An Age-Old Dilemma : Government Foul-Up Imposes Heavy Burden on Bias Victims

Times Staff Writer

Month after month, for 3 1/2 years, Charles E. McHeag would check in with the Baltimore office of the Equal Employment Opportunity Commission, hoping for news about the age discrimination charge he'd filed against Goodyear Tire & Rubber Co.

The answer was always pretty much the same: We're working on it. Once he was called in to meet with a company lawyer. Just last June, the 64-year-old career tire salesman spent four hours at the EEOC writing a sworn account of his alleged mistreatment by Goodyear.

Finally, last month, the federal agency had some news for McHeag. Extraordinary news.

The EEOC had fouled up his case, hopelessly and irreversibly. Dorothy Mead, the head of the Baltimore office, explained to McHeag that the agency had let the complaint "slip through the cracks."

There was ample evidence of discrimination--a top EEOC official at the time had called McHeag's complaint the most egregious example of age bias he had ever seen. But Mead said the agency had allowed the statute of limitations for taking legal action against Goodyear to expire. And it was too late for McHeag to file suit on his own. She was sorry, Mead said, but McHeag had no legal recourse against his employer of 33 years.

Hearing in Congress

McHeag's anger was matched only by his frustration. "I was completely stunned and totally shocked," the Ellicott City, Md., man said. "I was under the impression the EEOC was handling my case totally. The net (result) of the whole thing is I'm sitting out in left field, and it's cold out here--very cold."

The salesman's case is one of some 900 age discrimination complaints that EEOC Chairman Clarence Thomas early this month acknowledged the agency had botched through mismanagement and inattention. Thomas disciplined several of the commission's field directors, ordered them to implement systems to prevent more of such blunders and vowed to fire any official who allowed further cases to miss deadlines for legal action.

But the agency's critics are skeptical that the commission is doing all it can to correct the problems.

The House Select Committee on Aging has scheduled a hearing Thursday morning to listen to McHeag's story and others' and to demand more information from Thomas about the botched cases. Meanwhile, lawyers in one case charging widespread age discrimination say the agency is hampering their efforts to unscramble a foul-up that could deprive 75 individuals of their legal rights.

And victims of alleged age bias with complaints pending at the commission are wondering, in light of the disclosures, if they can count on the government to protect their interests.

Robert C. Miller of Torrance, for instance, said the agency's Los Angeles district office told him last week that it would be another one to four months before an investigator could be assigned to the age bias complaint he filed last February.

That, he notes, could leave the agency as little as seven months to look into the complaint before confronting the two-year statutory deadline for taking court action against his former employer, International Light Metals of Torrance.

"Why even have the dang thing, if it's gonna take them two years even to look at your case?" Miller groused.

High Cost

Under the Age Discrimination in Employment Act, Miller could have filed a suit on his own 60 days after lodging his complaint with the commission, and he still can up until the two-year deadline. But the commission typically closes its investigation of a case once a complainant goes to court. For Miller--and many other victims of alleged bias, according to attorneys--that makes it untenable to file a private suit before the commission completes its inquiry.

"For me to go in without them having investigated the case and hire a lawyer, it would cost me three grand, and I don't have three grand right now," the 66-year-old former systems analyst said.

Los Angeles District Director Judith Keeler, whose office was responsible for about 100 of the 900 botched cases, acknowledged that the wait locally for an EEOC investigation has often been more than a year. Efforts are under way to trim the delays, she said. But with 5,000 cases pending, with another 2,400 or more filed every year and with Congress' recent trimming of the agency's budget request, immediate processing of complaints is impossible, Keeler said.

"Some people are going to have to wait, just because of our inventory," she said.

Information Withheld

In Tampa, Fla., two attorneys complain that the commission has refused to tell former employees of Joseph E. Seagram & Sons about a privately filed class-action age bias suit against the distiller, even though the agency has effectively missed the deadline for filing a suit of its own.

