20 Fair Empl.prac.cas. 147,20 Empl. Prac. Dec. P 30,083ray Marshall, Secretary of Labor, United States Departmentof Labor, Appellant, v. Chamberlain Manufacturing Corporation, Appellee, 601 F.2d 100 (3d Cir. 1979)

An issue which has perplexed the courts since the passage of the Age Discrimination in Employment Act of 1967¹  is whether a litigant must resort to appropriate state administrative proceedings before commencing an action in federal court. In Goger v. H. K. Porter Co., 492 F.2d 13 (3d Cir. 1974), we held that section 14(b) of the Act²  imposes this obligation on a private litigant. Subsequently in Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1978), this court sitting En banc overruled Goger, and held that neither an individual nor the Secretary of Labor is required to resort to state age discrimination remedies as a precondition to maintaining a federal suit for age discrimination.³  The most recent chapter in this controversy has been written by the Supreme Court: in Oscar Mayer & Co. v. Evans, --- U.S. ---- - ----, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979), it held that " § 14(b) mandates that a grievant not bring suit in federal court under § 7(c) of the ADEA until he has first resorted to appropriate state administrative proceedings."⁴ 

Today we are called upon to decide whether this holding should be extended to require The Secretary, when he brings suit under § 7(b) of the ADEA, to resort first to the age discrimination remedies provided by state law. Although we tread warily in light of the Supreme Court's rejection of our interpretation of § 14(b) as it pertains to a private right of action, we conclude nonetheless that different considerations are involved when it is the government, rather than a private individual, which has brought an action to enforce the Act. We therefore hold that § 14(b) imposes no obligation on the Secretary to defer to state administrative proceedings.

* On June 13, 1977, the Secretary brought this action in the district court, alleging that the defendant, Chamberlain Manufacturing Corporation, was violating § 4 of the Age Discrimination in Employment Act (the "ADEA")⁵  and § 15 of the Fair Labor Standards Act (the "FLSA"),⁶  by discharging, demoting and otherwise discriminating against its employees between the ages of forty and sixty-five. The Secretary asked that these practices be enjoined, that the victims be reinstated, and that they receive backpay.

The defendant moved for summary judgment on two grounds, alleging (1) that the Secretary did not commence proceedings before the Pennsylvania Human Relations Commission (the "PHRC"), as section 14(b) requires; and (2) that the Secretary did not seek voluntary compliance through conciliation, as 29 U.S.C. § 626(b) requires.

The district court filed an opinion and order on November 16, 1977, in which it treated the defendant's motion as a motion to dismiss for lack of subject matter jurisdiction (See Fed. R. Civ. P. 12(b) (1)). Marshall v. Chamberlain Manufacturing Corp., 443 F. Supp. 159 (M.D. Pa. 1977). Finding that it was "undisputed" that the Secretary had neither commenced proceedings before the PHRC nor even notified the PHRC that a complaint had been filed, the district court concluded that the Secretary had not complied with section 14(b). It viewed compliance with section 14(b) as a jurisdictional prerequisite for both government and private litigants,⁷  and therefore entered an order dismissing the action,⁸  without reaching the defendant's alternative argument that the Secretary had not complied with 29 U.S.C. § 626(d).

The Secretary has appealed from this order.

II

Section 14(b) of the ADEA provides in pertinent part:

(b) 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 . . .

29 U.S.C. § 633(b). In Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1978) (en banc), we held that this provision does not require "resort to state age discrimination remedies (as) a precondition to maintaining a federal suit for age discrimination."⁹  In dictum, we also decided the question before us today: "A fortiori the Secretary of Labor need not resort to state age discrimination remedies before prosecuting charges under the ADEA."¹⁰ 

In Oscar Mayer & Co. v. Evans,¹¹  the Supreme Court rejected the Holding in Holliday without reaching the issue which we had discussed in Dictum. In the context of a private litigant's action, the Court interpreted § 14(b) as a requirement "that a grievant not bring suit in federal court under § 7(c) of the ADEA until he has first resorted to appropriate state administrative proceedings."¹²  Oscar Mayer involved a claim for individual relief under § 7(c) of the ADEA (which pertains only to private actions), and the Court limited its inquiry to "whether § 14(b) requires an Aggrieved person to resort to appropriate state remedies before bringing suit . . ." (emphasis added).¹³  Therefore, it did not consider the issue which is before us today: whether § 14(b) imposes any precondition on the Secretary's right of action.

