Bassett v. Sterling Drug, Inc.

• Decision Date: 20 January 1984
• Docket Number: No. C-1-83-41.,C-1-83-41.
• Citation: 578 F. Supp. 1244
• Parties: Charles BASSETT, Plaintiff, v. STERLING DRUG, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

578 F. Supp. 1244

Charles BASSETT, Plaintiff, v. STERLING DRUG, INC., et al., Defendants.

No. C-1-83-41.

United States District Court, S.D. Ohio, W.D.

January 20, 1984.

Paul H. Tobias, Cincinnati, Ohio, for plaintiff.

J. Alan Lips, Cincinnati, Ohio, for defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

SPIEGEL, District Judge.

This matter is before the Court for consideration of defendants' motion for summary judgment (doc. 18), plaintiff's memorandum in opposition (doc. 23), defendants' reply memorandum (doc. 24), and plaintiff's affidavit in opposition (doc. 18). Originally, plaintiff proceeded on a variety of state claims in addition to his claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634. Because we previously dismissed these state claims (doc. 11), we now address only the age discrimination claim.

The defendants advance three theories in support of their motion: (1) that plaintiff's ADEA claim must be dismissed for failure to fulfill all conditions precedent to suit; (2) that plaintiff's ADEA claim is barred by plaintiff's failure to timely file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC); and (3) that plaintiff's ADEA claim cannot succeed on the merits. We conclude that plaintiff's claim is barred by his failure to timely file a charge of discrimination with the EEOC. Therefore, we find it unnecessary to address the merits of plaintiff's claim.

The plaintiff, Charles Bassett, was discharged from employment on August 28, 1981, when he was fifty-six years of age. Mr. Bassett met with his present counsel in September of 1981, but pursued no further legal action until August 24, 1982 when he filed a charge of discrimination with the EEOC, 361 days after his termination. Thereafter, plaintiff commenced this action on January 4, 1983.

The filing requirement in the ADEA provides that:

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Commission. Such a charge shall be filed—

(1) within 180 days after the alleged unlawful practice occurred; or

(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

29 U.S.C. § 626(d). The defendants agree that Ohio is a deferral state, and that the 300 day period is applicable. Nevertheless, defendants insist that plaintiff's age discrimination claim must be dismissed because no charge was filed with the EEOC until 361 days after the alleged unlawful practice occurred. Plaintiff resists dismissal by arguing that the filing period is in the nature of a statute of limitations and is subject to equitable tolling. Furthermore, plaintiff contends that he was mentally incompetent for 129 days during the interim between his discharge and his filing with the EEOC, and that the filing period should have tolled for 129 days. If plaintiff's theory of equitable tolling in this context is correct, this would render the EEOC charge timely filed.

The Sixth Circuit held, in Wright v. State of Tennessee, 628 F.2d 949 (6th Cir. 1980) (en banc), that the filing requirements embodied in § 626(d) of the ADEA are not jurisdictional prerequisites. Being more in the nature of a statute of limitations, these filing periods are subject to equitable tolling. This view is consistent with views of other Circuits that have considered the issue. See Coke v. General Adjustment Bureau, 616 F.2d 785 (5th Cir. 1980), aff'd on rehearing en banc, 640 F.2d 584 (5th Cir.1981); Nielsen v. Western Electric Co., 603 F.2d 741 (8th Cir.1979); Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir.1978), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); Bonham v. Dresser Industries, Inc., 569 F.2d 187, 192-93 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978); Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir.1976), aff'd by equally divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977), reh'g denied, 434 U.S. 1042, 98 S.Ct. 785, 54 L.Ed.2d 792 (1978). However, the instant case does not permit of easy application of this principle. The case law in this area deals with situations where the plaintiff's ignorance led to the failure to timely file. We are aware of no cases entertaining the issue of whether mental incompetence tolls the filing period. We therefore, direct our attentions to addressing this novel issue.

Defendants seek to arrest our analysis of this issue by contending that equitable tolling is inappropriate where plaintiff has consulted with or retained an attorney unless failure to file is due to attorney error. We are aware of cases that so hold. See e.g., Keys v. California Texas Oil Corp., 590 F.2d 45 (2d Cir.1978); Volk v. Multi-Media, Inc., 516 F.Supp. 157 (S.D.Ohio 1981). Nevertheless, we are not persuaded that the reasoning undergirding these decisions is adequate support for application of that general principle in this case. Consultation with an attorney is reasonably likely to erase the plaintiff's ignorance. Contrariwise, whatever be the powers of a lawyer, most would agree that legal consultation cannot cure or even ward off mental incompetence. This is a distinction sufficient to render those cases inapposite. Hence, we proceed with our inquiry.

