SHELL OIL CO. v. DARTT

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Argument of Mary T. Matthies

Chief Justice Warren E. Burger: Counsel, you may proceed whenever you are ready.

Ms Mary T. Matthies: Thank you Your Honors.

Mr. Chief Justice and if it pleases the Court.

This case involves the interpretation and application of Section 626 (d) of the Age Discrimination in Employment Act.

Section 626 (d)provides that with prior to the institution of a civil action by a private individual under the act, the individual must give 180 days notice to the Secretary of Labor of their intent to sue and then must then afford the Secretary of Labor 60 days in which to conciliate or mediate the dispute.

The issues presented here are basically two fold.

The first issue and we submit that the case could in fact be decided on a narrower ground is whether the Court of Appeals improperly intruded upon the equitable discretion of the district court in overturning the decision by the district court that the relative equities in this case did not warrant a tolling of the 180 day time period set forth in Section 626 (d).

The broader grounds is whether Section 626 (d) is a substantive jurisdictional prerequisite to suit or is more analogous to a statute of limitations and if it is more analogous to a statute of limitations and thereby subject to similar toning principles, whether the actions by Mrs. Dart brought this case within one of the recognized tolling principles.

Chief Justice Warren E. Burger: And which do you say it is?

Ms Mary T. Matthies: Obviously, Your Honor our first contention is that it is a substantive jurisdictional prerequisite to suit.

We believe that both the clear language of the statute as well as the legislative history indicate a Congressional intent to circumscribe the private right of action and to have the 180 day period not modified, except perhaps in very egregious circumstances certainly not present in the record here.

We believe that the legislative history for instance indicates that the 180 day period was not initially contained in the House Pass.

The senate included the 180 day requirement and then the house receded to the senate's request for the 180 day requirement.

The 180 day requirement was lobbied extensively for by management in order to circumscribe the right of action of individuals and in order to give we believe the Department of Labor close to exclusive jurisdiction of age discrimination cases.

Employers did not want, we believe the Congressional and legislative history says, employers did not want any private right of action to be maintained, because they could see the possibility of frivolous lawsuits being brought and frivolous lawsuits are of course expensive and it is clear that the employers clearly preferred that there would be a limited right for private action only in the first 180 day period, only if notice to the intent of sue was given in the 180 day period.

We believe also that clear statutory language which is of course the best evidence of what Congress intended sets forth that such a notice shall be filed within 180 day.

Mrs. Dartt contends, I believe alternatively, that either her oral complaint to the Department of Labor within the 180-day period satisfied or it tolled the time for her to meet the notice of intent to sue requirement within clearly her oral complaint which she stipulated and included no evidence of suing or of an intent to sue Shell.

We believe her oral complaint clearly did not satisfy the 180 day notice requirement and that Court of Appeals so found.

The Court of Appeals found, however, that the 180 day period was analogous to a statute of limitations, and therefore, could be tolled on certain equitable grounds.

We believe that even assuming that the Court of Appeals was correct in it is holding that the 180 day time period is analogous to a statute of limitations, it certainly was incorrect in finding that based upon substantial precedents by this Court that this case is or that the situation here warranted a tolling of that time period.

To recognize equitable grounds for tolling of 180 day requirement or a statute of limitations requirement, that the defendant has acted in some way to mislead or prevent the plaintiff from acting, that the plaintiff was acting under some kind of recognized legal disability or that the plaintiff was prevented by operation of law from acting to preserve their rights.

We believe the fact situation here establishes and the record so shows that all Mrs. Dartt did was she called an attorney, preliminarily after she felt that she had been discharged because of her age, the attorney did not tell her of the notice requirement.

The attorney told her to go to the Department of Labor.

She went to the Department of Labor.

The Department of Labor treated her complaint as being a complaint which could activate the administrative investigative mechanisms, did not, the Department of Labor stated that it did not consider her oral complaint to be notice of intent to sue.

In fact, it advised Shell that no notice of intent to sue had been filed and then proceeded to process a complaint.

We do not believe that these circumstances indicate Mrs. Dartt and I am stepping back just a moment, Mrs. Dartt also stated that when she went to the Department of Labor, she sat down.

I believe, I thought well, as theDepartment of Labor would handle it then why bother with an attorney, why bother with the expensive attorney.

She was asked in the district court whether she made any inquiry as what was necessary to preserve her rights, if she had inquired it any time from the Department of Labor as to what she needed to do and her answer was no that she did not, that she went to them and she thought they would take care of everything, and therefore, she had properly relied upon them to advise her of 180 day notice of intent to sue requirement which the Department of Labor did not do, but which the Court of Appeals found they had statutory obligation to do.

