It is undisputed that the EEOC issued its final decision denying plaintiff's petition for reconsideration on May 23, 1996, and that plaintiff received notice of the decision on May 29, 1996. The EEOC decision clearly advised plaintiff of his right to file a civil action "within ninety calendar days from the date you receive this decision." (Deft. Mot; Exh. 15).
Plaintiff first argues that the complaint was timely filed on August 27, 1996, notwithstanding that the original complaint and the receipt for payment of the filing fee are both date-stamped August 28, 1996, and that the Court's docket entry reflects the August 28, 1996, filing date. Plaintiff was given a summons bearing the date of August 27, 1996, and relies upon that summons as proof that he filed the action on August 27, but the date of the filing is established by the official docket.
The court has the power to toll the statute of limitations imposed by Title VII and ADEA. The Supreme Court has suggested in Baldwin County Welcome Center v. Brown, 466 U.S. 147, 80 L. Ed. 2d 196, 104 S. Ct. 1723 (1984)(per curiam), that courts may properly allow tolling where "a claimant has received inadequate notice, ... where a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon,... where the court has led the plaintiff to believe that she had done everything required of her, ... [or] where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction. Id. at 151 (citations omitted). The tolling power is to be exercised only in extraordinary circumstances, however. Mondy v. Secretary of the Army, 269 U.S. App. D.C. 306, 845 F.2d 1051, 1057 (D.C. Cir. 1988).
Plaintiff has the burden of pleading and proving any equitable reasons for his failure to meet the 90-day time limit. See Saltz v. Lehman, 217 U.S. App. D.C. 354, 672 F.2d 207, 209 (D.C. Cir. 1982). His proffered reasons -- that the time limitations established by law are an "effective tool for the system" that create "pit falls throughout the process" and that as a pro se litigant he is no "match" for defense counsel -- are not sufficient for the invocation of equitable tolling. The Supreme Court has cautioned that congressionally mandated time requirements "for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants." Baldwin County Welcome Center, 466 U.S. at 152. Although absence of prejudice is a factor to be considered in determining whether the doctrine of equitable tolling should apply, it does not come into play until a factor is identified that might justify such tolling. Absence of prejudice is not an independent basis for invoking the doctrine and sanctioning deviations from established procedures. Id. In the absence of any allegations meeting the standard for equitable tolling set forth in Baldwin, plaintiff's complaint must be dismissed as untimely.
Plaintiff's claim of "continuing harassment" seeks judicial relief for incidents of discrimination on the basis of age, gender, and race that occurred during the pendency of his original charge (through December, 1995). If plaintiff's claim is reasonably related to the administrative complaints plaintiff filed before filing his judicial complaint, plaintiff is not required to exhaust his administrative requirements or give the EEOC notice as to this claim. Thorne v. Cavazos, 744 F. Supp. 348, 351 (D.D.C. 1990); see also 29 U.S.C. § 633a(d)(plaintiff may file ADEA judicial complaint without exhausting administrative remedies if give EEOC notice). However, the court may exercise supplemental jurisdiction over this claim only if the underlying claims of discrimination raised in the administrative charge are properly before this court. See Coombs v. Secretary of the Department of Veteran Affairs, 1996 U.S. Dist. LEXIS 21714, No. 92-1785 (D.D.C. Feb. 23, 1996), Exh. 3. Because the underlying complaint was untimely filed, plaintiff's claim of "continuing harassment" must also be dismissed.
Having determined that plaintiff's complaint must be dismissed as untimely, the court need not reach the additional grounds by which defendant sought to dismiss the complaint. An appropriate order accompanies this memorandum.
JUDGE JAMES ROBERTSON
United States District Judge
Upon consideration of defendant's motion to dismiss, or in the alternative for summary judgment, the opposition thereto, the entire record, and for the reasons stated in the accompanying memorandum, it is this 24th day of June, 1997,
ORDERED that plaintiff's request for appointment of counsel [ # 18] is denied. And it is
FURTHER ORDERED that defendant's motion for summary judgment [ # 11] is granted and plaintiff's complaint is dismissed.
United States District Judge