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CURTO v. SEARS

United States District Court, Northern District of Illinois, E.D


December 15, 1982

FRANK T. CURTO, PLAINTIFF,
v.
SEARS, ROEBUCK AND CO., A NEW YORK CORPORATION, DEFENDANT.

The opinion of the court was delivered by: Prentice H. Marshall, District Judge.

MEMORANDUM OPINION

This case presents two important questions under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-34 (1976 & Supp. II 1978). We must decide what the time limit is for filing an age discrimination complaint under the ADEA with the Equal Opportunity Employment Commission ("EEOC") in a state which provides an administrative remedy for age discrimination, and to what extent a complainant must cooperate with the state administrative agency in order to preserve his or her right to file suit under the ADEA. While the issues may sound esoteric and hypertechnical, their resolution is important to the ability of persons to preserve their rights under the ADEA.

I

Defendant Sears, Roebuck and Co. hired plaintiff Frank T. Curto as an "assistant to the Vice-President" on May 1, 1970. On April 21, 1980, plaintiff was informed that he would be discharged effective July 31, 1980. At the time, plaintiff was 58 years old. Plaintiff alleges that he was a highly competent employee and that he was terminated because of his age, while younger employees in comparable positions who were no more competent than plaintiff were permitted to keep their jobs.

On July 31, 1980, as scheduled, plaintiff lost his job. On December 12, 1980, 235 days after the allegedly unlawful employment practice at issue here,*fn1 counsel for plaintiff sent charges of age discrimination against defendant to the EEOC and the Illinois Department of Human Rights ("IDHR") by certified mail. On December 22, 1980, 245 days after the alleged discrimination took place, plaintiff signed a sworn charge thereby formally commencing proceedings before the IDHR.*fn2 On April 8, 1981, IDHR notified plaintiff that it had scheduled a conference on his charge for April 20. On April 16, the conference was postponed at plaintiff's request. Plaintiff never requested a new conference date. Throughout June and July, an investigator for IDHR attempted to contact plaintiff, but neither plaintiff nor his counsel returned the investigator's calls. On September 4, 1981, plaintiff's IDHR charge was dismissed at his request. This lawsuit followed.*fn3 Defendant's motion for summary judgment is now pending before the court.*fn4

II

The first ground for defendant's motion is that plaintiff failed to file his EEOC charge in a timely manner. Defendant contends that the ADEA requires plaintiff to file his EEOC charge within 300 days of the alleged discrimination at issue and that he failed to do so. In order to evaluate defendant's position the procedural prerequisites to suit contained in the ADEA must be examined.

A

The general rule of timeliness contained in the ADEA is found in § 7(d) of the Act, 29 U.S.C. § 626(d) (Supp. II 1978).*fn5

    No civil action may be commenced by an
  individual under this section until 60 days after
  a charge has been filed with the Secretary [of
  Labor]. Such charge shall be filed —

    (1) within 180 days after the alleged unlawful
  practice occurred; or

    (2) in a case to which section 633(b) of this
  title applies, within 300 days after the alleged
  unlawful practice occurred, or within 30 days
  after receipt by the individual of notice of
  termination of proceedings under State law,
  whichever is earlier.

Section 14 of the ADEA, 29 U.S.C. § 633 (1976), in turn provides,

    (a) Nothing in this chapter shall affect the
  jurisdiction of any agency of any State
  performing like functions with regard to
  discriminatory employment practices on account of
  age except that upon commencement of action under
  this chapter such action shall supercede any
  State action.

    (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: Provided, That such sixty-day
  period shall be extended to one hundred and twenty
  days during the first year after the effective date
  of such State law. If any requirement for
  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 purposes of this subsection at the time such
  statement is sent by registered mail to the
  appropriate State authority.

In Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Supreme Court construed the analogous provisions of Title VII of the Civil Rights Act of 1964, which provide that a charge of employment discrimination prohibited by Title VII be filed with the EEOC within 180 days of the alleged discriminatory practice or within 300 days in a state which prohibits such practices. In these "deferral states," the statute provides that a charge may not be filed with the EEOC until at least sixty days after the complainant has commenced proceedings under state law.*fn6 In Mohasco, the plaintiff filed charges with the EEOC and the state deferral agency 291 days after the alleged unlawful employment practice. The Court first held that plaintiff had satisfied the deferral requirement. It noted that Title VII requires only that a complainant initially institute proceedings under state law in order to gain the benefit of the 300 day extended period for filing charges with the EEOC. By filing with the state agency on the 291st day, plaintiff had satisfied this requirement. See 447 U.S. at 815-17, 100 S.Ct. at 2492.*fn7

The Court then turned to the question whether plaintiff's EEOC filing had been timely.

    The answer is supplied by subsection (c), which
  imposes a special requirement for cases arising
  in deferral States: "no charge may be filed under
  subsection [(b)] by the person aggrieved before
  the expiration of sixty days after proceedings
  have been commenced under the state or local law,
  unless such proceedings have earlier been
  terminated. . . ." Thus, in terms, the statute
  prohibited the EEOC from allowing the charge to
  be filed on the date [plaintiff commenced state
  proceedings]. Although, as the Court held in
  Love v. Pullman Co., [] it was proper for the EEOC
  to hold [plaintiff]'s "complaint in `suspended
  animation,' automatically filing it upon
  termination of the State proceedings," that means
  that the charge was filed on the 351st day, not the
  291st. By that time, however, the 300-day period
  had run and the filing was therefore untimely.

447 U.S. at 817, 100 S.Ct. at 2492 (first brackets and emphasis in original) (footnote and citation omitted) (quoting 42 U.S.C. § 2000e-5(c) (1976) and Love v. Pullman Co., 404 U.S. 522, 526, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972)). Since Mohasco construes the statute to prohibit filing with the EEOC until at least sixty days after filing with the state deferral agency, its practical effect is to require a Title VII complainant to file charges with the state agency within 240 days of the alleged unlawful employment practice, in order to ensure that his or her EEOC charge will be timely filed. See 447 U.S. at 814 n. 16, 100 S.Ct. at 2491 n. 16. This result was required in order to effectuate the congressional purpose in creating different timeliness rules for deferral states.

  The [legislative] history identifies only one
  reason for treating workers in deferral States
  differently from workers in other States: to give
  state agencies an opportunity to redress the evil
  at which federal legislation was aimed, and to
  avoid federal intervention unless its need was
  demonstrated. The statutory plan was not designed
  to give the worker in a deferral State the option
  of choosing between his state remedy and his
  federal remedy, nor indeed simply to allow him
  additional time in which to obtain state relief.
  Had that been the plan, a simple statute
  prescribing a 90-day period in

  non-deferral States and a 210-day period in
  deferral States would have served the legislative
  purpose. Instead, Congress chose to prohibit the
  filing of any federal charge until after State
  proceedings had been completed or until 60 days
  had passed, whichever came sooner.

447 U.S. at 821, 100 S.Ct. at 2494 (footnote omitted).

B

Prior to Mohasco, a number of courts had held that the ADEA required a complainant to commence proceedings under state law in a deferral state within 180 days of the alleged discriminatory employment practice, reasoning that Congress could not have intended that ADEA plaintiffs in deferral states have more time to file initial charges than plaintiffs in nondeferral states, who must file charges with the EEOC within 180 days. See Ewald v. Great Atlantic & Pacific Tea Co., 620 F.2d 1183, 1186-87 (6th Cir.), vacated, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980); Ciccone v. Textron, Inc., 616 F.2d 1216 (1st Cir.), vacated, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980); Gabriele v. Chrysler Corp., 573 F.2d 949, 955 (6th Cir. 1978), vacated, 442 U.S. 908, 99 S.Ct. 2819, 60 L.Ed.2d 273 (1979); Bonham v. Dresser Industries, Inc., 569 F.2d 187, 194 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). But see Bean v. Crocker National Bank, 600 F.2d 754 (9th Cir. 1977); Paxton v. Lanvin-Charles of the Ritz, Inc., 434 F. Supp. 612 (S.D.N Y 1977).

