barred, because it was filed more than 30 days after each of the acts of discrimination alleged in it.

   In my opinion, such finding is erroneous. I believe that a document submitted by Hanna earlier constituted a complaint covering such acts within the meaning of Section 23 of the Toxic Substances Control Act. I refer to his letter of April 19, 1979 to the Environmental Protection Agency (EPA), in which he described his efforts to determine the presence of asbestos hazards in the school buildings, alleged retaliation by the School District, and requested help or advice. (See Claimant's Ex. 7; Judge's decision, p. 4). For the reasons indicated below, I find that the complaint contained in that letter, as well as Hanna's complaint of May 29, 1979, were not barred for untimeliness, despite the fact that they were filed after the expiration of the 30-day period provided in Section 23.

   The Toxic Substances Control Act was enacted to protect the welfare of the entire population of the country. It is remedial social legislation which should be construed liberally so as to effectuate its purposes. See Sutherland, Statutory Construction and the cases cited, infra. Section 23 is designed to provide protection for individuals like Hanna who aid in carrying out the purposes of the Act and thus Promote the public interest. it would be inequitable, and would tend to thwart the effectuation of the Act, if a person such as Hanna were deprived of the protection afforded by Section 23 because of a procedural technicality in the circumstances of this case. I believe that such a result would be contrary to the intent underlying the section. Hanna did not file earlier because he was unaware of the Act, which was still relatively new at that time. His complaint was the first filed under the Act. Regulations prescribing the procedure for filing and processing discrimination complaints under the Act had not yet been issued. There was confusion at the Environmental Protection Agency as to where a complaint under Section 23 should be filed, which contributed to Hanna's failure to file the complaint of May 29, 1979 until that date. (See Claimants's Ex. 11, ALJ Ex. 1). The EPA did not respond to his April 19, 1979 letter initially until May 4, 1979 (when it furnished him his first knowledge concerning the Act and his rights thereunder); he filed the May 29, 1979 complaint within 30 days of the time he acquired such knowledge. (See Judge's decision, p. 4; Claimant's Exs. 7, 8). No one was prejudiced by his failure to file earlier. Moreover, Section 23 provides that an employee who has been discriminated against

"may" file a complaint within 30 days. The language is permissive or directory, not mandatory. It follows from these considerations, viewed in the light of well-settled equitable and other legal principles, that Hanna's complaint was not barred for untimeliness.

   Ample support for this conclusion is found in the case law and authorities. In Dartt v. Shell Oil Co., 539 F. 2d 1256 (CA 10,1976), aff'd per curiam by an equally divided court, 434 U.S. 99, 98 S. Ct. 600, 54 L. Ed. 2d 270 (1977), an employee filed a notice of intent to commence a private civil action under the Age Discrimination in Employment Act (ADEA) 36 days beyond 180-day time period provided in that statute for filing such notice. The Court of Appeals for the Tenth Circuit held that the filing of a notice of intent to sue within the 180-day period was not jurisdictional in the sense that failure to comply was an absolute bar to bringing an action, but it was more like a statute of limitations and subject to equitable modifications such as tolling and estoppel.

   In its decision the court cited Reeb v. Economic Opportunity Atlanta, Inc., 516 F. 2d 924 (CA 5, 1975), in which the Court of Appeals for the Fifth Circuit considered the requirement in Title VII of the Civil Rights Act of 1964 that a person seeking relief from employment discrimination file a charge with the Equal Employment Opportunity Commission within 90 days after the alleged violation gas occurred. The latter court held that such time requirement was not jurisdictional, and that the 90-day period did not begin to run until facts that would support a charge of discrimination were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff. In support of its conclusion in the Reeb case, the court pointed out that the Civil Rights Act contemplated that complaints would be brought by laymen, therefore it was reasonable for the courts to refuse to apply technical rules of common law pleading to charges filed initially with the Commission. The court also stated that remedial legislation such as Title VII of the Civil Rights Act of 1964 was entitled to the benefit of liberal construction.

   In the Dartt case, as in the Reeb case, the court stated (at page 1260), "The ADEA is remedial and humanitarian legislation and should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment * * * Additionally, strict compliance with [the 180-day time limitation for filing a notice of intent to sue] should

not be required of laymen attempting to enforce their statutory rights." (citations omitted) The court continued (at page 1260):

We do not contend that a filing of a notice of intent to sue is not a condition precedent to an action under the ADEA. However, the similarities between Title VII and the ADEA, the liberal reading of analogous time limitations in Title VII, * * * the remedial nature of the legislation, and the lack of legal training and guidance for many of the ADEA complainants lead us to conclude that * * * * the 180-day time limitation should be interpreted as being subject to possible tolling and estoppel. (citations omitted)

The court concluded that the circumstances of the case warranted the tolling of the 180-day time limitation of the ADEA.

