Opinion
Civil Action No. 04-1214, Section "R" (5).
September 17, 2004
ORDER AND REASONS
Defendant Northrop Grumman Ship Systems, Inc. moves to dismiss plaintiff Broderick Reed's claims for failure to exhaust administrative remedies or, in the alternative, for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). In the alternative, Northrop Grumman moves for a more definite statement under Federal Rule of Civil Procedure 12(e). For the following reasons, the Court grants in part and denies in part Northrop Grumman's motion to dismiss.
I. Facts and Procedural Information
From September 1987 until May 1990, plaintiff Broderick Reed worked as a tacker for defendant Northrop Grumman Ship Systems, Inc. In May 1990, Northrop discharged Reed for misconduct. In March 2001, Northrop rehired Reed as a burner in the Shipfitting Department but terminated his employment less than a year later after Reed received three written reprimands.
In January 2004, Reed again applied for employment at Northrop. In his complaint, Reed alleges that he "completed every test which placed [him] as 2nd class welder." ( See Pl.'s Compl., at 1). Reed alleges that "the supervisor in the welding department awarded [him] with $13.13 + hour after testing." ( See id.). Reed maintains that Bruce Nunez of Northrop's Human Resources Department then denied him employment as a welder even after he qualified for the position. ( See id.).
On March 30, 2004, Reed filed a Charge of Discrimination with the Equal Employment Opportunity Commission. On May 6, 2004, he sued Northrop Grumman in this Court, presumably under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act of 1990, 29 U.S.C. § 621, et seq.
II. DISCUSSION
A. MOTION TO DISMISS
In a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). The Court must resolve doubts as to the sufficiency of the claim in plaintiff's favor. Vulcan Materials Company v. City of Tehuacana, 238 F.3d 382, 387 (5th Cir. 2001). Dismissal is warranted if it appears certain that the plaintiff cannot prove any set of facts in support of her claim that would entitle her to relief. Id.; Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).
B. Title VII Claims: Exhaustion
It is a well-settled rule of administrative law that a plaintiff must exhaust available administrative remedies before he files a complaint in federal court under Title VII. See 42 U.S.C. § 2000e-5(f)(1); see also Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 711 (5th Cir. 1994); Palmer v. Transit Mgmt. S.E. Louisiana, No. Civ. A. 98-0594, * 4, 2000 WL 41204 (E.D. La. 2000). Administrative review of a Title VII claim is a condition precedent to judicial review of that claim. See, e.g., Brown v. GSA, 425 U.S. 820, 831 (1976). A plaintiff complies with the exhaustion requirement when he "files a timely charge with the EEOC and receives a statutory notice of right to sue." Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002) (citing Dao v. Auchan Supermkt., 96 F.3d 787, 788-89 (5th Cir. 1996)).
Here, Reed has not received a right-to-sue letter from the EEOC. Indeed, Reed filed his charge of discrimination with the EEOC on March 31, 2004. He sued Northrop here less than two months later. To date, the EEOC has not issued a determination on Reed's claim, nor has it issued a right-to-sue letter. Accordingly, the Court dismisses Reed's Title VII claims without prejudice for failure to exhaust. See Solomon v. Hardison, 746 F.2d 699, 701 (5th Cir. 1984).
C. ADEA Claims
The Age Discrimination in Employment Act provides that "[n]o 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 Equal Employment Opportunity Commission." 29 U.S.C. § 626(d). Because Reed filed this federal action less than 60 days after he filed his EEOC charge, Northrop argues that Reed's ADEA claim is premature and should be dismissed.
Although a plaintiff must exhaust available administrative remedies under both Title VII and the ADEA, the ADEA's exhaustion requirements differ from those of Title VII. As noted above, to meet Title VII exhaustion requirements, a plaintiff must first obtain a right-to-sue letter from the EEOC before he sues in federal court. See 42 U.S.C. § 2000e. In contrast, the ADEA does not require a claimant to obtain a right-to-sue letter before he sues in federal court. See 29 U.S.C. § 626(d); Tlush v. Manufacturers Res. Ctr., 315 F. Supp. 2d 650, 655 (E.D. Pa. 2002). Rather, an ADEA claimant must simply file a charge with the EEOC sixty days before he sues. See id.; see also Julian v. City of Houston, 314 F.3d 721, 725-26 n. 8 ("Accordingly, a complainant who timely files the EEOC charge and then observes the sixty-day waiting period has satisfied the statutory preconditions to filing suit [under the ADEA]."). Upon expiration of the sixty-day period, a claimant's right to sue under the ADEA arises automatically. See id.; Tlush, 315 F. Supp. at 655.
Circuit and district courts dispute, however, whether a violation of Section 626(d)'s sixty-day waiting period requires dismissal or a stay of the action. The Fourth, Sixth, and Ninth Circuits hold that Section 626(d)'s 60-day period is jurisdictional and that dismissal for noncompliance with Section 626(d) is required. See Chapman v. City of Detroit, 808 F.2d 459, 462 (6th Cir. 1986); Dempsey v. Pacific Bell Co., 789 F.2d 1451, 1453 (9th Cir. 1986); Vance v. Whirlpool Corp., 707 F.2d 483, 487 (4th Cir. 1983). Other circuit and district courts, however, have found that a stay of the federal action is appropriate when a private plaintiff sues in federal court before expiration of Section 626(d)'s 60-day waiting period. See, e.g., Dalessandro v. Monk, 864 F.2d 6, 8-9 (2d Cir. 1988) (finding that a violation of Section 626(d)'s 60-day waiting period requires stay of federal suit); Gelover v. Lockheed Martin, 971 F. Supp. 180, 182 (E.D. Pa. 1997) (same); Strange v. Nationwide Mut. Ins. Co., 867 F. Supp. 1209, 1213 (E.D. Pa. 1994) (same); Popkins v. Zagel, 611 F. Supp. 809, 812-13 (C.D. Ill. 1985); Lopez v. Bulova Watch Co., 582 F. Supp. 755, 764 (D.R.I. 1984).
