Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 14 EPD ¶7625, W.J. Usery, Jr., Secretary of Labor, United States Department of Labor, Plaintiff v. Gilbarco, Inc., Defendant., (Feb. 22, 1977), (Feb. 22, 1977)

W.J. Usery, Jr., Secretary of Labor, United States Department of Labor, Plaintiff v. Gilbarco, Inc., Defendant.

United States District Court, Middle District of North Carolina, Greensboro Division.Civil Action No. C-76-78-G, February 22, 1977

Age Discrimination in Employment Act of 1967

Court Procedures and Practices--Age Discrimination--Prerequisites to Suit--Conciliation--Evidence--Production of Documents.

--A 53-year-old age bias complainant who alleged he was discriminatorily discharged was found to have fulfilled his statutory obligation of attempting conciliation within the meaning of the Act prior to the institution of legal proceedings. Those prerequisites having been met, it was concluded the charged party’s motion to compel production of documents was proper and should be allowed.

Back references.-- ¶2183.30 , 2276 .

Alfred G. Albert, Acting Solicitor of Labor, Marvin Tincher, Regional Attorney, and Frank Steiner, Attorney, for Plaintiff.

Daniel M. Shea (Smith, Currie & Hancock), Atlanta, Georgia, and Thornton H. Brooks (Brooks, Pierce, McLendon, Humphrey & Leonard), Greensboro, North Carolina, for Defendant.

Gordon, Ch. J.: This matter is before the Court for a resolution of the defendant’s motion for a determination of whether the plaintiff has fulfilled its statutory duty of attempting conciliation within the meaning of the Age Discrimination in Employment Act prior to the institution of these legal proceedings and the defendant’s motion to compel the production of documents. For the reasons that follow, it is concluded that the plaintiff has established a facial showing of compliance with the conciliation requirements of the ADEA, and further, that the defendant’s motion to compel production of documents should be allowed.

On February 11, 1976, the plaintiff instituted this action under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§621-634, to enjoin the defendant from violating the provisions of the ADEA and the Fair Labor Standards Act of 1938, and to secure employment, reinstatement and the payment of all amounts due including liquidated damages for any individual damages caused by the defendant’s alleged discrimination.

Conciliation Requirements

It appears to the Court that the procedure employed by the defendant to test the sufficiency of the plaintiff’s conciliation efforts is awkward. Rather than asking this Court to determine whether the plaintiff has fulfilled its statutory duty of attempting voluntary compliance with the Act and then filing a motion to dismiss based upon their failure to secure such compliance, it is believed that a simple procedure would have been to file a motion to dismiss encompassing these same grounds. However, the defendant chose to follow the course stated above, therefore, the Court will proceed to rule accordingly.

Section 626(b), Title 29, U.S.C., states, in substance, that the Secretary of Labor shall attempt to effect voluntary compliance with the requirements of the ADEA through informal methods of conciliation, conference, and persuasion prior to the institution of any action under the Act. From this language it is clear that the Secretary must initially employ an affirmative effort toward informal settlement of the controversy. Failure to comply with the requirements of section 626(b) are grounds for dismissal of the action. Brennan v. Ace Hardware Corporation, [7 EPD ¶9257 ] 495 F.2d 368 (8th Cir. 1974).

Before instituting an action to enforce the provisions of the ADEA, the Secretary must comply with a two-fold obligation created by the Act. First, the Secretary must investigate the alleged violation, and second, attempt conciliation with the company. The question for the Court to decide is whether the plaintiff has complied with the above statement of the law.

Initially, the Court observes that the parties are in complete disagreement over the action taken by the Secretary to secure informal compliance with the Act. From the affidavits and exhibits filed in this action, it appears that the plaintiff will have no problem establishing that it has complied with the necessary requirements of conciliation, however, inasmuch as this matter is before the Court on a pre-trial motion for a determination of the conciliation efforts taken by the plaintiff, it goes without saying that the plaintiff’s version of the events must be taken as true in judging the extent of conciliation between the parties.

The Court has thoroughly reviewed the briefs of the parties, the affidavits filed in this action and counsel’s arguments to this Court. It is concluded that the plaintiff has made a sufficient showing of compliance with the Act to withstand any motion to dismiss on those grounds at this stage of the proceedings.

The Court observes that this matter should be finally disposed of on motion for summary judgment. Inasmuch as this is a jurisdictional question for the Court to decide, there is no good reason why the parties cannot present their case on this question after an appropriate period of discovery and a motion directed toward the same.

Motion to Compel Production of Documents

The defendant has moved pursuant to Federal Rule 37(a) of the Rules of Civil Procedure and Local Rule 21(j) for an order compelling the plaintiff to disclose Subsection 52s20 entitled “Alternative procedure-- “conciliation” --ADEA complaints and notices of intent to sue” to plaintiff’s Field Operation Handbook which the plaintiff has refused to disclose in discovery. The plaintiff has submitted the contested document for in camera inspection by the Court.

At the outset, the Court feels that it is being used as a referee in a contest of wills between the parties. The document in question has been previously disclosed by the Secretary in a prior suit. Brennan, supra. Furthermore, it would appear from reading the defendant’s motion that they already have a copy of the contested section from the Secretary’s handbook inasmuch as they refer to it in exact terms--to the last comma, period, dash and quotation mark. Consequently, the Court has trouble understanding why the parties have been unable to reach an agreement on the disclosure of this document. However, the Court has examined the arguments presented in the parties’ briefs and concludes that the document is a proper subject for production under the liberalized construction of the Federal Discovery Rules.

The Court has examined the contested document and observes that it is merely a summary of an optional procedure for conciliation by the Secretary in Age Discrimination cases. These procedures are not binding on the Secretary and do not have the force and effect of law or regulation. Brennan, supra. The determination of whether the Secretary has complied with the conciliation requirements of the Act is solely a question for the Court to be evaluated from the facts present in this case. The procedure set forth in the plaintiff’s handbook is not material or relevant to this inquiry. However, the document would have some relevance in determining the credibility of the parties’ differing stories concerning the conciliation procedures actually performed in this case. Therefore, the Court concludes that the document is subject to production and the Court so orders.

If the plaintiff feels that the disclosure of this document would substantially impair its ability to investigate and encourage compliance with the ADEA they should seek an appropriate protective order limiting the dissemination of the contested material.

Order

It is ORDERED that the defendant’s motion for a determination that the plaintiff failed to comply with the conciliation requirements of the Act is denied, and further, that its motion for production of documents is allowed.