Mohasco undermined this approach.*fn8 Mohasco held that a Title VII plaintiff need only comply with the literal terms of the statute and commence proceedings under state law prior to filing with the EEOC, even though this gives Title VII complainants more time to file initial charges in deferral states than they would receive in nondeferral states. Like Title VII, the ADEA contains no requirement that state proceedings commence within 180 days or any other particular time period; under the rationale of Mohasco, an ADEA complainant need only comply with the literal terms of the statute and commence proceedings under state law at some point prior to filing suit.*fn9 Every post-Mohasco court to consider the question has concluded that state proceedings need not be commenced within 180 days, and that the statute only requires a state filing at some point prior to seeking a judicial remedy under the ADEA, See Aronsen v. Crown Zellerbach, 662 F.2d 584 (9th Cir. 1981); Ciccone v. Textron, Inc., 651 F.2d 1 (1st Cir.) (per curiam), cert. denied, 452 U.S. 917, 101 S.Ct. 3052, 69 L.Ed.2d 420 (1981); Goodman v. Heublein, Inc., 645 F.2d 127, 131-32 (2d Cir. 1981); Davis v. Calgon Corp., 627 F.2d 674 (3d Cir. 1980) (per curiam), cert. denied, 449 U.S. 1101, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981); Avakian v. Trinity Memorial Hospital of Cudahy, Inc., 514 F. Supp. 1297, 1298 (E.D.Wis. 1981). We agree, and hold that the ADEA contains no time requirement for the commencement of proceedings under state law. Accordingly, plaintiff's commencement of proceedings before the IDHR was timely.*fn10

C

Perhaps anticipating our holding as to the timeliness of plaintiff's state filing, defendant also argues that plaintiff's filing with the EEOC was untimely. Defendant argues that if the first holding of Mohasco, that a Title VII complainant need not file with a state deferral agency within 180 days of the discriminatory practice under challenge, is applied to the ADEA, then the second holding, that a charge may not be filed with the EEOC until at least sixty days after filing with the deferral agency, should also be applied. If it is, defendant argues, then the fact that plaintiff commenced proceedings with the IDHR 245 days after the discrimination at issue means that plaintiff could not file with the EEOC until at least 305 days after the alleged unlawful employment practice. If that were the case, plaintiff's EEOC filing would have been untimely. As defendant correctly points out, most of the cases cited above which concluded that Mohasco's rejection of a 180-day rule applies to the ADEA have not reached the question whether Mohasco's second holding should likewise be applied to the ADEA. Thus, defendant asks us to decide a somewhat novel question.*fn11