We next encounter the argument that mental incompetence does not toll federal statutes of limitation. There is a line of authority supporting this general proposition. See DeArnaud v. United States, 151 U.S. 483, 14 S.Ct. 374, 38 L.Ed. 244 (1894); Casias v. United States, 532 F.2d 1339 (10th Cir.1976); Accardi v. United States, 435 F.2d 1239, 1241 n. 2 (3d Cir. 1970); Williams v. United States, 228 F.2d 129 (4th Cir.1955), cert. denied, 351 U.S. 986, 76 S.Ct. 1054, 100 L.Ed. 1499, reh'g denied, 352 U.S. 860, 77 S.Ct. 26, 1 L.Ed.2d 71 (1956); O'Hara v. Kovens, 473 F.Supp. 1161, 1167 (D.Md.1979), aff'd, 625 F.2d 15 (4th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); Jackson v. United States, 234 F.Supp. 586, 587 (E.D.S.C.1964). Impressive as this string of citations may seem, the weight of authority is never defined solely in terms of quantity. It is noteworthy that, with the exception of one case,¹ these cases involve claims against the United States. In fact, the issue is most often encountered in cases dealing with claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. Because we conclude that the FTCA and the ADEA were enacted to advance different policies, we conclude that these cases are not dispositive of the question of whether the filing period under the ADEA is tolled by mental incompetence.

The FTCA like other legislation permitting claims against the United States Government, is a partial abrogation of sovereign immunity. As is often recited, such waivers of sovereign immunity are to be strictly construed and the terms thereof strictly complied with. See generally, 1 L. Jayson, Handling Federal Tort Claims, § 51 at 2-4 (1983) and cases cited therein. A strict construction of the FTCA's statute of limitations, 28 U.S.C. § 2401(b) produces the reasoning that § 2401(b) preempts state tolling principles, and because § 2401(b) contains no provisions for tolling, equitable tolling principles are inapplicable in FTCA suits. See generally, 2 L. Jayson, Handling Federal Tort Claims, §§ 279.01, 279.03.

In vivid contrast, "the ADEA is remedial and humanitarian legislation and should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment." Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir.1976) (citing Moses v. Falstaff Brewing Co., 525 F.2d 92, 94 (8th Cir.1975) aff'd, 550 F.2d 1113 (8th Cir.1977)). As we are of the mind that this distinction is significant, we decline to apply without further analysis, the federal equitable tolling principle that has been developed primarily in cases involving claims against the United States to a claim arising under the ADEA.

In determining whether mental incompetence should toll the filing period under the ADEA it is helpful to examine what circumstances do justify tolling the filing period. In a recent case in this District, Moon v. Aeronca, Inc., 541 F.Supp. 747 (S.D.Ohio 1982), the Court applied the five factors articulated in Abbott v. Moore Business Forms, Inc., 439 F.Supp. 643 (D.N.H.1977) as suggested by the Sixth Circuit in Wright v. State of Tennessee, 628 F.2d 949, 953 (6th Cir.1980) (en banc). These factors are:

1. lack of actual notice of the filing requirements;

2. lack of constructive knowledge;

3. diligence in pursuing one's rights;

4. absence of prejudice to the defendant; and

5. plaintiff's reasonableness in remaining ignorant of the filing requirement.

Moon, 541 F.Supp. at 751 (quoting Abbott, 439 F.Supp. at 646). Moreover, leading scholars in this area agree, in essence, that tolling is appropriate where the plaintiff remains ignorant of the filing requirement, and the plaintiff's ignorance is due to misconduct by the employer or other circumstances where the diligence of the plaintiff cannot be questioned. See generally, B. Schlei & P. Grossman, Employment Discrimination Law, 491-92 (2d Ed.1983). Thus, it is generally accepted that, under the appropriate equitable circumstances, the plaintiff's ignorance will toll the filing period under the ADEA.

Viewing the ADEA in its proper light as humanitarian, remedial legislation we find it difficult to escape the conclusion that mental incompetence is an even more compelling reason to toll the filing period than is plaintiff's ignorance. Common sense dictates that individuals have a greater capacity to overcome ignorance of matters of public record than to overcome the problems...