Unknown Speaker: Ms. Matthies, I take it there is no question or intimation of bad faith in the part of Shell here.

is it not?

Ms Mary T. Matthies: I believe there is absolutely nothing in the record that would show any bad faith or evil machinations or anything of that nature Your Honor.

Unknown Speaker: The other side of that coin is how was Shell prejudiced by the result?

Ms Mary T. Matthies: Shell was prejudice by the result, Your Honor, because it was never given early on a notice that Mrs. Dartt intended to, thought to maintain a civil action against it and the notice that the --

Unknown Speaker: But you certainly knew of her discomfiture and concern, did not you?

Ms Mary T. Matthies: I beg your pardon.

Unknown Speaker: I say you certainly knew of her discomfiture and concern?

Ms Mary T. Matthies: We knew that she had filed in or registered an oral complaint with the Department of Labor.

The Department of Labor had told Shell that she had not filed any notice of intent to sue.

So we knew that theDepartment of Labor had her complaint before it, that they were in the process of investigating her complaint.

It was in Shell's position that a complaint had absolutely no matter whatsoever and we fully believed that the Department of Labor upon a complete investigation would so find and we would be without any suit whatsoever, because we were in the posture where we had no notice of intent to sue, we were not given the opportunity within the time which Congress established to take a close look at the possibility that she was going to sue us, and therefore, look at settlement in light of nuisance lawsuit value, which may still have been to her benefit in light of possibly increased litigation expenses.

I think that anybody who has been in practice knows that when they are dealing with a client, the client is pinched when a claim is initiated, say for instance a contract claim someone writes and says you owe me such and such and so and so.

That they are not as inclined to settle that case as they are when they get a clearcut notice through the attorney calling the, the attorney for the opposing side calling the attorney for the client or through some other means where they get clear cut notice that they are going to be sued if they do not accept.

Unknown Speaker: Well, then it is your position that this period of time is a rigid limitation period?

Ms Mary T. Matthies: We believe that there is nothing inherently unfair to Mrs. Dartt.

Unknown Speaker: Then you concede there ever might be circumstances where equitable principles or otherwise might be to an opposing result?

Ms Mary T. Matthies: I concede Your Honor that in certain rather egregious situations, for instance, I think if Mrs. Dartt had been able to show that Shell had immediately upon discharging her, hurried her off and locked her up in a Mexican jail for six months and thereby she had been enable to fulfill her notice of intent to to sue requirement and we did this knowing full though that we were prohibiting her from doing that, that fundamental principles of justice would certainly, I think hold that no one can profit from and they are wrong, and therefore, the time limits could be modified in that situation, although I am not really sure in that sort of a situation.

It would even be a tolling so much as it would be an adjustment of the equities.

Justice William H. Rehnquist: Well, do not you really have three alternatives here rather than to the first being the type of limitation applies from your filing a notice of appeal from the district court to the Court of Appeals, that there just virtually are no exceptions for?

Then the second being the statute of limitations type of thing that as my brother Blackmun suggests, there might well be tolling situations that are fairly well established by law.

And the third being a sort of principle of latches which would be a good deal losing and where if the defendant could not show any prejudice you might permit them to proceed without any great showing of equitable tolling principles on their side?

Ms Mary T. Matthies: I think that yes Your Honor there would certainly be those three possibilities.

I believe that the plaintiff in fact argued in the district court, although did not continue to press that in the Court of Appeals to my recollection, that the 180 day requirement was in fact what I believe they termed as directory rather than the mandatory and that would fall into I suppose what you call the third classification of cases.

I do not really think that we can -- that this time limitation, the 180 day time limitation would fall into the third category of cases.

I think the close analogy perhaps of the 180 day requirement here to the 180 day requirement under Title VII indicates that it is in fact a jurisdictional prerequisite to suit.

The wording of the statute itself indicates that the filing of the notice for intent to sue within the 180 day period is in fact a jurisdictional prerequisite to suit.

I note in the senate report on the new possible amendments to the Age Discrimination in Employment Act that the senate when they deleted the 180 day requirement from the notice of intent to sue provision stated that they were deleting the requirement of a notice of intent to sue, which I think kind of tends to indicate that the senate -- that the 180 day requirement was a substantial requirement.

And the legislative history itself indicates that the senate considered it to be a substantial requirement when the house deleted the 180 day requirement when the senate passed bill and the senate put it right back in saying we want there to be a 180 day limitation.

So if we were to take the position here that we were going to allow any kind of tolling, for instance is the 180 day requirement, I think what we get into Your Honor is adapting on approach that the house and the senate ended up specifically rejecting, because the house bill had provided for the allowance of a filling of a notice for intent to sue any time within the statute of limitations period, the two year statue to limitations period.

