Abbott v. Moore Business Forms, Inc.

• Decision Date: 28 October 1977
• Docket Number: Civ. A. No. 76-82.
• Citation: 439 F. Supp. 643
• Parties: Clifford N. ABBOTT v. MOORE BUSINESS FORMS, INC., Thomas A. Powell, John L. Wilson, L. Dale Foster, and Robert H. Downie.
• Court: U.S. District Court — District of New Hampshire

439 F. Supp. 643

Clifford N. ABBOTT v. MOORE BUSINESS FORMS, INC., Thomas A. Powell, John L. Wilson, L. Dale Foster, and Robert H. Downie.

Civ. A. No. 76-82.

United States District Court, D. New Hampshire.

October 28, 1977.

Eleanor Krasnow, Manchester, N.H., for plaintiff.

L. Jonathan Ross, Wiggin & Nourie, Manchester, N.H., for defendants.

MEMORANDUM OPINION

BOWNES, District Judge.

Plaintiff has brought an action alleging age discrimination by defendant under 29 U.S.C. § 621 et seq., Age Discrimination in Employment Act (ADEA), and has sought further relief pursuant to 42 U.S.C. §§ 1985 and 1988, alleging that defendants conspired to deprive plaintiff of his civil rights. He has also sought to certify his claim as a class action; this question is not at issue at present. Defendants have moved to dismiss on the grounds that (1) this court lacks subject matter jurisdiction because of plaintiff's alleged failure to comply with the time filing requirements of 29 U.S.C. § 626(d) and (2) for failure to state a claim upon which relief may be granted pursuant to 42 U.S.C. § 1985(3).

The facts are not in dispute.

Plaintiff was discharged on January 31, 1974, by Moore Business Forms; he was then forty-three years of age. In February, 1974, plaintiff lodged age and national origin discrimination charges against defendant with the Department of Labor, the Equal Employment Opportunity Commission, and the New Hampshire Commission on Human Rights. He filed a formal complaint with the Department of Labor on the age discrimination charge on March 5, 1974. Following an investigation by the Department, in which a meeting with defendant took place, the Department informed plaintiff and defendant on April 3, 1974, that it had found no basis for the charge. Plaintiff was not specifically informed of the requirement to file a timely intent to sue letter with the Secretary of the Department of Labor should he pursue an independent suit. Cf. 29 U.S.C. § 626(d).

In October, 1975, following the completion of the EEOC procedures relating to his national origin discrimination charge (and a subsequent retaliation claim), plaintiff was referred to counsel who thereupon informed him of the necessity of filing an intent to sue letter on the age discrimination charge. This was done on November 20, 1975. On January 29, 1976, a formal conciliation was held at the Department of Labor, at which time the parties were unable to conciliate their differences. The instant suit was filed March 15, 1976.

THE JURISDICTIONAL QUESTION UNDER 29 U.S.C. § 626(d)

I. I ruled in Skoglund v. Singer Company, 403 F.Supp. 797, 804 (D.N.H. 1975), that Section 626(d) was not "jurisdictional," in the sense that failure to meet the requirement necessarily deprived the court of jurisdiction to hear the case. Relying on the congressional intent which propelled the age discrimination act, on the language in the statute itself, and on the legislative history, I held that it was akin to a statute of limitations and thus subject to equitable tolling considerations.

It is not clear from the statutory language whether the timely filing requirement is jurisdictional or not. In cases of ambiguity, construction of the statute should favor the broad humanitarian goals of the legislation.

A procedural requirement of the Act, of doubtful meaning in a given case, should not be interpreted to deny an employee a claim for relief unless to do so would clearly further some substantial goal of the Act. Moses v. Falstaff Brewing Corporation, 525 F.2d 92, 94 (8th Cir. 1975).

Since Skoglund, several other courts have examined this issue with a resulting split of authority; some courts hold the requirement to be jurisdictional and others hold it to be subject to equitable modifications. Clark v. West Chemical Products, Inc., 557 F.2d 1155 (5th Cir. 1977); Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976) and cases cited at 1259, n. 2, cert. granted, 429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534 (1977); Hays v. Republic Steel Corp., 531 F.2d 1307, 1312 (5th Cir. 1976); Moses v. Falstaff Brewing Corp., supra; Nickel v. Shatterproof Glass Corp., 424 F.Supp. 884 (E.D. Mich.1976); Davis v. RJR Foods, Inc., 420 F.Supp. 930 (S.D.N.Y.1976); Sutherland v. SKF Industries, Inc., 419 F.Supp. 610 (E.D. Pa.1976).