Section 14(b) applies to all suits which are brought "under section 626" and which involve employment practices "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 . . . ."¹⁴  The parties here do not dispute that Chamberlain's allegedly unlawful employment practices occurred in Pennsylvania, which has a statute authorizing the Pennsylvania Human Relations Commission (the "PHRC") to grant relief to the victims of age discrimination. 43 Pa.Stat.Ann. §§ 955, 956 (Supp.1978). Like many comparable statutes in other states, the Pennsylvania statute permits only an "aggrieved" "individual," the Commission or the Commonwealth's Attorney General to file a complaint with the PHRC. 43 Pa.Stat.Ann. § 959 (Supp.1978). Although the Pennsylvania courts have not considered this issue, this restriction would appear to exclude the Secretary as an eligible complainant.

By itself, this restriction would not preclude the application of § 14(b) to suits brought by the Secretary. The proviso to § 14(b) only requires that a litigant file a written and signed statement in order to commence state administrative proceedings:

If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority.

29 U.S.C. § 633(b). Pennsylvania's requirement that the party commencing the proceeding be the "aggrieved" "individual" therefore becomes, in the terms of § 14(b), a "requirement . . . other than . . . the filing of a written and signed statement . . . ." See Oscar Mayer & Co. v. Evans, --- U.S. ----, 99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979); Marshall v. West Essex General Hospital, 575 F.2d 1079 (3d Cir. 1978).

Therefore, if we were to decide that § 14(b) restricts the Secretary's right of action, the Secretary could comply with § 14(b) by notifying the PHRC of the alleged age discrimination sixty days before bringing suit.¹⁵  Therefore, restating the question presented by this appeal, it is whether § 14(b), in view of its language and the purpose and nature of the Secretary's right of action, requires the Secretary to notify the PHRC of alleged acts of age discrimination sixty days before the Secretary commences an action in federal court.¹⁶ 

* By its terms, § 14(b) only conditions the right to bring suit "under section 626."¹⁷  Therefore, a threshold question is whether an enforcement action by the Secretary is a "suit . . . brought under section 626." The Secretary's right of action is authorized by § 7(b) of the ADEA, 29 U.S.C. § 626(b), which provides:

(b) The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: . . . Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.

The first two sentences of § 626(b) incorporate many of the enforcement provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 211(b), 216, 217. Indeed, § 626(b) declares that violations of the Act are to be treated as violations of the Fair Labor Standards Act, 29 U.S.C. § 215. By incorporating these provisions, the ADEA empowers the Secretary to bring enforcement actions Under the FLSA. Although § 626(b) speaks of the Secretary "instituting (an) action under this section," the contours of the Secretary's right of action are not defined in § 626; instead, the Secretary utilizes the "powers, remedies and procedures" of the FLSA when he brings an action to enforce the ADEA. See Lorillard v. Pons, 434 U.S. 575, 579, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). Hence, the present action was brought under the FLSA and was not In any real sense brought "under section 626."

B

Under the analysis of the ADEA adopted by the Supreme Court in Oscar Mayer and in Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978), the derivation of the Secretary's right of action from the FLSA is of fundamental significance. In Lorillard, the Supreme Court observed that the ADEA's provisions were based on a number of statutes, primarily the FLSA, Title VII and the National Labor Relations Act:

. . . (The ADEA) is something of a hybrid, reflecting, on the one hand, Congress' desire to use an existing statutory scheme and a bureaucracy with which employers and employees would be familiar and, on the other hand, its dissatisfaction with some elements of each of the preexisting schemes. Pursuant to § 7(b) of the Act, 29 U.S.C. § 626(b), violations of the ADEA generally are to be treated as violations of the FLSA. "Amounts owing . . . as a result of a violation" of the ADEA are to be treated as "unpaid minimum wages or unpaid overtime compensation" under the FLSA and the rights created by the ADEA are to be "enforced in accordance with the powers, remedies and procedures" of specified sections of the FLSA. 29 U.S.C. § 626(b). (footnotes omitted).¹⁸ 

By analogy to FLSA procedures, the Court concluded in Lorillard that a jury trial must be afforded to private litigants under the ADEA. In Oscar Mayer the Supreme Court was again called upon to define the procedures which private litigants under the ADEA must follow. It concluded that section 14(b) was based on § 706(b) of Title VII,¹⁹  and therefore it gave that provision of the ADEA an interpretation consistent with Title VII.