And the senate said no, we want a notice of intent to suit filed within a 180 days and I think that that indicates very clearly that the Congress considered it to be a substantial requirement.

So turning back to the decisions by or the decision by the Court of Appeals.

Although the Court of Appeals did not specifically saying so, the Court of Appeals I believe followed what could be characterized as an extension of the tolling principles annunciated by this Court in Burnett v. the New York Central Railroad Company and the rationale behind the tolling allowed by the Tenth Circuit was that in this particular situation they felt that the de facto purposes, the filling of the or the registering of the oral complaint and a subsequent isolated settlement inquiry by the Department of Labor fulfilled the notice and conciliation functions of Section 626 (d), and therefore, there was no particular reason in this situation to not toll the 180 day time limitation.

We do not believe that Burnett is controlling here.

We believe that the rationale of Burnett applies to a very, very limited situations.

In the first place, Burnett dealt with an ordinary statute of limitations.

The Burnett facts were significantly different from the facts present in this particular case.

In Burnett, the defendant received all of the notice contemplated by the statute and otherwise valid complaint was issued.

There was no defect in process or in service of process.

The only defect was in venue.

The fact that there was only a defect in venue was deemed important because Congress had number one, expressed a desire for uniform time limitations by enacting the statute of limitations provisions in Philiff (ph) and to not allow tolling would have caused a substantial non uniformity in time limitations because many states as well as the federal government had savings or venue transfer provisions and that had, if the plaintiff resided in any other part of the country then where he did, in Burnett, there was a good possibility that his cause of action would have been safe.

And this Court looking at the fact that there was only a defect in venue and the fact that the Congress had indicated its desire for uniform time limitations in Philiff (ph) and also noting that the Congress had indicated a desire for saving improperly venued actions by allowing transfer, having enacted a statute to that precise effect, this court decided that there should be a tolling in Burnett.

It is also significant in Burnett that the plaintiff would have lost all means of relief.

It is also significant in Burnett that the defendant could have waived according to this Court the defect in venue.

If in fact that the Section in 626 (d) requirement is jurisdictional as we can contend then it is clear and I think the decisions of this Courts have so held that a party cannot waive a jurisdictional defect.

It cannot be waived even with consent of the parties, whereas the defect of venue in Burnett could.

There was also and I think this is probably one of the most important differences, there was a fixed time period in Burnett to which the tolling would apply so that you had clearcut periods from the time of the institution of the action to the time when the action was dismissed where you could say yes a tolling in fact occurred here.

I do not believe and I think this would be an interesting question to ask a person, I do not believe that there is any triggering period where you can say that the statute was tolled here and then starts again here, if you allow tolling for oral complaints.

You have an oral complaint filed with the Department of Labor then when does the statute to start run again.

Does it run when they actual knowledge of the notice requirement?

Can this tolling extended definitely and thereby toll the 255 two-year statute of limitations?

What is the triggering effect of that?

We also believe that the express ruling by this Court and the Unexcelled Chemical Corporation case with respect to the portal, the construction of portal to portal, time limitations indicates quite clearly that no tolling is permissible of the Section 255 two-year statute of limitations during the period of time that the Secretary is engaging in administrative investigation and conciliation functions under the Act.

We have here the portal to portal time limitations assuming that we have what could be characterized here as a statute of limitations. The plaintiff has shown no, Mrs. Dartt has shown no circumstances here or no situation here different from what this Court was presented in Unexcelled Chemical Corp and in the Unexcelled Chemical Corporation case, this Court expressly held that if Congress thought that prejudice would occur by the fact that there was no tolling at the limitation period during the time when administrative actions of the Department of Labor were being undertaken then Congress could go about remedying that particular situation.

Justice Thurgood Marshall: This act also has a two-year limitation, does it not?

Ms Mary T. Matthies: Yes Your Honor, a two-year, three-year willful, but yes.

Justice Thurgood Marshall: (Inaudible) that if you have this (Inaudible) as jurisdiction?

Ms Mary T. Matthies: Though 180 say period --

Justice Thurgood Marshall: If you have this jurisdiction, why do you lead the two-year statute limitation?

Ms Mary T. Matthies: Once the plaintiff has filed a notice of intent to sue, then the plaintiff is not required to bring suit immediately, but they must bring suit sometime within the two-year limitations provision, so the 180 day period is not a limitation provision.

Justice Thurgood Marshall: Could not I assume from that that she could be injured unless it was two years, at least Congress did not think it would be?

Ms Mary T. Matthies: I am not sure I understand the question.

