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February 25, 1983

SAMUEL COX, Plaintiff,

The opinion of the court was delivered by: FLANNERY

 This is an action brought by Samuel Cox, a former employee of the Consolidated Rail Corporation ("Conrail") alleging discrimination in employment by Conrail in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the Civil Rights Act of 1866, 42 U.S.C. § 1981. This matter comes before the court on Conrail's motion to dismiss. Conrail alleges that plaintiff's Title VII claim is untimely, having been filed with the court more than 90 days after the plaintiff received a right-to-sue letter from the Equal Employment Opportunity Commission. In addition, Conrail argues that plaintiff's retaliation claim is not cognizable under 42 U.S.C. § 1981, which permits only actions alleging racial discrimination.

 For the reasons set forth below, defendant's motion to dismiss is denied.


 In September, 1981, plaintiff filed a charge of discrimination with the EEOC. [Charge 031810903, Plaintiff's Mem. App. A]. In his charge, the plaintiff alleged that Conrail had subjected him to harassment as a result of an earlier charge of race discrimination made by plaintiff. [Charge 013800377] In addition, plaintiff alleged that the harassment itself was racially motivated, and that the Conrail medical department was discriminatorily applying its medical policies in order to harass blacks, and to exclude blacks from employment. [Plaintiff's Ex. A]. Plaintiff subsequently amended his initial charge and repeated his allegations that the Conrail Medical Department was subjecting blacks to discriminatory treatment on the basis of race, and that he was suffering retaliation as a result of his earlier filing of a race discrimination claim. [Plaintiff's Mem. at Ex. B, C]. On July 30, 1982, the EEOC issued plaintiff a right-to-sue letter with respect to his amended charge.

 At 6:00 p.m. on October 27, 1982, Ms. Baskerville deposited the complaint, with a check drawn in an amount sufficient to cover filing fees, with the United States guard at the Clerk's night desk. Ms. Baskerville also mailed a copy of the complaint on that day to CT Corporation, Conrail's agent for service of process.

 On the afternoon of October 28, 1982, Mr. Hughes, deputy clerk of the court, called the secretary of Mr. Rogers, New York counsel and counsel of record in this case, to inform him that he had detected some errors in the form of the complaint, and that he would not permit its filing until the errors were corrected. The clerk found that the complaint violated the court's local rules, 1-4(a)(1), 1-5(b), 1-5(c), and 1-5(f). Specifically, the clerk determined that the complaint failed to conform to the local rules because (a) it was not signed by a local counsel, (b) it did not include the residence of the plaintiff, and (c) it did not include a caption that described the nature of the action. Affi. Gregory Hughes, para. 7. Mr. Rogers had taken several days of leave to visit relatives and stated that he did not learn of any filing difficulties until he called his office on the afternoon of November 1. He returned to his office on November 2 and corrected the complaint. Mr. Rogers inserted the phrase "Complaint of Race-Based Discrimination" in the caption; included the plaintiff's address; and listed Ms. Baskerville as local counsel.

 The corrected complaint was filed with the clerk on November 3, 1982. Plaintiff's counsel paid an additional filing fee and served copies of the corrected complaint on the defendant. November 3, 1982 was the 96th day after plaintiff received his right-to-sue letter from the EEOC.


 A. Title VII requires a plaintiff to file suit within 90 days of his receipt of a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f). However, failure to bring suit within 90 days does not deprive the court of subject matter jurisdiction. Gordon v. National Youth Work Alliance, 218 U.S. App. D.C. 337, 675 F.2d 356, 359-60 (D.C. Cir. 1982). Like statutes of limitations generally, Title VII's time provisions are subject to modification on equitable grounds. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982). Although Zipes dealt with the time limitation for filing charges of discrimination with the EEOC, its logic and reasoning was extended by this Circuit to the time limits for filing suit after receiving a right-to-sue letter from the EEOC. Gordon, supra.

 In determining whether this case is appropriate for equitable modification of the time requirement, this court notes that "fairness, not excessive technicality, is the guiding principle under . . . Title VII." Zipes, 102 S. Ct. 1127 at 1134; Gordon, 675 F.2d at 360. Turning to the facts surrounding the filing, rejection, and ultimate acceptance of plaintiff's complaint, the court finds that this is an appropriate occasion in which to apply the doctrine of equitable tolling. Although plaintiff's complaint was not properly filed with the clerk until six days after the expiration of the 90-day time period, plaintiff submitted a generally conforming complaint to the clerk within the time period set forth in the statute. The clerk rejected the complaint because of minor, and essentially technical, requirements of the local rules. Despite its defects, the complaint informed defendants adequately of the nature of the claim, and the relief sought. Defendant suffered no surprise, or other prejudice, as a result of the delay in filing an acceptable complaint. Ms. Baskerville mailed a copy of the original complaint, which is virtually identical to that eventually accepted by the Clerk, to defendant on October 27, 1982. In addition, Mr. Rogers mailed a complimentary copy of the complaint to defendant's counsel on October 27. Accordingly, the defendant had actual notice of the complaint within the statutory period, and was not prejudiced by the clerk's action.

 Additionally, this court finds that the clerk's rejection of the initial complaint, although mandated by the local rules of this jurisdiction, addressed technical deficiencies in the complaint, that should not operate to bar this claim from proceeding. Plaintiff's counsel, a New York attorney, was unfamiliar with the local rules of this jurisdiction. In his complaint, he inadvertently failed to include several facts needed by the Clerk's Office in order to process complaints efficiently. However, none of these defects implicate considerations that should bar this claim. Generally, statutes of limitations are enforced to insure fairness to defendants. See Burnett v. New York Central Railroad, 380 U.S. 424, 428, 13 L. Ed. 2d 941, 85 S. Ct. 1050 (1965). The defects at issue here do not operate to create unfairness to the defendant. The defendant will not suffer surprise if this action proceeds. Plaintiff has not slept on his rights, but has inadvertently submitted a technically deficient complaint within the statutory period. The court finds that the fundamental purpose underlying the 90-day period was satisfied under these facts, and equitable considerations support the tolling of the 90-day period. *fn1" Defendant's motion to dismiss on grounds of untimeliness is denied, and plaintiff may proceed with this action.

 B. The defendant argues, in addition, that plaintiff's § 1981 claim should be rejected because it is a retaliation claim and accordingly, not cognizable under 42 U.S.C. § 1981. In making this argument, the defendant refers the court to instances in which other jurisdictions have barred retaliation claims brought under 42 U.S.C. § 1981, asserting that § 1981 applies only to discrimination on the basis of race and color. See e.g., Walton v. Rockwell International, 24 F.E.P. Cases 955 (C.D. Cal. 1980); Tramble v. Converters Ink Co., 343 F. Supp. 1350 (N.D. Ill. 1972). The plaintiff argues that his retaliation claim is nevertheless cognizable under § 1981 for two reasons. First, plaintiff disputes defendant's characterization of the claim. The plaintiff states that the § 1981 claim encompasses not only retaliation for filing an EEO complaint, but also other discriminatory actions set forth in, or referenced in, ...

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