Opinion
Civil Action No. 04-799.
October 21, 2004
MEMORANDUM and ORDER
Defendant Rodale, Inc. contests the last count remaining in this age discrimination case, arguing Plaintiff David Taylor failed to file a timely complaint with the U.S. Equal Employment Opportunity Commission. Because we find Taylor's complaint to the Pennsylvania Human Relations Commission (PHRC) timely and because we find a filing with the PHRC is deemed a filing with the EEOC, we deny Rodale's Motion to Dismiss or, alternatively, for Summary Judgment.
FACTS
The facts relevant to the motion to dismiss are few and undisputed: Rodale is a publishing house, based in Emmaus, Pennsylvania. Taylor was editor of Rodale's Scuba Diving magazine and worked in Savannah, Georgia, where he was also fired on May 9, 2002. One hundred and sixty-six (166) days later, on October 22, 2002, Taylor filed an age discrimination complaint against Rodale with the PHRC, alleging he was over 40 and was replaced with a younger person. On February 12, 2003, the PHRC said it did not have jurisdiction because Taylor did not work in Pennsylvania and suggested Taylor contact either a Georgia agency or the EEOC. On March 13, 2003, Taylor filed a complaint with the EEOC, 307 days after he was fired.
DISCUSSION
In deciding a motion to dismiss, we must accept all well-pleaded allegations in the complaint as true, and view them in the light most favorable to the plaintiff. We may grant such a motion only where it appears the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Carino v. Stefan 376 F.3d 156, 159 (3d Cir. 2004).
Rodale styles its Motion to Dismiss as a one pursuant to Fed.R.Civ.P. 12(b)(6), failure to state a claim. The motion is more properly brought under Fed.R.Civ.P. 12(b)(1), averring lack of subject matter jurisdiction.
Under the ADEA, plaintiffs residing in states having an agency authorized to grant relief for federally prohibited employment discrimination must resort to that state remedy before they will be allowed access to federal judicial relief. 29 U.S.C. § 633(b); Oscar Mayer Co. v. Evans, 441 U.S. 750, 754-58, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979). Such states are termed "deferral" states. See Evans, 441 U.S. at 758, 99 S.Ct. 2066. Pennsylvania is a deferral state. See 43 Pa. C.S. §§ 955(a), 959; Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). An ADEA plaintiff in a deferral state must file his or her administrative charge within 300 days of the challenged employment action. 29 U.S.C. § 626(d)(2) (ADEA); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1413-15 (3d Cir. 1991) (en banc). The statutory deferral for 60 days to state agencies gives the states "at least some opportunity to solve problems of discrimination." Oscar Mayer, 441 U.S. at 757, 99 S.Ct. at 2072.
(d) Filing of charge with Commission; timeliness; conciliation, conference, and persuasion
No 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. Such a 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.29 U.S.C. § 626
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 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
Georgia is not a deferral state. Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th Cir. 2003). The Georgia statute, Section 45-19-21, covers only public employment. The federal regulation listing the deferral agencies notes the "Georgia Office of Fair Employment Practices has been designated as a [deferral] agency for all charges covering the employment practices of the departments of the State of George only." 29 C.F.R. § 1601.74 n. 6 (emphasis added).
The Georgia Code provides:
(a) The general purposes of this article are:
(1) To provide for execution within public employment in the state of the policies embodied in Title VII of the federal Civil Rights Act of 1964 ( 78 Stat. 241), as amended by the Equal Employment Opportunity Act of 1972 ( 86 Stat. 103), as from time to time amended, the federal Age Discrimination in Employment Act of 1967 ( 81 Stat. 602), as from time to time amended, and the federal Rehabilitation Act of 1973 ( 87 Stat. 355), as from time to time amended;
(2) To safeguard all individuals in public employment from discrimination in employment; and
(3) To promote the elimination of discrimination against all individuals in public employment because of such individuals' race, color, religion, national origin, sex, disability, or age thereby to promote the protection of their interest in personal dignity and freedom from humiliation; to make available to the state their full productive capacities; to secure the state against domestic strife and unrest which would menace its democratic institutions; to preserve the public safety, health, and general welfare; and to further the interests, rights, and privileges of individuals within the state.
(b) This article shall be broadly construed to further the general purposes stated in this Code section and the special purposes of the particular provision involved.
(c) Nothing in this article shall be construed as indicating an intent to exclude local or federal laws on the same subject matter, which laws are not inconsistent with this article.
(d) Nothing contained in this article shall be deemed to repeal any other nonconflicting law of this state relating to discrimination because of race, color, religion, national origin, sex, disability, or age.
Ga. Code § 45-19-21.
If Georgia is not a deferral state, then Taylor had no obligation to file with its agency. His only obligation under the ADEA was to file with the EEOC within 180 days of the alleged discrimination. 29 U.S.C. § 626(d)(1).