Justice Thurgood Marshall: I understand that Congress said if you do not file the suit within two years, you cannot file it and the reason for that is because if you do not file within two years you would be injured, the employer would be injured.

My query is well how can you be injured before the two year, specifically at 180 day?

Ms Mary T. Matthies: We believe that we can be injured Your Honor because the employer and the Departmentof Labor Suits or an employee and the Department of Labor Lawsuit under the Age Discrimination in Employment Act are two entirely different situations.

An individual can bring a private right of action, there does not have to under Title VII standards any finding of reasonable cause by the agency.

The employee can simply file a suit, that too frivolous suit, lots of merit to it, no merit to it at all, if they act quickly to preserve that right and act within a 180 days to give their notice of intent to sue.

On the other hand, the Department of Labor is required to investigate and to weed out frivolous suits and then to bring suit itself within, also within that two-year limitation period and the fact that there is two-year limitation period in addition to the 180 day requirement, I think indicates that the 180 day requirement is there for a reason.

And we submit that the reason that the 180 day requirement is there is precisely to have the effect we just had here which is to weed out the complaints of individuals who do not act within a timely manner to assert their right to file a suit by filing a notice of an intent to sue.

We think that the arguments that that is a short of too short of time limitation are frankly addressed to the wrong branch of government when they are addressed to this Court.

In fact, we really think that the fact that they maybe short begs the question or the fact that lawsuits may be dismissed as a result of a failure to comply with the 180 day requirement, begs the question because the necessary and expected result of the short limitation is --

Justice Thurgood Marshall: You said that it may be dismissed, I thought argument was it had to be dismissed?

Ms Mary T. Matthies: It had to be dismissed.

Justice Thurgood Marshall: But you said may and you have not changed that, have you?[Laughter]

Ms Mary T. Matthies: Your Honor I have not changed.

No, I do submit that it is a mandatory requirement and I think we ought to analogize that requirement in fact to Title VII standards.

Under Title VII if a charging body does not file a charge with the ESE within a 180 days, their right to sue is lost entirely and this Court has held that that particular period which is over and above the two-year limitation on back hand to Title VII is in fact a jurisdictional prerequisite.

And I point out that the effects on a Title VII plaintiff of applying the 180 day charging requirement as a jurisdictional prerequisite are much more severe than they are here, because here Mrs. Dartt still had a remedy expressly approved by Congress.

She had instituted a complaint with the Department of Labor.

The Department of Labor could in fact act on her complaint and could in fact sue on her behalf if it were so inclined.

So the strict application of the time limitation in this particular situation is much less harsh in operation than it is to strictly apply it in the case of Title VII plaintiffs.

Chief Justice Warren E. Burger: Is the notice function in your view a large one here, that is the notice to the employers so that they can assemble, identify the facts and assemble the information promptly before it is lost, is that a large factor in --?

Ms Mary T. Matthies: I do not really think it is.

I do not really think it is.

I think that clearly in a 180 days you do not lose sight of the facts or have witnesses die or things of this nature.

I think that the 180 --

Chief Justice Warren E. Burger: But after 180 days you might.

Ms Mary T. Matthies: Well, there is my point.

Obviously statute of limitations are arbitrary and they are established to cut off rights justifiably or not, but I think that that real purpose of the 180 day requirement is in fact to let the employer know that it is going to be sued, because we all know that if you know that you are going to be sued, you are more inclined to go about settling the case in a speedy fashion.

It also acts as a trigger to the Department of Labor, to let the Department of Labor know which cases it has in its office, it needs to devote concerted conciliation activities to hear.

For instance in this case, when Mrs. Dartt registered her oral complaint, the department of labor just kind of put the case in its normal processing and to look at it and never asked Shell, even made its preliminarily cursory inquiry as to whether Shell was interested in settling until some 80 or better days after the complaint had been registered with it.

So the Department of Labor is I would as equally prejudiced as both the plaintiff and the employer are when the notice for intent to sue is not given.

Justice Thurgood Marshall: Well, how did theDepartment of Labor prejudiced, what did they lose?

What did they lose?

Ms Mary T. Matthies: The Department of Labor lost the ability to know when it got --

Justice Thurgood Marshall: But this women has lost a job, I mean, what did they lose compared to that?

Ms Mary T. Matthies: Comparable to that I am not sure.

All of the same I do believe that the Department of Labor in its administration of the Age Discrimination in Employment Act certainly needs to know when it is supposed to exert exhaustive conciliation efforts and when it is not supposed to exert exhaustive conciliation efforts.

Normally, the Department of Labor will not exert exhaustive conciliation efforts until after they have decided there is merit to the charge.

However, there is an exception to that and they will exert exhaustive conciliation efforts where they do get a notice of intent to sue.

