The opinion of the court was delivered by: HOGAN
Thomas F. Hogan, U.S. District Judge
MEMORANDUM OPINION AND ORDER
This is an action on a motion to dismiss a complaint alleging violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. Defendant, Stephenson Inc., claims that plaintiff's complaint should be dismissed pursuant to Rule 12(b)(1), (2) and (4) of the Federal Rules of Civil Procedure for insufficient service of process, lack of jurisdiction over the defendant and lack of subject matter jurisdiction. Plaintiff, Viola Dixon, argues that this Court has both personal and subject matter jurisdiction.
Plaintiff, a Maryland resident, alleges that defendant, a corporation operating a printing plant in Alexandria, Virginia and registered to do business in Washington, D.C., wrongfully terminated her employment due to age. She claims that three younger workers were retained while she was dismissed without cause and that one younger worker was recalled after being initially discharged. Defendant asserts that plaintiff's work was unsatisfactory and inadequate. According to plaintiff, defendant never informed her of any problems while she was employed.
Plaintiff filed her original charge on December 19, 1983 with the District of Columbia's office of the Equal Employment Opportunity Commission (EEOC). Her complaint was then forwarded to the EEOC office in Baltimore, Maryland. At this point plaintiff was advised that she must wait sixty days before commencing civil suit. 29 U.S.C. § 626(d). On May 16, 1984, the EEOC informed plaintiff that the office had discontinued its processing of her complaint. Plaintiff commenced this suit pro se on June 6, 1984. This Court appointed counsel to represent plaintiff.
Proper service of process may be accomplished pursuant to the laws of the State in which the district court is held, or by mailing a copy to the person to be served, or by delivering a copy of the complaint to an officer or authorized agent of the corporation. Fed.R.Civ.P. 4(c)(2)(C)(i) & (ii), 4(d)(3). Generally the complaint may be served only within the territorial limits of the State in which the federal court sits. Fed.R.Civ.P. 4(f).
Defendant claims that the service of process employed here was improper. The Court agrees. The United States Marshal mailed the complaint directly to defendant in Virginia, rather than to the agent in the District of Columbia. This form of service does not comply with either the Federal Rules of Civil Procedure outlined above or with the D.C. Code requiring service on the agent directly at his place of business or residence in the District if the agent cannot be found or is absent. D.C. Code § 13-334. It is undisputed, however, that defendant received timely notice of this suit and did in fact respond. In light of this response and in light of the fact that plaintiff initiated this case pro se, this Court finds dismissal of the case for insufficient process to be unwarranted. See Hill v. Sands, 403 F. Supp. 1368 (N.D. Ill. 1975). The appropriate remedy is to allow amended service of process.
Subject Matter Jurisdictional Claim
At the heart of this motion to dismiss is the issue of whether this Court lacks subject matter jurisdiction because plaintiff failed to first file her complaint with the Fairfax County Human Rights Commission (FCHRC). Defendant alleges that under Section 14(b) of the ADEA plaintiff must try to resolve the dispute at the local level by filing with the appropriate state fair employment practice agency.
Plaintiff agrees with this contention but argues that the Fairfax agency does not qualify as a deferral state agency within the meaning of ADEA. It is undisputed that plaintiff did not file with any state agency prior to commencing this suit.
The Supreme Court in Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 60 L. Ed. 2d 609, 99 S. Ct. 2066 (1979), held that "under § 14(b) of the ADEA, as under § 706(c) of Title VII [of the Civil Rights Act of 1964], resort to administrative remedies in deferral states by individual claimants is mandatory - not optional." The state proceedings, though, need not be commenced within the time limits of the state law. Id. at 753. Deferral states under the ADEA must meet two requirements: "1) the State must have a law prohibiting age discrimination in employment, and 2) there must be a state agency authorized to seek relief for individuals suffering age discrimination." Simpson v. Whirlpool Corp., 604 F.2d 997, 999 (6th Cir. 1979); see Mizrany v. Texas Rehabilitation Commission, 522 F. Supp. 611 (S.D. Tex. 1981); Goodman v. Board of Trustees of Community College District, 498 F. Supp. 1329 (N.D. Ill. 1980).
Plaintiff first argues that Virginia has no law prohibiting age discrimination and therefore fails the first requirement of a deferral state for purposes of Section 633(b).
The Court agrees. Without a state prohibition on age discrimination, plaintiff had no state law in which to resort for a remedy.
Defendant, though, relies on the comparison the Supreme Court made in Oscar Mayer of Section 14(b) of the ADEA with Section 706 of Title VII to argue that Virginia is a deferral State. The EEOC has expressly certified the FCHRC as a "§ 706 deferral agency." 29 C.F.R. § 1601.74. Plaintiff, however, notes that the EEOC regulations concerning referral to and from State agencies for all ADEA charges does not list Virginia as a State to which ADEA claims may be referred. 29 C.F.R. § 1626.9. While Title VII and ADEA claims are similar, they are not identical, and this lack ...