Opinion
Carlton B. Bagby, Herbert E. Buhl, II, Columbia, S. C., for plaintiff.
Victoria L. Eslinger, Columbia, S. C., for defendants.
ORDER ON DEFENDANTS' MOTION TO DISMISS
HEMPHILL, District Judge.
By motion filed March 3, 1978, and in accordance with Rule 12(b)(1) of the Federal Rules of Civil Procedure, defendants move the court to dismiss so much of plaintiff's action as is brought under Age Discrimination and Employment Act (ADEA), 29 U.S.C. s 621, et seq., on the grounds the court lacks jurisdiction because of plaintiff's failure to comply with the jurisdictional prerequisites under 29 U.S.C. s 626(d) . Additionally, pursuant to Rule 12(b)(6) and Rule 56(b) , Federal Rules of Civil Procedure, defendants move for dismissal for failure to state a claim upon which relief can be granted. The motion, as to the second phase, is supported by an affidavit of Fletcher Spigner.
Fed.R.Civ.P. 12(b)(1) provides: Defenses and Objections When and How Presented By Pleading or Motion Motion for Judgment on the Pleadings.
29 U.S.C. s 626(d) provides: Recordkeeping, investigation, and enforcement.
Fed.R.Civ.P. 12(b)(6) provides: Failure of the pleading to state a claim upon which relief can be granted.
Fed.R.Civ.P. 56(b) provides: Summary Judgment
It is not controverted on the record before this court that the plaintiff informed the Secretary later of her intention to sue. The sixty days notice of intent to sue under 29 U.S.C. s 626(d) is required in order to give the Secretary, whose efforts are an integral part of the statutory scheme described in the ADEA, an opportunity to comply with the statutory duty, again directed in Section 626(d), seeking to eliminate any discriminatory practices by an informal method of conciliation, conference and persuasion; only after this period of informal negotiation may the Secretary or an aggrieved individual sue to enforce statutory rights. Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1197 (5th Cir. 1975). The requirement that the
Secretary of Labor be given 60 days notice of the intention to sue under the ADEA, and that the 60 days notice be given within 180 days after the alleged wrongful act is a mandatory, jurisdictional condition precedent to this suit and no equitable consideration will completely relieve the employer of a duty to comply with the statute (515 F.2d at 1199).
Plaintiff argues that the filing requirement is remedial in nature and not jurisdictional, citing Skoglund v. Singer, 403 F.Supp. 801 (D.N.H.1975); Smith v. Jos. Schlitz Brewing Co., 419 F.Supp. 773 (D.N.J.1976); Vasquez v. Eastern Airlines, Inc., 405 F.Supp. 1353 (D.PA. 1975) and other cases. This court is not persuaded.
In an excellent opinion, in which a rehearing was denied En banc by the Fifth Circuit, in Powell v. Southwestern Bell Telephone Company, 494 F.2d 485, 487 (5th Cir. 1974), the court, relying upon the legislative history, and citing various cases, declared that the requisites of 626(d) are jurisdictional, and that the notice of intent to file must be given the Secretary in the 180-day period prescribed:
In the Gebhard v. GAF Corp., 59 F.R.D. 504 (D.D.C.) case cited, the court noted that footnote 9 to that decision told of the notices of the filing requisites posted on the bulletin boards of the defendant.
In Woodford v. Kinney Shoe Corp., 369 F.Supp. 911 (N.D.GA. 1973), the court noted that any type of notice would be acceptable so long as it is properly given but that notice Must be given (emphasis added) and that the notice is jurisdictional. With the same impact is Oshira v. Pan American World Airways, 378 F.Supp. at page 80 (D.Hawaii 1974). See also McCrickard v. Acme Visible Records, Inc., 409 F.Supp. 341 (W.D.VA. 1976); Brohl v. The Singer Company, 407 F.Supp. 936 (M.D.FlA. 1975); and Burgett v. Cuhady Co., 361 F.Supp. 617 (D.Kan.1973).
