United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

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A complaint may be found to be timely if the delay beyond the 180-day period is short and there is no prejudice to the defendant. OFCCP v. American Airlines, 79-OFCCP-2, ALJ Rec. Dec., June 30, 1980, slip op. at 6, aff'd, Deputy Under Secretary for Employment Standards, May 2, 1985.

An investigation by OFCCP of a complaint filed after the 180-day period has run constitutes an extension of time for good cause

shown. Id.

The 180-day time limit for filing imposed by 41 CFR 60-741.26(a) is for the benefit of the agency. The agency can waive the filing requirement and, if filing occurs, the untimeliness of the complaint. OFCCP v. Southern Pacific Transportation Co., 79-OFC-1OA, ALJ Rec. Dec., November 9, 1982, slip op. at 16-18; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Good cause for the extension of time for filing with OFCCP was shown when complainant indicated he had made a good faith effort to pursue his rights through other agencies and by consultation with an attorney, but such efforts were unsuccessful and he filed with OFCCP as soon as he learned of the availability of the Act. OFCCP v. Ozark Air Lines, Inc., 80-OFCCP-24, ALJ Rec. Dec., December 7, 1982, slip op. at 2, aff'd, Deputy Under Secretary for Employment Standards, June 13, 1986.

Analogizing to Title VII proceedings, no state statute of limitations applies to a Section 503 proceeding. Id. at 2-3, aff'd, Deputy Under Secretary for Employment Standards, June 13, 1986, slip op. at 3-4.

Even if a court borrows a state statute of limitation when there is no Federal statute, the state statute is tolled during such time as the processes of agency conciliation are at work. Id. at 3, aff'd, Deputy Under Secretary for Employment Standards, June 13, 1986, slip op. at 3-4.

An action under Section 503 is an action that primarily seeks injunctive relief and back pay and therefore is not a statutory action for a penalty but rather an action upon a liability

created by statute. Under Missouri law, an action based upon a liability created by statute has a five year statute of limitations. Id., aff'd, Deputy Under Secretary for Employment Standards, June 13, 1986, slip op. at 3-4.

The 180-day time limit for an individual to file complaints with OFCCP is for the convenience for the Government and does not constitute a statute of limitations which may be used as a bar to the filing of an OFCCP complaint. OFCCP v. Missouri Pacific Railroad, 81-OFCCP-8, ALJ Rec. Dec. and Order, March 17, 1983, slip op. at 2, aff'd, Deputy Under Secretary for Employment Standards, August 12, 1985.

The 180-day filing time period is not jurisdictional but is analogous to a statute of limitations and subject to equitable tolling. OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec. and Order, June 26, 1986, slip op. at 9, rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The restrictions of equitable tolling of the 180-day filing requirement must be scrupulously observed. Id. at 9; rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Equitable tolling of the 180-day filing time period may be applied where the defendant has actively misled the plaintiff regarding his cause of action, where the plaintiff has been prevented from asserting his rights in some extraordinary manner or where plaintiff has raised the same claim but in the wrong forum. Id.; rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

In order for the 180-day filing period to be tolled, tolling must be fair to the defendant who is required to defend against stale claims. Id.; rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The filing of a complaint by one employee does not toll the time period within which another person may file a complaint. Id. at 10; rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

When a complainant alleges two distinct claims of discrimination (denial of full-time employment and denial of reemployment) the timeliness of each charge should be analyzed separately. OFCCP v. Yellow Freight System, Inc., 82-OFC-2, ALJ Rec. Dec., September 30, 1986, slip op. at 7; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

A charge of discrimination differs from a formal legal complaint because the former is substantiated by those facts that prompt an administrative investigation. Ibid.; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

The 180-day filing information period begins to run when facts occur which should alert the reasonable person that an employer has violated the Act, not when the complainant actually knows of facts. Id. at 7, 16; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

When the complainant was told by the contractor's doctor that he would not be hired as a full-time employee, but the complainant continued to work for the contractor, then the complainant did not have sufficient information to make a charge of discrimination. Id. at 8; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

