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April 11, 1973

Paul J. McGarvey, Plaintiff,
Merck and Company, Inc., Defendant

Fisher, District Judge.

The opinion of the court was delivered by: FISHER

FISHER, District Judge.

The question presented by these motions is one under the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec. 621 et seq. Plaintiff McGarvey alleges in the complaint that the defendant dismissed him from employment on November 13, 1970 after twenty-one years of service because he was fifty-nine years old. Plaintiff was employed as the manager of the laboratory and office services of defendant's plant in West Point, Pennsylvania. Plaintiff seeks both injunctive and compensatory relief as provided under the Act.

 On April 20, 1971 plaintiff notified the United States Secretary of Labor, pursuant to 29 U.S.C. Sec. 626(d), of his intent to sue the defendant. Plaintiff filed his complaint with this Court on March 2, 1972, but did not allege that he had filed a complaint with or commenced proceedings before the Pennsylvania Human Relations Commission pursuant to 43 P.S. Sec. 951 et seq. Under Pennsylvania law, plaintiff had ninety days from the date of the alleged discriminatory act to proceed before the Human Relations Commission. 43 P.S. Sec. 959.

 In its answer defendant contends, inter alia, that 29 U.S.C. Sec. 633(b) *fn1" bars this action because plaintiff failed to proceed before the Pennsylvania Human Relations Commission. Plaintiff moves to strike this particular defense. Defendant moves for judgment on the pleadings on the basis of this defense. Thus, the narrow issue presented is whether 29 U.S.C. Sec. 633(b) requires plaintiff to allege prior resort to state statutory remedies before commencing suit in this Court.

 Plaintiff argues the language of Section 633(b), that no suit may be brought before sixty days after state proceedings have commenced, does not imply that state proceedings must be brought prior to filing suit in federal court. Plaintiff theorizes that this language provides a choice of federal or state remedies. *fn2" In his view, Section 633(b) applies only when a state proceeding has already begun but does not deal with the situation where no state proceedings have commenced.

 Defendant relies upon the cases which interpret 42 U.S.C. Sec. 2000e-5(c), *fn3" an analogous provision of Title VII of the Civil Rights Act of 1964, to require primary resort to state remedies as a jurisdictional prerequisite. Love v. Pullman Co., 404 U.S. 522, 525-526, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972); Equal Employment Opportunity Commission v. Union Bank, 408 F.2d 867, 869 (9th Cir. 1968); Stebbins v. Nationwide Mutual Insurance Co., 382 F.2d 267, 268 (4th Cir. 1967), cert. denied, 390 U.S. 910, 19 L. Ed. 2d 880, 88 S. Ct. 836, reh. denied, 390 U.S. 976, 88 S. Ct. 1061, 19 L. Ed. 2d 1199 (1968); Motorola, Inc. v. Equal Employment Opportunity Commission, 460 F.2d 1245 (9th Cir. 1972); Oubichon v. North American Rockwell Corp., 325 F. Supp. 1033, 1036 (C.D. Calif. 1970); cf. International Brotherhood of Electrical Workers v. United States Equal Opportunity Commission, 398 F.2d 248, 252 (3d Cir. 1968) cert. denied, 393 U.S. 1021, 21 L. Ed. 2d 565, 89 S. Ct. 628 (1969). Many of these cases concern the filing requirements under Title VII when unfair employment practice charges are before both a state agency and the federal agency, the Equal Employment Opportunity Commission (EEOC). See, e.g., Vigil v. American Tel. & Tel. Co., 455 F.2d 1222 (10th Cir. 1972); Fix v. Swinerton and Walberg Company, 320 F. Supp. 58 (D. Colo. 1970). When such charges are presented to both federal and state agencies, it is clear that Congress intended state agencies be afforded the first opportunity to redress alleged unfair employment practices. Abshire v. Chicago and Eastern Railroad Co., 352 F. Supp. 601 (N.D. Ill. 1972), 5 BNA Fed. Emp. Practice Cases 296, 298 citing 110 Cong. Rec., Part 10, 13008 and 12721 (1964). Defendant argues that the reasoning of the cases *fn4" concerning Subsection 2000e-5(c) of the Civil Rights Act of 1964 should apply to Section 633(b) as well, because the language of the two sections is nearly identical and the legislative history of Section 633(b) reveals the same purpose. *fn5"

 This Court finds itself in agreement with the defendant, for there are no meaningful distinctions to be drawn between Subsection 2000e-5(c) and Section 633(b) for the purposes of this action. The language and legislative history of both provisions are substantially the same. Furthermore, to construe the statute as plaintiff suggests would create a "loophole" in Section 633(b) which flies in the face of congressional intent. Plaintiff fails to allege any resort to the appropriate state agency within the period of the state Statute of Limitations which now has elapsed. Thus, any plaintiff could easily by-pass state agencies by waiting, for whatever reasons, until after the state Statute of Limitations had expired before commencing suit in a federal forum. Congress clearly did not intend to permit such an avoidance of primary state remedies where they exist, under the civil rights act of 1964. (citation omitted) There is no evidence in the legislative history of Age Discrimination in Employment Act that Congress intended a different result in 1967. Section 633(b) should be construed to mean that plaintiff must first attempt to utilize available state remedies before filing a complaint alleging discrimination based upon age.

 It is well settled that where statutory rights are asserted in a court, strict compliance with the statute in question is a jurisdictional prerequisite to the commencement of a civil action based upon that statute. Abshire, supra, 352 F. Supp. at 601.

 Thus it is the opinion of this Court that where substantial relief against alleged age discrimination is available under state law, 29 U.S.C. § 633(b) requires the person aggrieved to pursue state remedies prior to filing a complaint with this Court. (Citing Goger v. H.K. Porter Company, Inc.,) Since plaintiff here has failed to allege or offered to establish prior resort to the appropriate state remedy, this Court lacks jurisdiction over the subject matter. Fed. R. Civ. P. 12(h) (3).

 Accordingly, it is hereby ordered that plaintiff's complaint be ...

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