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BLUMENTHAL v. G-K-G INC.

May 21, 1990

WILLIAM BLUMENTHAL, Plaintiff,
v.
G-K-G INC. and BERNARD GASSIN, Defendants



The opinion of the court was delivered by: BUA

 BUA, DISTRICT JUDGE.

 After plaintiff initiated this age discrimination suit, the Equal Employment Opportunity Commission ("EEOC") commenced a separate action on behalf of plaintiff. Arguing that plaintiff's cause of action is preempted by the EEOC suit, defendants have moved to dismiss plaintiff's complaint. Defendants also argue that certain claims are barred by the applicable statute of limitations. For the reasons stated herein, defendants' motion to dismiss is denied.

 I. FACTS

 In 1974, plaintiff William Blumenthal began working as a salesman for defendant G-K-G Inc. ("GKG"). During his career with GKG, Blumenthal received several awards in recognition of his outstanding work performance. Despite Blumenthal's exemplary work record, GKG gradually reduced his share of new sales accounts. On November 23, 1987, GKG's President, defendant Bernard Gassin, asked Blumenthal to retire. Blumenthal, who was sixty-nine years old at that time, refused to retire. On December 31, 1987, defendants terminated Blumenthal.

 Claiming that defendants terminated him solely because of his age, Blumenthal filed a charge of age discrimination with the EEOC. Following its investigation of the charge, the EEOC determined that defendants had discriminated against Blumenthal on the basis of age. Blumenthal then filed this action on November 22, 1989, pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. On December 21, 1989, the EEOC filed suit against GKG on behalf of Blumenthal.

 II.DISCUSSION

 Defendants raise two arguments in their motion to dismiss. First, defendants argue that Blumenthal's age discrimination suit is preempted by the EEOC action. Second, defendants contend that some of Blumenthal's claims are time-barred. Neither argument is persuasive. *fn1"

 A. Preemption

 In support of their first argument, defendants rely on section 7(c)(1) of the ADEA, 29 U.S.C. § 626(c)(1), which provides: "The right of any person to bring [an ADEA] action shall terminate upon the commencement of an action by the Equal Employment Opportunity Commission to enforce the right of such employee under this chapter." Id. (emphasis added). Although the ADEA does not define what it means "to bring" an action, it is commonly understood that a party "brings" an action when he files the complaint. See Goldenberg v. Murphy, 108 U.S. 162, 163, 27 L. Ed. 686, 2 S. Ct. 388 (1883); see also Black's Law Dictionary 174 (5th ed. 1979) ("To 'bring' an action or suit has a settled customary meaning at law, and refers to the initiation of legal proceedings in a suit."). Plaintiffs argue that "bring" is synonymous with "commence" and, therefore, section 7(c)(1) only precludes an individual from commencing an action after the EEOC has filed suit. Defendants, on the other hand, contend that "bring" should be interpreted to mean "bring or maintain." Under defendants' interpretation, section 7(c)(1) would not only preclude an aggrieved party from commencing an action after the EEOC has filed suit, but it would also preclude a party from maintaining an action filed prior to the EEOC suit.

 Unfortunately, the legislative history behind section 7(c)(1) fails to elucidate Congressional intent. The Fair Labor Standards Act ("FLSA"), however, provides some guidance in construing section 7(c)(1). See Burns v. Equitable Life Assurance Soc'y of U.S., 696 F.2d 21, 23-24 (2d Cir. 1982), cert. denied, 464 U.S. 933, 104 S. Ct. 336, 78 L. Ed. 2d 306 (1983). Section 16(b) of the FLSA contains language which is nearly identical to that used in section 7(c)(1) of the ADEA. Section 16(b) provides that an employee's right " to bring an action . . . terminates upon the filing of a complaint by the Secretary of Labor." 29 U.S.C. § 216(b) (emphasis added). The legislative history behind that provision clearly indicates that an action filed by the Secretary of Labor does not preempt a previously-filed private action. See Conf. Rep. No. 327, 87th Cong., 1st Sess. 20, reprinted in 1961 U.S.Code Cong. & Admin.News 1706, 1714 ("the filing of the Secretary's complaint against an employer would not . . . operate to terminate any employee's right to maintain such a private suit to which he had become a party plaintiff before the Secretary's action"). Since the ADEA incorporates the enforcement procedures of the FLSA, *fn2" specifically those set forth in section 16(b), the interpretation given to section 16(b) is highly probative of the intended application of similar provisions of the ADEA -- i.e., section 7(c)(1). Burns, 696 F.2d at 23. When Congress enacts "a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the [administrative or judicial] interpretation given to the incorporated law." Lorillard v. Pons, 434 U.S. 575, 581, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978). Naturally, there is an even stronger presumption that Congress was aware of the recorded expressions of its own legislative intent. Burns, 696 F.2d at 23. In this case, the presumption is especially appropriate given Congress' detailed knowledge of the FLSA as exemplified by its selectivity in incorporating certain provisions. Lorillard, 434 U.S. at 581; Burns, 696 F.2d at 23. *fn3"

 Almost every court which has addressed this issue agrees that section 7(c)(1) does not terminate a private suit that is pending prior to the commencement of the EEOC action. See EEOC v. Eastern Airlines, Inc., 736 F.2d 635, 640-41 (11th Cir. 1984); Burns, 696 F.2d at 23-24; Howard v. Daiichiya-Love's Bakery, Inc., 714 F. Supp. 1108, 1111 (D. Haw. 1989); Sheppard v. NBC, 24 Fair Empl. Prac. Cas. (BNA) 945, 946 (S.D.N.Y. 1980). The only court to reach the opposite conclusion, see Jones v. City of Janesville, 488 F. Supp. 795, 797 (W.D. Wis. 1980), cited absolutely no authority for its position.

 This court does not believe that Congress intended to terminate all private ADEA actions, no matter how close to resolution, upon the commencement of an EEOC enforcement action. Such a rule could very well impede an individual's ability to seek redress under the ADEA. Private counsel would be discouraged from accepting an ADEA case if, after expending a considerable amount of time and resources, the case could be preempted by a subsequent EEOC action. Eastern Airlines, 736 F.2d at 640. Counsel would have an even greater incentive to avoid cases involving egregious discriminatory conduct because such cases would tend to invite preemptive EEOC litigation. Burns, 696 F.2d at 24.


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