The complainant had sufficient information to make a charge of discrimination when he was told by his supervisor that the contractor would no longer need his services and this confirmed earlier statement by the contractor's doctor. Id.; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

Even if the function of particular procedural requirements of the regulations is to provide notice to OFCCP of the alleged violation, the doctrine of administrative convenience applies and failure to meet these requirements will not bar a claim under the Act. Id. at 10-11; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

Even if the function of particular procedural requirements of the regulations is to provide notice to the defendant that OFCCP has made an initial finding of discrimination and intends to act upon such finding, such as the 180-day filing deadline, a procedurally deficient claim will not be barred if administrative convenience outweighs prejudicial harm to the defendant. Id. at 11; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

OFCCP may not waive the 180-day filing requirement for administrative convenience but only for good cause. Id. at 11-12; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

The 180-day filing requirement is like a statute of limitations and is not a jurisdictional prerequisite to relief and therefore, is subject to equitable tolling. Id. at 13; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

The 180-day filing requirement is not tolled when complainant files and independent cause of action in state court. Id. at 14; remanded on other grounds, Acting Assistant Secretary Decision and Order of Remand, October 6, 1993; Consent Decree, January 31, 1994.

Although the limitations period cuts off individual complaints, OFCCP is not precluded from seeking and obtaining relief for individual violations uncovered during a compliance review where such violations are part of an overall hiring policy of a repetitious and continuous nature. OFCCP v. Texas Utilities Generating Company, 85-OFC-13, ALJ Rec. Dec. and Order, March 2, 1988, slip op. at 11, remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, August 25, 1994; Consent Decree, April 15, 1996.

OFCCP has express discretion, under the regulation, to extend the time of filing for good cause; a determination of good cause may be inferred from OFCCP's processing of a complaint even without a specific good cause determination of record. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. on Remand, August 26, 1988, slip op. at 10, remanded on other grounds, Special Assistant to the Assistant Secretary for Employment Standards, August 24, 1992; Consent Decree, February 2, 1993.

There is no time limit in the Act and the Director of OFCCP has broad discretion under the regulations to extend the time for filing a complaint "for good cause." It has been suggested, therefore, that the 180-day time limit is for the convenience of the agency and not a statute of limitations defense available to a contractor. OFCCP v. PPG Industries, Inc., 86-OFC-9, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1988, slip op. at 11, n.2; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

Assuming that the time limit in 41 CFR 60-741.26(a) is analogous to a statute of limitations, the question is whether the facts show that the purposes of a statute of limitations have been met. Id. at 11; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

A statute of limitations assures that a defendant will not have to defend against stale claims or be deprived of an opportunity to preserve evidence. In addition, where the complaint must be filed with a government agency which then must attempt to conciliate the case, a statute of limitations provides an opportunity to conciliate while the claim is still fresh. Id. at 12-13; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

It is not necessary to consider whether equitable tolling is justified, or whether there is a continuing violation, because a timely complaint was filed. Id. at 13; dismissed on APA review, PPG v. United States, C.A. No. 89-0757 JGP (D.D.C.); reversed and remanded, 52 F 3d. 362 (D.C. Cir. 1995); Consent Decree, September 24, 1996.

It is not necessary to determine whether there was a continuing violation. Each time the defendant refused to hire the complainant because of his high blood pressure constituted a separate, independent violation of the Act. Thus, the complaint was certainly timely. OFCCP v. WMATA, 84-OFC-8, Acting Assistant Secretary for Employment Standards Final Dec. and Remand Order, March 30, 1989, slip op. at 10, aff'g, ALJ Rec. Dec., June 10, 1988, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Assuming the 180-day period is analogous to a statute of limitations, the purposes of a statute of limitations have been met here. The complainant made a written complaint to his Congressman within two months of his first rejection by defendant. As the Congressman notified the defendant immediately, and OFCCP promptly initiated an investigation, the preserve relevant evidence. Id. at 10-11, aff'g, ALJ Rec. Dec., June 10, 1988, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

The filing of timely complaint with the wrong agency by a layman acting with diligence and in good faith, where there is no prejudice to the defendant, tolls the time period of a statute of limitations. Id. at 11, aff'g, ALJ Rec. Dec., June 10, 1988, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