Although the Supreme Court in Oscar Mayer did not cite to Lorillard, it did not overrule that case nor did it reconsider the Lorillard analysis of the ADEA. Hence, we must assume that Lorillard retains its precedential value, and our decision must be guided by the interpretation which the Supreme Court has given to the ADEA in those two cases. Read together, Lorillard and Oscar Mayer require that each element of the ADEA right of action be interpreted in light of the statute (FLSA, Title VII, etc.) from which it was derived.

Under this instruction, we can only conclude that it would not be appropriate to extend the Oscar Mayer rule to actions brought by the Secretary. As the Supreme Court recognized in Lorillard, the Secretary's right of action under the ADEA is distinct from a private right of action in both its nature and derivation:

Following the model of the FLSA, the ADEA establishes Two primary enforcement mechanisms. Under the FLSA provisions incorporated in § 7(b) of the ADEA, 29 U.S.C. § 626(b), The Secretary of Labor may bring suit on behalf of an aggrieved individual for injunctive and monetary relief. 29 U.S.C. §§ 216(c), 217 (1970 ed. and Supp. V). The incorporated FLSA provisions together with § 7(c) of the ADEA, 29 U.S.C. § 626(c), in addition, authorize private civil actions for "such legal or equitable relief as will effectuate the purposes of" the ADEA. (footnotes omitted and emphasis supplied).²⁰ 

We note in particular the Court's observation that the Secretary's right of action was established "(u)nder the FLSA," unlike the individual's right of action which was established under "(t)he incorporated FLSA provisions Together with § 7(c) of the ADEA . . ." (emphasis supplied).²¹ 

The private right of action which is authorized by the ADEA is modeled on both Title VII (See Oscar Mayer & Co. v. Evans) and on the FLSA (See Lorillard v. Pons) . By contrast, the Secretary's right of action was established exclusively under the FLSA. Therefore, in determining what conditions are to be imposed on the Secretary's right to bring an action to enforce the ADEA, we must look to the procedures of the FLSA.

C

Chamberlain admits, as it must, that under the FLSA, the Secretary has no obligation to notify state agencies or to await the filing of complaints with such agencies by aggrieved individuals. Br. for Appellee at 2. Although statutes in some states provide administrative remedies for improperly withheld wages, the FLSA does not require the Secretary of Labor to resort first to those remedies.

Prior to the Supreme Court's decision in Oscar Mayer, several courts found this analogy to the FLSA persuasive in interpreting § 14(b) of the ADEA as imposing no obligation on the Secretary to defer to state administrative proceedings.²²  Indeed in Reich v. Dow Badische Co., 575 F.2d 363, 367-68 (2d Cir. 1978), while recognizing that an individual litigant is required to resort to state remedies prior to filing a federal action, the opinion of the court stated in dictum that this limitation does not apply to actions brought by the Secretary:

Failure to meet the sixty day notice requirements of Sections 626(d) and 633(b) and on a literal reading of the ADEA, the two notice periods could run concurrently does not extinguish the employee's substantive right; it does terminate the individual's right to commence a private civil action in his own name, but the Secretary retains the right to sue to enforce the grievant's rights wholly without reference to the notice requirements. Dunlop v. Crown Cork & Seal Co., D. Md. 1976, 405 F. Supp. 774; 29 U.S.C. §§ 626(b), 216(c). The Secretary's right to sue continues until the expiration of the statute of limitations, that is, for two years at least, or, in the case of a willful violation, for three years. 29 U.S.C. §§ 626(e), 255(a).

While the majority opinion in Marshall v. West Essex General Hospital, 575 F.2d 1079, 1085 (3d Cir. 1978), did not find it necessary to address this issue, Judge Gibbons stated in his concurring opinion (written before our decision in Holliday) that he would have held that the Secretary is not required to resort to state administrative proceedings, regardless of whether that burden is imposed on a private litigant:

There is no evidence either in the text of the (ADEA) or in any legislative history to which we have been referred suggesting that Congress intended to read into the FLSA enforcement scheme an exhaustion requirement which never theretofore existed. I can think of no tenet of statutory interpretation which would read the exhaustion-of-state-remedies requirement of § 14(b) both into § 7(b) of the ADEA and, through the latter, into § 17 of the FLSA.