The Court finds the reasoning behind the latter cases persuasive. First, cases such as Vance and Dempsey are distinguishable from the one here. In those cases, not only did the district courts allow suit to proceed before expiration of the 60-day period, but they also reached a decision on the merits. See Dempsey, 789 F.2d at 1451; Vance, 707 F.2d at 486. A stay in the district court was not an available procedure because the district court had dismissed the claims with prejudice on the merits. Here, there is no decision on the merits, so that a stay could be used to ensure that the EEOC has a full opportunity to conciliate the claim before litigation on the merits is permitted.
In addition, Supreme Court precedent supports the Court's finding. In Oscar Mayer Co. v. Evans, the Court considered 29 U.S.C. § 633(b), a provision of the ADEA that prohibits an aggrieved party from suing in federal court before the expiration of 60 days after proceedings have been commenced under state law. 441 U.S. 750 (1979). At the end of its opinion, the Court noted that
[s]uspension of proceedings is preferable to dismissal with leave to refile . . . "To require a second `filing' by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers[,] initiate the process.Id. at 765 n. 13 (emphasis added).
The Court then remanded the case to the court of appeals with instructions to enter an order that directed the district court to hold the plaintiff's suit in abeyance pending compliance with the ADEA's statutory prerequisites. See id. at 765.
Although the Court recognizes that the Fourth, Sixth, and Ninth Circuits have found Section 626(d)'s 60-day filing requirement jurisdictional, the Court finds that these courts have not convincingly distinguished the Supreme Court's opinion in Oscar Mayer. The Court finds no obvious distinction between the Section 633(b)'s 60-day requirement, which the Court treated in Oscar Mayer, and the one here, such that different remedies are required for a violation of each one.
In Dempsey, the Ninth Circuit found that the Oscar Mayer Court held that the 60-day waiting period in Section 633(b) was jurisdictional, and it distinguished Section 633(b)'s 60-day requirement from that contained in Section 626(d) on this ground. See Dempsey, 789 F.2d at 1452. The Supreme Court did not use the term "jurisdictional" to define Section 633(b)'s 60-day requirement, nor was that question before it. The Supreme Court did not find that Section 633(b)'s 60-day requirement was a jurisdictional prerequisite to filing suit in federal court, and it held that a stay was the appropriate remedy. See Oscar Mayer, 441 U.S. at 765 n. 13. Moreover, as noted by the Seventh Circuit, many ADEA cases use the term "jurisdiction" but apply the law of "conditions precedent." Stearns v. Consolidated Management, Inc., 747 F.2d 1105, 1111 (7th Cir. 1989); see, e.g., Rucker v. Great Scott Supermarkets, 528 F.2d 393 (6th Cir. 1976) (finding that 60-day notice requirement is "jurisdictional" but that it may be waived when "special facts" exist), rev'd in part on other grounds, Wright v. Tennessee, 628 F.2d 949, 953 (6th Cir. 1980). Based on this analysis and the lack of Fifth Circuit precedent, the Court finds that the reasoning behind the Supreme Court's decision in Oscar Mayer and the Second Circuit's reasoning in Dalessandro apply here.
The Court also notes that the Fifth Circuit has described Section 626(d)'s 60-day requirement as a "statutory precondition" to filing suit, not a jurisdictional prerequisite. See Julian, 314 F.3d at 725-26 n. 8.
Here, Reed filed an EEOC complaint, but he filed his lawsuit 23 days prematurely. Now, sixty days have passed since Reed filed his EEOC complaint. Dismissal here "would serve no purpose other than the creation of an additional procedural technicality." Dalessandro, 864 F.2d at 8. Although the EEOC has now had more than 60 days to consider Reed's claim, the Court cannot determine from the record whether Reed's premature filing hampered the EEOC's investigation of Reed's complaint. The Court therefore stays consideration of Reed's ADEA claim for twenty-three (23) days, the number of days by which his lawsuit was premature, to ensure that the EEOC has had adequate time to investigate and to attempt to rectify Reed's complaints. See, e.g., Gelover, 971 F. Supp. at 182 (staying action from date of order for remainder of 60-day waiting period to ensure that EEOC had adequate time to consider claim); Strange, 867 F. Supp. at 1213 (same). At the end of the 23-day period, either party may file the appropriate motion to lift the stay.
D. Rule 12(e) Definite Statement
Northrop also moves for a more definite statement under Federal Rule of Civil Procedure 12(e). Because the Court has dismissed Reed's Title VII claims without prejudice, and because it has stayed Reed's ADEA claim, the Court need not reach this issue.
III. Conclusion
For the foregoing reasons, the Court dismisses plaintiff Broderick Reed's Title VII claim without prejudice. The Court further stays Reed's ADEA claims for a period of twenty-three (23) days from the date of this order. The Court pretermits consideration of Northrop's request for a more definite statement under Federal Rule of Civil Procedure 12(e).