They did not exert exhaustive conciliation efforts here because they did not know they had to, because they did not think they had a notice of intent to sue and I think that is important.

I would like to reserve the rest of my time.

Chief Justice Warren E. Burger: It is going to be a rebuttal time, now.

Very Well.

Mr. Greer?

Argument of Jefferson G. Greer

Mr. Jefferson G. Greer: Mr. Chief Justice and may it please the Court.

When Congress passed the Age Discrimination Act in 1967, they had at that time, a benefit of observing the machinery of Title VII for some three years that was passed in 1964.

They found that there had been a great deal of delay in Title VII procedures in that a person would file a charge which was required to be in writing and under oath incidentally and then the EEOC would began investigating that charge.

It would be months and months and sometimes years before they ever got their notice or their right to sue letter.

When Congress was considering that and rather than amending the 1964 Act, which they could have done very easily to cover age discrimination, they chose instead to fit it into the machinery of the Fair Labor Standards Act, put it under the jurisdiction of the Labor Department.

Now, the 60 day limitation that is a 60 day notice of intent to sue was of course put in there to trigger conciliation.

That the Congress was very heavy on conciliation because there are a great many of these cases filed, the Labor Department certainly cannot bring lawsuits on all of them and it was the intent of the Congress as shown by the records of the hearings that they certainly wanted conciliation, but further than that the 60 day notice gives a claimant a right to give that 60 day notice and then get on with his law suit.

He does not have to sit there and wait for months to wait and get this Right to Sue letter from the EEOC.

Now, the 180 day limitation I think was placed in there for the same reason, to speed up the procedure, simply to speed up the procedure.

The Congress I think showed that they wanted conciliation procedures to begin and begin speedily.

So the 180 days limitation was placed in there for that purpose.

There is nothing in the legislative history that indicates that the Congress intended the 180 day limitation to be jurisdictional.

In fact, the latest pronouncement by Senator Williams who is the Floor Manager for the Senate Passed Bill, which is now in the House Conference Committee, stated very clearly that it has never been our intent that the 180 day notice period be considered a jurisdictional requisite.

Justice William H. Rehnquist: What would you say of neither a claim nor intent to sue notice was filed within a 180 days?

Mr. Jefferson G. Greer: Now, I think that the 60 day notice, Your Honor, is a prerequisite.

Justice William H. Rehnquist: Well, it is not what I asked you.

What if neither is filed within the 180 days, neither a claim, nor a notice of intent to sue, what if nothing happens for a 180 days?

Mr. Jefferson G. Greer: For an 180 days.

Well, I think that’s too long.

Justice William H. Rehnquist: Well, then it is a jurisdictional provision, is it not?

Mr. Jefferson G. Greer: I beg your pardon?

Justice William H. Rehnquist: It is a jurisdictional provision then, is it not?

Mr. Jefferson G. Greer: Well, I think you would have to consider that if you are going to apply equity, you look at all --

Justice William H. Rehnquist: Well, there are some circumstances where the 180 days is jurisdictional?

Mr. Jefferson G. Greer: Well, there has been a great deal of confusion as to what Courts call jurisdictional and --

Justice William H. Rehnquist: Well, whether you call it jurisdictional or not, he is not going to get very far if he does not do something within 180 days?

Mr. Jefferson G. Greer: Well, I would agree with that.

Justice William H. Rehnquist: And you claim that this filing of claim is enough to toll 180 days?

Mr. Jefferson G. Greer: To toll 180 days.

Well, to filing a complaint with the Labor Department as opposed to notice to sue, yes.

Justice William H. Rehnquist: So then you would have the full two years given to you to bring an action in district court, once you file a complaint with the Labor Department?

Mr. Jefferson G. Greer: Well, depending as in this case where the complaint served exactly the same purpose as a notice of intent to sue.

Justice William H. Rehnquist: When would it not?

Mr. Jefferson G. Greer: Beg your pardon?

Unknown Speaker: When would it not?

Mr. Jefferson G. Greer: Well, I do not know that I can answer that.

Unknown Speaker: Well Congress, nevertheless, left in this act two different things, the filing of claims and the filing of letters of intent to sue, did they not?

Mr. Jefferson G. Greer: Yes.

Unknown Speaker: So the Congress did not treat them both as the same thing?

Mr. Jefferson G. Greer: No, in practical effect they have the same effect.

A complaint to the Labor Department serves, under 626 (b) serves exactly the same purpose as a notice of intent to sue.

It triggers the Secretary’s responsibility to investigate and indeed that is what happened in this case.

The Claimant filed her complaint --

Unknown Speaker: So if you file a claim within 180 days you should just forget about the notice of intent to sue?

