Human Rights Office would have been a futile gesture by the plaintiff. Under § 633(b), if a plaintiff's claim is not resolved by the state agency in 60 days he is free to pursue his judicial remedy. This safeguard protects a complainant from lengthy delays at the state level. Therefore, the court must also find that the plaintiff failed to comply with § 633(b).
The second jurisdictional problem concerns plaintiff's failure to file a written notice of his intent to sue with the Secretary of Labor pursuant to 29 U.S.C. § 626(d). Section 626(d) states that "no civil action may be commenced . . . until the individual has given the secretary . . . notice of an intent to file such action." The section goes on to state that the "notice shall be filed" within certain time periods. These time periods have expired in this case without the plaintiff filing a written notice of his intent to sue. Plaintiff claims that he orally notified the Secretary of his intent to sue. The defendant challenges this assertion.
Even if the plaintiff did give oral notice, it was insufficient for it has been held that the statutory provision requires written notice. E.g., Berry v. Crocker National Bank, 13 Fair Empl. Prac. Cas. (BNA) 673, 679 (N.D. Cal. 1976); Hughes v. Beaunit Corp., 12 Fair Empl. Prac. Cas. (BNA) 1564, 1564-65 (E.D. Tenn. 1976); Burgett v. Cudahy Co., 361 F. Supp. 617, 621 (D. Kan. 1973). But see Woodford v. Kinney Shoe Corp., 369 F. Supp. 911, 914-915 (N.D. Ga. 1973). Plaintiff's filing a complaint with the Department of Labor also was not sufficient to satisfy the § 626(d) notice requirements. See, e.g., Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), cert. granted, 429 U.S. 1089, 97 S. Ct. 1097, 51 L. Ed. 2d 534 (1977); Berry v. Crocker National Bank, supra, 13 Fair Empl. Prac. Cas. (BNA) at 679; Acford v. Exxon Corp., 12 Fair Empl. Prac. Cas. (BNA) 1500, 1502 (D. Conn. 1975). It is clear that the statute contemplated specific written notice of a complainant's intent to sue. The notice requirement has been held to be a jurisdictional prerequisite to suit. Hiscott v. General Electric Co., 521 F.2d 632, 633-34 (6th Cir. 1975); Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1199-2000 (5th Cir. 1975); Gebhard v. GAF Corp., 59 F.R.D. 504, 507 (D.D.C. 1973). Therefore, the plaintiff also has failed to meet this jurisdictional prerequisite.
In holding that this action must be dismissed because the plaintiff failed to comply with the jurisdictional prerequisites of sections 626(d) and 633(b), the court also has considered the particular circumstances of this case to determine whether equitable considerations might warrant special relief for the plaintiff. See Skoglund v. Singer Co., 403 F. Supp. 797, 802-804 (D.N.H. 1975); Woodford v. Kinney Shoe Corp., 369 F. Supp. 911, 915 (N.D. Ga. 1973). The court expresses no opinion on the propriety of relief from the jurisdictional requirements of the statute because the facts of this case do not warrant any relief. After contacting the Department of Labor in June of 1975, the plaintiff received a copy of a pamphlet summarizing the provisions of the ADEA from the Department. See Letter of July 16, 1975, Exhibit 6 to defendant's Motion to Dismiss the Complaint. In reference to the pamphlet, the letter from the Department specifically noted that "there are certain requirements with specific time limits governing the circumstances under which an employee may file his own suit under the Act." Thus, the court cannot excuse the plaintiff's failure to comply with the jurisdictional prerequisites imposed by the ADEA.
The second issue raised by the defendant in its motion to dismiss is the statute of limitations issue. The statute of limitations also serves as an additional factor requiring dismissal of this action. The statute of limitations for the ADEA requires that a civil action be commenced within two years of the allegedly unlawful practice, except in the case of a wilful violation where the time is extended to three years. 29 U.S.C. § 626(e) (1970) (incorporating 29 U.S.C. § 255). Here the allegedly unlawful practice occurred on June 10, 1975. Defendant contends that the statute had run before this action was filed on October 17, 1977.
On June 10, 1977 the plaintiff filed an action identical to the present one in the United States District Court for the Eastern District of Virginia. That action was voluntarily dismissed, allegedly due to jurisdictional problems, on October 17, 1977 and this action was commenced on the same day. Plaintiff asserts that the statute of limitations was tolled while the other suit was pending in Virginia. The plaintiff has not asserted that the alleged violation was wilful so as to involve the three-year period.
As the Sixth Circuit stated in Bomer v. Ribicoff :
"An action dismissed without prejudice leaves the situation the same as if the suit had never been brought. In the absence of a statute to the contrary a party cannot deduct from the period of the statute of limitations the time during which the action so dismissed was pending."
304 F.2d 427, 428-29 (6th Cir. 1962) (citations omitted). This is precisely the situation that this court is faced with, therefore, the suit in Virginia did not serve to toll the statute of limitations because it was voluntarily dismissed without prejudice to the defendant. To now hold that the action served to continue the plaintiff's rights against the defendant would, in fact, be prejudicial to the defendant. Thus, this action is also barred by the statute of limitations.
Upon consideration of defendant's motion to dismiss and the opposition thereto, in accordance with the memorandum opinion above, it is, by this court, this 16th day of January, 1978,
ORDERED that defendant's motion to dismiss be, and the same hereby is, granted; and it is further
ORDERED that this action be, and the same hereby is, dismissed.
UNITED STATES DISTRICT JUDGE