   The Court of Appeals for the Third Circuit has also held that the 180-day time limitation for filing a notice of intent to sue which is contained in the ADEA is subject to equitable modification. See Bonham v. Dresser Industries, Inc., 569 F. 2d 187 (CA 3, 1978)

   The Court of Apeals for the Fifth Circuit considered the same provision of the ADEA in Edwards v. Kaiser Aluminum and Chemical Sales, Inc., 515 F. 2d 1195 (CA 5, 1975). In that case Edwards consulted an attorney to determine his legal rights shortly after the allegedly unlawful termination of his employment. The attorney was unaware of or did not advise him of the remedies available under the ADEA; it was undisputed that Edwards had no actual knowledge of that act for more than six months following his discharge. As a result, Edwards failed to file the required notice of intent to sue with the Secretary of Labor within the 180-day period prescribed. Almost a year after his discharge, after consulting other attorneys, he finally learned of his rights under the statute. Thereafter a notice of intent to sue was filed, but not until more than eight months after he acquired such knowledge of the ADEA. The court suggested the possibility of tolling the running of the 180-day period until Edwards obtained legal counsel or acquired an actual knowledge of his rights under the ADEA, but stated (at page 1198) that it was unnecessary to consider this question since he failed "to file notice within 180-days of securing counsel or within 180-days of actual knowledge" and therefore his claim was barred in any event.

   In Antonopulos v. Aerojet - General Corporation, 295 F. Supp. 1390 (E.D. Calif., 1968), the court discussed the requirement of the Civil Rights Act that charges for violation of the antidiscrimination provisions of that act "shall" be filed with the Equal Employment Opportunity Commission within 90 days after the alleged unlawful employment practice. The court stated (at page 1395):

    We are not dealing with businessmen-plaintiffs or plaintiffs accustomed to consulting lawyers about their rights. This law is a remedial one, and the Congressional purpose would not be furthered by making plaintiffs of the kind with which we are concerned, members of the working class who are generally without substantial higher education, dot every "i" and cross every "t" on their way to the courthouse. This is especially true where, as here, there may be extenuating circumstances.

There is nothing in the statute to indicate that this provision was not intended to be directory rather than mandatory. "Whether the language of a statute is imperative or merely permissive [or directory] depends on the intention as disclosed in the nature of the act * * *." Ballou v. Kemp, 68 App. D.C. 7, 92 F. 2d 556, 559 (1937). "[T]he intent of the act controls, and when the spirit and purpose of the act require the word "shall" to be construed as permissive [or directory] it will be done." Ballou v. Kemp, supra at 559. (footnote omitted). It should be noted that I am contruing the word "shall" in a less than permissive sense, i.e., in a directory sense. That is, plaintiff must show extenuating circumstances in order to avoid the requirement.

Defendant cites a directive by the General Counsel of the Commission indicating that "[A] charge alleging a discriminatory layoff must be filed within 90 days of the layoff * * *." Both this directive and the statute apply to action by the Commission as well as action by this court. It is important to note in this regard that the Commission acted with respect to this charge, filed six and one half months after the occurrence, just as though it had

been filed within ninety days. In fact, the irregularity was not even noted in its report. I therefore hold that filing a charge with the EEOC within ninety days of a discriminatory layoff is not an absolute prerequisite to filing suit based on that layoff where there are extenuating circumstances justifying the delay in filing the charge.

See also Christgau v. Fine, 223 Minn. 452, 27 N.W. 2d 193 (1947). As noted above, Section 23 of the Toxic Substances Control Act states that a claim of discrimination thereunder "may" be filed within 30 days after the violation. The permissive nature of this language provides all the more reason for applying the principles of the Antonopulos case to the present case.

   In addition to the foregoing cases, see 51 Am. Jur. 2d, Limitation of Actions, Section 146; Lewey v. H.C. Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895). Gould v. Emerson, 160 Mass. 438, 35 N.E. 1065 (1894); Miami Beach First National Bank v. Edgerly, 121 So. 2d 417, 82 A.L.R. 2d 927 (Fla., 1960), and cases cited therein. Cf. also Creviston v. General Motors Corp., 225 So. 2d 331 (Fla., 1969), Salvaggio v. Austin, 336 So. 2d 1282 (Fla., 1976).

   Having determined that Hanna's complaint was not barred for untimeliness, we turn to the question whether his activities aimed at discovering and removing asbestos hazards from school buildings were protected under Section 23 of the Act. This question, which the Judge answered in the negative, is discussed on pages 6 and 7 of the Judge's recommended decision. The Judge concluded, "it is not sufficient that the goal of an employee's efforts coincide with a goal of the Act; it is necessary to take action under the Act for the purpose of giving effect to a provision of the Act". The Judge found that while the former of these conditions was satisfied in this case, the latter was not and therefore Hanna was not protected. I believe this finding was incorrect.

   As noted by the Judge, it is Hanna's position that since control of health hazards from chemical substances such as asbestos is one of the purposes of the Act, Hanna's efforts towards discovery and removal of asbestos hazards from school buildings fostered and advanced the underlying policies of the Act, and constituted "action to carry out the purposes of" the Act within the meaning of Section 23(a)(3) (15 U.S.C. 2622 (a) (3)).

