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.

Return to Table of Topics, 503 Index

The regulations which require that a complaint be filed "with the Director," 41 CFR 60-741.26(a), and a signed statement accompanying it indicating that the complainant was "regarded as having an impairment" are for the benefit of the agency and alleged deficiencies are not grounds for dismissal. OFCCP v. E.E. Black Ltd., 77-OFCCP-7R, ALJ Rec. Dec., September 13, 1978, slip op. at 10, aff'd, Assistant Secretary for Employment Standards, February 26, 1979, slip op. at 11-12, aff'd on other grounds, E.E. Black v. Marshall, 497 F. Supp. 1088 (D. Hi. 1980), E. E. Black v. Donovan, 26 FEP Cases 1183 (D. Hi. 1981).

The regulation at 41 CFR 60-741.15 authorizes any one of several interests, either the agency, the director, the prime contractor, or subcontractor, to precipitate an agency investigation without a discriminatee's formal complaint but following the same procedures and with the same potential consequences. OFCCP v. Southern Pacific Transportation Co., 79-OFC-10A, ALJ Rec. Dec., November 9, 1982, slip op. at 14; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

All facts and issues which come to light from the investigation of a properly-filed complaint can be used against a defendant in trial and with regard to scope of relief, even if beyond the scope of the original complaint. Id. at 15-16; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Although the regulations impose a requirement that the complaint be in writing and signed by the complainant, an informal presentation reduced to writing by the agency itself and sufficiently identified as to discriminatee identity constitutes substantial compliance with this regulation. Id. at 16; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

The 180-day time limit for filing a complaint is for the agency's benefit and is not jurisdictional. Id. at 17; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

Enforcement actions brought by OFCCP are not a mere subterfuge for private actions if the relief sought is aimed at circumstances revealed by an investigation begun in response to a private complaint. Ibid. ; remanded on other grounds, Acting Assistant Secretary for Employment Standards Decision and Order of Remand, February 24, 1994; Consent Order, October 13, 1995.

OFCCP may not pursue a remedy on behalf of an individual where no complaint has been filed by the individual. OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec., June 26, 1986, slip op. at 7, rev'd, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 9, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Even when an individual does not file a complaint with OFCCP, the agency may use evidence that the individual was discriminated against to demonstrate the propensity of a contractor to violate its affirmative action duties. Id. at 7, 16; 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 person 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 the complainant alleged 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 Systems, 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.

The complainant did not have sufficient information to make a charge of discrimination when complainant was told by the contractor's doctor that he would not be hired as a full-time employee, but complainant continued to work for contractor. 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 the earlier statement made by the contractor's doctor. Id. at 8; 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 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.

OFCCP can be granted relief for individuals who were not identified during the investigation nor discussed during conciliation when these persons were victims of the same practices which were presented as violations. OFCCP v. Central Power & Light Co., 82-OFC-5, ALJ Rec. Dec., March 30, 1987, slip op. at 3; Consent Decree, December 10, 1991.

OFCCP has the discretion to act or decline to act on an unsigned, and therefore, incomplete complaint. OFCCP v. Yellow Freight System, Inc., 79-OFCCP-7, ALJ Rec. Dec. and Order 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.

OFCCP is not foreclosed from considering the allegations of the initial complaint, which was erroneously closed by OFCCP, because those allegations were raised by complainant's second complaint, the filing time for a complaint is subject to equitable tolling, and the violation was a continuing series of inter-related events. OFCCP v. PPG Industries, Inc., 86-OFC-9, ALJ Rec. Dec. and Order, May 17, 1988, slip op. at 7-10, aff'd on other grounds, Deputy Assistant Secretary for Employment Standards Final Dec. and Remand Order on Remedy, January 9, 1989, slip op. 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.

ALJ grants OFCCP's motion to compel contractor to provide

discovery regarding alternate bases for jurisdiction and

regarding single-entity issue, even though complaint alleged coverage based solely on defendant's FSLIC insurance contracts. OFCCP v. USAA Federal Savings Bank, 87-OFC-27, ALJ Rulings and Order on Plaintiff's and Defendant's Motions to Compel Discovery, December 20, 1989, slip op. at 2; ALJ Recommended Decision and Order on Motions for Summary Judgment, October 4, 1990, Secretary of Labor Final Decision and Order, March 16, 1995.