There is considerable doubt that the general rule, that where Congress is silent on the limitations period in a statute courts will apply the appropriate local time limitation, is applicable proceedings. Id. at 11, aff'g, ALJ Rec. Dec., June 10, 1988, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Application of 57 different local statutes of limitations (see 41 CFR 60-741.2, definition of "United States") would interfere seriously with the administration and enforcement of Section 503. Id. at 13-14, aff'g, ALJ Rec. Dec., June 10, 1988, vacated on other grounds, WMATA v. DeArment, 55 EPD ¶40,507 (D.D.C. 1991).

Complainant filed a timely complaint with OFCCP because the date of the Section 503 violation was when the contractor informed the complainant that he would be terminated for medical reasons not when he was told there was no light duty available. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Assistant Secretary for Employment Standards Dec. and Order of Remand, December 5, 1989, slip op. at 5, aff'g, ALJ Dec. and Order on Motion for Summary Judgment, December 21, 1988, slip op. at 6, ALJ Rec. Dec. and Order on Remand, May 22, 1992; Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 14; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Plaintiff will prove a continuing violation if the plaintiff can sustain the allegations that the defendant's various employment decisions (e.g., placing the complainant on sick leave) were all the result of a continuing company policy. Id. at 5.

A complaint is timely with respect to a continuing violation of it alleges one discriminatory act related to the illegal policy or practice falling within the filing period. Id.

The 180-day period for filing Section 503 complaints began to run on the date the employee was informed that he was disqualified from work for medical reasons, not on the day contractor denied an appeal for back wages and reinstatement made by the union on the employee's behalf. OFCCP v. CSX Transportation, Inc., 88-OFC-24, ALJ Order Granting Motion to Dismiss, March 23, 1990, slip op. at 4; reversed and remanded, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994; case closed January 17, 1996.

ALJ declines to extend the 180-day filing period for good cause shown because the regulation at 41 CFR 60-741.26 grants such authority only to the Director of OFCCP. Id. at 6.

Contractor's letter to the complainant instructing him to utilize the letter in attempting to obtain railroad retirement benefits did not serve to equitably estop contractor from contending that the complaint was untimely filed, because the letter did not give the impression that the contractor was assuring complainant that he would receive such benefits. Ibid.

Although the complainant filed his complaint with OFCCP in April 1988, allegations of discrimination occurring before that time are not time-barred by the 180-day time period for filing complaints. OFCCP's motion to amend complaint to embrace an earlier time period constitutes an extension by the OFCCP Director of the time for filing the complaint. OFCCP v. Jefferson County Board of Education, 90-OFC-4, ALJ Order Granting Motion to Amend Complaint, November 21, 1990, slip op. at 2, Joint Stipulation of Settlement and Dismissal, May 7, 1991.

OFCCP's investigation and prosecution of a complaint received 187 days after the filing deadline is an implicit waiver by the OFCCP Director of the 180-day limit. OFCCP v. Norfolk and Western Railway Co., 90-OFC-8, ALJ Rec. Dec. and Order, July 9, 1991, slip op. at 17-18, n.4, stipulated dismissal, September 30, 1991.

The 180-day time limit for filing Section 503 complaints is not a statute of limitations affirmative defense which is waived if not raised in the answer to the complaint. OFCCP v. United Parcel Service, Inc., 88-OFC-7, ALJ Rec. Dec. and Order, August 1, 1991, slip op. at 9, stipulated dismissal, Special Assistant to the Assistant Secretary for Employment Standards Notice of Case Closing, January 14, 1992.

The 180-day time limit for filing Section 503 complaints is jurisdictional and can be raised by defendant at any stage of the proceeding. Ibid.

