On January 13, 1983, the EEOC filed charges with the Pennsylvania Human Relations Commission ("PHRC").

 Plaintiff's complaint *fn1" alleges seven counts against defendants. Count I is under the ADEA, 29 U.S.C. § 621, et seq. Count II alleges that defendants violated Section 5(a) of the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. Count III alleges a claim under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq. Counts IV, V, VI, and VII contain allegations of state contract and tort law violations.

 Plaintiff claims this court has jurisdiction over the subject matter under section 7(c)(1) of the ADEA, 29 U.S.C. section 626(c) and under 28 U.S.C. sections 1331, 2201 and pendant jurisdiction over the related state claims under ERISA.

 I. ADEA CLAIM

 Defendants argue that this court lacks jurisdiction over plaintiff's ADEA claims because plaintiff did not file a state administrative complaint with the Florida Human Relations Commission. The ADEA specifies that an aggrieved individual may bring a civil action in federal court to enforce the Act only after fulfilling certain procedural prerequisites. 29 U.S.C. § 626(d). Those prerequisites specify that a plaintiff must file a notice of intention to sue with the Secretary of Labor within 180 days after the alleged discriminatory incident occurred, and must wait sixty (60) days before instituting an action in federal court, if the alleged discriminatory act occurred in a state which (1) has a law prohibiting age discrimination in employment and (2) a state agency authorized to seek relief for an aggrieved individual. Simpson v. Whirlpool Corp., 604 F.2d 997, 999 (6th Cir.1979). 29 U.S.C. § 633(b). However, the state proceedings need not have been commenced within state time limits. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979). "The structure of the ADEA reinforces the conclusion that state procedural defaults do not foreclose federal relief and that state limitation periods cannot govern the efficacy of the federal remedy." Id. at 762, 99 S. Ct. at 2074.

 Plaintiff alleges in the complaint that certain acts of age discrimination occurred in Pennsylvania. Pennsylvania has laws prohibiting age discrimination in employment and has established a state agency to grant or seek relief from discriminatory practices. Accordingly, plaintiff is required to seek redress from this agency before instituting suit in this court. Upon review of the facts it appears that plaintiff has fulfilled the ADEA requirements. Plaintiff filed a timely charge with the EEOC and that Commission filed the charge with the PHRC. In conformity with the United States Supreme Court's holding in Oscar Mayer, even though plaintiff's charges were not timely filed with the PHRC, this court still has jurisdiction over the ADEA claims. Therefore, Count I of plaintiff's complaint will not be dismissed.

 II. STATE LAW CLAIMS

 Defendants contend that Count II of plaintiff's complaint should be dismissed because plaintiff failed to initiate an administrative proceeding under state statute. Count II alleges defendants violated Section 5(a) of PHRC, 43 P.S. § 951, et seq. That statute prohibits employment discrimination based upon age, but requires that a written complaint be filed with the PHRC within ninety (90) days of the violation. It appears that the charges filed by the EEOC with the PHRC regarding plaintiff's claims were untimely filed. The issue is whether plaintiff's failure to comply with the ninety day filing requirement precludes plaintiff from obtaining relief under the PHRC, either in state or federal court. This very question arose in Wagner v. Sperry Univac, Div. of Sperry Rand Corp., 458 F. Supp. 505 (E.D.Pa.1978). In Wagner the Court noted that because "previous decisions under PHRC shed no light at all on these questions, and [plaintiff] could almost certainly obtain 'a surer-footed ...


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