The ADEA requires a person to file a charge with the EEOC before initiating a civil action for age discrimination. 29 U.S.C. § 626(d). Although the ADEA does not define the phrase "filed with the EEOC," the ADEA does expressly authorize the EEOC to issue "such rules and regulations as it may consider necessary or appropriate for carrying out" the Act. 29 U.S.C. § 628. The ADEA also authorizes the EEOC to "appoint such agents . . . as [it] deems necessary to assist [it]" and to "cooperate with . . . State . . . agencies." 29 U.S.C. § 625(a) and (b). Sanchez v. Pacific Powder Co., 147 F.3d 1097, 1099 (9th Cir. 1998).
(d) Filing of charge with Commission; timeliness; conciliation, conference, and persuasion
29 U.S.C. § 626
No 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. Such a 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.
Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.29 U.S.C. § 626
The EEOC cooperates with state agencies by entering into work-sharing agreements. The ADEA authorizes the EEOC to enter into cooperation agreements with state and local antidiscrimination agencies. 29 USC § 625(b); EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 112, 108 S.Ct. 1666, 1669 (1988) (noting EEOC has entered into worksharing agreements with approximately 81 of the 109 state or local antidiscrimination agencies). Use of the regulation avoids the unnecessary burden and duplication of filing separate claims with both the state and federal agencies. Sanchez, 147 F.3d at 1099. The Ninth Circuit held "[w]hen a deferral agreement exists, the regulation regarding simultaneous filing, 29 C.F.R. § 1626.10(c), will be enforced." Sanchez, 147 F.3d at 1100.
29 C.F.R. § 1626.10 Agreements with State or local fair employment practices agencies.
(a) Pursuant to sections 6 and 7 of the ADEA and section 11(b) of the FLSA, the Commission may enter into agreements with state or local fair employment practices agencies to cooperate in enforcement, technical assistance, research, or public informational activities, and may engage the services of such agencies in processing charges assuring the safeguard of the federal rights of aggrieved persons.
(b) The Commission may enter into agreements with state or local agencies which authorize such agencies to receive charges and complaints pursuant to § 1626.5 and in accordance with the specifications contained in §§ 1626.7 and 1626.8.
(c) When a worksharing agreement with a State agency is in effect, the State agency will act on certain charges and the Commission will promptly process charges which the State agency does not pursue. Charges received by one agency under the agreement shall be deemed received by the other agency for purposes of § 1626.7 [regarding timeliness].29 C.F.R. § 1626.10.
Under a worksharing agreemeent, the EEOC and the state agency agree to cooperate in the processing of age discrimination charges. 29 C.F.R. § 1626.10(a). The agency of the deferral state and the EEOC "each designate the other as its agent for the purposes of receiving and drafting charges." Sanchez, 147 F.3d at 1099. Charges received by one agency under the agreement shall be deemed received by the other agency for purposes of timeliness. 29 C.F.R. § 1626.10(c). Charges are "filed" when "received." 29 C.F.R. § 1626.7. The worksharing agreement also provides that "each [agency] designate[s] the other as its agent for the purpose of receiving and drafting charges." McGuirk v. Eastern Gen. Ins. Agency, 997 F. Supp. 395, 397 (W.D.N.Y. 1998). In Sanchez, the Ninth Circuit held a claim filed with the state agency was timely with the EEOC. Sanchez, 147 F.3d at 1099.
A state proceeding will be deemed commenced for purposes of the ADEA as soon as the complaint is filed. Oscar Mayer Co. v. Evans 441 U.S. 750, 760, 99 S.Ct. 2066, 2073 (1979). The Second Circuit held one agency's receipt of a charge automatically initiates proceedings in both agencies for purposes of the timeliness of the charges. Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 327 (2nd Cir. 1999). The state agency's receipt of a charge was the equivalent of filing the charge with the EEOC on that date. Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 308 (2d Cir. 1996).
In this case, the worksharing agreement between the PHRC and the EEOC is in all relevant respects identical to those considered by the Second and the Ninth Circuits. The PHRC and the EEOC, "each designate the other as its agent for the purpose of receiving and drafting charges, including those that are not jurisdictional with the agency that initially receives the charges." Worksharing Agreement, ¶ II.A. Taylor's claim filed with the PHRC on October 22, 2002, is, therefore, deemed filed with the EEOC on that date.
The next and controlling step in this case is to determine whether filing in a state without jurisdiction is fatal to the EEOC claim. Our analysis begins with the relationship between the federal and the state filings. The state does not, however, control the federal cause of action. Even if the state's jurisdictional deadline has passed, the federal right of action continues. Oscar Mayer, 441 U.S. at 759, 99 S.Ct. at 2073 (holding nothing in the federal statute requires the complainant to commence proceedings within the 120 days allotted by Iowa law).