Mr. Jefferson G. Greer: Well no, I think that the Congress certainly intended that you file a notice of intent to sue, but if it serves the same purpose, here the complaint serves the same purpose as the notice of intent to sue.

However, in this case a notice of intent to sue was filed, belatedly of course some 36 days late.

Unknown Speaker: But you would be making the same arguments if you did one day before the two years expire?

Mr. Jefferson G. Greer: Well, I do not think we can apply equity there if they waited that long.

Justice William H. Rehnquist: It is up the District Court to balance every single individual case as to how many days they waited beyond the 180 day period?

Mr. Jefferson G. Greer: Well Your Honor, that equity looks at each case individually and we have been doing that for hundreds of years when you toll a statute of limitation there has to equity --

Justice William H. Rehnquist: Well, so your answer is yes.

Mr. Jefferson G. Greer: You would look at each case, yes that is right, yes.

Justice Thurgood Marshall: I respectfully suggest that you are getting in trouble here in the phrase statute of limitations and arguing latches and they are two different animals.

You keep talking about statute of limitations and an equitable proceeding, how do you come by latches?

Mr. Jefferson G. Greer: Yes.

The legislative history if we look at the language of the statutes, the provision for the 60 day limitation is in rather absolute terms it says no civil action may be commenced until an individual is given notice and in the 180 day timing probation it says, notice shall be filed.

The Section 255 states every action shall be forever barred, quite different language than that establish the 60 day notice.

However, even that provision has been held not to always bar the actions, as held in the Humphreys case from the Tenth Circuit.

In considering this matter in committee prior to the passage or the Act, the industry spokesman there are spoke of statute of limitations and Senator Davidson (Ph) considering it referred to this as a statute of limitations.

We suggest that the usual policy of repose which is a justification for statutes limitations when it is outweighed by Justice should not be applied as this Court held in the Burnett case.

We see nothing in the legislative history to indicate that Congress intended a forfeiture of the claimant's right to file this notice within a 180 day process or a 180 day of period.

Unknown Speaker: Mr. Greer, even if you regard this as a statute of limitations and not jurisdictional in the strictest sense, there is nothing in this case which would support a fraudulent concealment type of tolling where the defendant is responsible in some way for the delay, fraudulent concealment or any other kind of context?

Mr. Jefferson G. Greer: Your Honor, there is nothing that we would rise to -- what we would call a fraud.

Now, Mr. Spear (Ph) testified that he contacted Spear the very day after -- the day that claimant made her complaint that was nine days on August, 9 following her discharge on July, 31.

Nothing happened during the negotiations and he did carry on negotiations with them until November, 27 and they told him at that time that they thought she would been lawfully discharged and no further negotiations.

She said they reached an impasse.

They did agree to furnish statistical material to them at that time, but as of March the 5, of 1974, he still had received nothing that he had requested from Shell Oil.

So yes they did drag their feet on furnishing the material which he had requested.

So I think we can easily assume that had he got the material timely, he could have notified plenty before the March, 5 that she had this right to sue, which he never told them before as he stated on the hearing there himself, he blew it.

He said, he just did not give her the – did not tell her about the notice of the right to sue.

Unknown Speaker: The two people who failed to advise her of the right to sue of the notice requirement, her lawyer and the Department of Labor?

Mr. Jefferson G. Greer: Well, as a Bridge Club member, a lady lawyer there that she consulted, told her to go to the Labor Department and the Labor Department, yes, they did not inform.

Unknown Speaker: Yes should it be -- should the rule be that whenever an employee consults either a government representative or a lawyer and fails to be properly advised that then you toll the statute, is that the rule?

Mr. Jefferson G. Greer: I think that is certainly one of the things that you can look at.

Unknown Speaker: Is there precedent for that kind of tolling?

Mr. Jefferson G. Greer: Well, in thinking of Love v. Pullman where the claimant filed, under Title VII action, the claimant was supposed to file a action in the state agency, instead filed with the federal agency.

Now, there never was any claim of any nature filed with the state agency.

The federal agency orally advised the state agency that they were holding that claim in abeyance and after which the state agency said, well, we are not going to do anything so proceed.

So acting upon, at most you could say was that had oral notice from another government agency and that the claimant never made any notice at all and the Court there said this serves the purposes of the Act and they held that that was alright.

They said too technicalities were particularly inappropriate where a layman initiate the process.

Unknown Speaker: Well, is it not your principle argument then that she complied in substance with a 180 day requirement rather than that the requirement is tolled, they are two quite different arguments?

Mr. Jefferson G. Greer: Well, she -- I think you can justify it either way.