Because plaintiff has failed to meet the jurisdictional prerequisites of the first, second and third causes of action of the complaint , the motion to dismiss as to such causes of action is granted.
The complaint was verbose, alleged facts, was repetitious and strictly out of compliance with Rule 8 which calls for "a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim . . . ."
There remains the question of whether plaintiff can pursue her claim under the provisions of Title 42, U.S.C. s 1983. Plaintiff also claims the protection of the equal protection clause of the Fourteenth Amendment, but it is obvious that the ADEA claim is an equal protection preventative designed to give equal protection to the aged and prevent discrimination because
42 U.S.C. s 1983 provides: Civil action for deprivation of rights.
of his or her age. Accordingly, we turn to a statute, enacted in 1871 in connection with the Reconstruction aftermath of the useless, tragic Southern Secession which, by modern jurists, has been prostituted into a vehicle for every imaginable harassment for every imaginable kind of person acting upon the alleged color of a statute of the law of a state or territory. The "daddy rabbit" is Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, which declared the legislation to be an extenuation of the Fourteenth Amendment and a vehicle for enforcement of such amendment against any one who carried a badge of authority of a state or subdivision, or represented it in some capacity. In 1951, in Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951), the same Supreme Court had held that the section should be construed so as to respect a proper balance between the states and the federal government in law enforcement; nothing could be further from the truth in these modern days of 1983 prostitution by a thousand appellate judges, and many district judges with a harsh rule of Stare decisis.
The statutes provide that the action must be under "color of law", and in order to show the accused (usually a defendant in a 1983 civil action) is acting under color of a statute for purposes of the application of this section, it is essential that she or he act with the knowledge of and pursuant to the statute, or authority which colors his action. Adickes v. S. H. Kress & Co., 398 U.S. 144, 98 S.Ct. 1598, 26 L.Ed.2d 142. To prove a claim under this section, a plaintiff must prove by the preponderance of evidence that he suffered deprivation of federally protected rights, privileges or immunities guaranteed to him by the Constitution of the United States. Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), Cert. denied 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 767; Chism v. Price, 457 F.2d 1037 (9th Cir. 1972); Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969), Cert. denied 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177. A private person, generally, cannot be held liable under the provisions of this section unless his wrongful action was done under color of state law or state authority. Guedry v. Floyd, 431 F.2d 660 (5th Cir. 1970); Cole v. Smith, 344 F.2d 721 (8th Cir. 1965); Williams v. Yellow Cab Co., 200 F.2d 302 (2nd Cir. 1953).
We therefore examine to see whether or not the actions of the individual defendants sued here have such color of state law to come within the inclusion of the right of action guaranteed by this Ku Klux Klan statute.
Because of the liberality, particularly of the Fourth Circuit, in defining "state action" or "color of state law" as the equivalent of receiving public federal funds and/or state funds, this court, with no more facts than appear on the record in this case, is hesitant in rendering a decision on the summary judgment motion posed under Rule 56 and Rule 12(b)(6). There is an affidavit in the record of Mr. Spigner, one of the defendants, but it is not very full. Plaintiff makes certain assertions, but submits no affidavits. This is a court of Stare decisis which, before shutting off plaintiff from her 1983 claim, would have to be convinced that she has no claim under any state of facts which could be developed by discovery.
Plaintiffs in civil rights suits make all sort of assertions in every case, which are usually not supported by affidavits, for reasons which beg the obvious.
Therefore, this court thinks it is in the best interest of the parties involved, and in the interest of justice, to keep this motion under consideration until discovery is complete, and schedule a rehearing of the motion at that time. Discovery is accordingly advanced for 60 more days and the defendant shall, at the end of that time, write a letter of request, circulation to plaintiff, asking that the motion be reheard. Meanwhile the motion is denied for the purpose of continuing consideration, but not finally denied.
AND IT IS SO ORDERED.
(b) For Defending Party. A party against whom a claim, counter-claim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.