The filing of a Section 503 complaint by a complainant is not a condition precedent to the filing of an administrative complaint by OFCCP because the regulations provide OFCCP with express authority to conduct compliance reviews and to follow-up such investigations by the filing of an administrative complaint. OFCCP v. Conagra Poultry Co., 89-OFC-15, ALJ Order Denying Motion for Summary Judgment, February 5, 1990, slip op. at 1; Consent Decree, May 2, 1990.

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, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994, at 15-16; 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; reversed and remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994, at 15-16; case closed, January 17, 1996.

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.; reversed and remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994, at 15-16; case closed, January 17, 1996.

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 Eduction, 90-OFC-4, ALJ Order Granting Motion to Amend Complaint, November 21, 1990, slip op. at 2; Consent Decree, 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.

Because complainant mailed his Section 503 complaint to OFCCP's district office five days before the filing deadline, which would normally ensure timely delivery, it must be assumed absence evidence to the contrary that OFCCP received the complaint within the 180-day period. Ibid.

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 Company 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; affirmed, Acting Assistant Secretary for Employment Standards Final Decision and Order, February 14, 1994; final decision vacated sub. nom., Cissell Manufacturing Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.

ALJ declines to rule on motion to dismiss OFCCP's complaint

insofar as it includes claims for relief on behalf of class members, none of whom filed a Section 503 complaint. OFCCP v. Holly Farms Foods, Inc., 91-OFC-15, ALJ Decision and Order Denying Defendant's Motion for Summary Judgment, December 23, 1992, slip op. at 5; Consent Decree, June 2, 1993.

Regulation 4l CFR 60-741.26 provides that a Section 503 complaint must be 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, slip. op. at 2; remanded on other grounds, Assistant Secretary Order of Remand for Discovery, July 20, 1995.

A union grievance initiated on behalf of a Section 503 complainant does not constitute a Section 503 complaint. Id. at 4; remanded on other grounds, 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; remanded on other grounds, 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. Id. at 4; remanded on other grounds, 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. Id. at 4; reversed and remanded, 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; remanded on other grounds, Assistant Secretary Order of Remand for Discovery, July 20, 1995.

A complaint investigation is distinct from and ordinarily would be more narrow than a compliance review. OFCCP v. City Public Service of San Antonio, 89-OFC-5, Assistant Secretary for Employment Standards Decision and Remand Order, January 18, 1995,

at 9.

The scope of a complaint investigation should be reasonably related to the violations alleged in "such complaint." Ibid.

The fact that OFCCP sought and litigated its right to conduct an investigation which exceeded its authority is not ground for dismissal of the complaint. Id. at 22.

The Assistant Secretary concluded that, similar to Title VII and the National Labor Relations Act, once a complaint is filed OFCCP may seek relief on behalf of individuals found to have been subject to handicap discrimination even if they have not filed a complaint. OFCCP v. Commonwealth Aluminum Corp., 82-OFC-6, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 9; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Because the Assistant Secretary held that OFCCP may seek relief on behalf of individuals found to have been subject to handicap discrimination once a complaint had been filed, the Assistant Secretary saw no need to address the contention that no complaint is necessary to confer jurisdiction on OFCCP to investigate and take enforcement action on behalf of individuals. Id. at 9, n.4; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

Once a complaint is received OFCCP has jurisdiction to seek individual relief for all violations discovered in its investigation. Id. at 20-21, n.10; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

A complaint alleging a violation of Section 503 filed by a complainant with OFCCP is timely, if an incidence of repeat violation occurs within 180 days of the filing of the complaint. OFCCP v. CSX Transportation, Inc., 88-OFC-24, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994, at 14-16; case closed January 17, 1996.

Union's letter to company requesting that the complainant be reinstated and the company's denial constitutes a refusal to reemploy him. Because the rejection occurred within 180 days of the filing of the complaint, it was timely. OFCCP v. CSX Transportation, Inc., 88-OFC-24, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994, at 15-16; case closed January 17, 1996.

An employer should not be allowed to shield itself in perpetuity from its obligations under Section 503 by arguing that past circumstances rendered the employee disqualified. Thus, upon request an employer is required to reconsider its employment decision after the passage of time when the employee's handicap is subject to change over time. OFCCP v. CSX Transportation, Inc., 88-OFC-24, Assistant Secretary for Employment Standards Decision and Order of Remand, October 13, 1994, at 20-21; case closed January 17, 1996.

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 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 Company 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 Company 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 Company v. U. S. Department of Labor, No. 94-0184 (W.D. Ky., May 24, 1994); appeal pending.