Defendant's position is superficially appealing in that it requires us only to completely apply Mohasco to the ADEA. However, defendant overlooks a crucial difference between Title VII and the ADEA. Title VII provides that "no charge shall be filed" with the EEOC until sixty days after state proceedings have been commenced. See note 6, supra. Mohasco simply construed the statute to mean what it says. The ADEA, in contrast, does not quite say the same thing. Section 14(b) does not say that "no charge shall be filed" for sixty days, but rather that "no suit may be brought" for sixty days after state proceedings have commenced. The statute does not prohibit filing a charge with the EEOC within 60 days of the commencement of state proceedings, or even prior to the commencement of state proceedings. It only prohibits filing a lawsuit within sixty days. Every court to construe the statute has concluded that it means what it says, that only the filing of a lawsuit is prohibited within sixty days of the commencement of state proceedings. See Aronsen v. Crown Zellerbach, 662 F.2d 584, 590 n. 9 (9th Cir. 1981); Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221, 1227-28 (3d Cir. 1978) (en banc); Gabriele v. Chrysler Corp., 573 F.2d 949, 954 (6th Cir. 1978); vacated, 442 U.S. 908, 99 S.Ct. 2819, 60 L.Ed.2d 273 (1980); Avakian v. Trinity Memorial Hospital of Cudahy, Inc., 514 F. Supp. 1297, 1298-99 (E.D.Wis. 1981); Bertsch v. Ford Motor Co., 415 F. Supp. 619, 623 n. 8 (E.D.Mich. 1976) (dictum). See also Goodman v. Heublein, Inc., 645 F.2d 127, 132 (2d Cir. 1981) (dictum); Comment, Procedural Prerequisites to Private Suit Under the Age Discrimination in Employment Act, 44 U.Chi.L.Rev. 457, 478-79 (1977).*fn12 The legislative history of § 14(b) also indicates that it should be construed to mean what it says. See House Rep. No. 805, 90th Cong., 1st Sess. 6 (1967), reprinted in 1967 U.S.Code Cong. & Ad.News 2213, 2218-19; Sen.Rep.No. 723, 90th Cong., 1st Sess. 6 (1967).*fn13 We conclude that the statute should be construed to mean what it says, and hold that the ADEA does not prohibit the filing of a charge of age discrimination with the EEOC within 60 days after proceedings have been commenced under state law in a deferral state. Accordingly, plaintiff was able to file his complaint with the EEOC before the 300-day limit contained in § 7(d)(2) had run.*fn14

III

The second ground for defendant's motion is plaintiff's alleged noncooperation with IDHR. Defendant argues that plaintiff's failure to attend the IDHR conference or to cooperate with the investigator should preclude his federal lawsuit. Defendant concedes, as it must, that § 14(b) of the ADEA does not explicitly require cooperation with a deferral agency, but argues that such a requirement should be read into the statute. Since the section is intended to give state agencies an opportunity to resolve discrimination disputes, e.g., Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755-56, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979), Congress must have intended that the opportunity which state agencies receive be meaningful. Noncooperation with the deferral agency precludes meaningful action at the state level and undermines the congressional goal. Therefore, noncooperation should be considered constructive noncompliance with § 14(b), defendant argues.*fn15

A

Defendant asks us to decide the extent to which § 14(b) requires an ADEA complainant in a deferral state to cooperate with the state agency and hence meaningfully "exhaust" his or her state remedy prior to filing suit under the Act. The starting point for our analysis, as with any question of statutory construction,

  "must be the language employed by Congress," and
  we assume "that the legislative purpose is
  expressed by the ordinary meaning of the words
  used." Thus "[a]bsent a clearly expressed
  legislative intention to the contrary, that
  language must ordinarily be regarded as
  conclusive."

American Tobacco Co. v. Patterson, 456 U.S. 63, ____, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982) (citations omitted) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979); Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 590, 7 L.Ed.2d 492 (1962); Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)).

The plain language of § 14(b) does not support defendant's construction. Nowhere does it specify any requirement that an ADEA complainant cooperate with state agencies or "exhaust" state remedies. "By its terms, then, the section requires only that state proceedings be commenced 60 days before federal litigation is instituted; besides commencement no other obligation is placed upon the ADEA grievant." Oscar Mayer & Co. v. Evans, 441 U.S. 750, 759, 99 S.Ct. 2066, 2073, 60 L.Ed.2d 609 (1979). The plain language of the statute, as noted by the Supreme Court in Oscar Mayer, provides no support for defendant's position.

B

Examination of the underlying purposes of § 14(b) reinforces the conclusion that it should be construed consistently with its plain meaning. Section 14(b) was not intended to impose any duty on an ADEA complainant to do anything more than commence proceedings under state law. Once that occurred, Congress intended the section to permit voluntary conciliation between the parties, it did not intend an ADEA complainant to have to engage in conciliation if he or she did not want to do so. See House Rep. No. 805, 90th Cong., 1st Sess. 5 (1967), reprinted in 1967 U.S.Code Cong. & Ad.News 2213, 2218; Sen.Rep. No. 723, 90th Cong., 1st Sess. 5 (1967); 118 Cong.Rec. 34,748 (1967) (remarks of Rep. Dent). Because Congress envisioned conciliation under § 14(b) to be voluntary, it is inconsistent with Congressional intent to require an ADEA complainant to engage in mandatory conciliation, thereby exhausting his or her state remedy.