I think there are circumstances here that that would justify tolling the 180 days, but I think that the complaint to the Labor Department served exactly the same purpose as the notice of the intent to sue.

Shell has never been hurt here because they never intended to negotiate anyway.

After the notice of intent to sue was served, out of an abundance of caution Mr. Spear again started negotiations and attempted to deteriorate them on as he had before.

He was rebuffed by Shell.

They never wanted to settle.

We cannot say how their position was any different at that point then it was when he originally attempted to negotiate based on the complaint.

Unknown Speaker: And I suppose you are hurt whenever you do not get the benefit of the statute of limitations defense that you think you are entitled to.

They got to defend a law suit instead of moving to dismiss on the 180 day ground?

Mr. Jefferson G. Greer: Yes Your Honor, and it is interesting to note that when Shell Oil company had notice of this complaint, they were on notice that this Labor Department could bring an action at any time and did not have to wait for any notice of intent to sue.

They could be sued at any time.

So can they seriously contend that we do not know we are going to be sued when the Labor Department is investigating a complaint against them.

They have notice that they could be sued, either by the Labor Department or by the claimant.

Unknown Speaker: Yeah, but they are not being sued by the Labor Department.

They probably were satisfied that they would not get sued by the Labor Department?

Mr. Jefferson G. Greer: Well, the Labor Department could file it any point of time within two years.

Unknown Speaker: They could if they thought there was merit to the charge?

Mr. Jefferson G. Greer: Yes.

They had not at that point determined it and they never told Shell, we are not going to sue you.

There was never any such statement to Shell, so they could not rely on that.

It is interesting to note that the Labor Department charged with the administration of this Act had since its passage in 1967, taken the position that this was non jurisdictional and Mr. Spear testified that only hearing in District Court and as this Court has previously said in the Griggs and Duke Power Co. case, the administration's interpretation of an Act is entitled to great difference.

We suggest that this was not a case where the plaintiff slept on alright.

She did everything that a person could reasonably be expected to do as Tenth Circuit found.

She sought out counsel.

She filed her complaint nine days after they told her that she did not have any potential because of her age and she made repeated calls to the Labor Department and asked them what is going on my law suit and to get some sort of assurance from Mr. Spear and she did what the Labor Department poster said and incidentally it did not have one word on it about any notice of intent to sue, it says if you think that you have separate discrimination go to the local Wage and Hour office of the Labor Department which is exactly what she did.

We think that every purpose of the Act was served.

The defendant had notice by virtue of Mr. Spear investigating the complaint, the Labor Department began investigation and conciliation just as an intended a notice of intent to sue and Shell has suffered.

So far we can see no damage by a 36 day delay.

Now the --

Unknown Speaker: Well, your position I take it then is that as long as you file a complaint you need never file a notice of intent to sue?

Mr. Jefferson G. Greer: Well Your Honor, our contention is that if the complaint serves the same purpose as the notice of intend to sue which it did in this case then --

Unknown Speaker: And would seem to me it always would, would it not?

Mr. Jefferson G. Greer: Well, I can conceive of situations.

There is no time limit within which the Labor Department must negotiate either under a notice of intent to sue or the complaint.

It says, I shall do so promptly whatever that means, but he is the one that, the Labor Department is the one that interprets it.

Unknown Speaker: So you are feeling would be if you file a complaint, if you file a complaint with the Labor Department within 60 days and without anything, without anymore ado you can file your law suit?

Mr. Jefferson G. Greer: If the purpose of Act is served.

Unknown Speaker: Well, I suppose the labor department gives a notice against a complaint that it is too busy and they do not try to conciliate it all?

Mr. Jefferson G. Greer: Well, I do not think you can say that the defendant had proper notice there.

He must have proper notice and of course these two cases that the defendant has relied on so heavily, Robin v. Electrical Workers and Johnson v. Railway Express, the Court pointed out there that the procedure followed in pursuing two-step remedies did not guarantee notice to the defendant.

In the Electrical Workers case, they were proceeding under the National Labor Relations Act agreements procedure, separate independent distinct action --

Unknown Speaker: Well, the purpose of it, I thought you said, was to give the Labor Department time to conciliate not to give the defendant notice?

Mr. Jefferson G. Greer: Well, it serves to trigger the investigating responsibilities of the Labor Department.

It does not say that any time limit that he has there.

Unknown Speaker: Well, suppose the department does not investigate after the claim is filed, is the claimant entitled to sue after 60 days or is he not?

Mr. Jefferson G. Greer: Well, if the defendant has notice, I do not think we can say that.

They have to have notice, but our contention here is --

Unknown Speaker: Well, they get notice when the complaint is filed, I mean, when the law suit is filed, they have plenty of notice?