There continues to be a misapprehension as to the precise use of the term "jurisdictional" in this framework. The early court decisions holding the requirement to be jurisdictional nonetheless discussed the specific facts in the case, intimating that the equities did not favor waiver. If the requirement were truly jurisdictional, such as the $10,000 amount in controversy requirement, equitable factors would have no relevance. Later decisions have frequently either cited the early holdings that the requirement is jurisdictional or have analyzed the facts and determined that the party had not established a sufficiently compelling excuse to warrant relief from the deadline requirement.

The First Circuit has not directly addressed this issue. However, in a recent case, Hadfield v. Mitre Corp. et al., 562 F.2d 84 (1st Cir. 1977), the court commented on the time requirements of Section 633(b) of Title 29, which concern the sixty day waiting period after proceedings have been initiated with the state administrative agency before suit can be brought under the ADEA. While not ruling directly on the question here, the court suggested that equitable tolling is permissible for Section 633(b). Ibid. at 87-88. This is an indication that, in this Circuit, observance of the time limit is not strictly jurisdictional.

The court cited with approval three cases which refused to find statutory filing periods to be jurisdictional barriers to suit. In Love v. Pullman, 404 U.S. 522, 525-526, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972), the Supreme Court cautioned against an overly technical insistence on filing requirements when dealing with lay people who seek redress under a remedial statute, Title VII. Reeb v. Economic Opportunity Atlanta, Inc., 5 Cir., 516 F.2d 924, 928-931 (1975), held the timing requirements for Title VII not to be jurisdictional, but analogous to a statute of limitations subject to equitable modifications such as tolling. The court in Goger v. H. K. Porter Company, Inc., 3 Cir., 492 F.2d 13, 16-17 (1974), found that the failure to file a timely complaint under Section 633(b), while more than a "mere `technical' omission," was subject to equitable relief when circumstances so demanded.

Extrapolating from the First Circuit's approving reference to the above cases, and its adverting to the possibility of the district court's finding equitable reasons to toll the requirements for Section 633(b), I find it a reasonable assumption that a similar view of Section 626(d) will be taken.

I, therefore, reiterate my holding in Skoglund that the filing deadline is not strictly jurisdictional but is a condition precedent, analogous to a statute of limitations which may be tolled when the equities so demand.

II. The Supreme Court first recognized the general applicability of equitable tolling factors to statutes of limitations in Bailey v. Glover, 21 Wall. 342, 349, 88 U.S. 342, 349, 22 L.Ed. 636 (1874). See Gardner v. Panama R. Co., 342 U.S. 29, 31, 72 S.Ct. 12, 96 L.Ed. 31 (1951); Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946).

Factors suggesting the appropriateness of tolling and which must be weighed in this case include: lack of actual notice of the filing requirement, Powell v. Southwestern Bell Telephone Company, 494 F.2d 485, 487 (5th Cir. 1974); lack of constructive knowledge, e. g., as where one has secured an attorney, who is thereby charged with presumptive knowledge of the law's requirements, Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1197 (5th Cir. 1975); diligence in pursuing one's rights, Dartt v. Shell Oil Co., supra; absence of prejudice to defendant, Love v. Pullman Co., supra, 404 U.S. at 526, 92 S.Ct. 616 (1972); plaintiff's reasonableness in remaining ignorant of the notice requirement, cf. Melendez v. Singer-Friden Corp., 529 F.2d 321, 324-325 (10th Cir. 1976).

Reading the complaint in the light most favorable to plaintiff, as I must do in a motion to dismiss, I find that plaintiff had neither actual knowledge nor constructive notice of the notice of intent filing requirement until he contacted his present attorneys in October, 1975. Defendant has questioned whether plaintiff received a certain publication from the Department of Labor in April, 1974, which included the filing information. Plaintiff stated under oath at the hearing before this court that he had no recollection of receiving the disputed pamphlet. I must take the facts in the light most favorable to plaintiff in ruling on defendant's motion to dismiss. For purposes of this motion, therefore, plaintiff is not charged with actual or constructive knowledge of the filing requirement until he retained present counsel in October, 1975. Within thirty days thereafter, on November 20, 1975, plaintiff's counsel filed a notice of intent to sue letter with the Department of Labor.

Turning to the question of plaintiff's diligence in seeking to vindicate his rights, the record indicates that he actively pursued the remedies made known to him. After his discharge from Moore Business Forms on January 31, 1974, he made personal visits to the Department of Labor to file an age discrimination charge on February 5, 1974, to the EEOC to file a national origin discrimination charge on February 6, 1974, and to the New Hampshire Commission on Human Rights to file the age discrimination charge on February 8, 1974. Thereafter, plaintiff remained in close contact with the compliance officer at the Department of Labor and sent all information requested from him to the Department of Labor. On March 11, 1974, plaintiff completed the "Employment Information Form" sent by the Department...