Opinion
Civil No. SA-00-CA-0023-FB.
May 19, 2000.
ORDER DENYING RULE 12(b) MOTION TO DISMISS
Before the Court are Defendant Holt Company of Texas' Rule 12(b) Motion to Dismiss, Plaintiff's Response, and Defendant's Reply. Defendant contends plaintiff failed to exhaust his administrative remedies prior to filing suit because only 19 days elapsed between the time the charge of discrimination was filed and the time the EEOC issued its notice of right to sue, apparently at plaintiff's request. By requesting the notice of right to sue immediately after filing the charge, plaintiff has circumvented the statutorily imposed duty of the EEOC to investigate and possibly conciliate plaintiff's claims. Because plaintiff's claims could not and were not investigated and/or conciliated by the EEOC as required by statute, plaintiff's claims under the ADEA are untimely and should be dismissed.
In response, plaintiff acknowledges he filed his charge of discrimination with the Texas Commission on Human Rights and the EEOC on or about October 8, 1999. Plaintiff was issued his right to sue letter by the EEOC on October 27, 1999, and filed his complaint in this Court on January 7, 2000, approximately 90 days after the charge of discrimination on age was filed with the EEOC. Plaintiff maintains defendant's reliance on the decision in Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336, 1347-48 (D.C. Cir. 1999), is misplaced because that case involved a Title VII claim requiring a plaintiff to wait 180 days after the filing of the initial charge versus the 60 day requirement under the ADEA, is the only appellate court decision to hold the EEOC has no authority to issue right to sue letters prior to the expiration of 180 days, and is contrary to a recent decision out of the Southern District of Texas, Connor v. WTI, 67 F. Supp.2d 690 (S.D. Tex. 1999).
In reviewing the motion, the Court understands defendant is concerned that the EEOC did not issue its Notice of Charge of Discrimination to Holt Company until October 22, 1999, and Holt did not receive notice that plaintiff had filed a charge of discrimination with the EEOC until October 28, 1999. Defendant states the next day, October 29, 1999, counsel for Holt directed correspondence to Guillermo Zamora, the EEOC investigator, to advise him that Holt intended to cooperate fully with the EEOC. The letter from counsel was apparently in vain because the EEOC had "already issued Plaintiff a notice of right to sue [on October 27] even before Holt Company was ever placed on notice by the EEOC that a charge had been filed." See Defendant Holt Company of Texas' Rule 12(b) Motion to Dismiss (docket #14), fn. 2. Although the Court does not condone such action, it does not appear plaintiff's case should be dismissed because of it.
Had plaintiff's claim with the EEOC involved claims of discrimination pursuant to Title VII, this Court would have had to decide whether to agree with the District of Columbia Circuit Court and find that "Title VII complainants must wait 180 days after filing charges with the EEOC before they may sue in federal court," Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336, 1347 (D.C. Cir. 1999), or agree with a colleague in Texas who was persuaded by the analysis conducted by the Ninth and Eleventh Circuit Courts of appeal and "allow the EEOC to issue right-to-sue order before 180 days have expired." Connor v. WTI, 67 F. Supp.2d 690, 698 (S.D. Tex. 1999). However, Mr. Seiler's claim involves the Age Discrimination in Employment Act (ADEA) and despite similarities between the ADEA and Title VII, one court has noted there are differences which are important for purposes of this discussion.
[U]nder the plain language of the ADEA, the claimant's independent right to sue arises automatically upon the expiration of sixty days after the filing of the charge with the EEOC. No similar right exists under Title VII. The wording of the Title VII provision makes it clear that an individual's right to bring suit does not arise until after the EEOC has issued a right-to-sue notice:
If a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge.
In contrast the ADEA retains the provision in 29 U.S.C. § 626(d) . . . which allows an individual to bring suit if sixty days have elapsed since filing charges with the EEOC. That section states: "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 EEOC." Likewise, nothing in the language of the ADEA statute requires that the plaintiff receive a right-to-sue notice before filing suit. The amended section in question states:
If a charge filed with the Commission under this chapter is dismissed or the proceedings of the Commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought under this section by a person defined in section 630(a) of this title against the respondent named in the charge within 90 days after the date of receipt of such notice.Adams v. Burlington Northern R.R. Co., 838 F. Supp. 1461, 1468 (D. Kan. 1993) (citations omitted). Defendant does not dispute plaintiff waited 60 days after filing his charge with the EEOC before filing suit or that plaintiff filed within 90 days after receiving his right-to-sue notice. Defendant contends the case should be dismissed because plaintiff's claims were not and could not be investigated and/or conciliated by the EEOC as required by statute.