In sum, the Secretary did not in any real sense bring this action "under section 626"; hence, § 14(b) is not applicable by its own terms. More significantly, under the Lorillard Oscar Mayer analysis, the appropriate analogy here is to the procedure under the FLSA, which imposes no "deferral" requirement on the Secretary.

D

Nor would our holding be otherwise if, instead of looking to the FLSA for guidance, we concluded that Congress intended this issue to be resolved by reference to the provisions in Title VII which parallel section 14(b). For it cannot be overlooked that, at the time that the ADEA was enacted, the government agency charged with bringing actions to enforce Title VII was not required to notify or defer to state administrative agencies.

In Oscar Mayer, the Supreme Court gave section 14(b) an interpretation consonant with the provision in Title VII from which it was derived section 706(b).²³  But § 706(b) is applicable only to actions brought by "the person aggrieved," not to actions brought by the government. At oral argument, the defendant contended that section 14(b) must also be read in light of § 706(c),²⁴  which applies to actions brought by the EEOC. It requires the EEOC to notify an appropriate state agency of any charge filed by a member of the Commission and, upon request, defer any action on the charge for sixty days.

If we were to accept this argument, we would be committing the very error of statutory construction which the Supreme Court discussed in Oscar Mayer. We would be relying on subsequent legislative history or developments to reach a conclusion about the intent of the draftsmen of the original statute.²⁵  It was not until 1972 that the EEOC was given a role in the enforcement of Title VII which was in any way comparable to the Secretary of Labor's role under the ADEA. When the ADEA was enacted in 1967 some five years before the 1972 amendments to Title VII the EEOC was an administrative agency without litigation powers. B. Schlei & P. Grossman, Employment Discrimination Law 1059 (1976). The only agency then empowered to enforce Title VII in the courts was the Department of Justice.²⁶  In 1967, Congress considered but rejected the administrative agency model as the vehicle for enforcement of the ADEA.²⁷  Instead, it directed the Secretary of Labor to enforce the ADEA by bringing court actions. Therefore in 1967, the Attorney General was the only authorized agency which had a role under Title VII comparable to the Secretary's role under the ADEA.

We regard this sequence of events as highly significant, because the Department of Justice was never subject to the requirement of section 706(c), 42 U.S.C. § 2000e-5(d), that state agencies be given notice and an opportunity to act on the charge. See United States v. Masonry Contractors Ass'n, 497 F.2d 871, 875-76 (6th Cir. 1974); B. Schlei & P. Grossman, Employment Discrimination Law 1059 (1976). Consequently, whether Congress looked to the FLSA or to Title VII when it drafted the ADEA, it would have found no provision in either statute requiring the federal government to resort to state administrative remedies before commencing court proceedings. We find ourselves in agreement with Judge Gibbons' observation in his concurring opinion in Marshall v. West Essex General Hospital²⁸  that analogy to Title VII leads to a different result when it is the government which is bringing an action to enforce the ADEA, rather than an aggrieved individual seeking relief through a private action.²⁹ 

III

Having held that the Secretary's action must be reinstated, we will vacate the order of November 16, 1977, which dismissed the complaint for lack of jurisdiction, and remand for further proceedings consistent with this opinion. In so doing, we recognize that the second ground urged by Chamberlain in its motion for summary judgment has not been decided by the district court. As we noted earlier, Chamberlain also alleged that the Secretary did not comply with 29 U.S.C. § 626(b), which Inter alia requires the Secretary to seek voluntary compliance through conciliation procedures. The record discloses, however, that the Secretary has alleged with supporting affidavits that the obligation imposed by 29 U.S.C. § 626(b) has been satisfied. Obviously, in this factual posture, summary judgment would be inappropriate. Accordingly, this issue, as well as the merits of the Secretary's complaint, must be resolved in the district court.

IV

The November 16, 1977 order of the district court dismissing the Secretary's complaint will be vacated and the case remanded for further proceedings consistent with this opinion.