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JANCZEWSKI v. SECRETARY

April 9, 1991

JOLANDA N. JANCZEWSKI, Plaintiff,
v.
SECRETARY, SMITHSONIAN INSTITUTION, Defendant


Thomas F. Hogan, United States District Judge.


The opinion of the court was delivered by: HOGAN

THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE

 Now before the Court is the Defendant's Motion to Dismiss plaintiff's claim of constructive discharge and the allegations found in paragraphs 10, 11, 12, 14 and 19 of her complaint which support the constructive discharge claim. The defendant moves to dismiss the claim and the allegations pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, alleging that this Court lacks jurisdiction to hear these matters due to the plaintiff's alleged failure to timely exhaust her administrative remedies. Upon consideration of the defendant's motion, the memorandum of points and authorities in support of that motion, and the plaintiff's opposition brief, the Court shall deny the defendant's motion to dismiss as to paragraphs 10, 14 and 19 and as to the plaintiff's constructive discharge claim, but will grant the defendant's motion to dismiss as to paragraphs 11 and 12 of the plaintiff's complaint for the reasons stated below.

 Statement of the Case

 The plaintiff, Jolanda N. Janczewski, alleges in her complaint sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, she alleges that her supervisor, F. William Billingsley, engaged in a pattern of harassment, retaliated against her and eventually constructively discharged her because she is a female.

 The plaintiff met with an EEO counselor on July 23, 1987 to complain of the treatment by her supervisor. On August 26, 1987, she filed a formal complaint of discrimination with the EEO office of the Smithsonian. The matter was not resolved to the satisfaction of the plaintiff at the administrative level. She, therefore, filed her complaint in this Court on October 11, 1991.

 Defendants assert that this Court lacks jurisdiction over the plaintiff's constructive discharge claim. *fn1" The defendants contend that this claim is not properly before the Court since the plaintiff allegedly failed to bring this claim to the attention of officials at the Smithsonian within 30 calendar days of the day the plaintiff resigned. The defendant further questions this Court's jurisdiction over specific allegations of discrimination which, the defendant contends, were not brought to the attention of an EEO counselor within 30 calendar days of their occurrence. *fn2"

 Discussion

 I. Filing With Agency Within 30 Days

 This Court's consideration of conduct alleged to have violated Title VII hinges on timely resort to the agency whose employment practices are challenged. See Kizas v. Webster, 227 U.S. App. D.C. 327, 707 F.2d 524, 544 (D.C. Cir. 1983), cert. denied, 464 U.S. 1042, 79 L. Ed. 2d 173, 104 S. Ct. 709 (1984). Under 29 C.F.R. § 1613.214(a), the plaintiff must have first consulted with an EEO counselor with 30 days of the acts constituting discrimination against him or her.

 The timetable for filing administrative complaints is not jurisdictional but resembles a statute of limitations which is subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982); Brown v. Marsh, 250 U.S. App. D.C. 8, 777 F.2d 8, 14 (D.C. Cir. 1985). Strict enforcement of the procedural technicalities of Title VII is "particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." Love v. Pullman Co., 404 U.S. 522, 526-27, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972).

 Equitable considerations must be given effect when the plaintiff fails to immediately learn of the facts giving rise to his or her complaint of discrimination. In the case of the plaintiff, she did not learn that Mr. Billingsley had allegedly coerced a male employee into applying for the position of Acting Chief of Safety Division, the position from which she had been rejected in February 1987, until July, 1987. It was only after she learned this fact that she began to believe that Mr. Billingsley discriminated against her in failing to hire her in February, 1987. She contacted the EEO counselor within 30 days of learning of this fact.

 Equity tolls the 30 day time limit where the plaintiff "was not aware of the information giving rise to [her] complaint" until after the time has expired. Jarrell v. United States Postal Office, 243 U.S. App. D.C. 350, 753 F.2d 1088, 1092 (D.C. Cir. 1985). The Court, therefore, holds that the plaintiff's failure to file an administrative complaint within 30 days of her non-hiring does not deprive this Court of jurisdiction over her claim of discriminatory non-hiring. The Court applies principles of equitable tolling in reaching its decision that the plaintiff filed a timely administrative complaint concerning the defendants' failure to promote her in February 1987. The Court shall not grant the defendant's ...


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