The Supreme Court has written,

  Section 14(b) does not stipulate an exhaustion
  requirement. The section is intended only to give
  state agencies a limited opportunity to settle
  the grievances of ADEA claimants in a voluntary
  and localized manner so that the grievants
  thereafter have no need or desire for independent
  federal relief.

Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761, 99 S.Ct. 2066, 2074, 60 L.Ed.2d 609 (1979). The Court, in Oscar Mayer, went on to note that the last sentence of § 14(b) also indicates that the section does not contain an exhaustion requirement, in that it states that deferral states can impose no requirements on ADEA complainants that must be satisfied prior to their seeking judicial relief other than requiring a written statement of facts sent by registered mail. See id. at 760, 99 S.Ct. at 2073. This is to ensure that states may not impose burdensome requirements which might hinder the ability of ADEA plaintiffs to seek federal relief. See id. at 762-63, 99 S.Ct. at 2074. Oscar Mayer indicates that the statute is satisfied by nothing more than the commencement of proceedings under state law; state remedies need not be pursued to any significant extent.

Defendant responds by arguing that Oscar Mayer dealt only with the case where a state refuses to conciliate an age discrimination dispute. In Oscar Mayer, there were no meaningful proceedings at the state level because the ADEA plaintiff had not timely filed his charges under state law. The Court held that the fact that the state might not entertain the charge due to its timeliness rule would not bar plaintiff's federal lawsuit. However, defendant argues, where a state is willing and able to entertain charges, Congress surely did not intend an ADEA plaintiff to be able in effect to bypass state proceedings entirely and make no effort to resolve the dispute at the state level. Defendant overlooks the fact that exactly the same argument was rejected in Oscar Mayer, when the Court held that state charges need not be timely under state law in order to preserve a grievant's federal remedy.

    The strongest argument against this
  construction of the statute is that it would
  permit grievants to avoid state intervention by
  waiting until the state statute of limitations
  has expired and then filing federal suit, thus
  frustrating the intent of Congress that federal
  litigation be used as a last resort.

    No reason suggests itself, however, why an
  employee would wish to forgo an available state
  remedy. Prior resort to the state remedy would
  not impair the availability of the federal
  remedy, for the two are supplementary, not
  mutually exclusive. A complainant would save no

  time by bypassing the state remedy since the
  federal court must, in any event, defer to the
  State for 60 days, and is required to defer no
  longer.

441 U.S. at 763-64, 99 S.Ct. at 2075. If an ADEA complainant can deliberately bypass state remedies by filing his or her charges after the state statute of limitations has run, frustrating meaningful state review, it is no more offensive to the statutory scheme where he or she frustrates state review through other forms of noncooperation. The rationale of Oscar Mayer would remain applicable; there is no reason to believe deliberate bypass of state remedies might become a recurrent problem, and in any event, Congress intended states to have no more than an opportunity to conciliate if the parties desire that. Section 14(b) simply does not permit states to require any more than that ADEA litigants commence proceedings under state law at least sixty days before filing suit.*fn16 Requiring cooperation of the type plaintiff allegedly denied IDHR would create a procedural hurdle to federal relief not envisioned by Congress and undermine the voluntary approach to state conciliation taken by Congress.*fn17 We believe state conciliation should remain voluntary; the state must be given the opportunity to attempt conciliation, but whether the parties want to take advantage of the state's attempt should be up to them.

C

Even if we were inclined to agree with defendant as a matter of statutory construction, a rule requiring ADEA complainants to cooperate with deferral agencies is fraught with practical difficulties.

