Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division - No. IP 76-425-C S. Hugh Dillin, Judge.
Tone and Wood, Circuit Judges, and Wyzanski, Senior District Judge.*fn*
The issue is whether 29 U.S.C. § 633(b), the provision of the Age Discrimination in Employment Act of 1967 for deferral of a federal action until 60 days after the commencement of proceedings under state law, precluded the plaintiff from filing this action because she had not first sought redress in an Indiana proceeding. We hold that it did not, because it appears that no redress was available under state law. A contrary ruling of the District Court is therefore reversed.
Plaintiff was discharged from her employment as a district manager of the defendant. Before discharging her, defendant's management tried to persuade her to take early retirement, as she was entitled to do under the company's retirement and pension plan.*fn1 When she refused to do so, she was fired. The company has continued to offer her early retirement benefits, but she has refused to submit the requisite application.
After notifying the United States Department of Labor of her intention to pursue her remedy under the Age Discrimination in Employment Act, the Department issued a letter authorizing her to sue. Thereafter, without having instituted any proceeding under Indiana law, she commenced this action.
Defendant moved to dismiss the action on the ground that plaintiff had failed to comply with 29 U.S.C. § 633(b). Plaintiff contended that she had no state remedy because of the exception in the Indiana Age Discrimination Act for employees qualified for benefits under an employer retirement or pension plan. Ind. Code § 22-9-2-10. She also contended that § 633(b) "is not jurisdictional" and therefore did not preclude the federal court from assuming jurisdiction despite her failure to file a state complaint.
The court held that § 633(b) "is a jurisdictional prerequisite to actions like the one here," and that "even though plaintiff believed she was within an exception to the Indiana statute, the federal act requires her to have at least attempted to seek her state remedies before resorting to federal jurisdiction."
29 U.S.C. § 633(b) provides in pertinent 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: . . . .
To decide this case we need to reach only the related questions of whether the plaintiff had any remedy under Indiana law in view of her retirement rights and, if not, whether § 633(b) required her to seek redress under that law. If these questions are answered in the negative, it is unnecessary to decide whether pursuing an available state remedy for 60 days is a prerequisite to an action under § 633(b).
The exception in the Indiana act on which plaintiff relies is as follows:
Employees excepted. These provisions shall not apply . . . to a person who is qualified for benefits under the terms or conditions of an employer ...