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December 8, 1978

Thomas PUNCH, John F. Leyden and Robert J. Martin, Individually on behalf of all others similarly situated, Plaintiffs,

The opinion of the court was delivered by: LEVAL


This motion for summary judgment pertaining to the tricky and complex timing requirements of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (the "ADEA"), raises a refinement of an issue decided by the Court of Appeals for the Second Circuit in Reich v. Dow Badische Co., 575 F.2d 363 (2d Cir. 1978).

 In Reich a divided court held that, in a state which provides a remedy for age discrimination, an aggrieved party would be barred access to the federal remedy unless he had previously filed a timely claim for state relief. The present case raises the question whether the required prior state claim must be not only timely, but also sufficient to comply with state requirements for the commencement of such an action. *fn1"

 The facts are as follows. Thomas Punch, John F. Leyden and Robert J. Martin were employed by defendant Singer Company ("Singer") as branch managers until July, 1974. Singer terminated their employment effective July 12, 1974, but each of them actually worked through July 26 or 27 and were paid through July 27. Plaintiffs were over forty years old when they were discharged.

 On May 9, 1975, plaintiffs' counsel filed charges alleging age discrimination with the New York State Division of Human Rights (the "Division"). *fn2" These notices were received by the Division on or about May 12, 1975. *fn3"

 The materials sent to the Division included a sworn, notarized statement, appropriately completed by each claimant, which read as follows:

I was discharged from my employment as a Manager with the Singer Company because of my age. My age at the present time is ______ and my last day of work with the Singer Company was ______. I received my final settlement money from my employment with the Singer Company on ______.

 In addition, counsel sent to the Division all materials which plaintiffs had filed the same day with the Department of Labor, including a copy of counsel's transmittal letter to the Department which stated that "all of these victims of age discrimination were Branch Managers for the Respondent, all were over forty years of age, all were within a year or two of obtaining vested pension rights and all were discharged because of their age." The letter further indicated that claimants intended to file suit under the ADEA as soon as possible. By letter, dated June 3, 1975, the Division "acknowledge(d) receipt of the age discrimination claims filed" on behalf of the plaintiffs, but stated that "in order to process same in accordance with the rules and procedures of the Division, we must have allegations supporting the charge and specifying the cause of action, as to when, where, how and by whom the alleged act of discrimination was afforded." Enclosed was a copy of the Division complaint form.

 On September 11, 1975, plaintiffs' counsel mailed the completed complaint forms to the Division. While these forms contained more specifics than the information sent on May 9, 1975, the Division requested still more detail, which counsel furnished on December 11, 1975. Meanwhile on September 18, 1975 plaintiffs instituted the present action as a class action in federal court, claiming that Singer engaged in illegal, discriminatory practices in violation of Section 623(a) of the ADEA.

 On March 17, 1977 the State Division of Human Rights dismissed plaintiffs' claims, finding that they had been filed on September 11, 1975 and were therefore barred by the one year statute of limitations imposed by Section 297(5) of the Executive Law. *fn4" Implicit in this finding was a ruling that the materials which had been timely filed in May were inadequate to institution of claims under the State Human Rights Law. No appeal was taken from the dismissal of the complaints.

 While the ADEA creates a substantive right in employees engaged in industries affecting commerce, it conditions an employee's right to commence a federal action upon compliance with the requirements of Sections 626(d) and 633(b). Reich v. Dow Badische Co., supra.

 29 U.S.C. § 633(b) provides, in part, as follows:

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 been commenced under the State law, unless such proceedings have been earlier terminated . . . .

 In Reich v. Dow Badische Co., supra, a divided panel of the Second Circuit held that this provision requires a grievant to make a timely, prior presentation of his age discrimination claim to the state agency having authority over his claim as a precondition to a federal suit under the ADEA. Since Reich was decided, several circuits have considered this issue and have held, contrary to Reich, that Section 633(b) merely permits, but does not require, a grievant to resort to available state age discrimination remedies before instituting federal suit; the Supreme Court of the United States has granted certiorari on that precise issue. See Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1978) (in banc); Smith v. Jos. Schlitz Brewing Co., 584 F.2d 1231 (3d Cir. 1978), Petition for cert. filed, 47 U.S.L.W. 3168 (U.S. Sept. 13, 1978) (No. 78-419); Evans v. Oscar Mayer & Co., 580 ...

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