Quina v. Owens-Corning Fiberglas Corp.
Quina v. Owens-Corning Fiberglas Corp.
Opinion of the Court
On August 18, 1976, George Quina, then age 45, filed suit against Owens-Corning Fiberglas Corp. (OCFC) pursuant to the
OCFC’s subsequent motion to dismiss
Quina amended the complaint to allege: The emotional and mental shock to Plaintiff resulting from the unlawful actions of Defendant so affected Plaintiff physically and mentally that he was not cognizant of his rights under the said Act at the time of said unlawful actions and Notice to the Secretary of Labor was given on June 16, 1976, within 180 days after Plaintiff first became aware of his said rights.
Thereafter, OCFC moved to dismiss the amended complaint on the basis that the 180-day notice requirement was a jurisdictional prerequisite which was not subject to tolling, but even if it was, the amended complaint made no showing to support that result. By order dated January 21, 1977, OCFC’s second motion was granted, the District Court stating:
[T]he law is far from settled on the issue of the effect of the 180 day notice requirement and ought to be conclusively resolved before either party is put to inordinate expense; therefore, to accomplish this it is the decision of this Court that the 180 day notice rule is jurisdictional . . . and it cannot be tolled for equitable reason.
A timely appeal was filed. Quina died on December 20, 1977, and his widow as Executrix has been substituted as the appellant.
The sole issue raised by appellant is whether § 626(d)(l)’s notice provision is subject to equitable tolling. OCFC counters that even assuming arguendo that tolling is proper, there is no equitable basis for doing so under the circumstances of this case. We agree with OCFC and affirm.
Section 626(d)(1), 29 U.S.C.A., provides that “[n]o civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days’ notice of an intent to file such action. Such notice shall be filed . . . within one hundred and eighty days after the alleged unlawful practice occurred ...” (emphasis added). Quina’s complaint alleged that he notified the Secretary within 180 days of acquiring actual knowledge of his ADEA rights. He clearly did not give notice within 180 days of his discharge, the unlawful practice challenged. Thus, the complaint is time-barred on its face.
Two Circuits have sanctioned equitable tolling of the 180-day notice requirement, Dartt v. Shell Oil Co., 10 Cir., 1976, 539 F.2d 1256, aff’d per curiam by an equally divided Court, 1977, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270; Bonham v. Dresser Industries, 3 Cir., 1978, 569 F.2d 187. The Fifth Circuit, however, has consistently pretermitted the issue or has not found the equities strong enough to warrant tolling even assuming it can be done. Powell v. Southwestern Bell Tel. Co., 5 Cir., 1974, 494 F.2d 485 (no continuing violation which would toll requirement); Woodburn v. LTV Aerospace Corp., 5 Cir., 1976, 531 F.2d 750 (same); Edwards v. Kaiser Aluminum & Chem. Sales, Inc., 5 Cir., 1975, 515 F.2d 1195, 1200 n.8; Adams v. Federal Signal
The District Court here properly ruled that this Circuit has characterized the 180-day notice provision as jurisdictional. Edwards, supra.
The amended complaint did not allege that OCFC failed to post notice as required by 29 U.S.C.A. § 627, 29 C.F.R. 850.10, Charlier, supra, and Quina had been in a position to know, or to find out, whether proper notice had been posted.
Appellant asks us to follow the Charlier route and remand because “we have before us no facts whatever on which to make a finding as to when Plaintiff acquired actual knowledge or had the means of knowledge of his ADEA rights, or to make a judgment on the tolling issue.” Reply brief at 3. That deficiency cannot be laid at the feet of the District Judge who complied with the letter and the spirit of Rule 15(a), F.R. Civ.P.
The Federal Rules do not require a plaintiff to plead evidence. But in the face of complaint which shows failure to timely give the statutory notice the plaintiff to overcome the employer’s motion to dismiss had somehow to bring to the Court’s attention facts which show he met the prerequisites for an ADEA suit. E. g., Powell, supra. In the absence of an allegation that he met that prerequisite, if a party wishes to withstand a motion to dismiss his ADEA suit on the basis of equitable tolling principles, he must make some minimal effort (if he can) to apprise the District Court, either by way of complaint, affidavit, or otherwise, of facts which would justify such an exceptional step. An ADEA complaint, time-barred on its face, cannot serve as a fishing pole to discover down the road some reason which the plaintiff can use to justify his failure to meet the threshold 180-day notice requirement of § 626(d)(1).
AFFIRMED.
. That motion was accompanied by an affidavit of an OCFC employee, stating that Quina was actually terminated on January 7, 1975, the date on which he last performed any work or services for the company, but was kept on the payroll until June 30, 1975. This is of no consequence to our disposition.
. But see Conference Report, H.R.Rep. No. 95-950, 95th Cong., 2d Sess. 12 (1978) U.S.Code Cong. & Admin.News 1978, pp.-,-(accompanying the Age Discrimination in Employment Act Amendments of 1978, Pub.L. 95-256, 92 Stat. 189):
The conferees agree that the “charge” requirement is not a jurisdictional prerequisite to maintaining an action under the ADEA and that therefore equitable modification for failing to file within the time period will be available to plaintiffs under this Act. See, e. g., Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), affirmed by an evenly divided court, 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d
270 (1977); Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir. 1977); Charlier v. S. C. Johnson & Son, Inc., 556 F.2d 761 (5th Cir. 1977).
. Quina filed a set of interrogatories to OCFC which accompanied the complaint. It is interesting that not one was directed to the question of whether, where and in what manner, ADEA notice was posted on the premises. Thus, the appellant’s subtle suggestion contained in the main brief (at 9) that “adequacy of posted notice, if any, is a question not reached in the present appeal” seems to be a strawman.
. We also point out that the Executrix has not moved to supplement the record on appeal, Rule 10(e), F.R.A.P., to apprise us of facts which would support an equitable tolling result. See Thomas, supra, 574 F.2d at 1327 n.4.
Reference
- Full Case Name
- George P. QUINA (Anne R. Quina, as personal representative of the Estate of George P. Quina, substituted in place and stead of George P. Quina, Deceased) v. OWENS-CORNING FIBERGLAS CORPORATION
- Cited By
- 27 cases
- Status
- Published