Another district court faced with a similar fact situation in an ADEA case denied a defendant's motion to dismiss for failure to exhaust administrative remedies. Liss v. Marquette Savs. Bank, S.A., 10 F. Supp. 2 d 1045 (E.D. Wis. 1998). The EEOC in that case
sent the defendant [on June 23, 1997] a notice of charge of discrimination along with the plaintiff's Charge of Discrimination, request for information, and materials relating to voluntary settlement and mediation. The EEOC issued a Notice of Right to Sue to the plaintiff on June 24, 1997 [the next day] . . . [The notice] further advised that with the issuance of the notice "the Commission is terminating its process with respect to this charge." The box on the form marked "ADEA", which was checked, provides in relevant part: "you may sue under the Age Discrimination in Employment Act (ADEA) any time 60 days after your charge was filed until 90 days after you received notice that EEOC has completed action on your charge."Liss, 10 F. Supp.2d at 1046.
As the defendant alleges herein, Marquette Savings asserted the court lacked subject matter jurisdiction because the plaintiff "failed to afford the Equal Employment Opportunity Commission (EEOC) the chance to notify the defendant of the charge and attempt to resolve the claim through informal conciliation as required under 29 U.S.C. § 626 (d). Unlike plaintiff Seiler, plaintiff Liss filed a request for Notice for Right to Sue before he filed his Charge of Discrimination. In its analysis the court noted:
The relevant section reads: Upon receiving a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion. 29 U.S.C. § 626(d).
The purpose of the ADEA, like Title VII, is to eliminate discrimination in the work place. The ADEA contains two mandatory administrative requirements that a plaintiff must satisfy before filing suit. A plaintiff must file a Charge of Discrimination with the EEOC. In addition, if the state in which the alleged discrimination occurred is a "deferral state," that is, if it has a state law prohibiting discrimination, then the plaintiff must also file a charge with the appropriate state agency. After a plaintiff claiming a violation of the ADEA files a complaint with the EEOC, the plaintiff must then wait 60 days from the filing date before bringing an action in federal court, However, the administrative filing requirements imposed under the ADEA are not jurisdictional prerequisites which pose an absolute bar to suit but rather they are conditions precedent to filing an action. The ADEA "is humanitarian legislation that should not be construed in a hyper technical manner."Id. at 1047-48. (citations omitted.) As is the case here, plaintiff Liss waited 60 days from the date of the filing of a Charge of Discrimination with both the EEOC and the state agency before he filed a federal suit. Likewise, the EEOC issued a Notice of Right to Sue before the 60 day conciliation period had run. In denying the motion to dismiss the court reasoned:
The EEOC in Liss advised him that it would be unable to complete its process within 180 days from the filing of the charge. Here, Mr. Seiler was advised that the EEOC was closing his case and his lawsuit under the ADEA had to be filed in federal or state court within 90 days of the receipt of the notice.
Under these circumstances, any failure to conciliate during the 60 day period stemmed from the EEOC's action in issuing its Notice of Right to Sue. Although the plaintiff may have requested such a notice, the decision to issue such notice rested with the EEOC which determined it could not complete its administrative process within the statutory period.Id. at 1048; see Plant v. GMRI Inc., 10 F. Supp.2d 753, 756 n. 6 (S.D. Tex. 1998) (court agreed with defendant's contention "that an attempt at conciliation is not a prerequisite to filing a Title VII action; federal employee who opined that federal law mandated attempts at conciliation before right to sue letter issues is "misinformed regarding federal law").
Having reviewed and compared the language found in the ADEA and Title VII, the Court does not find plaintiff failed to exhaust his administrative remedies prior to filing suit. The only prerequisite plaintiff had to meet was to wait 60 days after he filed his ADEA charge with the EEOC before filing the instant suit. Because there is no dispute plaintiff met this requirement, IT IS HEREBY ORDERED that Defendant Holt Company of Texas' Rule 12(b) Motion to Dismiss (docket #14) is DENIED.