Allen v. Bolger, Civ.A. No. 83-1780.

• Decision Date: 20 November 1984
• Docket Number: Civ.A. No. 83-1780.
• Citation: 597 F. Supp. 482
• Court: U.S. District Court — District of Kansas
• Parties: Janice Lee ALLEN, Plaintiff, v. William F. BOLGER, Postmaster General, Defendant.

597 F. Supp. 482

Janice Lee ALLEN, Plaintiff, v. William F. BOLGER, Postmaster General, Defendant.

Civ.A. No. 83-1780.

United States District Court, D. Kansas.

November 20, 1984.

J. Thomas Marten, McPherson, Kan., for plaintiff.

Stephen K. Lester, Asst. U.S. Atty., D. Kansas, Wichita, Kan., Michael F. Lefkow, Asst. Regional Labor Counsel, Law Dept., Chicago, Ill., for defendant.

OPINION AND ORDER

THEIS, District Judge.

Plaintiff, Janice Lee Allen, has filed suit under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16(c), alleging that the United States Postal Service has discriminated against her on the basis of her sex and has discriminated against her in the terms and conditions of employment by allowing her fewer hours of work than other employees. The case is currently before the Court on the motion of defendant, Postmaster General William F. Bolger, to dismiss for insufficient service of process, lack of jurisdiction and improper venue.

Initially, Bolger claims that Allen failed to file suit within 30 days following receipt of the final decision of the EEOC's Office of Review and Appeals (ORA), as required by 42 U.S.C. § 2000e-16(c). Defendant contends that Allen's Detroit attorney received ORA's final decision on July 5, 1983, that the 30 days to file suit expired on August 4, and that on August 5 Allen submitted to the Court motions to proceed in forma pauperis and for appointment of counsel. Although Bolger argues that Allen's attorney received the notice on July 5 and that receipt of the notice by her attorney is knowledge imputed to Allen, Allen testifies that the Detroit attorney was not representing her on July 5, 1983. It is undisputed that Allen received the ORA decision on July 8, 1983. Since Allen did not receive the ORA decision until July 8, 1983, the Court finds that her August 5 filing falls within the 30 day limit and is therefore timely.

In Bolger's reply to plaintiff's memorandum in opposition to the motion to dismiss, defendant shifts his argument and contends that the present suit was filed on November 14, 1983, which would be outside the 30 day period. The November 14 pleading was a more complete complaint filed by a court-appointed attorney. Bolger mischaracterizes the nature of Allen's August 5 pleading. Although on August 19 this Court granted Allen leave to proceed in forma pauperis and on November 14 a more complete complaint was filed with the help of a court-appointed attorney, this Court finds that Allen's August 5 filing can justly be characterized as a complaint.

Allen filed several documents on August 5, 1983: an application for leave to proceed in forma pauperis, a copy of the final decision of the EEOC, and a government form, XE-2, entitled "Civil Rights Complaint Pursuant to 42 U.S.C. § 1983." The form contains a statement of jurisdiction, information concerning the nature of the case, a statement of the cause of action that includes supporting facts, and a request for relief. Not only is Allen's pleading of August 5 entitled a complaint, it also contains all the information that Federal Rule of Civil Procedure 8 requires to be in a complaint. Rule 8 mandates that a claim for relief shall contain (1) a short and plain statement of jurisdiction, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for relief.

Allen's complaint of August 5 provides all of the requisite information. Other courts have confirmed that the filing of an in forma pauperis petition with an accompanying complaint commences an action. Move Organization v. Philadelphia, 530 F.Supp. 764, 765 (E.D.Pa.1982). The Court holds that Allen commenced the present action on August 5, 1983, which is within the 30 day limitations period prescribed by 42 U.S.C. § 2000e-16(c).

Bolger next argues that the complaint should be dismissed because Allen has failed to serve the Postmaster General. Defendant is correct in asserting that, under 42 U.S.C. § 2000e-16(c), the head of the agency, here the Postmaster General, must be the defendant and must be served with process. Bolger's only allegation that the amended complaint against him should not related back under Federal Rule of Civil Procedure 15(c) is that actual notice of the suit was not received "within the period provided by law for commencing the action against him." F.R.C.P. 15(c). Since the Court held above that the action was properly commenced within the 30 day time period, this argument is moot. Furthermore, in its scheduling order of April 6, 1983, the Court allowed the caption of the case to be amended and correctly allowed amendment of process as well. Quillen v. United States Postal Service, 564 F.Supp. 314, 322 (E.D.Mich.1983).

Next Bolger argues that Allen failed to exhaust her administrative remedies. Defendant contends that 29 C.F.R. § 1613.214(a)(1) requires a plaintiff to bring the alleged discriminatory matter to the attention of the EEOC within 30 days of the date of the discrimination. Bolger reasons that the discrimination occurred in 1977 and that Allen did not complain until 1981. Allen counters that the discrimination which forms the subject of her action involved derogatory material in her file. She first saw the material on April 9, 1981, and she filed a complaint on April 13, 1981, four days after the discovery.

Although the original discriminatory acts occurred in 1977, plaintiff did not discover the discrimination until April 9, 1981. Under the circumstances, equitable considerations require that Allen be allowed to proceed with her claim. In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982), the Supreme Court held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional pre-requisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel and equitable tolling." The Tenth Circuit Court of Appeals in Martinez v. Orr, 738 F.2d 1107, 1109 (10th Cir.1984), extended the Zipes rationale to suits brought under § 2000e-16(c).

Equitable tolling is appropriate when a plaintiff, through no fault of her own, has been injured by fraud and remains in ignorance of it. Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946); Wilkerson v. Siegfried Insurance Agency, Inc., 683 F.2d 344,...