In a decision under an analogous employee protection provision in the
Surface Transportation Assistance Act, 49 U.S.C. app. § 2305(c)(1)
(1982) (STAA), Hicks v. Colonial Motor Freight Lines , Case No. 84-STA-20,
Decision issued December 10, 1985, the Secretary held that the statutory
period for filing a complaint under the STAA "is not a jurisdictional
prerequisite but a statute of limitations which is subject to waiver,
estoppel, and equitable tolling." Hicks v. Colonial Motor Freight Lines ,
slip op. at 7. The United States Court of Appeals for the Third Circuit
has held that the statutory filling period in the TSCA is a statute of
limitations subject to equitable tolling. School District of the City of
Allentown v. Marshall , 657 F.2d 16, 19 (1981). In view of the similar
purposes and objectives of the employee protection provisions of the STAA,
the TSCA and the ERA, I think the statutory period for filing a complaint
under the ERA is also a statute of limitations and not jurisdictional.
The decision in Hicks recognized that the timely filing of a complaint
raising the precise statutory claim in the wrong forum, i.e., with the wrong
government agency, nay toll the time period. Hicks, slip op. at 8. See
also Dartey v. Zack Company of Chicago , Case No. 82-ERA-2, Decision issued
April 25, 1983, slip op. at 6, n.1; Bennett v. New York Central R.R. Co .,
380 U.S. 424, 426, 434 (1965); Morgan v. Washington Mfg. Co ., 660 F.2d 710,
712 (6th Cir. 1981). In Hicks, however, the Secretary went on to find
that, on the facts of that case, equitable tolling was not appropriate.
Complainant's attorneys filed documents with the Equal Employment
Opportunity Commission (the wrong agency for an STAA complaint) which the
secretary found did not sufficiently raise the precise statutory claim under
the STAA. A sufficient complaint was filed with the Occupational Safety and
Health Administration (the correct agency) five days after the statutory
period had run. The Secretary held it was untimely.
Here, the ALJ held the complaint was untimely because the attachment to
the formal complaint form (the only document which raised a claim under the
ERA) was dated October 8, 1986, at least nine days after the expiration of
the filing period.3 The ALJ acknowledged
that, on the first copy of the
attachment "[t]his date is handwritten by an unknown author." R.D. and O.
at 3. The second copy has the same date typewritten, again by an unknown
author. But there are several other documents in the record which make it
clear that the narrative attachment was filed on October 8, 1986. In a
letter of November 4, 1986, from Complainant to Mr. Joseph L. Moore,
Director of the Veterans Administration, Lakeside Medical Center,
Complainant said "[t]his is in response to the letter I received Friday,
October 31, 1986, asking me to further elaborate on my narrative dated
October 8, 1986." See also , letter of November 18, 1986, to Complainant
from Mr. Moore, referring to "the complaint which you filed on October 9,
1986" letter of October 10, 1986, to Complainant from Mr. Moore which
"acknowledges receipt of your discrimination complaint [illegible]
October 9, 1986"; memorandum dated October 20, 1986, from Shirley Collins
EEO Counselor to EEO Officer, referring to a copy of the same narrative as
"memo dated 10/8/86".
The complaint here was simply untimely, even if, as discussed above,
filing a legally sufficient complaint with the wrong agency would toll the
statute. The time for filing had already expired.
Accordingly, the complaint in the case is DISMISSED.
SO ORDERED.
ANN McLAUGHLIN
Washington, D.C.
[ENDNOTES]
1 See infra p. 2.
2
3 See Stokes
v. Pacific Gas & Electric Co. etc. , Case No. 84-ERA-6, Secretary's Order of
Remand issued February 17, 1987, slip op. at 2-3.