   In my opinion this position is correct. See the legislative history and analysis of the Act in 1976 U.S. Code Cong. and Adm. News, at pages 4491-4590. At page 4494 of such analysis, asbestos is listed as one of the chemicals which have been found to be potentially extremely potent cancer-causing agents in man. Hanna's position is consistent with the cardinal rule of statutory construction that the language of a remedial social statute like the Toxic Substances Control Act, which protects the public health, should be construed broadly and liberally so as to effectuate its purposes. See Sutherland, Statutory Construction, 4th ed. by Sands, Sections 58.05, 58.06, 60.01, 60.02, 71.02, 71.04.

   It is significant that the EPA, the agency charged with the administration of the Act, regards activities such as those engaged in by Hanna as important aids in the implementation of the purposes of the Act which are protected under Section 23. Hanna engaged in those activities pursuant to a program of the EPA to carry out the provisions of the Act. (See Claimant's Exs. 8, 10, and 11).

   In a letter to Lorin Hoffman, President of the Allentown schools, dated June 1, 1979 (Claimant's Ex. 10), John P. DeKany, Deputy Assistant Administrator for Chemical Control, office of Toxic Substances of the EPA pointed out that exposure to asbestos has been associated with various kinds of cancer, that even low levels of asbestos exposure can be dangerous, and that "asbestos levels measured in school buildings have even been shown to briefly exceed the current Federal workplace exposure level standards-standards which have been recommended to be lowered". Mr. DeKany continued:

Because of the above facts EPA has concluded that it is prudent and necessary to immediately survey school buildings for the presence of asbestos and to take corrective steps where the presence of asbestos materials presents a hazard. While EPA has the authority to regulate the implementation of these steps under section 6 of the Toxic Substances Control Act, the preparation and promulgation of regulations requires many months to accomplish. To save this time and because we believe school administrators will share our concerns when presented with the facts of the situation, we have launched a nation-wide program to enlist the voluntary participation of administrators such as yourself to uncover and correct hazardous conditions. To assist you and other

administrators we have prepared a guidance package which you will find enclosed.

I hope that the material in the guidance package will help resolve concerned or reasons, if any, for reluctance to survey and correct hazardous conditions within the Allentown school districts. I would also like to take this opportunity to commend Mr. Hanna President/Allentown Federation of Teachers, for bringing our program and concerns to your attention. Only with the cooperative effort of school administrators, teachers like Mr. Edward Hanna, and parents will EPA's program succeed.

   It follows from the above discussion that the Judge erred in finding that Hanna's activities did not come under the protection of Section 23 of the Act.

   It is clear that denying Hanna a personal day leave "with justification" so that he could accompany the inspector, and requiring him to take a day's leave "without justification," thus losing a day which he could take off with pay without giving a reason, constituted discrimination prohibited by Section 23. (See the transcript of the hearing, hereinafter cited by "T.", pages 73-74). On March 16, 1979 two other teachers were granted leave with justification, one for the purpose of attending to the installation of carpets in his house and the other for the purpose of accompanying his daughter to a sports event. (Claimant's Exs. 3 and 4).

   It is also clear that denying Hanna access to school buildings constituted discrimination forbidden by Section 23. His inspection of the buildings revealed the presence of potentially hazardous material and led to the subsequent inspections by the State inspector which showed the presence of asbestos and resulted in the taking of corrective measures. Hanna provided assistance to the State inspector in the making of his inspections. (T. 71-76, 130-139, 278-280, 290-293; Cl. Ex. 5, 6; Ex. R-3, R-4) It appears that no other teacher had ever been restricted in his access to other buildings in the School District and been confined to only the building in which he taught. (T. 126-130)

   Accordingly, to the extent that the recommended decision of the Judge, dated March 21, 1980, is inconsistent with the conclusions reached herein, it is set aside; to the extent that such decision is consistent with the conclusions reached

herein I adopt it as my own.

   The School District of the City of Allentown is hereby ordered:

(1) to cease discriminating against Edward Hanna in any manner with respect to his compensation, terms, conditions, or privileges of employment because of actions by him to carry out the purposes of the Toxic Substances Control Act;

(2) to grant him a day of personal leave with justification in lieu of that denied him on March 6, 1979, and to take the administrative steps (including changes in records) necessary to accomplish this;

(3) to grant Edward Hanna access to the buildings owned, operated, and maintained by the School District under the same circumstances and subject to the same restrictions as are imposed upon all other teachers employed by the School District, and

(4) to pay all costs and expenses, including attorney's fees, reasonably incurred by Hanna in connection with this proceeding, as shall be determined by me upon application therefor together with supporting data (excluding costs, expenses, or attorney's fees attributable to the court action brought against him for libel).

Dated at Washington, D.C.
this 28th day of July, 1980

       RAY MARSHALL
       Secretary of Labor