The 180-day time limitation for filing Section 503 complaints begins when the employee had final and unequivocable notice of an employment decision. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, ALJ Rec. Dec. and Order, May 22, 1992, slip op. at 10, affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Employee's forced leave of absence followed by contractor's notice of termination to employee had the final degree of permanence to give employee notice of adverse consequences and thus, complaint filed within 180 days of termination notice was timely. Id. at 11; Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 14; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Regulation 4l CFR 60-741.26 provides that a Section 503 complaint must filed within 180 days of the alleged violation, unless the time is extended by the OFCCP Director for good cause shown. OFCCP v. Norfolk & Western Railway Co., 93-OFC-4, ALJ Rec. Order Granting Motion for Summary Decision, August 19, 1993, slip. op. at 2; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

Because contractor posted notices regarding employees' rights under the Rehabilitation Act, ALJ is unpersuaded by suggestion that Section 503 complainant was unaware of his Section 503 rights and, thus, declines to find good cause for complainant's failure to file a timely complaint. Id. at 4; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

ALJ finds that contractor should not have been on notice of violations raised by complainant in an untimely complaint, even though several other Section 503 cases were pending against the contractor which alleged the same violations later raised by the complainant. Ibid.; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

In granting summary judgment for contractor on the grounds that complaint was not timely filed, ALJ declines to permit OFCCP to conduct further discovery on the issue of whether contractor should have been on notice of the violations prior to the late filing or whether contractor was prejudiced by the delay in filing. Ibid.; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

In granting summary judgment for contractor on the grounds that complaint was not timely filed, ALJ finds that the Director of OFCCP erred in finding good cause for the late filing because 1) the OFCCP Director erred in finding a continuing violation; 2) the complaint was filed more than two years after the alleged violation; and 3) the contractor had posted notices regarding employees' Rehabilitation Act rights. Id. at 4-5; Assistant Secretary Order of Remand for Discovery, July 20, 1995.

The Assistant Secretary held that 41 C.F.R. §60-741.26(a) providing that a "complaint [alleging discrimination under Section 503] must be filed within 180 days from the date of the alleged violation" is not jurisdictional. OFCCP v. CSX Transportation, Inc., 88-OFC-24, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994; at 7-8, n.6; case closed, January 17, 1996.

A complaint alleging a violation of Section 503 filed by a complainant with OFCCP is timely, if an incidence of a repeat violation occurs within 180 days of the filing of the complaint. Id. at 14-16.

Section 503 regulations which require the filing of a complaint within 180 days refer solely to the individual complaint filed with the Director. The regulations contain no time limits for formal administrative complaints, filed by the Solicitor with the Office of Administrative Law Judges, arising out of compliance reviews. OFCCP v. American Airlines, Inc., 94-OFC-9, Assistant Secretary For Employment Standards Decision and Remand Order,April 26, 1996, at 30-31.

The Assistant Secretary held that if an analogy is required for the filing of an administrative complaint resulting from a compliance review, Section 707 of Title VII (pattern and practice), which contains no time limit, is more appropriate than individual complaints under Title VII or the Americans with Disabilities Act ("ADA"). Id. at 31 and n.21.

Even if Section 503 or the regulations contained an express time limit applicable to OFCCP enforcement actions, in the absence of explicit statutory consequences for failure to meet that time limit, it would not bar this proceeding. Id. at 31, n.22.

The 180-day statute of limitations for filing a complaint alleging violation of Section 503 of the Rehabilitation Act tolls only after the complainant receives "final and unequivocal notice" of the discriminatory act. OFCCP v. Cissell Manufacturing Co., 87-OFC-26, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994, at 5; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

The rejection of a complainant's doctor's note, which set forth medical restrictions, by the complainant's foreman who told the complainant to "hit the clock," coupled with the complainant's union steward's indirect report that the company had no light duty jobs, does not constitute "final and unequivocal notice of termination." Thus, the 180-day time period did not begin to run. Id. at 5; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.

Likewise, the addition of the complainant's discussion with the personnel manager fifteen (15) days after his foreman dismissed him still does not constitute "final and unequivocal" notice of termination. The mere fact of a discussion does not trigger the running of the statute. Actual inquiry must be made into the nature and content of those discussions. Id. at 5; final decision vacated sub. nom., Cissell Manufacturing Co., v. U.S. Department of Labor, No. 94-0184 (W.D. Ky. May 24, 1994), appeal pending.