The attorneys, Edward E. Fessenden Jr. and Allen M. Blake, said 23 former Seagram's sales executives who lost their jobs in a January, 1985, reorganization, have signed up as plaintiffs in the suit, which is pending in U.S. District Court in Tampa.

Seagram has denied the bias charges in court filings. But the lawyers figure they have a strong case. Seagram's president, they note, was quoted in the Wall Street Journal at the time of the reorganization as saying the firings reduced the average age of the company's sales staff by a decade and left the firm with "an aggressive group of young Turks" who would "relate well" to Edgar M. Bronfman Jr., then 29, the son of company Chairman Edgar M. Bronfman.

The EEOC opened three separate investigations of its own into the firings. The first, into a complaint filed by James J. Mann, once in charge of Seagram sales managers in 11 states, was closed when Mann took it upon himself to file the lawsuit in Tampa just as the two-year statute of limitations was about to expire.

"The door would have been closed forever if I had not opted to open the civil case and close the EEOC investigation," said Mann, who was familiar with the agency's rules from writing the equal opportunity manual for his sales division at Seagram.

Willfulness Hard to Prove

The commission issued findings of discrimination in two other cases, including a companywide investigation of Seagram that found evidence of age bias against about 100 sales executives who lost their jobs in the reorganization. But the inquiries were not completed until Oct. 29--more than nine months after the two-year deadline had passed.

That left two options for the 75 or so apparent discrimination victims not already participating in the Tampa suit.

They can wait to see if the commission files a separate lawsuit under a provision in the age bias law that establishes a deadline of up to four years in cases of "willful" discrimination. Recent Supreme Court decisions, however, have made "willfulness" nearly impossible to prove, according to lawyers familiar with age discrimination law.

Their other option: to join the Tampa case. But the 75 former liquor salesmen apparently don't know about the lawsuit. The commission has refused to release the former Seagram workers' names to Fessenden and Blake or to inform the workers of the existence of the Florida litigation.

Lack of Recourse

Blake said he could face a malpractice charge, as a private attorney, for allowing the statute of limitations to expire on a client's case. "The EEOC, on the other hand, can basically lull people into thinking they're representing them, let the statute of limitations pass and then walk away unscathed," he said.

Joseph R. Esquibel, enforcement manager in the commission's Denver office, declined to answer questions about the Seagram investigations, noting that federal law prohibits discussion of cases until the agency has filed a suit in court.

Routinely, he said, age bias complainants are told about the two-year court deadline at the time they file a charge with the agency. But Esquibel acknowledged that the warning may not register with people who have just lost their jobs.

Later, as the deadline approaches, his office is wary to remind people about the statute of limitations, for fear of appearing to be recommending that the client go to court. "It may be the wrong advice or it may be problematical," Esquibel said.

Similarly, he said, commission staff members do not routinely inform complainants about private lawsuits in which they might be eligible to participate.

"That would make us like an arm of the court, and we're not," Esquibel said.

Repeatedly Demoted

McHeag's case against Goodyear was especially frustrating. It was botched despite having come to the attention of a one-time commission executive who is a personal friend of McHeag's.

The Wharton School graduate joined Goodyear in 1951 as a store trainee and worked his way up to a post as an assistant district sales manager, earning more than $75,000 per year.

But in the early 1980s, McHeag says, he was working for a supervisor who did not like him. "The first thing he told me was, 'You're too old for this job; I'm going to get rid of you and put somebody younger in your place,' " McHeag recalled.

He was repeatedly demoted, until he was told in December, 1983, that his sales territory was being eliminated and the company had no other job for him. At his managers' urging, McHeag accepted early retirement--only to be offered jobs, he says, by five other firms in the tire business.

Goodyear officials could not be reached for comment on the bias allegations.

After hearing the story a few months later, McHeag's friend, Thomas L. Saltonstall--then the director of the commission's Boston office and formerly a top official at the agency's Washington headquarters--encouraged him to file a complaint. Later, Saltonstall, who resigned from the agency in 1985, said he twice urged Mead, his counterpart in Baltimore, to pay special attention to the case.

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