Rea v. Middendorf, 78-3075
| Decision Date | 03 November 1978 |
| Docket Number | No. 78-3075,78-3075 |
| Citation | 587 F.2d 4 |
| Parties | 18 Fair Empl.Prac.Cas. 801, 18 Empl. Prac. Dec. P 8826 Wallace D. REA, Plaintiff-Appellant, v. J. William MIDDENDORF, II, Secretary of the Navy, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Charles D. Kaplan, Louisville, Ky., for plaintiff-appellant.
Albert Jones, U. S. Atty., David L. Huber, James H. Barr and Barry L. Master, Asst. U. S. Attys., Louisville, Ky., for Middendorf.
Herbert L. Segal, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, Ky., for International Ass'n, etc.
Before PHILLIPS, Chief Judge, KEITH, Circuit Judge, and CECIL, Senior Circuit Judge.
Wallace D. Rea appeals from an order of the district court dismissing with prejudice his claims of religious discrimination filed pursuant to 42 U.S.C. § 2000e-16. The appeal was submitted on briefs by stipulation of the parties. The district court dismissed the complaint upon the ground that it was not filed within the limitations period provided by 42 U.S.C. § 2000e-16(c) which states:
Within 30 days of receipt of notice of final action taken by a department, agency or unit . . . an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in Section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.
Rea received notice of the adverse administrative decision regarding his claim of discrimination on October 20, 1976, and his attorney received similar notice on October 26, 1976, pursuant to 5 C.F.R. § 713.221(b)(1). The present action was filed on November 24, 1976, thirty-five days after Rea received personal notice of the adverse determination. Rea, however, asserts that the 30 day limitations period prescribed in 42 U.S.C. § 2000e-16 began running at the time his attorney received notice and, thus, the action was filed within the time period prescribed by the statute. We disagree.
Although § 2000e-16(c) fails to state specifically whether notice must be received by the employee or applicant or by his representative, the pertinent regulations and relevant case law contemplate personal receipt of notice by the employee or applicant as the crucial date for initiating the running of the 30 day limitations periods. 5 C.F.R. § 713.281(c) provides:
S 713.281 Statutory right.
An Employee or applicant is authorized by section...
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Polisoto v. Weinberger
...(90-day filing period); Minor v. Lakeview Hospital, 421 F.Supp. 485 (E.D.Wis.1976) (90-day filing period); contra, Rea v. Middendorf, 587 F.2d 4 (6th Cir.1978) (per curiam) (30-day federal sector filing period); Bell v. Brown, 557 F.2d 849 (D.C.Cir.1977) (30-day federal sector filing In Cra......
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...that the 30-day period is triggered by receipt of notice by the complainant, and not by the complainant's attorney. See REA v. Middendorf, 587 F.2d 4 (6th Cir. 1978); Craig v. Department of Health, Education and Welfare, 581 F.2d 189 (8th Cir. 1978); Bell v. Brown, 557 F.2d 849 (D.C.Cir.197......
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...notice. See Bell v. Brown, 557 F.2d 849 (D.C.Cir.1977) (30-day period not triggered by notice to attorney of record); Rea v. Middendorf, 587 F.2d 4 (6th Cir.1978) (same). Thus drawn, the jurisdictional issue before us is whether receipt of the certified mailing by petitioner's wife constitu......
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