First, it would be difficult to determine what kind of "cooperation" a complainant would be obliged to give the agency. Defendant suggests that cooperation must be more than "perfunctory," that it must be "in good faith." This suggested standard seems to be derived from the duty to bargain in good faith with collective bargaining units imposed on employers under § 8(a) and (d) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a) & (d) (1976). See generally Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 209-10, 85 S.Ct. 398, 402, 13 L.Ed.2d 233 (1964); NLRB v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952). However, imposing such a duty under the ADEA would be problematic.

Section 14(b) of the ADEA makes it very clear that a state agency cannot prohibit an ADEA plaintiff from abandoning state proceedings and suing in federal court. ADEA plaintiffs have an absolute right to file suit sixty days after commencing state proceedings, and, as the last sentence of § 14(b) and Oscar Mayer make clear, there is nothing the state can do to stop them. If an ADEA litigant is determined to have his or her day in federal court, he or she will get it.

Thus, Congress explicitly gave ADEA litigants the option not to resolve disputes through bargaining but instead to go to federal court and obtain federal adjudication of the dispute, an alternative not provided by the NLRA, which does not permit the federal government to impose dispute resolution on the parties to a labor dispute. See, e.g., NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). Because an employee has the right to insist on a judicial resolution of his claims under the ADEA, it follows that the employee is under no duty to attempt to bargain at the state level; he can insist on a legal vindication and refuse to bargain away his or her federal civil rights under the ADEA. Defendant does not suggest otherwise. Yet, if an ADEA complainant's "cooperation" need not consist of actually attempting to bargain, the cooperation that defendant would have us insist on would be of only the most formal kind, attending conferences, returning calls, and the like. If that is all that is required, then even defendant's proposal will not achieve its avowed goal of ensuring that meaningful conciliation occurs at the state level. Defendant's suggested construction of § 14(b) is inconsistent with its assumption about what it is the statute must ensure, and unlikely to achieve anything of real substance.

Second, defendant's approach will lead to gaping inefficiencies in many cases. As noted above, it is clear that a complainant need not bargain at the state level, but rather may insist on judicial vindication rather than state conciliation. That being the case, to impose on all complainants a duty to "cooperate" with deferral agencies' conciliation efforts by attending meetings and the like would simply force grievants determined to go to court to engage in subterfuge. The complainant will have to appear to cooperate, all the while concealing his or her actual determination not to bargain about his or her rights. If a complainant has no wish to engage in state conciliation, it makes more sense to permit him or her to make that apparent from the outset so as not to waste the time of all concerned.

Third, accepting defendant's proposed construction of the statute will require courts to adjudicate questions involving the "good faith" of an ADEA plaintiff's cooperation with the deferral agency. Time-consuming and expensive litigation will result, since evidentiary hearings will be necessary to resolve questions of motive and intent. Moreover, ADEA defendants bent on delay will probably be able to make allegations as to the plaintiff's bad faith before the state agency sufficient to require a hearing in almost every case.*fn18 The burdensome litigation that would result from defendant's approach hardly would comport with the congressional goal of enabling victims of age discrimination to obtain expeditious relief, see note 13, supra, while consuming the resources of plaintiffs and courts. While we do not agree that "federal courts are drowning in litigation," Norris v. United States, 687 F.2d 899, 903 (7th Cir. 1982), it is true that defendant's proposal would raise the water level.

In sum, we believe that adopting defendant's construction of § 14(b) would not only be unsupported by the language and purpose of the statute, but also would amount to an unwise and problematic exercise in judicial review.

