Rodriguez Calderon v. Banco Santander Puerto Rico, Civ. No. 87-0872 HL.

• Decision Date: 28 October 1987
• Docket Number: Civ. No. 87-0872 HL.
• Citation: 671 F. Supp. 898
• Parties: Humberto RODRIGUEZ CALDERON, Plaintiff, v. BANCO SANTANDER-PUERTO RICO, Defendant.
• Court: U.S. District Court — District of Puerto Rico

671 F. Supp. 898

Humberto RODRIGUEZ CALDERON, Plaintiff, v. BANCO SANTANDER-PUERTO RICO, Defendant.

Civ. No. 87-0872 HL.

United States District Court, D. Puerto Rico.

October 28, 1987.

Harvery B. Nachman, Santurce, P.R., for plaintiff.

Fiddler, Gonzalez & Rodriguez by Jose A. Silva Cofresi, San Juan, P.R., for defendant.

OPINION AND ORDER

LAFFITTE, District Judge.

Plaintiff filed the instant complaint averring unlawful discharge in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. sect. 621 et seq. ("ADEA"). Plaintiff also brings local claims for age discrimination, 29 L.P.R.A. sect. 146, and for discharge without just cause, 29 L.P. R.A. sect. 185b. Defendant moves for summary judgment of the ADEA claim based on a time-bar. If defendant is meritorious on this dispositive issue in the ADEA claim, the remainder of the complaint, predicated on pendent jurisdiction, must also be dismissed.

Under the ADEA, a person must file a charge for age discrimination in employment with the Equal Employment Opportunity Commission ("EEOC"). Because Puerto Rico is not a "deferral state" within the meaning of sect. 14(b) of ADEA, Lugo Garces v. Sagner International, Inc., 534 F.2d 987 (1st Cir.1976),¹ a plaintiff has 180 days from the date of the alleged violation to file a charge with the EEOC. Concepcion v. El Mundo, Inc., 516 F.Supp. 460 (D.P.R.1981). In addition, sect. 626(d)(1) proscribes the filing of a civil action until 60 days after the charge has been filed with the EEOC.

In this case plaintiff sent to the EEOC a standard EEOC charge form on April 6, 1987. Since the alleged discriminatory act occurred on January 29, 1987, the charge appeared to have been filed well within the 180 day period. The information requested on the form was very basic, consisting in toto of the names, addresses, and telephone numbers of the parties, the date and cause of the alleged discrimination, space to set down what is called merely "the particulars," and, finally, plaintiff's signature. Plaintiff provided all of this information, printing "age" on the line next to the box checked "other" under cause of discrimination.

On the same date, plaintiff sent a similar claim form containing the same information to the Unidad Anti-Discrimen (translated as Anti-Discrimination Unit, hereafter "UAD"), a Commonwealth agency, along with a copy of the charge sent to the EEOC. On April 30, 1987 the UAD sent plaintiff a letter ordering him to appear at the UAD offices on June 16, 1987. Plaintiff maintains, and defendant does not object, that copies of both the UAD and EEOC forms accompanied this letter. Both parties agree that the EEOC had given up jurisdiction for the purpose of conciliation. On June 16 a conciliation meeting was held at which both plaintiff and defendant's agent appeared. A conciliation could not be reached.

On July 9, 1987 plaintiff filed the instant suit, more than 60 days after the supposed filing date of April 6, 1987. On July 23, 1987 the EEOC form charge was returned to plaintiff with a note requesting that plaintiff's birth date and present age be included on the form. This information was duly and promptly supplied. On August 17, 1987 defendant received a letter from the EEOC informing it that plaintiff had filed an age discrimination charge against it on August 8, 1987.

Defendant argues that plaintiff's claim is untimely in two respects. First, the requisite charge with the EEOC was not filed until 190 days after the alleged violation, that is, not until August 8, 1987. The alleged violation occurred on January 29, 1987. Failure to file the charge with EEOC within the 180 day limitations period after a violation makes the civil action untimely. Concepcion, supra. Second, sect. 626(d)(1) has a similarly detrimental effect because the civil action was not instituted more than 60 days after the charge with the EEOC was filed. The complaint was filed, defendant alleges, on July 9, 1987, before the filing of the charge with the EEOC.

The starting point for considering the timeliness of plaintiff's claim is to note that the 180 day period provided in ADEA for filing a charge with EEOC is not a jurisdictional requirement for this action. Instead, the notice requirement acts like a statute of limitations, and is thus subject to waiver, estoppel, and equitable tolling. Kennedy v. Whitehurst, 690 F.2d 951, 223 U.S.App.D.C. 228 (D.C.Cir.1982). Therefore, even if it were determined that the charge was not filed until August 8, 1987, the Court may consider the circumstances as a whole in deciding whether or not to dismiss the complaint.

The EEOC apparently considers the charge to have been filed on August 8. It informed defendant for the first time of plaintiff's EEOC charge on August 17, 1987, giving the date of charge as August 8. This late date was given by the EEOC despite its demonstrated involvement in the case since April. Plaintiff originally mailed the EEOC charge on April 6. Puerto Rico UAD sent plaintiff a copy of his EEOC charge on April 30, at the time it notified plaintiff of his appearance before the UAD for conciliation. On July 23 plaintiff received his charge back from the EEOC requesting plaintiff's age and birthdate. Thus, it is undisputed that a charge was mailed on April 6, 1987 and the process of conciliation proceeded as if the charge was proper.

Nevertheless, defendant stands by its assertion that the charge was not filed with the EEOC until August 8. Defendant cites no regulation or authority for the proposition that a charge of age discrimination must include certain pieces of data, including plaintiff's age and birthdate.² The sparse form itself and caselaw...