In this case, Taylor filed with a state agency, the PHRC, giving the state the requisite opportunity to act. The question then narrows to what action the state must take to satisfy the exhaustion requirement to preserve the federal cause of action.
If the state is unwilling to act, federal action is not foreclosed. Davis v. Calgon Corp., 627 F.2d 674 (3rd Cir. 1980), cert. denied, 449 U.S. 1101. Individuals should not be penalized if states decline, for whatever reason, to take advantage of the opportunity to adjudicate a claim. Pacific Maritime Assn. v. Quinn, 465 F.2d 108 (9th Cir. 1972). Failure to file in the state is not automatically fatal. Rogers v. Atwork Corp., 863 F. Supp. 242 (E.D. Pa. 1994). A state procedural default cannot foreclose federal relief. Roth v. Rhode Island Hospital Trust National Bank, 848 F. Supp. 15 (D.R.I. 1994) (failure to notarize charge sent to state). An employee exhausted state remedies when the state immediately terminated a filing on grounds it was not timely and so was properly in federal court. Callan v. Pepsi-Cola Bottling Co. of Topeka, Inc., 801 F. Supp. 448 (D. Kan. 1992). When a state agency rejects a claim for lack of jurisdiction, state action is exhausted and the claim is ripe in federal court. Quinn v. Bowmar Pub. Co., 445 F. Supp. 780 (D.C. Md. 1978).
The sections of the ADEA that provide for a 300-day time period clearly refer to the state in which the alleged unlawful practice occurred, not the state in which the EEOC charge was filed. 29 U.S.C. §§ 626(d), 633(b); see also 29 C.F.R. § 1626.7(b). The language of Title VII, while not as clear as the language of the ADEA, also suggests that only the state in which the discrimination allegedly occurred is relevant for determining whether the 300-day or the 180-day limit should apply. 42 U.S.C. §§ 2000e-5(c), (e)(1) (1994).
Two cases have held that filing in the wrong state was fatal to the claim. In the first, the EEOC erroneously deferred to California and the Fourth Circuit held the employee's claim was barred for failing to file in West Virginia. Cornett v. AVCO Financial Services, 792 F.2d 447 (4th Cir. 1986). In Cornett, the claimant filed a complaint with the West Virginia office of the EEOC, which transferred the charge to California because the employer had its principal place of business and home office there. Cornett, 792 F.2d at 448. The transfer was erroneous and the Fourth Circuit held the claimant's federal action was barred by his failure to file a state claim. Cornett, 792 F.2d at 448. A district court in Michigan also held Section 633(b) requires the party to file with a state agency in the right state. DePriest v. Seaway Food Otwn, Inc., 543 F. Supp. 1355 (E.D. Mich. 1982).
Following the DePriest decision, Van Atta v. Kal-Aero, Inc., 555 F.Supp. 912 (W.D.Mich. 1983), was decided, holding "a grievant need not file timely with the state agency in order to proceed under 626(d)(2)." Id. at 916.
Both cases are distinguishable from this case because in each case, the proper state was a deferral state, in which the claimant had not filed. In this case, the proper state, Georgia, is not a deferral state. There is no requirement to file in Georgia. This case can, therefore, be distinguished from those cases which hold that failure to file with the state agency or that filing with the wrong state agency is fatal. Since there is no requirement to file in Georgia, a mistaken filing in Pennsylvania cannot be fatal.
There is no requirement that a charge be filed with an EEOC office located in the state in which the alleged discriminatory acts occurred. The regulations under Title VII specifically provide that "[a] charge may be made in person or by mail at the offices of the Commission in Washington, DC, or any of its field offices or with any designated representative of the Commission." 29 C.F.R. § 1601.8. The regulations under the ADEA are similar. 29 C.F.R. § 1626.5. An EEOC office in one state can refer a charge to a state agency in another state, if it is appropriate to do so. 29 C.F.R. §§ 1601.13(a), 1626.9(a). An EEOC office can also transfer a charge of discrimination to another EEOC office for investigation. wGripper v. ATT, 1997 WL 282214, 6 (S.D.N.Y. 1997).
Taylor filed his discrimination charge with the PHRC. A charge filed with the PHRC is deemed filed with the EEOC. A bar to state action does not foreclose federal consideration. The EEOC may freely transfer a complaint to the appropriate office. Since Georgia is not a deferral state, the ADEA allows only 180 days in which to file a complaint about the conduct of a private employer in that state. Taylor filed his complaint within 166 days of his firing, the alleged act of discrimination. Therefore, his complaint is timely. Accordingly, we will enter the following:
We need not consider Taylor's argument that equitable tolling applies to make his complaint filed with the EEOC on the 307th day timely.
ORDER
And now this 21st day of October, 2004, it is hereby ORDERED that Defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or in the alternative pursuant to Fed.R.Civ.P. 56 is DENIED.