The opinion of the court was delivered by: LASKER
John D. Davis brings this action against RJR Foods, Inc., alleging unlawful age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Defendant moves to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.
Davis alleges that he was discharged from his executive position as brands director of RJR when that company's management underwent a change and instituted a policy terminating the employment of older employees. Davis, aged 49 at the time, received notice of his termination on or about June 6, 1972, although he continued to receive the benefits of employment (including salary, life insurance coverage, medical insurance coverage and other fringe benefits) until October 6, 1972.
On June 27, 1974 Davis filed a formal complaint of willful age discrimination with the United States Department of Labor (DOL). Thereafter the DOL began its investigation of the matter, determining, approximately sixteen months later, that the case was inappropriate for agency action. On October 2, 1975, Davis instituted this proceeding. He seeks reinstatement and back pay from 1972 to the present, or alternatively, $500,000. in compensatory damages and $5,000,000. punitive damages.
RJR moves to dismiss the complaint on the grounds of Davis' failure to comply with the procedural mandates of the ADEA. Davis neither filed a timely notice of intent to sue with the Secretary of Labor, 29 U.S.C. § 626(d),
nor commenced proceedings under State law prior to commencing his federal suit, 29 U.S.C. § 633(b).
In answer, Davis asserts that the filing requirements of 29 U.S.C. § 626(d) and the deferral requirement of § 633(b) are inapplicable to cases of willful discharge. Proceeding on this theory Davis argues that his suit was timely filed because it came within the three year statute of limitations (the period applicable to a willful violation).
Davis also denies that resort to State remedies is a prerequisite to bringing suit in federal court. Finally, he alleges that his employment by Dancer Fitzgerald Sample, Inc., the advertising agency retained by the defendant, approximately 180 days after his employment benefits with defendant ceased, lulled him "into a false sense of security" and deprived him of his "rights in law."
Filing Requirements Under the ADEA
The ADEA requires that before bringing suit in a federal court a plaintiff must, within 180 days of the alleged act of discrimination, file a notice of intent to sue with the Secretary of Labor. 29 U.S.C. § 626(d)(1). If the State in which the unlawful practice occurs has enacted a law prohibiting discrimination in employment, the period is extended to 300 days after the discharge.
The prerequisite to suit whether regarded as jurisdictional or otherwise, enables the Secretary to undertake conciliation efforts promptly and insures "that potential defendants become aware of their status and the possibility of litigation reasonably soon after the alleged discrimination . . . ." Powell v. Southwestern Bell Telephone Company, 494 F.2d 485, 488 (5th Cir. 1975). Considerable authority exists for the proposition that the filing requirement is a jurisdictional "prerequisite to the right to file any suit whatsoever under the ADEA." Id. at 487. See also Ott v. Midland-Ross Corp., 523 F.2d 1367 (6th Cir. 1975); Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195 (5th Cir. 1975); Raynor v. Great Atlantic & Pacific Tea Co., 400 F. Supp. 357 (E.D.Va. 1975); Oshiro v. Pan American Airways, Inc., 378 F. Supp. 80 (D.Hawaii 1974); Gebhard v. GAF Corp., 59 F.R.D. 504 (D.D.C. 1973). Nevertheless, there is also respectable support for the view that the filing requirement amounts to a statute of limitations only and that accordingly it may be tolled. See Dartt v. Shell Oil Company, 539 F.2d 1256 (10th Cir. 1976); Skoglund v. Singer Company, 403 F. Supp. 797 (D.N.H. 1975). Such tolling has been found proper where the plaintiff was a layman with little litigation experience, Skoglund, supra, at 801; where the plaintiff had been misinformed by the Department of Labor when seeking timely advice, Dartt, supra; cf. Vaughn v. Chrysler, 382 F. Supp. 143, 146 (E.D.Mich.1974); or where the defendant employer has not advised the plaintiff of his rights by posting notices as to the provisions of the ADEA as required by 29 U.S.C. § 627.
Skoglund, supra, at 804. Whatever the factual situation, the equities must clearly warrant such an extension of time.
The Federal/State Relationship
Section 633 of the ADEA addresses the relationship between Federal and State agencies charged with enforcement of age discrimination statutes. Where the State in which the alleged discriminatory act occurred has enacted a statute similar to the ADEA, any action by the Secretary of Labor must initially defer to action by the appropriate state agency. In the language of § 633, no federal action may be instituted "before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated . . . ." 29 U.S.C. § 633(b). Several courts have interpreted this language to require resort to State agencies prior to commencing suit in federal court although they have also noted that equitable considerations may justify waiver of this requirement. See Goger v. H. K. Porter Co., 492 F.2d 13 (3d Cir. 1974); Vaughn v. Chrysler, supra, at 144-46; Smith v. Crest, 9 E.P.D. P 10,053 (W.D.Ky. 1974); But see Vazquez v. Eastern Airlines, 405 F. Supp. 1353 (D.Puerto Rico 1975) holding that § 633 does not require initial resort to a State agency at all.
New York Human Rights Law § 296 (McKinney Executive Law 1975) prohibits discrimination on account of age. Thus, according to the predominant authority Davis must have initially pursued his State remedies with the appropriate State agency unless some countervailing considerations, as for example, detrimental reliance upon official advice, Vaughn v. ...