Mr. Jefferson G. Greer: Well yes, but I think that is why they put the 180 days in here so that the conciliation would begin within a 180 days.

It is merely to speed up the process that was bogging down Title VII, the 60 day notice as well as --

Unknown Speaker: It sounds to me like then you are saying that there must be something filed besides a complaint with the Labor Department?

Mr. Jefferson G. Greer: Well, no I am saying that there must be notice to the defendant certainly.

I do not think that if you just file a complaint then Labor Department ever got around to it, I mean, the defendant certainly has to got to have notice that something is going on.

Unknown Speaker: So then so he must do something else besides file a complaint?

Mr. Jefferson G. Greer: Well yes, in this case the --

Unknown Speaker: And then if he files it, after that he files a notice of intent to sue, he files that to the Labor Department, does he not?

Mr. Jefferson G. Greer: Yes.

Unknown Speaker: And so then what if the Labor Department does not do anything then either?

Mr. Jefferson G. Greer: Well, he is got -- he can go ahead and bring his law suit.

Unknown Speaker: Even if the defendant does not know a thing?

Mr. Jefferson G. Greer: Well, that is true.

That is why they put the 60 day notice in.

I believe it is so that the claimant could get on with these law suit rather then waiting for the right to sue letter which is bogged down in Title VII.

They experience all kinds of delays in waiting for the right to sue letters.

I may proceed with the discussion of the Electrical Workers case, there you had two separate and distinct remedies and the claimant had attempted to proceed under the agreement procedure, whereas the Court said that that would not afford the notice to the defendant that as the proceedings under Title VII.

Likewise in Johnson v. Railway Express, you had two separate distinct statutory remedies.

One under Title VII, one under Section 1981, but in this case the plaintiff is proceeding under one statute, there is one remedy, one cause of action.

It is whether the Labor Department brings the action or whether the plaintiff brings the action.

So and since the defendant had notice, the purposes of the Act was served in all respects, we believe and we think that as the Tenth Circuit held that there was de facto fulfillment and that plaintiff should prevail.

Chief Justice Warren E. Burger: Do you have anything further counsel?

Rebuttal of Mary T. Matthies

Ms Mary T. Matthies: There were several questions which were presented to Mr. Greer that I believe warrant some further discussion.

I believe Mr. Justice Stevens asked that if there was any evidence of fraudulent concealment in this particular case and Mr. Greer responded that I guess the fraudulent concealment with the supposed of dragging of the feet by Shell with respect to furnishing information.

First place I do not think that mere dragging of one's feet would amount to fraudulent concealment under any cases that I know dealing with fraudulent concealment.

In the second place it is simply not in the evidence in the record that Shell was dragging its feet.

There were no statements made by Mr. Spear the Wage and Hour investigator stating that he thought that the delay was unreasonable.

As a matter of fact if I believe this, the statements to that effect by the Court of Appeals were no more than sheer speculation as to the reasons for the delay.

Shell on the hand presented evidence showing that the reasons for the delay was they put large amount of data which the Department of Labor wanted.

Of course if the Department of Labor had thought that the delay was unreasonable, the Department of Labor could have subpoenaed the data, which it did not do.

As a matter of fact there is no indication in the record that the Department of Labor even contacted Shell but tweaks the time that it requested the data and Shell called the Department some two-and-a-half months later to say we are working on it and we are almost through and we just wanted to let you know where we are.

I am not sure that there is any evidence in record that would establish fraudulent concealment.

Mr. Justice Stevens, also I believe asked, whether there is any precedent for tolling where the government fails to advice a plaintiff of its rights and I believe Mr Greer responded that he thought that Love v. Pullman applied to this particular situation.

I question Love v. Pullman's applicability. In first place in Love v. Pullman, there was at issue whether or not the actions of the government fulfilled the purposes of Title VII and it appeared that there was wrongful advice in fact given with respect to what needed to be done as opposed to here which was simply an omission, which Mrs. Dartt we believe could surely have corrected herself, had she made just a minimal increase, do I have to wait, look guys handling this thing any longer, or is there something else I can do, do I have any other rights, what should I do, where should I go, how do I proceed.

Mrs. Dartt did not do that.

I believe that the Mr Greer also stated that Mrs. Dartt followed everything that that ADEA poster required her to do.

In other words, she went to the Department of Labor and that is what the ADEA posters state.

I do not know how the ADEA posters difference, had it in fact included some kind of provision with respect to that would it help Mrs. Dartt because she testified before the lower court that she in fact did not see the poster and she never thought it was in fact up and so we do not believe that there is any evidence based on sheerly upon the alleged inadequacy as a poster for I told in here.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.