D

Holding that the kind of cooperation plaintiff allegedly denied IDHR is not required under the ADEA is well-supported by the available authorities. A number of courts have concluded that beyond commencing proceedings under state law and waiting sixty days before filing suit, the ADEA contains no exhaustion requirement. See Kennedy v. Whitehurst, 690 F.2d 951, 964 (D.C. Cir. 1982); Gabriele v. Chrysler Corp., 573 F.2d 949, 953 (6th Cir.) vacated, 442 U.S. 908, 99 S.Ct. 2819, 60 L.Ed.2d 273 (1979); Goger v. H.K. Porter Co., 492 F.2d 13, 15 (3d Cir. 1974), overruled on other grounds, Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d Cir. 1978) (en banc); Mizrany v. Texas Rehabilitation Commission, 522 F. Supp. 611, 616 (S.D.Tex. 1981); Nickel v. Shatterproof Glass Co., 424 F. Supp. 884, 887 (E.D.Mich. 1976), aff'd mem., 599 F.2d 1055 (6th Cir. 1979); Magalotti v. Ford Motor Co., 418 F. Supp. 430 (E.D.Mich. 1976). See also Lombardi v. Margolis Wines & Spirits, Inc., 465 F. Supp. 99, 101 (E.D.Pa. 1979) ("[U]ntil a claimant has adequately pursued state administrative remedies — by waiting either the requisite 60 days or until the state agency has disposed of the claim — the federal courts are without subject matter jurisdiction over the dispute.").*fn19

This holding is also supported by case law under the similar provisions of Title VII, which holds that a Title VII litigant need not exhaust state remedies, but rather must do no more than file state charges and wait the requisite period.*fn20 See Fowler v. Blue Bell, Inc., 596 F.2d 1276, 1279 (5th Cir. 1979); Guse v. J.C. Penney Co., 562 F.2d 6, 7-8 (7th Cir. 1977); Waters v. Heublein, Inc., 547 F.2d 466, 468 (9th Cir. 1976); Grubbs v. Butz, 514 F.2d 1323, 1327-28 (D.C. Cir. 1975); Harris v. Ericson, 457 F.2d 765 (10th Cir. 1972); Crosslin v. Mountain States & Telegraph Co., 422 F.2d 1028, 1031 (9th Cir. 1970), vacated, 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971); Lo Re v. Chase Manhattan Corp., 431 F. Supp. 189, 194 (S.D.N.Y. 1977); Ortega v. Construction Union, 396 F. Supp. 976, 980 (D.Conn. 1975); Hecht v. Cooperative for American Relief Everywhere, Inc., 351 F. Supp. 305, 307-09 (S.D.N.Y. 1972); 2 A. Larson & L. Larson, Employment Discrimination § 49.60 (1982); Note, Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1101, 1212 (1971). See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973) ("[W]e will not engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts.").*fn21 This view of the statute is also shared by the EEOC, which has taken the position that a Title VII litigant's noncooperation with EEOC conciliation is not a bar to a subsequent lawsuit under Title VII. See 29 C.F.R. §§ 1601.19(c), 1601.28(b)(3)(i) (1982). See also Fowler v. Blue Bell, Inc., 596 F.2d 1276, 1279 (5th Cir. 1979).*fn22 Thus, there is ample authority for holding that the ADEA requires only that a litigant give the state deferral agency a sixty-day opportunity to attempt conciliation, but not that the litigant actively cooperate with the agency.*fn23

IV

We hold that §§ 7(d) and 14 of the ADEA mean what they say, no more and no less. A litigant complies with these sections by commencing proceedings under state law, and then waiting sixty days or until state proceedings have terminated to file suit under the Act. By doing this, the litigant complies with the letter of the statute, and has preserved its underlying goals. He or she need not file charges with the deferral agency within 240 days of the discriminatory act, nor worry about whether he or she is "cooperating in good faith" with the deferral agency. If the litigant wishes to pursue the opportunity Congress has provided for of voluntary conciliation at the state level, he or she may do so; but conciliation under the ADEA is voluntary, a litigant is under no obligation to pursue it.

Defendant's motion for summary judgment is denied. Defendant is ordered to answer the complaint within 14 days. Discovery and trial in accordance with schedule entered this date.


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