R.D. and O. at 16. The
ALJ viewed equitable tolling of the limitations period to be appropriate, reasoning that Complainant
timely raised "the precise statutory claim in issue" but mistakenly did so "in the wrong
forum." Id . at,15, citing School Dist. of City of Allentown v. Marshall , 657
F.2d 16, 19 (3d Cir. 1981).
The tenet relied upon by the ALJ applies in narrow circumstances such as those
present in Burnett v. New York Central Railroad , 380 U.S. 424, 429 (1965), which
uniformly is cited as its source. There, the plaintiff had commenced a timely Federal
Employers' Liability Act (FELA) action in a State court of competent jurisdiction, State courts having
concurrent jurisdiction with Federal courts, and service of process was made. The action subsequently
was dismissed, however, because venue was improper under State law. The plaintiff then commenced
an action in Federal court outside the FELA limitations period, in which he reasserted his claim. The
Court held that the original timely filing tolled the limitations period. In contrast, Complainant's claim
before the State Employment Security Commission was not asserted under the STAA and, thus, is not
the precise claim mistakenly raised in the wrong forum. Accordingly, Burnett does not apply
here.
Examination of other case law reveals that statutory limitations periods are
not tolled during the pendency of grievance or arbitration proceedings under collective
bargaining agreements, Intern. Union of Elec. Workers v. Robbins & Myers, Inc ., 429 U.S.
229, 238 (1976) (Title VII, Civil Rights Act); Vaught v. R.R. Donnelley & Sons Co ., 745
F.2d 407, 412 (7th Cir. 1984), and during the pendency of proceedings before local civil service or
personnel boards. Greenwald v. City of North Miami Beach , 587 F.2d 779, 781
(5th Cir.), cert. denied , 444 U.S. 826 (1979); Dyer v. Jefferson Parish, La ., 619
F. Supp. 284, 286 (E.D. La. 1985). See Smith v. American President Lines , 571
F.2d 102, 109 (2d Cir. 1978) (discrimination charge filed with State Division of Human Rights did not
toll Title VII limitations period). The State Employment Security Commission proceeding at issue here
more nearly resembles a form of collateral review, as in the cases cited above where tolling has been
held inappropriate.
Moreover, the regulations governing the instant STAA claim militate against
tolling. While acknowledging the appropriateness of tolling "on the basis of recognized equitable
principles or because of extenuating circumstances" such as employer misrepresentation or
deception; the regulations state that "[t]he pendency of grievance-arbitration proceedings or filing
with another agency are examples of circumstances which do not justify a tolling of the 180-day
period." 29 C.F.R. § 1978.102(d)(3) (1990).2
Upon consideration, I find no basis for disregarding the STAA limitations
period. Complainant's complaint was not timely filed, and it IS DISMISSED.
SO ORDERED.
Lynn Martin
Washington, D.C.
[ENDNOTES]
1
2 Robbins and Delaware State
College v. Ricks , 449 U.S. 250, 261 (1980), as "no longer comport[ing] with relevant
Supreme Court case law." 50 Fed. Reg. 32,845-32,846 (August 15, 1985). In particular,
statutory antidiscrimination rights and remedies are legally independent of contractual or other rights and
remedies. Alexander v. Gardner-Denver Co ., 415 U.S. 36, 54 (1974). Cf .
Johnson v. Railway Express Agency , 421 U.S. 454, 461 (1975).
